No. L-42088.
 May 7, 1976.* AQUINO, J.:
ALFREDO G. BALUYUT, petitioner, vs. HON. ERNANI CRUZ PAÑO,
ENCARNACION LOPEZ VDA. DE BALUYUT, JOSE ESPINO and
CORAZON ESPINO, respondents.
Settlement of estates; Letters of administration; To whom issued; Although
surviving spouse with preferential right to be appointed administrator, hearing
should be held to determine the said spouse’s competency to discharge trust;
Reasons.—While the probate court correctly assumed that the surviving spouse
enjoys preference in the granting of letters of administration it does not follow that
she should be named administration without conducting a full-dress hearing on her
competency to discharge that trust. Even the directive of the testator in his will
designating that a certain person should act as executor is not binding on the probate
court and does not automatically entitle him to the issuance of letters testamentary. A
hearing has to be held in order to ascertain his fitness to act as executor. He might
have been fit to act as executor when the will was executed but supervening
circumstances might have rendered him unfit for that position. It was held that a
hearing is necessary in order to determine the suitability of the person to be
appointed administrator by giving him the opportunity to prove his qualifications and
affording oppositors a chance to contest the petition.
Same; Conversion of proceedings for issuance of letters of administration into
testamentary proceedings where deceased died with a will.—It is necessary to
convert the proceeding in the lower court into a testamentary proceeding. The
probate of the will cannot be dispensed with and is a matter of public policy. After
the will is probated, the prior letters of administration should be revoked and
proceedings for the issuance of letters testamentary or of administration under the
will should be conducted.
Certiorari; When available.—Certiorari lies when a grave abuse of discretion
was patently committed by the lower court or if the petitioner’s contention is clearly
tenable or when the broader interests of justice or public policy justify the
nullification of the questioned order.
___________________
*
 SECOND DIVISION.
87
VOL. 71, MAY 7, 1976  87  administratrix.
Baluyut vs. Paño
PETITION for certiorari of an order of the Court of First Instance of Rizal (Quezon
City).
The facts are stated in the opinion of the Court.
     Mary Concepcion-Bautista for petitioner.
     Santiago, Salunat and Agbayani for respondent Encarnacion Lopez Vda. de
Baluyut.
Sotero Baluyut died in Manila on January 6, 1975 at the age of eighty-six, leaving an
estate allegedly valued at not less than two million pesos. 
A few weeks later, or on February 20, his nephew, Alfredo G. Baluyut, filed in the
Court of First Instance of Quezon City a verified petition for letters of
administration. He alleged that the deceased was survived by his widow,
Encarnacion Lopez, who was mentally incapable of acting as administratrix of the
decedent's estate. Alfredo surmised that the decedent had executed a will. He prayed
that he be appointed regular administrator and in the meantime as special
administrator. 
The lower court in its order of February 24, 1975 appointed Alfredo G. Baluyut as
special administrator with a bond of P100,000. 
Mrs. Baluyut in her verified opposition of March 8, 1975 alleged that she was
unaware that her deceased husband executed a will. She characterized as libelous the
allegation as to her mental incapacity. She prayed that she be named administratrix
and that the appointment of Alfredo G. Baluyut as special administrator be set aside. 
The lower court in its order of March 24, 1975 cancelled Baluyut's appointment as
special administrator. In that same order the lower court noted that after asking Mrs.
Baluyut a series of questions while on the witness stand, it found that she "is healthy
and mentally qualified". 
Alfredo G. Baluyut moved for the reconsideration of that order. Acting on that
motion, the lower court in its order of March 31, 1975 appointed Baluyut and Jose
Espino as special administrators. 
Mrs. Baluyut in her verified amended opposition of September 2, 1975 asked that
Espino, former governor of Nueva Vizcaya and an alleged acknowledged natural
child of Sotero Baluyut, be appointed administrator should she not be named
 
On November 12, 1975 Mrs. Baluyut filed an urgent motion praying that she be
appointed administratrix. She reasoned out that Alfredo G. Baluyut had no more
interest in the decedent's estate because as a collateral relative he was excluded by
Espino and other supposed descendants of the deceased who had intervened in the
proceeding, and, therefore, it was not necessary to continue with the reception of his
evidence. 
1
Alfredo G. Baluyut opposed the urgent motion. He alleged that Espino was not a
natural child of Sotero Baluyut because Espino's parents were the spouses Elino
Espino and Josefa de Guzman. Alfredo further alleged that Mrs. Baluyut was
declared an incompetent by the Juvenile and Domestic Relations Court of Quezon
City in its order of September 25, 1975 in Special Proceeding No. QC-00939 for the
guardianship of Mrs. Baluyut. That proceeding was instituted by her sisters, Cristeta
Lopez Vda. de Cuesta and Guadalupe Lopez-Viray.  Q. Do you know Gov. Espino? — A. Yes.
At the hearing of Mrs. Baluyut's urgent motion on November 17, 1975 no oral and
documentary evidence was presented. The lower court merely examined Mrs.
Baluyut as follows: 
Court: We want also to hear her testimony.  relationship with the late Don Sotero Baluyut?
xxx xxx xxx
Atty. Salunat: We are now therefore presenting
the widow, your Honor, to take the witness stand
for examination by the court.  Atty. Salunat: I think that would be all, your
xxx xxx xxx
Court to witness: Can you testify in English?-No,
your Honor, Pampango.  Atty. Salunat: We will ask the Court to (be
Q. Ilocano? — A. No, your Honor.
Atty. Salunat: She can testify in Tagalog your
Honor, which comprehensible.
Court: Your remember when you were born,
Mrs. Baluyut? — A. March 25, 1901.
Q. Where did you graduate? — Madres
Dominicas.
Q. When did you get married to Sec. Baluyut? —
A. I cannot remember the date but this was in
Lingayen.
Q. What church? — A. A Catholic.
Court: You want to ask more questions
Attorney?
Atty. Salunat: Just a few clarificatory questions,
your Honor.
Q. Why do you know him? — A. Because he is
like a son to me.
Q. Do you know whether Gov. Espino has any
— A. Yes, why not.
Q. Will you please tell us what is the relationship
if there is any? — A. He is his son, sir.
Honor.
Court: Submitted? 
allowed to) submit a rejoinder, your Honor. 
The probate court in its order of November 27, 1975 terminated the appointments of
Espino and Alfredo G. Baluyut as special administrators and appointed Mrs. Baluyut
as regular administratrix with a bond of P20,000. The order was based on the fact
that as surviving spouse she has a preferential right to be appointed as administratrix
of her deceased husband's estate and that she is entitled to three-fourths of the
conjugal estate: one-half in her own right and one-fourth as heir of the deceased. The
lower court said it was convinced of the widow's capacity and that her "sufficient
understanding" justified her appointment. 
Letters of administration were issued to Mrs. Baluyut after she posted her bond. She
took her oath of office on November 29, 1975. 
On December 13, 1975 Alfredo G. Baluyut filed against respondent Judge, Mrs.
Baluyut and the Espino spouses this special civil action of certiorari in order to set
aside the order of November 27 appointing Mrs. Baluyut as administratrix. 
2
This court issued a restraining order enjoining the respondents from enforcing the ascertain his fitness to act as executor. He might have been fit to act as executor
order of November 27 and from disposing of the funds or assets of the estate in their when the will was executed but supervening circumstances might have rendered him
possession or deposited in certain banks.  unfit for that position. 

The Espino's in their comment alleged that Alfredo G. Baluyut is aware that Jose Thus, it was held that a hearing is necessary in order to determine the suitability of
Espino was acknowledged in a notarial instrument by Sotero Baluyut as his natural the person to be appointed administrator by giving him the opportunity to prove his
child.  qualifications and affording oppositors a chance to contest the petition (Matute vs.
Court of Appeals, L-26106, January 31, 1969, 26 SCRA 768, 791). 
Mrs. Baluyut in her comment alleged that Alfredo G. Baluyut instituted the
administration proceeding after he had failed to get from her a cheek for P500,000 In this case the probate court briefly and perfunctorily interrogated Mrs. Baluyut in
belonging to the decedent's estate and that he grossly misrepresented that she was order to satisfy itself on her mental capacity. The court did not give Alfredo G.
mentally incompetent. She further alleged that the order of the Juvenile and Baluyut a chance to contest her qualifications. He had squarely raised the issue as to
Domestic Relations Court declaring her an incompetent was issued in a blitzkrieg her competency. The probate court assumed that 
manner because it was based on the report of Doctor Lourdes V. Lapuz which was
filed in court just one day before the order was issued.  Alfredo G. Baluyut had no interest in the decedent's estate. As it now turned out, he
is one of the legatees named in the decedent's alleged will. 
Mrs. Baluyut's main contention is that it is the probate court and not the Juvenile and
Domestic Relations Court that should decide the issue as to her competency to act as Moreover, it is necessary to convert the proceeding in the lower court into a
administratrix.  testamentary proceeding. The probate of the will cannot be dispensed with and is a
matter of public policy (Art. 838, Civil Code; See. 1, Rule 75, Rules of Court;
Alfredo G. Baluyut in his manifestation of February 2, 1976 disclosed that Sotero Guevara vs. Guevara, 74 Phil. 479 and 98 Phil. 249). 
Baluyut executed a notarial will on April 14, 1973. In that will he bequeathed to Mrs.
Baluyut his one-half share in certain conjugal assets and one-fourth of the residue of After the will is probated, the prior letters of administration should be revoked and
his estate. The remaining three-fourths were bequeated to his collateral relatives proceedings for the issuance of letters testamentary or of administration under the
named Irene, Erlinda, Estrellita, Eliseo and Alfredo, all surnamed Baluyut, and will should be conducted (Sec. 1, Rule 82, Rules of Court; Cartajena vs. Lijauco and
Emerita, Emilio and Benjamin, all surnamed Miranda. The testator designated Mrs. Zaballa, 38 Phil. 620; Rodriguez vs. De Borja, L-21993, 64 O.G. 754, 17 SCRA
Baluyut as executrix. Espino is not mentioned in that will.  418). 

In this Court's resolution of May 7, 1976 respondents' comments were treated as their Whether Sotero Baluyut died testate or intestate, it is imperative in the interest of the
answers. The case was deemed submitted for decision.  orderly administration of justice that a hearing be held to determine Mrs. Baluyut's
fitness to act as executrix or administratrix. Persons questioning her capacity should
The issue is whether the lower court acted with grave abuse of discretion in be given an adequate opportunity to be heard and to present evidence. 
appointing Mrs. Baluyut as administratrix. 
The lower court departed from the usual course of probate procedure in summarily
We hold that while the probate court correctly assumed that Mrs. Baluyut as appointing Mrs. Baluyut as administratrix on the assumption that Alfredo G. Baluyut
surviving spouse enjoys preference in the granting of letters of administration (Sec. was not an interested party. That irregularity became more pronounced after Alfredo
6[a), Rule 78, Rules of Court), it does not follow that she should be named G. Baluyut's revelation that the decedent had executed a will. He anticipated that
administratrix without conducting a full-dress hearing on her competency to development when he articulated in his petition his belief that Sotero Baluyut
discharge that trust.  executed wills which should be delivered to the court for probate. 

Even the directive of the testator in his will designating that a certain person should Certiorari lies when a grave abuse of discretion was patently committed by the
act as executor is not binding on the probate court and does not automatically entitle lower court or if the petitioner's contention is clearly tenable or when the broader
him to the issuance of letters testamentary. A hearing has to be held in order to interests of justice or public policy justify the nullification of the questioned order

3
(Manila Electric Company and Sheriff of Quezon City vs. Hon. Enriquez and
Espinosa, 110 Phil. 499, 503; Pacheco vs. Tumangday and Fernando, 108 Phil. 238;
Raneses vs. Teves, L-26854, March 4, 1976). 
Before closing, a pending incident herein should be resolved. Alfredo G. Baluyut in
his motion of January 15, 1976 prayed that respondent Judge be enjoined from acting
on Mrs. Baluyut's motion for the appointment of Espino as special administrator. In
view of Alfredo G. Baluyut's manifestation of 
April 2, 1976 that his motion had become moot, the same is hereby denied. 
WHEREFORE, the lower court's order of November 27, 1975 appointing Mrs.
Baluyut as administratrix is set aside. The letters of administration granted to her are
cancelled. The probate court is directed to conduct further proceedings in consonance
with the guidelines delineated in this decision. Costs against respondent Mrs.
Baluyut.  is now well-settled that the prescriptive period to recover property obtained by fraud
SO ORDERED.
G.R. No. 115925. August 15, 2003.*
SPOUSES RICARDO PASCUAL and CONSOLACION SIOSON,
petitioners, vs. COURT OF APPEALS and REMEDIOS S. EUGENIO-GINO,
respondents.
Civil Law; Trusts; Implied Trust; Prescription; The ten-year prescriptive
period begins to run from the date the adverse party repudiates the implied trust.—It
or mistake, giving rise to an implied trust under Article 1456 of the Civil Code, is ten
years pursuant to Article 1144. This ten-year prescriptive period begins to run from
the date the adverse party repudiates the implied trust, which repudiation takes place
when the adverse party registers the land.
Same; Same; Same; allegations of fraud in implied trusts must be proved by
clear and convincing evidence.—Allegations of fraud in actions to enforce implied
trusts must be proved by clear and convincing evidence. The 1997 Rules of Civil
Procedure require that every action must be prosecuted or defended in the name of
the real party-in-interest who is the party who stands to benefit or suffer from the
judgment in the suit. If one who is not a real party-in-interest brings the action, the
suit is dismissible for lack of cause of action.
Civil Procedure; Actions; Parties; Real Party-in-Interest; If one who is not a
real party-in-interest brings the action, the suit is dismissible for lack of cause of
action.—The 1997 Rules of Civil Procedure require that every action must be
prosecuted or defended in the name of the real party-in-interest who is the party who
stands to benefit or suffer from the judgment in the suit. If one who is not a real
party-in-interest brings the action, the suit is dismissible for lack of cause of action.
Same; Same; Same; Same; Until admitted to probate, [a will] has no effect
and no right can be claimed thereunder.—Article 838 of the Civil Code states that
“[N]o will shall pass either real or personal property unless it is proved and allowed
in accordance with the Rules of Court.” This Court has interpreted this provision to
mean, “until admitted to probate, [a will] has no effect whatever and no right can be
claimed thereunder.
PETITION for review on certiorari of a decision of the Court of Appeals.
_______________
4
 *
 FIRST DIVISION.
106
106  SUPREME COURT REPORTS ANNOTATED  Rizal, sa bisa at pamamagitan ng kasulatang ito ay nagpapatunay at
Pascual vs. Court of Appeals
The facts are stated in the opinion of the Court.
     Delos Santos, Delos Santos and Delos Santos for petitioners.
     Virgilio C. Manguera and Associate for private respondent.
CARPIO, J.:
The Case
This is a petition for review of the Decision1 dated 31 January 1994 of the Court of
Appeals ordering the Register of Deeds of Metro Manila, District III, to place TCT
No. (232252) 1321 in the name of respondent Remedios S. Eugenio-Gino. The
Decision ordered the Register of Deeds to cancel the names of petitioners Ricardo
Pascual and Consolacion Sioson ("petitioners") in TCT No. (232252) 1321. The
Decision also directed petitioners to pay respondent moral and exemplary damages
and attorney’s fees.
The Facts
Petitioner Consolacion Sioson ("CONSOLACION") and respondent Remedios S.
Eugenio-Gino ("REMEDIOS") are the niece and granddaughter, respectively, of the
late Canuto Sioson ("CANUTO"). CANUTO and 11 other individuals, including his
sister Catalina Sioson ("CATALINA") and his brother Victoriano Sioson
("VICTORIANO"), were co-owners of a parcel of land in Tanza, Navotas, Metro
Manila. The property, known as Lot 2 of Plan Psu 13245, had an area of 9,347
square meters and was covered by Original Certificate of Title No. 4207 issued by
the Register of Deeds of Rizal. CATALINA, CANUTO, and VICTORIANO each
owned an aliquot 10/70 share or 1,335 square meters of Lot 2.2
On 20 November 1951, CANUTO had Lot 2 surveyed and subdivided into eight lots
(Lot Nos. 2-A to 2-H) through Subdivision Plan Psd 34713 which the Director of
Lands approved on 30 May 1952. Lot No. 2-A, with an area of 670 square meters,
and Lot No. 2-E, with an area of 2,000 square meters, were placed under CANUTO’s
name. Three other individuals took the remaining lots.3
On 26 September 1956, CANUTO and CONSOLACION executed a Kasulatan ng
Bilihang Tuluyan4("KASULATAN"). Under the KASULATAN, CANUTO sold his
10/70 share in Lot 2 in favor of CONSOLACION for P2,250.00. The
KASULATAN, notarized by Notary Public Jose T. de los Santos of Navotas,
provides:
Na ako, CANUTO SIOSON, mamamayang Pilipino, may katampatang
gulang, kasal kay Raymunda San Diego, at naninirahan sa Tanza, Navotas,
nagpapatibay:
1. Na ako ang lubos at tunay na may-ari ng 10/70 bahaging hindi
hati (10/70 porcion pro-indiviso) ng isang lagay na lupa (Lote No.
2, Plano Psu-13245), na nasa sa nayon ng Tanza, Municipio ng
Navotas, Provincia ng Rizal, at ang descripcion o pagkakakilanlan
ng nasabing lote ay nakasaad sa Certificado Original, de Titulo No.
4207 ng Oficina ng Registrador de Titulos ng Rizal, gaya ng
sumusunod:
xxxx
2. Na dahil at alang-alang sa halagang Dalawang Libo Dalawang
Daan at Limampung Piso (P2,250.00), salaping Pilipino, na sa akin
ay ibinayad ni CONSOLACION SIOSON, kasal kay Ricardo S.
Pascual, may sapat na gulang, mamamayang Pilipino, at
naninirahan sa Dampalit, Malabon, Rizal at ang pagkakatanggap
ng nasabing halaga ay aking inaamin at pinatutunayan, ay aking
ipinagbili, inilipat at isinalin, sa pamamagitan ng bilihang tuluyan
at walang pasubali a favor [sic] sa nasabing si CONSOLACION
SIOSON, sa kanyang tagapagmana at mapaglilipatan ang lahat ng
aking titulo, karapatan at kaparti na binubuo ng 10/70 bahaging
hindi hati (10/70 porcion pro-indiviso) ng loteng descrito or
tinutukoy sa itaas nito. (Emphasis supplied)
CONSOLACION immediately took possession of Lot Nos. 2-A and 2-E.
She later declared the land for taxation purposes and paid the corresponding
real estate taxes.5
On 23 October 1968, the surviving children of CANUTO, namely, Felicidad and
Beatriz, executed a joint affidavit6("JOINT AFFIDAVIT") affirming the
KASULATAN in favor of CONSOLACION. They also attested that the lots their
father had sold to CONSOLACION were Lot Nos. 2-A and 2-E of Subdivision Plan
Psd 34713. The JOINT AFFIDAVIT reads:
KAMING sina FELICIDAD SIOSON at BEATRIZ SIOSON, pawang mga
Pilipino, kapuwa may sapat na gulang at naninirahan, ang una sa Tanza,
Navotas at ang ikalawa sa Concepcion, Malabon, lalawigan ng Rizal, sa
ilalim ng isang ganap na panunumpa alinsunod sa batas, ay malayang
nagsasalaysay ng mga sumusunod:
5
 Na kami ang mga buhay na anak na naiwan ni CANUTO SIOSON
na nagmamay-ari ng 10/70 bahaging hindi hati (10/70 porcion pro-
indiviso) ng isang lagay na lupa (Lote No. 2, plano Psu-13245), na
nasa Nayon ng Tanza, Navotas, Rizal, at ang mga palatandaan nito
ay nasasaad sa Certificado Original de Titulo No. 4207 ng
Tanggapan ng Registrador de Titulos ng Rizal;
Na sa lubos naming kaalaman, ay ipinagbili ng aming Ama na si
Canuto Sioson ang kaniyang buong bahagi na 10/70 sa nasabing
Lote No. 2, kay CONSOLACION SIOSON, may-bahay ni Ricardo
S. Pascual, na taga Dampalit, Malabon, Rizal, sa
halagang P2,250.00, salaping pilipino, noong ika 16 [sic] ng
Septiembre, 1956, sa pamamagitan ng isang KASULATAN NG
BILIHANG TULUYAN na pinagtibay sa harap ng Notario Publico
Jose T. de los Santos nang pechang nabanggit, sa Navotas, Rizal,
(Doc. No. 194, Page No. 84; Book No. IV; Series of 1956);
Na ang nasabing lupa na ipinagbili ng aming Ama kay
Consolacion Sioson ni Pascual, ay nakikilala ngayong mga Lote
No. 2-A at Lote 2-E ng Plano de Subdivision Psd-34713; na
pinagtibay ng Assistant Director of Lands noong Mayo 30, 1952;
Na aming ngayong pinatitibayan ang pagka-pagbili ng bahagi ng
aming Ama kay Consolacion Sioson ni Pascual ng ngayo’y
nakikilalang Lote No. 2-A at Lote No. 2-E ng Plano de Subdivision
Psd-34713. (Emphasis supplied)
On 28 October 1968, CONSOLACION registered the KASULATAN and the JOINT
AFFIDAVIT with the Office of the Register of Deeds of Rizal ("Register of Deeds").
Based on these documents, the Register of Deeds issued to CONSOLACION
Transfer Certificate of Title No. (232252) 1321 covering Lot Nos. 2-A and 2-E of
Subdivision Plan Psd 34713 with a total area of 2,670 square meters.
On 4 February 1988, REMEDIOS filed a complaint against CONSOLACION and
her spouse Ricardo Pascual in the Regional Trial Court of Malabon, Branch 165, for
"Annulment or Cancellation of Transfer Certificate [of Title] and Damages."
REMEDIOS claimed that she is the owner of Lot Nos. 2-A and 2-E because
CATALINA devised these lots to her in CATALINA’s last will and
testament7 ("LAST WILL") dated 29 May 1964. REMEDIOS added that
CONSOLACION obtained title to these lots through fraudulent means since the area
covered by TCT (232252) 1321 is twice the size of CANUTO’s share in Lot 2.
REMEDIOS prayed for the cancellation of CONSOLACION’s title, the issuance of
another title in her name, and the payment to her of damages.
Petitioners sought to dismiss the complaint on the ground of prescription. Petitioners
claimed that the basis of the action is fraud, and REMEDIOS should have filed the
action within four years from the registration of CONSOLACION’s title on 28
October 1968 and not some 19 years later on 4 February 1988. REMEDIOS opposed
the motion, claiming that she became aware of CONSOLACION’s adverse title only
in February 1987. CONSOLACION maintained that she had timely filed her
complaint within the four-year prescriptive on 4 February 1988.
In its order of 28 April 1988, the trial court denied petitioners’ motion to dismiss.
The trial court held that the reckoning of the prescriptive period for filing
REMEDIOS’ complaint is evidentiary in nature and must await the presentation of
the parties’ evidence during the trial. During the pre-trial stage, REMEDIOS
clarified that she was claiming only CATALINA’s 10/70 share in Lot 2, or 1,335
square meters, which constitute ½ of the area of Lot Nos. 2-A and 2-E.8 The trial of
the case then ensued.
The Ruling of the Trial Court
On 26 November 1990, the trial court rendered judgment dismissing the case and
ordering REMEDIOS to pay petitioners P10,000 as attorney’s fees and the cost of
suit. The trial court held that the action filed by REMEDIOS is based on fraud,
covered by the four-year prescriptive period. The trial court also held that
REMEDIOS knew of petitioners’ adverse title on 19 November 1982 when
REMEDIOS testified against petitioners in an ejectment suit petitioners had filed
against their tenants in Lot Nos. 2-A and 2-E. Thus, the complaint of REMEDIOS
had already prescribed when she filed it on 4 February 1988.
The trial court further ruled that REMEDIOS has no right of action against
petitioners because CATALINA’s LAST WILL from which REMEDIOS claims to
derive her title has not been admitted to probate. Under Article 838 of the Civil
Code, no will passes real or personal property unless it is allowed in probate in
accordance with the Rules of Court. The dispositive portion of the trial court’s
decision provides:
WHEREFORE, judgment is hereby rendered in favor of the defendants and
against plaintiff, ordering:
1. The dismissal of this case;
2. The plaintiff to pay the defendants the sum of Ten Thousand
(P10,000.00) Pesos as and for attorney’s fees; and
3. The plaintiff to pay the costs of suit.9
6
REMEDIOS appealed to the Court of Appeals.
The Ruling of the Court of Appeals
On 31 January 1994, the Court of Appeals rendered judgment reversing the decision
of the trial court. The appellate court held that what REMEDIOS filed was a suit to
enforce an implied trust allegedly created in her favor when CONSOLACION
fraudulently registered her title over Lot Nos. 2-A and 2-E. Consequently, the
prescriptive period for filing the complaint is ten years, not four. The Court of
Appeals counted this ten-year period from 19 November 1982. Thus, when
REMEDIOS filed her complaint on 4 February 1988, the ten-year prescriptive period
had not yet expired.
The appellate court held that CATALINA’s unprobated LAST WILL does not
preclude REMEDIOS from seeking reconveyance of Lot Nos. 2-A and 2-E as the
LAST WILL may subsequently be admitted to probate. The dispositive portion of
the appellate court’s ruling provides:
WHEREFORE, the decision appealed from is REVERSED and SET
ASIDE. The Registry of Deeds of Rizal or Metro Manila, District III, is
ordered to place Transfer Certificate of Title No. (232252) 1321 under the
name of Remedios S. Eugenio-Gino as executor of the will of Catalina
Sioson and cancel the names of the Spouses Ricardo Pascual and
Consolacion Sioson inscribed over said title as owners of the covered lot.
Defendants-appellees spouses Ricardo Pascual and Consolacion Sioson are
ordered to pay plaintiff-appellant Remedios S. Eugenio-Gino moral
damages in the amount of P50,000.00, exemplary damages of P20,000[.00]
and attorney’s fees of P20,000.00 and P500.00 per appearance.10
Petitioners sought reconsideration of the ruling. However, the Court of Appeals
denied their motion in its order dated 15 June 1994.
Hence, this petition.
The Issues
Petitioners allege the following assignment of errors:
I. THE COURT OF APPEALS ERRED IN HOLDING THAT PRIVATE
RESPONDENT’S CAUSE OF ACTION IS NOT BARRED BY
PRESCRIPTION WHICH FINDING IS MANIFESTLY CONTRARY TO
LAW AND THE APPLICABLE DECISIONS OF THIS HONORABLE
COURT.
II. THE COURT OF APPEALS ERRED IN NOT HOLDING THAT
PRIVATE RESPONDENT DOES NOT HAVE ANY TITLE AND HAS
UTTERLY FAILED TO PROVE ANY TITLE TO THE LOTS
INVOLVED IN THIS CASE, AND IN ORDERING THE
CANCELLATION OF THE CERTIFICATE OF TITLE OF
PETITIONERS.
III. THE COURT OF APPEALS ACTED WITH GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OF JURISDICTION AND IN
GROSS VIOLATION OF THE RULES OF COURT IN ORDERING THE
ENTIRE PROPERTY COVERED BY TRANSFER CERTIFICATE OF
TITLE NO. (232252) 1321 TO BE PLACED IN THE NAME OF
PRIVATE RESPONDENT, BECAUSE THE CLAIM OF PRIVATE
RESPONDENT IS LIMITED ONLY TO ONE-HALF (1/2) PORTION OF
THE PROPERTY, AND THE OTHER HALF THEREOF
UNQUESTIONABLY BELONGS TO PETITIONERS.
IV. THE COURT OF APPEALS ERRED IN HOLDING THAT
PETITIONERS ACTED FRAUDULENTLY AND IN BAD FAITH IN
SECURING THEIR CERTIFICATE OF TITLE TO THE PROPERTY
INVOLVED IN THIS CASE, AND IN ORDERING PETITIONERS TO
PAY PRIVATE RESPONDENTS MORAL DAMAGES, EXEMPLARY
DAMAGES AND ATTORNEY’S FEES.11
The pivotal questions are: (1) whether prescription bars the action filed by
REMEDIOS, and (2) whether REMEDIOS is a real party-in-interest.
The Ruling of the Court
The petition has merit.
The Action is Barred by Prescription
The trial court held that the action filed by REMEDIOS is one based on fraud.
REMEDIOS’ action seeks to recover real property that petitioners allegedly acquired
through fraud. Consequently, the trial court held that the action prescribes in four
years counted from REMEDIOS’ actual discovery of petitioners’ adverse title. The
trial court concluded that REMEDIOS belatedly filed her suit on 4 February 1988
because she actually knew of petitioners’ adverse title since 19 November 1982.
On the other hand, the Court of Appeals held that what REMEDIOS filed was a suit
to enforce an implied trust. REMEDIOS had ten years counted from actual notice of
the breach of trust, that is, the assertion of adverse title, within which to bring her
7
action. The appellate court held that REMEDIOS seasonably filed her complaint on
4 February 1988 because she allegedly discovered petitioners’ adverse title only on
19 November 1982.
What REMEDIOS filed was an action to enforce an implied trust but the same is
already barred by prescription.
Prescriptive Period is 10 Years Counted
From Registration of Adverse Title
The four-year prescriptive period relied upon by the trial court applies only if the
fraud does not give rise to an implied trust, and the action is to annul a voidable
contract under Article 139012 of the Civil Code. In such a case, the four-year
prescriptive period under Article 139113 begins to run from the time of discovery of
the mistake, violence, intimidation, undue influence or fraud.
In the present case, REMEDIOS does not seek to annul the KASULATAN.
REMEDIOS does not assail the KASULATAN as a voidable contract. In fact,
REMEDIOS admits the validity of the sale of 1,335 square meters of land under the
KASULATAN. However, REMEDIOS alleges that the excess area of 1,335 meters
is not part of the sale under the KASULATAN. REMEDIOS seeks the removal of
this excess area from TCT No. (232252) 1321 that was issued to CONSOLACION.
Consequently, REMEDIOS’ action is for "Annulment or Cancellation of Transfer
Certificate [of Title] and Damages."14
REMEDIOS’ action is based on an implied trust under Article 1456 since she claims
that the inclusion of the additional 1,335 square meters in TCT No. (232252) 1321
was without basis. In effect, REMEDIOS asserts that CONSOLACION acquired the
additional 1,335 square meters through mistake or fraud and thus CONSOLACION
should be considered a trustee of an implied trust for the benefit of the rightful owner
of the property. Clearly, the applicable prescriptive period is ten years under Article
1144 and not four years under Articles 1389 and 1391.
It is now well-settled that the prescriptive period to recover property obtained by
fraud or mistake, giving rise to an implied trust under Article 145615 of the Civil
Code, is ten years pursuant to Article 1144.16 This ten-year prescriptive period begins
to run from the date the adverse party repudiates the implied trust, which repudiation
takes place when the adverse party registers the land.17
REMEDIOS filed her complaint on 4 February 1988 or more than 19 years after
CONSOLACION registered her title over Lot Nos. 2-A and 2-E on 28 October 1968.
Unquestionably, REMEDIOS filed the complaint late thus warranting its dismissal.
As the Court recently declared in Spouses Alfredo v. Spouses Borras,18 —
Following Caro,19 we have consistently held that an action for reconveyance based
on an implied trust prescribes in ten years. We went further by specifying the
reference point of the ten-year prescriptive period as the date of the registration of
the deed or the issuance of the title.
The Court of Appeals’ Reckoning of
Prescriptive Period from Actual Notice
of Adverse Title Not Justified
In holding that the action filed by REMEDIOS has not prescribed, the Court of
Appeals invoked this Court’s ruling in Adille v. Court of Appeals.20 In Adille, the
Court reckoned the ten-year prescriptive period for enforcing implied trusts not from
registration of the adverse title but from actual notice of the adverse title by the
cestui que trust. However, the Court, in justifying its deviation from the general rule,
explained:
[W]hile actions to enforce a constructive trust prescribes (sic) in ten years, reckoned
from the date of the registration of the property, we x x x are not prepared to count
the period from such date in this case. We note the petitioner’s sub rosa efforts to get
hold of the property exclusively for himself beginning with his fraudulent
misrepresentation in his unilateral affidavit of extrajudicial settlement that he is "the
only heir and child of his mother Feliza["] with the consequence that he was able to
secure title in his name also. (Emphasis supplied)
Such commission of specific fraudulent conduct is absent in the present case. Other
than asserting that petitioners are guilty of fraud because they secured title to Lot
Nos. 2-A and 2-E with an area twice bigger than what CANUTO allegedly sold to
CONSOLACION, REMEDIOS did not present any other proof of petitioners’
fraudulent conduct akin to Adille.
8
CONSOLACION obtained title to Lot Nos. 2-A and 2-E through the KASULATAN
executed by CANUTO and the JOINT AFFIDAVIT executed by his surviving
children, one of whom, Felicidad, is the mother of REMEDIOS. The KASULATAN
referred to the sale of CANUTO’s 10/70 share in Lot 2 without specifying the area of
the lot sold. The JOINT AFFIDAVIT referred to the "Plano de Subdivision Psd-
34713" without also specifying the area of the lot sold. However, Subdivision Plan
Psd 34713, as certified by the Assistant Director of Lands on 30 May 1952, showed
an area of 2,670 square meters in the name of CANUTO. Based on these documents,
the Register of Deeds issued TCT No. (232252) 1321 to CONSOLACION covering
an area of 2,670 square meters.
REMEDIOS does not assail the KASULATAN or the JOINT AFFIDAVIT as
fictitious or forged. REMEDIOS even admits the authenticity of Subdivision Plan
Psd 34713 as certified by the Assistant Director of Lands.21 Moreover, REMEDIOS
has not contested petitioners’ claim that CANUTO doubled his share in Lot 2 by
acquiring VICTORIANO’s share.22
Plainly, the increase in the area sold from 1,335 square meters to 2,670 square meters
is a glaring mistake. There is, however, no proof whatsoever that this increase in area
was the result of fraud. Allegations of fraud in actions to enforce implied trusts must
be proved by clear and convincing evidence.23 Adille, which is anchored on
fraud,24cannot apply to the present case.
At any rate, even if we apply Adille to this case, prescription still bars REMEDIOS’
complaint. As executrix of CATALINA’s LAST WILL, REMEDIOS submitted to
the then Court of First Instance of Caloocan in Special Proceedings Case No. C-208
the inventory of all the property comprising CATALINA’s estate, which included
Lot Nos. 2-A and 2-E. In a motion dated 7 November 1977, CONSOLACION
sought the exclusion of these lots from the inventory, invoking her title over them.
REMEDIOS was served a copy of the motion on 8 November 1977 against which
she filed an opposition. Nevertheless, the trial court overruled REMEDIOS’
objection. In its order of 3 January 1978, the trial court granted CONSOLACION’s
motion and ordered the exclusion of Lot Nos. 2-A and 2-E from the estate of
CATALINA. REMEDIOS did not appeal from this ruling.
REMEDIOS thus had actual notice of petitioners’ adverse title on 8 November 1977.
Even if, for the sake of argument, the ten-year prescriptive period begins to run upon
actual notice of the adverse title, still REMEDIOS’ right to file this suit has
prescribed. REMEDIOS had until 11 November 1987 within which to file her
complaint. When she did so on 4 February 1988, the prescriptive period had already
lapsed.
Respondent is Not a Real Party-in-Interest
Not only does prescription bar REMEDIOS’ complaint. REMEDIOS is also not a
real party-in-interest who can file the complaint, as the trial court correctly ruled.
The 1997 Rules of Civil Procedure require that every action must be prosecuted or
defended in the name of the real party-in-interest who is the party who stands to
benefit or suffer from the judgment in the suit.25 If one who is not a real party-in-
interest brings the action, the suit is dismissible for lack of cause of action.26
REMEDIOS anchored her claim over Lot Nos. 2-A and 2-E (or over its one-half
portion) on the devise of these lots to her under CATALINA’s LAST WILL.
However, the trial court found that the probate court did not issue any order
admitting the LAST WILL to probate. REMEDIOS does not contest this finding.
Indeed, during the trial, REMEDIOS admitted that Special Proceedings Case No. C-
208 is still pending.27
Article 838 of the Civil Code states that "[N]o will shall pass either real or personal
property unless it is proved and allowed in accordance with the Rules of Court." This
Court has interpreted this provision to mean, "until admitted to probate, [a will] has
no effect whatever and no right can be claimed thereunder."28 REMEDIOS anchors
her right in filing this suit on her being a devisee of CATALINA’s LAST WILL.
However, since the probate court has not admitted CATALINA’s LAST WILL,
REMEDIOS has not acquired any right under the LAST WILL. REMEDIOS is thus
without any cause of action either to seek reconveyance of Lot Nos. 2-A and 2-E or
to enforce an implied trust over these lots.
The appellate court tried to go around this deficiency by ordering the reconveyance
of Lot Nos. 2-A and 2-E to REMEDIOS in her capacity as executrix of
CATALINA’s LAST WILL. This is inappropriate because REMEDIOS sued
petitioners not in such capacity but as the alleged owner of the disputed lots. Thus,
REMEDIOS alleged in her complaint:
3. The plaintiff is a niece and compulsory heir of the late CATALINA SIOSON who
died single and without any child of her own and who, during her lifetime, was the
owner of those two (2) parcels of land located at Tanza, Navotas, Rizal (now Metro
Manila), formerly covered by Original Certificate of Title No. 4207 of the Registry
of Deeds for the Province of Rizal, x x x.
4. The plaintiff, aside from being the compulsory heir of the deceased CATALINA
SIOSON, has sole and exclusive claim of ownership over the above-mentioned two
(2) parcels of land by virtue of a will or "Huling Habilin at Pagpapasiya" executed by
Catalina Sioson on May 19, 1964 before Notary Public Efren Y. Angeles at Navotas,
Rizal, in which document the deceased Catalina Sioson specifically and exclusively
bequeathed to the plaintiff the above-mentioned Lots 2-A and 2-E of Psd-34713
approved by the Bureau of Lands on May 30, 1952. Copy of the "Huling Habilin at
9
Pagpapasiya" consisting of four (4) pages is hereto attached and forms an integral
part hereof as Annex "A;"
5. Sometime on or about February, 1987, plaintiff discovered that the above-
mentioned Lots 2-A and 2-E of subdivision plan Psd-34713 are now registered or
titled in the name of the defendants under Transfer Certificate of Title No. (232252)
1321 of the Registry of Deeds of Rizal, now Metro-Manila District III. Copy of the
title is hereto attached and forms an integral part hereof as Annex "B;"
6. Upon further inquiry and investigation, plaintiff discovered that the defendants
were able to obtain title in their name of the said parcels of land by virtue of a
"Kasulatan ng Bilihang Tuluyan" allegedly executed by Canuto Sioson on September
26, 1956 before Notary Public Jose [T.] de los Santos of Navotas, Metro-Manila.
Copy of the said document is hereto attached and forms an integral part hereof as
Annex "C;"
Other Matters Raised in the Petition
The Court deems it unnecessary to pass upon the other errors petitioners assigned
concerning the award of damages and attorneys fees to REMEDIOS. Such award
assumes that REMEDIOS is a real party-in-interest and that she timely filed her
complaint. As earlier shown, this is not the case.
WHEREFORE, we GRANT the petition. The Decision of the Court of Appeals
dated 31 January 1994 and its Resolution dated 15 June 1994 are SET ASIDE. The
complaint filed by respondent Remedios Eugenio-Gino, dated 2 February 1988 is
DISMISSED.
SO ORDERED.

7. The plaintiff also discovered that although x x x the original sale did not specify
the parcels of land sold by Canuto Sioson, the defendants submitted an alleged
Affidavit executed by Felicidad Sioson and Beatriz Sioson identifying the lots sold
by Canuto Sioson to the defendants as Lots 2-A and 2-E of subdivision plan Psd-
34713. Copy of the Affidavit dated October 3, 1968 on the basis of which the present
Transfer Certificate of Title No. (232252) 1321 was issued to the defendants is
hereto attached and forms an integral part hereof as Annex "D;"

8. The defendants are clearly guilty of fraud in presenting the aforementioned

Affidavit (Annex "D") to the Register of Deeds as the basis of their claim to Lots 2-
A and 2-E in view of the fact that the parcels sold to them by Canuto Sioson,
assuming there was such a sale, were different parcels of land, Lots 2-A and 2-E
being the properties of the late Catalina Sioson who bequeathed the same to the
plaintiff.

xxxx

12. Because of the defendants’ fraudulent actuations on this matter, plaintiff suffered No. L-57848. June 19, 1982.*
and continious [sic] to suffer moral damages arising from anxiety, shock and RAFAEL E. MANINANG and SOLEDAD L. MANINANG,
wounded feelings. Defendants should also be assessed exemplary damages by way of petitioners, vs. COURT OF APPEALS, HON. RICARDO L. PRONOVE, JR., as
a lesson to deter them from again committing the fraudulent acts, or acts of similar Judge of the Court of First Instance of Rizal and BERNARDO S. ASENETA,
nature, by virtue of which they were able to obtain title to the parcels of land respondents.
involved in this case x x x.29 (Emphasis supplied) Civil Law; Wills and Succession; Probate; Probate of a will is
mandatory; Reason.—Generally, the probate of a Will is mandatory. The law enjoins
the probate of the Will and public policy requires it, because unless the Will is
Indeed, all throughout the proceedings below and even in her Comment to this probated and notice thereof given to the whole world, the right of a person to dispose
petition, REMEDIOS continued to pursue her claim as the alleged owner of one-half of his property by Will may be rendered nugatory.
of the disputed lots.

10
 Same; Same; Same; Probate of will does not look into its intrinsic validity.—
Normally, the probate of a will does not look into its intrinsic validity. “x x x The
authentication of a will decides no other question than such as touch upon the
capacity of the testator and the compliance with those requisites or solemnities which
the law 
______________
*
 FIRST DIVISION.
479
VOL. 114, JUNE 19, 1982  479  in the broader interests of justice, a petition for Certiorari may be entertained,
Maninang vs. Court of Appeals
prescribes for the validity of wills. It does not determine nor even by
implication prejudge the validity or efficiency (sic) of the provisions, these may be
impugned as being vicious or null, notwithstanding its authentication. The questions
relating to these points remain entirely unaffected, and may be raised even after the
will has been authenticated x x x”
Same; Same; Preterition and disinheritance, distinguished.—“x x x Preterition
‘consists in the omission in the testator’s will of the forced heirs or anyone of them,
either because they are not mentioned therein, or, though mentioned, they are neither
instituted as heirs nor are expressly disinherited.’ (Neri vs. Akutin, 72 Phil. 325).
Disinheritance, in turn, ‘is a testamentary disposition depriving any compulsory heir
of his share in the legitime for a cause authorized by law,’ (Justice J.B.L. Reyes and
R.C. Puno, ‘An Outline of Philippine Civil Law’, 1956 ed., Vol. III, p. 8, citing
cases) Disinheritance is always, ‘voluntary’, preterition, upon the other hand, is
presumed to be ‘involuntary’ (Sanchez Roman, Estudios de Derecho Civil 2nd
edition, Volumen 2.o, p. 1131).”
Same; Same; Same; Effects of preterition and disinheritance.—Preterition
under Article 854 of the New Civil Code ‘shall annul the institution of heir.’ This
annulment is in toto, unless in the will there are, in addition, testamentary
dispositions in the form of devices or legacies. In ineffective disinheritance under
Article 918 of the same Code, such disinheritance shall also ‘annul the institution of
heirs’, but only ‘insofar as it may prejudice the person disinherited’, which last
phrase was omitted in the case of preterition (III Tolentino, Civil Code of the
Philippines, 1961 Edition, p. 172). Better stated yet, in disinheritance the nullity is
limited to that portion of the estate of which the disinherited heirs have been illegally
deprived.”
Same; Same; Will should not be denied legality based on dubious grounds.—
As held in the case of Vda. de Precilla vs. Narciso, “x x x it is as important a matter
of public interest that a purported will is not denied legalization on dubious grounds.
Otherwise, the very institution of testamentary succession will be shaken to its
foundation, x x x”
Same; Remedial Law; Special Civil Action; Certiorari; Act done by a probate
court in excess of its jurisdiction correctible by certiorari; Certiorari available
where appeal not a speedy remedy.—Coming now to the procedural aspect, suffice it
to state 
480
480  SUPREME COURT REPORTS ANNOTATED 
Maninang vs. Court of Appeals
that in view of our finding that respondent Judge had acted in excess of his
jurisdiction in dismissing the Testate Case, Certiorari is a proper remedy. An act
done by a Probate Court in excess of its jurisdiction may be corrected by Certiorari.
And even assuming the existence of the remedy of appeal, we harken to the rule that
particularly where appeal would not afford speedy and adequate relief.
PETITION to review the decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
MELENCIO-HERRERA, J.:
A Petition to Review the Decision of April 28, 1981 of respondent Appellate Court
in CA-G.R. No. 12032-R entitled "Rafael E. Maninang and Soledad L. Maninang vs.
Hon. Ricardo Pronove, Judge of the Court of First Instance of Rizal, Pasig, Branch
XI, and Bernardo S. Aseneta". 
Pertinent to the controversy are the following antecedental facts: 
On May 21, 1977, Clemencia Aseneta, single, died at the Manila Sanitarium Hospital
at age 81. She left a holographic will, the pertinent portions of which are quoted
hereunder: 
xxx xxx xxx
It is my will that all my real properties located in Manila, Makati,
Quezon City, Albay and Legaspi City and all my personal
properties shagllbe inherited upon my death by Dra. Soledad L.
Maninang with whose family I have lived continuously for around
the last 30 years now. Dra. Maninang and her husband Pamping
have been kind to me. ... I have found peace and happiness with
them even during the time when my sisters were still alive and
especially now when I am now being troubled by my nephew
Bernardo and niece Salvacion. I am not incompetent as Nonoy
would like me to appear. I know what is right and wrong. I can
decide for myself. I do not consider Nonoy as my adopted son. He
has made me do things against my will.
11
 xxx xxx xxx
On June 9, 1977, petitioner Soledad Maninang filed a Petition for probate of the Will
of the decedent with the Court of First Instance-Branch IV, Quezon City (Sp. Proc.
No. Q-23304, hereinafter referred to as the Testate Case).  Judge's Order of dismissal was final in nature as it finally disposed of the Testate
On July 25, 1977, herein respondent Bernardo Aseneta, who, as the adopted son,
claims to be the sole heir of decedent Clemencia Aseneta, instituted intestate
proceedings with the Court of First Instance-Branch XI, Pasig, Rizal (Sp. Proc. No.
8569, called hereinafter the Intestate Case" for brevity). 
On December 23, 1977, the Testate and Intestate Cases were ordered consolidated
before Branch XI, presided by respondent Judge. 
Respondent Bernardo then filed a Motion to Dismiss the Testate Case on the ground
that the holographic will was null and void because he, as the only compulsory heir,
was preterited and, therefore, intestacy should ensue. In support of said Motion to
Dismiss, respondent Bernardo cited the cases of Neri vs. Akutin (72 Phil.
322); Nuguid vs. Nuguid (17 SCRA 449), and Ramos vs. Baldovino (2 CA Rep. 2nd,
878). 1
In her Opposition to said Motion to Dismiss, petitioner Soledad averred that it is still
the rule that in a case for probate of a Will, the Court's area of inquiry is limited to an
examination of and resolution on the extrinsic validity of the will; and that
respondent Bernardo was effectively disinherited by the decedent. 2
On September 8, 1980, the lower Court ordered the dismissal of the Testate Case in
this wise:  may be impugned as being vicious or null, notwithstanding its
For reasons stated in the motion to dismiss filed by petitioner
Bernardo S. Aseneta which the Court finds meritorious, the
petition for probate of will filed by Soledad L. Maninang and
which was docketed as Sp. Proc. No. Q-23304 is DISMISSED,
without pronouncement as to costs.
On December 19, 1980, the lower Court denied reconsideration for lack of merit and
in the same Order appointed Bernardo as the administrator of the intestate estate of
the deceased Clemencia Aseneta "considering that he is a forced heir of said
deceased while oppositor Soledad Maninang is not, and considering further that
Bernardo Aseneta has not been shown to be unfit to perform the duties of the trust. " 
Petitioners Maninang resorted to a certiorari Petition before respondent Court of
Appeals alleging that the lower Court exceeded its jurisdiction in issuing the Orders
of dismissal of the Testate Case (September 8, 1980) and denial of reconsideration
(December 19, 1980). 
On April 28, 1981, respondent Court 3 denied certiorari and ruled that the trial
Case and, therefore, appeal was the proper remedy, which petitioners failed to avail
of. Continuing, it said that even granting that the lower Court committed errors in
issuing the questioned Orders, those are errors of judgment reviewable only by
appeal and not by Certiorari. 'Thus, this Petition before us. 
We find that the Court a quo a quo acted in excess of its jurisdiction when it
dismissed the Testate Case. Generally, the probate of a Will is mandatory. 
No will shall pass either real or personal property unless it is
proved and allowed in accordance with the Rules of Court. 4
The law enjoins the probate of the Will and public policy requires it, because unless
the Will is probated and notice thereof given to the whole world, the right of a person
to dispose of his property by Will may be rendered nugatory. 5
Normally, the probate of a Will does not look into its intrinsic validity. 
... The authentication of a will decides no other question than such
as touch upon the capacity of the testator and the compliance with
those requisites or solemnities which the law prescribes for the
validity of wills. It does not determine nor even by implication
prejudge the validity or efficiency (sic) of the provisions, these
authentication. The que0stions relating to these points remain
entirely unaffected, and may be raised even after the will has been
authenticated .... 6
Opposition to the intrinsic validity or legality of the provisions of
the will cannot be entertained in Probate proceeding because its
only purpose is merely to determine if the will has been executed
in accordance with the requirements of the law. 7
Respondent Bernardo, however, relies on the pronouncement in Nuguid vs. Nuguid  8,
reading: 
In a proceeding for the probate of a will, the Court's area of inquiry
is limited to an examination of, and resolution on, the extrinsic
validity of the will, the due execution thereof, the testatrix's
12
 testamentary capacity and the compliance with the requisites or
solemnities prescribed by law. The intrinsic validity of the will
normally comes only after the court has declared that the will has
been duly authenticated. However, where practical considerations
demand that the intrinsic validity of the will be passed upon, even
before it is probated, the Court should meet that issue. (Emphasis
supplied)  dispositions in the form of devises or legacies. In ineffective
Our ruling in Balanay vs. Hon. Martinez  9 had a similar thrust:  disinheritance shall also "annul the institution of heirs", but only
The trial court acted correctly in passing upon the will's intrinsic
validity even before its formal validity had been established. The
probate of a will might become an Idle ceremony if on its face it
appears to be intrinsically void. Where practical considerations
demand that the intrinsic validity of the will be passed upon, even
before it is probated, the court should meet the issue.
The Nuguid and the Balanay cases provide the exception rather than the rule. The
intrinsic validity of the Wills in those cases was passed upon even before probate
because "practical considerations" so demanded. Moreover, for the parties in
the Nuguid case, the "meat of the controversy" was the intrinsic validity of the Will;
in fact, the parties in that case "shunted aside the question of whether or not the Will
should be allowed probate." Not so in the case before us now where the probate of
the Will is insisted on by petitioners and a resolution on the extrinsic validity of the
Will demanded.  is not denied legalization on dubious grounds. Otherwise, the very
Moreover, in the Nuguid case, this Court ruled that the Will was intrinsically invalid
as it completely preterited the parents of the testator. In the instant case, a crucial
issue that calls for resolution is whether under the terms of the decedent's Will,
private respondent had been preterited or disinherited, and if the latter, whether it
was a valid disinheritance. Preterition and disinheritance are two diverse concepts.  Case, certiorari is a proper remedy. An act done by a Probate Court in excess of its
... Preterition "consists in the omission in the testator's will of the
forced heirs or anyone of them, either because they are not
mentioned therein, or, though mentioned, they are neither instituted
as heirs nor are expressly disinherited." (Neri vs. Akutin, 72 Phil.
325). Disinheritance, in turn, "is a testamentary disposition
depriving any compulsory heirs of his share in the legitimate for a
cause authorized by law." (Justice J.B.L. Reyes and R.C. Puno,
"An Outline of Philippine Civil Law", 1956 ed., Vol. III, p. 8,
citing cases) Disinheritance is always "voluntary", preterition upon
the other hand, is presumed to be "involuntary" (Sanchez Roman,
Estudios de Derecho Civil 2nd edition, Volume 2.o p. 1131). 10
The effects of preterition and disinheritance are also totally different. 
... The effects flowing from preterition are totally different from
those of disinheritance. Pretention under Article 854 of the New
Civil Code shall annul the institution of heir. This annulment is in
toto, unless in the wail there are, in addition, testamentary
disinheritance under Article 918 of the same Code, such
"insofar as it may prejudice the person disinherited", which last
phrase was omitted in the case of preterition (III Tolentino, Civil
Code of the Philippines, 1961 Edition, p. 172). Better stated yet, in
disinheritance the nullity is limited to that portion of the estate of
which the disinherited heirs have been illegally deprived. 11
By virtue of the dismissal of the Testate Case, the determination of that controversial
issue has not been thoroughly considered. We gather from the assailed Order of the
trial Court that its conclusion was that respondent Bernardo has been preterited We
are of opinion, however, that from the face of the Will, that conclusion is not
indubitable. 
As held in the case of Vda. de Precilla vs. Narciso  12
... it is as important a matter of public interest that a purported will
institution of testamentary succession will be shaken to its
foundation, ...
Coming now to the procedural aspect, suffice it to state that in view of our finding
that respondent Judge had acted in excess of his jurisdiction in dismissing the Testate
jurisdiction may be corrected by Certiorari. 13 And even assuming the existence of
the remedy of appeal, we harken to the rule that in the broader interests of justice, a
petition for certiorari may be entertained, particularly where appeal would not afford
speedy and adequate relief. 
WHEREFORE, the Decision in question is set aside and the Orders of the Court of
First Instance-Branch XI, Rizal, dated September 8, 1980 and December 19, 1980,
are nullified. Special Proceeding No. Q-23304 is hereby remanded to said Court of
First Instance-Branch XI. Rizal, therein to be reinstated and consolidated with
Special Proceeding No. 8569 for further proceedings. 
No pronouncement as to costs. 
13
SO ORDERED. and large is restricted to the extrinsic validity of the will, i.e., whether the testator,
being of sound mind, freely executed the will in accordance with the formalities
prescribed by law. (Rules of Court, Rule 75, Section 1; Rule 76, Section 9.) As a
rule, the question of ownership is an extraneous matter which the Probate Court
cannot resolve with finality. Thus, for the purpose of determining whether a certain
property should or should not be included in the inventory of estate properties, the
Probate Court may pass upon the title thereto, but such determination is provisional,
not conclusive, and is subject to the final decision in a separate action to resolve title.
Judgment; Execution; Writ of execution must conform with the dispositive
portion but body of decision may be consulted in case of ambiguity.—The rule is that
execution of a judgment must conform to that decreed in the dispositive part of the
decision. (Philippine-American Insurance Co. vs. Honorable Flores, 97 SCRA 811.)
However, in case of ambiguity or uncertainty, the body of the decision may be
scanned for guidance in construing the judgment. (Heirs of Presto vs. Galang, 78
SCRA 534; Fabular vs. Court of Appeals, 119 SCRA 329; Robles vs. Timario, 107
Phil. 809.)
Same; Succession; Issue of ownership was not resolved by the probate court
in this case.—Nowhere in the dispositive portion is 
__________________
*
 FIRST DIVISION.
886
886  SUPREME COURT REPORTS ANNOTATED 
Pastor, Jr. vs. Court of Appeals
there a declaration of ownership of specific properties. On the contrary, it is
manifest therein that ownership was not resolved. For it confined itself to the
question of extrinsic validity of the will, and the need for and propriety of appointing
a special administrator. Thus it allowed and approved the holographic will “with
respect to its extrinsic validity, the same having been duly authenticated pursuant to
the requisites or solemnities prescribed by law.” It declared that the intestate estate
administration aspect must proceed “subject to the outcome of the suit for
reconveyance of ownership and possession of real and personal properties in Civil
Case 274-T before Branch IX of the CFI of Cebu.” [Parenthetically, although the
statement refers only to the “intestate” aspect, it defies understanding how ownership
by the estate of some properties could be deemed finally resolved for purposes of
testateadministration, but not so for intestate purposes. Can the estate be the owner
of a property for testate but not for intestate purposes?] Then again, the Probate
Order (while indeed it does not direct the implementation of the legacy)
No. L-56340. June 24, 1983.
conditionally stated that the intestate administration aspect must proceed “unless . . .
SPOUSES ALVARO PASTOR, JR. and MA. ELENA ACHAVAL DE PASTOR,
it is proven . . . that the legacy to be given and delivered to the petitioner does not
petitioners, vs. THE COURT OF APPEALS, JUAN Y. REYES, JUDGE OF
exceed the free portion of the estate of the testator,” which clearly implies that the
BRANCH I, COURT OF FIRST INSTANCE OF CEBU and LEWELLYN
issue of impairment of legitime (an aspect of intrinsic validity) was in fact not
BARLITO QUEMADA, respondents.
resolved. Finally, the Probate Order did not rule on the propriety of allowing
Succession; The question of ownership is as a rule, an extraneous matter in a
QUEMADA to remain as special administrator of estate properties not covered by
probate proceeding.—In a special proceeding for the probate of a will, the issue by
14
the holographic will, “considering that this (Probate) Order should have been
properly issued solely as a resolution on the issue of whether or not to allow and
approve the aforestated will.”
Same; Same; The Supreme Court affirmed in the previous case only what was
adjudged in the Probate Court’s Probate Order.—What, therefore, the Court of
Appeals and, in effect, the Supreme Court affirmed en toto when they reviewed the
Probate Order were only the matters properly adjudged in the said Order.
Same; Same; Probate Court erred in assuming in its implementing Order that
the Probate Order adjudged the issue of ownership.—It was, therefore, error for the
assailed implementing Orders to conclude that the Probate Order adjudged with
finality the question of ownership of the mining properties and royalties, and that,
premised on this conclusion, the dispositive portion of the said Probate Court
directed the special administrator to pay the legacy in dispute.
887
VOL. 122, JUNE 24, 1983  887  would collide with the provision of the National Internal Revenue Code requiring
Pastor, Jr. vs. Court of Appeals
Succession; In case of death of one of the spouses their respective proprietary
rights must be liquidated and the debts paid in the succession proceedings for the
deceased spouse.—When PASTOR, SR. died in 1966, he was survived by his wife,
aside from his two legitimate children and one illegitimate son. There is therefore a
need to liquidate the conjugal partnership and set apart the share of PASTOR, SR.’s
wife in the conjugal partnership preparatory to the administration and liquidation of
the estate of PASTOR, SR. which will include, among others, the determination of
the extent of the statutory usufructuary right of his wife until her death. When the
disputed Probate Order was issued on December 5, 1972, there had been no
liquidation of the community properties of PASTOR, SR. and his wife.
Same; Same.—So also, as of the same date, there had been no prior definitive
determination of the assets of the estate of PASTOR, SR. There was an inventory of
his properties presumably prepared by the special administrator, but it does not
appear that it was ever the subject of a hearing or that it was judicially approved. The
reconveyance or recovery of properties allegedly owned but not in the name of
PASTOR, SR. was still being litigated in another court. There was no appropriate
determination, much less payment, of the debts of the decedent and his estate. x x x
Certiorari; Certiorari is proper where probate court issued erroneous
implementing orders of its Probate Order.—Under the circumstances of the case at
bar, the challenge must be rejected. Grave abuse of discretion amounting to lack of
jurisdiction is much too evident in the actuations of the probate court to be
overlooked or condoned. Without a final, authoritative adjudication of the issue as to
what properties compose the estate of PASTOR, SR. in the face of conflicting claims
made by heirs and a non-heir (MA. ELENA ACHAVAL DE PASTOR) involving
properties not in the name of the decedent, and in the absence of a resolution on the
intrinsic validity of the will here in question, there was no basis for the Probate Court
to hold in its Probate Order of 1972, which it did not, that private respondent is
entitled to the payment of the questioned legacy. Therefore, the Order of Execution
of August 20, 1980 and the subsequent implementing orders for the payment of
QUEMADA’s legacy, in alleged implementation of the dispositive part of the
Probate Order of December 5, 1972, must fall for lack of basis.
Succession; Taxation; Legacy made in a will cannot be distributed without a
prior liquidation of the decedent’s estate and
888
888  SUPREME COURT REPORTS ANNOTATED 
Pastor, Jr. vs. Court of Appeals
payment of debts and taxes.—The ordered payment of legacy would be
violative of the rule requiring prior liquidation of the estate of the deceased, i.e., the
determination of the assets of the estate and payment of all debts and expenses,
before apportionment and distribution of the residue among the heirs and legatees.
(Bernardo vs. Court of Appeals, 7 SCRA 367.) Neither has the estate tax been paid
on the estate of PASTOR, SR. Payment therefore of the legacy to QUEMADA
payment of estate tax before delivery to any beneficiary of his distributive share of
the estate (Section 107 [c]).
Same; Judgment; A legacy is not a debt of the estate for which a writ of
execution may issue.—The above provision clearly authorizes execution to enforce
payment of debts of estate. A legacy is not a debt of the estate; indeed, legatees are
among those against whom execution is authorized to be issued.
Execution; Certiorari; An order of execution that varies the terms of a final
order can be questioned in a certiorari proceeding.—It is within a court’s
competence to order the execution of a final judgment; but to order the execution of
a final order (which is not even meant to be executed) by reading into it terms that
are not there and in utter disregard of existing rules and law, is manifest grave abuse
of discretion tantamount to lack of jurisdiction. Consequently, the rule that certiorari
may not be invoked to defeat the right of a prevailing party to the execution of a
valid and final judgment, is inapplicable. For when an order of execution is issued
with grave abuse of discretion or is at variance with the judgment sought to be
enforced (PVTA vs. Honorable Gonzales, 92 SCRA 172), certiorari will lie to abate
the order of execution.
Same; Same; Action; Motions; A motion for leave to intervene need not be
resorted to first and certiorari may be commenced at once in case of urgent relief
from an implementing order.—Petitioner MA. ELENA ACHAVAL DE PASTOR,
wife of PASTOR, JR., is the holder in her own right of three mining claims which
are one of the objects of conflicting claims of ownership. She is not an heir of
PASTOR, SR. and was not a party to the probate proceedings. Therefore, she could
not appeal from the Order of execution issued by the Probate Court. On the other
hand, after the issuance of the execution order, the urgency of the relief she and her
co-petitioner husband seek in the petition for certiorari militates against requiring her
to go through the cumbersome procedure of asking for leave to 
889
VOL. 122, JUNE 24, 1983  889 
15
 Pastor, Jr. vs. Court of Appeals
intervene in the probate proceedings to enable her, if leave is granted, to appeal
from the challenged order of execution which has ordered the immediate transfer
and/or garnishment of the royalties derived from mineral properties of which she is
the duly registered owner and/or grantee together with her husband. She could not
have intervened before the issuance of the assailed orders because she had no valid
ground to intervene. The matter of ownership over the properties subject of the
execution was then still being litigated in another court in a reconveyance suit filed
by the special administrator of the estate of PASTOR, SR.
PETITION to review the decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
     Pelaez, Pelaez, & Pelaez Law Office for petitioners.
     Ceniza, Rama & Associates for private respondents.
PLANA, J.:
I. FACTS:  For two years after remand of the case to the PROBATE COURT, QUEMADA filed
This is a case of hereditary succession. 
Alvaro Pastor, Sr. (PASTOR, SR.), a Spanish subject, died in Cebu City on June 5,
1966, survived by his Spanish wife Sofia Bossio (who also died on October 21,
1966), their two legitimate children Alvaro Pastor, Jr. (PASTOR, JR.) and Sofia
Pastor de Midgely (SOFIA), and an illegitimate child, not natural, by the name of
Lewellyn Barlito Quemada QUEMADA PASTOR, JR. is a Philippine citizen,
having been naturalized in 1936. SOFIA is a Spanish subject. QUEMADA is a
Filipino by his mother's citizenship. 
On November 13, 1970, QUEMADA filed a petition for the probate and allowance
of an alleged holographic will of PASTOR, SR. with the Court of First Instance of
Cebu, Branch I (PROBATE COURT), docketed as SP No. 3128-R. The will
contained only one testamentary disposition: a legacy in favor of QUEMADA
consisting of 30% of PASTOR, SR.'s 42% share in the operation by Atlas
Consolidated Mining and Development Corporation (ATLAS) of some mining
claims in Pina-Barot, Cebu. 
On November 21, 1970, the PROBATE COURT, upon motion of QUEMADA and
after an ex parte hearing, appointed him special administrator of the entire estate of
PASTOR, SR., whether or not covered or affected by the holographic will. He
assumed office as such on December 4, 1970 after filing a bond of P 5,000.00. 
On December 7, 1970, QUEMADA as special administrator, instituted against
PASTOR, JR. and his wife an action for reconveyance of alleged properties of the
estate, which included the properties subject of the legacy and which were in the
names of the spouses PASTOR, JR. and his wife, Maria Elena Achaval de Pastor,
who claimed to be the owners thereof in their own rights, and not by inheritance. The
action, docketed as Civil Case No. 274-R, was filed with the Court of First Instance
of Cebu, Branch IX. 
On February 2, 1971, PASTOR, JR. and his sister SOFIA filed their opposition to the
petition for probate and the order appointing QUEMADA as special administrator. 
On December 5, 1972, the PROBATE COURT issued an order allowing the will to
probate. Appealed to the Court of Appeals in CA-G.R. No. 52961- R, the order was
affirmed in a decision dated May 9, 1977. On petition for review, the Supreme Court
in G.R. No. L-46645 dismissed the petition in a minute resolution dated November 1,
1977 and remanded the same to the PROBATE COURT after denying
reconsideration on January 11, 1978. 
pleading after pleading asking for payment of his legacy and seizure of the properties
subject of said legacy. PASTOR, JR. and SOFIA opposed these pleadings on the
ground of pendency of the reconveyance suit with another branch of the Cebu Court
of First Instance. All pleadings remained unacted upon by the PROBATE COURT. 
On March 5, 1980, the PROBATE COURT set the hearing on the intrinsic validity of
the will for March 25, 1980, but upon objection of PASTOR, JR. and SOFIA on the
e ground of pendency of the reconveyance suit, no hearing was held on March 25.
Instead, the PROBATE COURT required the parties to submit their respective
position papers as to how much inheritance QUEMADA was entitled to receive
under the wig. Pursuant thereto, PASTOR. JR. and SOFIA submitted their
Memorandum of authorities dated April 10, which in effect showed that
determination of how much QUEMADA should receive was still premature.
QUEMADA submitted his Position paper dated April 20, 1980. ATLAS, upon order
of the Court, submitted a sworn statement of royalties paid to the Pastor Group of tsn
from June 1966 (when Pastor, Sr. died) to February 1980. The statement revealed
that of the mining claims being operated by ATLAS, 60% pertained to the Pastor
Group distributed as follows: 
1. A. Pastor, Jr. ...................................40.5% 
2. E. Pelaez, Sr. ...................................15.0% 
3. B. Quemada .......................................4.5% 
16
On August 20, 1980, while the reconveyance suit was still being litigated in Branch
IX of the Court of First Instance of Cebu, the PROBATE COURT issued the now
assailed Order of Execution and Garnishment, resolving the question of ownership of
the royalties payable by ATLAS and ruling in effect that the legacy to QUEMADA
was not inofficious. [There was absolutely no statement or claim in the Order that the
Probate Order of December 5, 1972 had previously resolved the issue of ownership
of the mining rights of royalties thereon, nor the intrinsic validity of the holographic
will.]  royalties alone) had been finally adjudicated by the final and executory Order of
The order of August 20, 1980 found that as per the holographic will and a written
acknowledgment of PASTOR, JR. dated June 17, 1962, of the above 60% interest in
the mining claims belonging to the Pastor Group, 42% belonged to PASTOR, SR.
and only 33% belonged to PASTOR, JR. The remaining 25% belonged to E. Pelaez,
also of the Pastor Group. The PROBATE COURT thus directed ATLAS to remit
directly to QUEMADA the 42% royalties due decedent's estate, of which
QUEMADA was authorized to retain 75% for himself as legatee and to deposit 25%
with a reputable banking institution for payment of the estate taxes and other
obligations of the estate. The 33% share of PASTOR, JR. and/or his assignees was
ordered garnished to answer for the accumulated legacy of QUEMADA from the
time of PASTOR, SR.'s death, which amounted to over two million pesos.  injunction, assailing the decision of the Court of Appeals dated November 18, 1980
The order being "immediately executory", QUEMADA succeeded in obtaining a
Writ of Execution and Garnishment on September 4, 1980, and in serving the same
on ATLAS on the same day. Notified of the Order on September 6, 1980, the
oppositors sought reconsideration thereof on the same date primarily on the ground
that the PROBATE COURT gravely abused its discretion when it resolved the
question of ownership of the royalties and ordered the payment of QUEMADA's
legacy after prematurely passing upon the intrinsic validity of the will. In the
meantime, the PROBATE COURT ordered suspension of payment of all royalties
due PASTOR, JR. and/or his assignees until after resolution of oppositors' motion for
reconsideration.  successive motions for early resolution. Five of these motions expressly prayed for
Before the Motion for Reconsideration could be resolved, however, PASTOR, JR.,
this time joined by his wife Ma. ELENA ACHAVAL DE PASTOR, filed with the
Court of Appeals a Petition for certiorari and Prohibition with a prayer for writ of
preliminary injunction (CA-G.R. No. SP- 11373-R). They assailed the Order dated
August 20, 1980 and the writ of execution and garnishment issued pursuant thereto.
The petition was denied on November 18, 1980 on the grounds (1) that its filing was
premature because the Motion for Reconsideration of the questioned Order was still
pending determination by the PROBATE COURT; and (2) that although "the rule
that a motion for reconsideration is prerequisite for an action for certiorari is never an
absolute rule," the Order assailed is "legally valid. "  present membership of the Division; and to reassign the case to another ponente."
On December 9, 1980, PASTOR, JR. and his wife moved for reconsideration of the
Court of Appeal's decision of November 18, 1980, calling the attention of the
appellate court to another order of the Probate Court dated November 11, 1980 (i.e.,
while their petition for certiorari was pending decision in the appellate court), by
which the oppositors' motion for reconsideration of the Probate Court's Order of
August 20, 1980 was denied. [The November 11 Order declared that the questions of
intrinsic validity of the will and of ownership over the mining claims (not the
December 5, 1972, as affirmed by the Court of Appeals and the Supreme Court,
thereby rendering moot and academic the suit for reconveyance then pending in the
Court of First Instance of Cebu, Branch IX. It clarified that only the 33% share of
PASTOR, JR. in the royalties (less than 7.5% share which he had assigned to
QUEMADA before PASTOR, SR. died) was to be garnished and that as regards
PASTOR, SR.'s 42% share, what was ordered was just the transfer of its possession
to the custody of the PROBATE COURT through the special administrator. Further,
the Order granted QUEMADA 6% interest on his unpaid legacy from August 1980
until fully paid.] Nonetheless, the Court of Appeals denied reconsideration. 
Hence, this Petition for Review by certiorari with prayer for a writ of pre y
as well as the orders of the Probate Court dated August 20, 1980, November 11,
1980 and December 17, 1980, Med by petitioners on March 26, 1981, followed by a
Supplemental Petition with Urgent Prayer for Restraining Order. 
In April 1981, the Court (First Division) issued a writ of preliminary injunction, the
lifting of which was denied in the Resolution of the same Division dated October 18,
1982, although the bond of petitioners was increased from P50,000.00 to
P100,000.00. 
Between December 21, 1981 and October 12, 1982, private respondent filed seven
the resolution of the question as to whether or not the petition should be given due
course. 
On October 18, 1982, the Court (First Division) adopted a resolution stating that "the
petition in fact and in effect was given due course when this case was heard on the
merits on September 7, (should be October 21, 1981) and concise memoranda in
amplification of their oral arguments on the merits of the case were filed by the
parties pursuant to the resolution of October 21, 1981 . . . " and denied in a resolution
dated December 13, 1982, private respondent's "Omnibus motion to set aside
resolution dated October 18, 1982 and to submit the matter of due course to the
 
17
Upon Motion for Reconsideration of the October 18, 1982 and December 13, 1982 On the procedural aspect, placed in issue is the propriety of certiorari as a means to
Resolutions, the Court en banc resolved to CONFIRM the questioned resolutions assail the validity of the order of execution and the implementing writ. 
insofar as hey resolved that the petition in fact and in effect had been given due
course.  III. DISCUSSION: 

II. ISSUES:  1. Issue of Ownership — 

Assailed by the petitioners in these proceedings is the validity of the Order of (a) In a special proceeding for the probate of a will, the issue by and large is
execution and garnishment dated August 20, 1980 as well as the Orders subsequently restricted to the extrinsic validity of the will, i.e., whether the testator, being of sound
issued allegedly to implement the Probate Order of December 5, 1972, to wit: the mind, freely executed the will in accordance with the formalities prescribed by law.
Order of November 11, 1980 declaring that the Probate Order of 1972 indeed (Rules of Court, Rule 75, Section 1; Rule 76, Section 9.) As a rule, the question of
resolved the issues of ownership and intrinsic validity of the will, and reiterating the ownership is an extraneous matter which the Probate Court cannot resolve with
Order of Execution dated August 20, 1980; and the Order of December 17, 1980 finality. Thus, for the purpose of determining whether a certain property should or
reducing to P2,251,516.74 the amount payable to QUEMADA representing the should not be included in the inventory of estate properties, the Probate Court may
royalties he should have received from the death of PASTOR, SR. in 1966 up to pass upon the title thereto, but such determination is provisional, not conclusive, and
February 1980.  is subject to the final decision in a separate action to resolve title. [3 Moran,
Comments on the Rules of Court (1980 ed.), p. 458; Valero Vda. de Rodriguez vs.
The Probate Order itself, insofar as it merely allowed the holographic will in probate, Court of Appeals, 91 SCRA 540.] 
is not questioned. But petitioners denounce the Probate Court for having acted
beyond its jurisdiction or with grave abuse of discretion when it issued the assailed (b) The rule is that execution of a judgment must conform to that decreed in the
Orders. Their argument runs this way: Before the provisions of the holographic win dispositive part of the decision. (Philippine-American Insurance Co. vs. Honorable
can be implemented, the questions of ownership of the mining properties and the Flores, 97 SCRA 811.) However, in case of ambiguity or uncertainty, the body of the
intrinsic validity of the holographic will must first be resolved with finality. Now, decision may be scanned for guidance in construing the judgment. (Heirs of Presto
contrary to the position taken by the Probate Court in 1980 — i.e., almost eight years vs. Galang, 78 SCRA 534; Fabular vs. Court of Appeals, 119 SCRA 329; Robles vs.
after the probate of the will in 1972 — the Probate Order did not resolve the two said Timario. 107 Phil. 809.) 
issues. Therefore, the Probate Order could not have resolved and actually did not
decide QUEMADA's entitlement to the legacy. This being so, the Orders for the The Order sought to be executed by the assailed Order of execution is the Probate
payment of the legacy in alleged implementation of the Probate Order of 1972 are Order of December 5, 1972 which allegedly resolved the question of ownership of
unwarranted for lack of basis.  the disputed mining properties. The said Probate Order enumerated the issues before
the Probate Court, thus: 
Closely related to the foregoing is the issue raised by QUEMADA The Probate
Order of 1972 having become final and executory, how can its implementation Unmistakably, there are three aspects in these proceedings: (1) the
(payment of legacy) be restrained? Of course, the question assumes that probate of the holographic will (2) the intestate estate aspect; and
QUEMADA's entitlement to the legacy was finally adjudged in the Probate Order.  (3) the administration proceedings for the purported estate of the
decedent in the Philippines. 
On the merits, therefore, the basic issue is whether the Probate Order of December 5,
1972 resolved with finality the questions of ownership and intrinsic validity. A In its broad and total perspective the whole proceedings are being
negative finding will necessarily render moot and academic the other issues raised by impugned by the oppositors on jurisdictional grounds, i.e., that the
the parties, such as the jurisdiction of the Probate Court to conclusively resolve title fact of the decedent's residence and existence of properties in the
to property, and the constitutionality and repercussions of a ruling that the mining Philippines have not been established. 
properties in dispute, although in the name of PASTOR, JR. and his wife, really
belonged to the decedent despite the latter's constitutional disqualification as an
alien.  Specifically placed in issue with respect to the probate proceedings
are: (a) whether or not the holographic will (Exhibit "J") has lost

18
 its efficacy as the last will and testament upon the death of Alvaro (c) There is a necessity and propriety of a special administrator
Pastor, Sr. on June 5, 1966, in Cebu City, Philippines; (b) Whether and later on an executor and/or administrator in these
or not the said will has been executed with all the formalities proceedings, in spite of this Court's declaration that the oppositors
required by law; and (c) Did the late presentation of the are the forced heirs and the petitioner is merely vested with the
holographic will affect the validity of the same?  character of a voluntary heir to the extent of the bounty given to
him (under) the will insofar as the same will not prejudice the
Issues In the Administration Proceedings are as follows: (1) Was legitimes of the oppositorfor the following reasons: 
the ex- parte appointment of the petitioner as special administrator
valid and proper? (2) Is there any indispensable necessity for the 1. To submit a complete
estate of the decedent to be placed under administration? (3) inventory of the estate of the
Whether or not petition is qualified to be a special administrator of decedent-testator Alvaro
the estate; and (4) Whether or not the properties listed in the Pastor, Sr. 
inventory (submitted by the special administrator but not approved
by the Probate Court) are to be excluded.  2. To administer and to
continue to put to prolific
Then came what purports to be the dispositive portion:  utilization of the properties of
the decedent; 
Upon the foregoing premises, this Court rules on and resolves
some of the problems and issues presented in these proceedings, as 3. To keep and maintain the
follows:  houses and other structures and
belonging to the estate, since
(a) The Court has acquired jurisdiction over the probate the forced heirs are residing in
proceedings as it hereby allows and approves the so-called Spain, and prepare them for
holographic will of testator Alvaro Pastor, Sr., executed on July delivery to the heirs in good
31, 1961 with respect to its extrinsic validity, the same having been order after partition and when
duly authenticated pursuant to the requisites or solemnities directed by the Court, but only
prescribed by law. Let, therefore, a certificate of its allowance be after the payment of estate and
prepared by the Branch Clerk of this Court to be signed by this inheritance taxes; 
Presiding Judge, and attested by the seal of the Court, and
thereafter attached to the will, and the will and certificate filed and (d) Subject to the outcome of the suit for reconveyance of
recorded by the clerk. Let attested copies of the will and of the ownership and possession of real and personal properties in Civil
certificate of allowance thereof be sent to Atlas Consolidated Case No. 274-T before Branch IX of the Court of First Instance of
Mining & Development Corporation, Goodrich Bldg., Cebu City, Cebu, the intestate estate administration aspect must proceed,
and the Register of Deeds of Cebu or of Toledo City, as the case unless, however, it is duly proven by the oppositors that debts of
may be, for recording.  the decedent have already been paid, that there had been an
extrajudicial partition or summary one between the forced
(b) There was a delay in the granting of the letters testamentary or heirs, that the legacy to be given and delivered to the petitioner
of administration for as a matter of fact, no regular executor and/or does not exceed the free portion of the estate of the testator, that
administrator has been appointed up to this time and - the the respective shares of the forced heirs have been fairly
appointment of a special administrator was, and still is, justified apportioned, distributed and delivered to the two forced heirs of
under the circumstances to take possession and charge of the Alvaro Pastor, Sr., after deducting the property willed to the
estate of the deceased in the Philippines (particularly in Cebu) until petitioner, and the estate and inheritance taxes have already been
the problems causing the delay are decided and the regular paid to the Government thru the Bureau of Internal Revenue. 
executor and/or administrator appointed. 
19
 The suitability and propriety of allowing petitioner to remain as
special administrator or administrator of the other properties of the
estate of the decedent, which properties are not directly or
indirectly affected by the provisions of the holographic will (such
as bank deposits, land in Mactan etc.), will be resolved in another
order as separate incident, considering that this order should have
been properly issued solely as a resolution on the issue of whether
or not to allow and approve the aforestated will. (Emphasis
supplied.) 
Nowhere in the dispositive portion is there a declaration of ownership of specific
properties. On the contrary, it is manifest therein that ownership was not resolved.
For it confined itself to the question of extrinsic validity of the win, and the need for
and propriety of appointing a special administrator. Thus it allowed and approved the
holographic win "with respect to its extrinsic validity, the same having been duly
authenticated pursuant to the requisites or solemnities prescribed by law." It declared
that the intestate estate administration aspect must proceed " subject to the outcome
of the suit for reconveyance of ownership and possession of real and personal
properties in Civil Case 274-T before Branch IX of the CFI of Cebu."
[Parenthetically, although the statement refers only to the "intestate" aspect, it defies
understanding how ownership by the estate of some properties could be
deemed finally resolved for purposes of testate administration, but not so
for intestate purposes. Can the estate be the owner of a property for testate but not
for intestate purposes?] Then again, the Probate Order (while indeed it does not
direct the implementation of the legacy) conditionally stated that the intestate
administration aspect must proceed "unless . . . it is proven . . . that the legacy to be
given and delivered to the petitioner does not exceed the free portion of the estate of
the testator," which clearly implies that the issue of impairment of legitime (an
aspect of intrinsic validity) was in fact not resolved. Finally, the Probate Order did
not rule on the propriety of allowing QUEMADA to remain as special administrator
of estate properties not covered by the holographic will, "considering that this
(Probate) Order should have been properly issued solely as a resolution on the issue
of whether or not to allow and approve the aforestated will. "  ever the subject of a hearing or that it was judicially approved. The reconveyance or
(c) That the Probate Order did not resolve the question of ownership of the properties
listed in the estate inventory was appropriate, considering that the issue of ownership
was the very subject of controversy in the reconveyance suit that was still pending in
Branch IX of the Court of First Instance of Cebu.  decedent and his estate. Indeed, it was only in the Probate Order of December 5,
(d) What, therefore, the Court of Appeals and, in effect, the Supreme Court
affirmed en toto when they reviewed the Probable Order were only the matters
properly adjudged in the said Order.  Rule 86 of the Rules of Court, requiring all persons having money
(e) In an attempt to justify the issuance of the Order of execution dated August 20,
1980, the Probate Court in its Order of November 11, 1980 explained that the basis
for its conclusion that the question of ownership had been formally resolved by the
Probate Order of 1972 are the findings in the latter Order that (1) during the lifetime
of the decedent, he was receiving royalties from ATLAS; (2) he had resided in the
Philippines since pre-war days and was engaged in the mine prospecting business
since 1937 particularly in the City of Toledo; and (3) PASTOR, JR. was only acting
as dummy for his father because the latter was a Spaniard. 
Based on the premises laid, the conclusion is obviously far-fetched. 
(f) It was, therefore, error for the assailed implementing Orders to conclude that the
Probate Order adjudged with finality the question of ownership of the mining
properties and royalties, and that, premised on this conclusion, the dispositive portion
of the said Probate Order directed the special administrator to pay the legacy in
dispute. 
2. Issue of Intrinsic Validity of the Holographic Will - 
(a) When PASTOR, SR. died in 1966, he was survived by his wife, aside from his
two legitimate children and one illegitimate son. There is therefore a need to
liquidate the conjugal partnership and set apart the share of PASTOR, SR.'s wife in
the conjugal partnership preparatory to the administration and liquidation of the
estate of PASTOR, SR. which will include, among others, the determination of the
extent of the statutory usufructuary right of his wife until her death. * When the
disputed Probate order was issued on December 5, 1972, there had been no
liquidation of the community properties of PASTOR, SR. and his wife. 
(b) So, also, as of the same date, there had been no prior definitive determination of
the assets of the estate of PASTOR, SR. There was an inventory of his properties
presumably prepared by the special administrator, but it does not appear that it was
recovery of properties allegedly owned but not in the name of PASTOR, SR. was
still being litigated in another court. 
(c) There was no appropriate determination, much less payment, of the debts of the
1972 where the Probate Court ordered that- 
... a notice be issued and published pursuant to the provisions of
claims against the decedent to file them in the office of the Branch
Clerk of this Court." 
20
(d) Nor had the estate tax been determined and paid, or at least provided for, as of (c) Neither has the estate tax been paid on the estate of PASTOR, SR. Payment
December 5, 1972.  therefore of the legacy to QUEMADA would collide with the provision of the
National Internal Revenue Code requiring payment of estate tax before delivery to
(e) The net assets of the estate not having been determined, the legitime of the forced any beneficiary of his distributive share of the estate (Section 107 [c]) 
heirs in concrete figures could not be ascertained. 
(d) The assailed order of execution was unauthorized, having been issued
(f) All the foregoing deficiencies considered, it was not possible to determine purportedly under Rule 88, Section 6 of the Rules of Court which reads: 
whether the legacy of QUEMADA - a fixed share in a specific property rather than
an aliquot part of the entire net estate of the deceased - would produce an impairment Sec. 6. Court to fix contributive shares where devisees, legatees, or
of the legitime of the compulsory heirs.  heirs have been in possession. — Where devisees, legatees,
or heirs have entered into possession of portions of the estate
(g) Finally, there actually was no determination of the intrinsic validity of the will in before the debts and expenses have been settled and paid and have
other respects. It was obviously for this reason that as late as March 5, 1980 - more become liable to contribute for the payment of such debts and
than 7 years after the Probate Order was issued the Probate Court scheduled on expenses, the court having jurisdiction of the estate may, by order
March 25, 1980 a hearing on the intrinsic validity of the will.  for that purpose, after hearing, settle the amount of their several
liabilities, and order how much and in what manner each person
3. Propriety of certiorari — shall contribute, and may issue execution as circumstances
require. 
Private respondent challenges the propriety of certiorari as a means to assail the
validity of the disputed Order of execution. He contends that the error, if any, is one The above provision clearly authorizes execution to enforce payment of debts of
of judgment, not jurisdiction, and properly correctible only by appeal, not certiorari.  estate. A legacy is not a debt of the estate; indeed, legatees are among those against
whom execution is authorized to be issued. 
Under the circumstances of the case at bar, the challenge must be rejected. Grave
abuse of discretion amounting to lack of jurisdiction is much too evident in the ... there is merit in the petitioners' contention that the probate court
actuations of the probate court to be overlooked or condoned.  generally cannot issue a writ of execution. It is not supposed to
issue a writ of execution because its orders usually refer to the
adjudication of claims against the estate which the executor or
(a) Without a final, authoritative adjudication of the issue as to what properties administrator may satisfy without the necessity of resorting to a
compose the estate of PASTOR, SR. in the face of conflicting claims made by heirs writ of execution. The probate court, as such, does not render any
and a non-heir (MA. ELENA ACHAVAL DE PASTOR) involving properties not in judgment enforceable by execution. 
the name of the decedent, and in the absence of a resolution on the intrinsic validity
of the will here in question, there was no basis for the Probate Court to hold in its
Probate Order of 1972, which it did not, that private respondent is entitled to the The circumstances that the Rules of Court expressly specifies that
payment of the questioned legacy. Therefore, the Order of Execution of August 20, the probate court may issue execution (a) to satisfy (debts of the
1980 and the subsequent implementing orders for the payment of QUEMADA's estate out of) the contributive shares of devisees, legatees and heirs
legacy, in alleged implementation of the dispositive part of the Probate Order of in possession of the decedent's assets (Sec. 6. Rule 88), (b) to
December 5, 1972, must fall for lack of basis.  enforce payment of the expenses of partition (Sec. 3, Rule 90), and
(c) to satisfy the costs when a person is cited for examination in
probate proceedings (Sec. 13, Rule 142) may mean, under the rule
(b) The ordered payment of legacy would be violative of the rule requiring prior of inclusion unius est exclusion alterius, that those are the only
liquidation of the estate of the deceased, i.e., the determination of the assets of the instances when it can issue a writ of execution. (Vda. de Valera vs.
estate and payment of all debts and expenses, before apportionment and distribution Ofilada, 59 SCRA 96, 108.) 
of the residue among the heirs and legatees. (Bernardo vs. Court of Appeals, 7 SCRA
367.) 
(d) It is within a court's competence to order the execution of a final judgment; but to
order the execution of a final order (which is not even meant to be executed) by
21
reading into it terms that are not there and in utter disregard of existing rules and law, SO ORDERED.
is manifest grave abuse of discretion tantamount to lack of jurisdiction.
Consequently, the rule that certiorari may not be invoked to defeat the right of a
prevailing party to the execution of a valid and final judgment, is inapplicable. For
when an order of execution is issued with grave abuse of discretion or is at variance
with the judgment sought to be enforced (PVTA vs. Honorable Gonzales, 92 SCRA
172), certiorari will lie to abate the order of execution. 

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

Petitioner MA. ELENA ACHAVAL DE PASTOR, wife of PASTOR, JR., is the

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

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

WHEREFORE, the decision of the Court of Appeals in CA G.R. No. SP-11373-R is

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

22

No. L-23445. June 23, 1966.
REMEDIOS NUGUID, petitioner and appellant, vs. FELIX NuGUID and PAZ
SALONGA NUGUID, oppositors and appellees.
Wills; Succession; Probate of will; Court’s area of inquiry is limited to
extrinsic validity of will; When Court may rule on intrinsic validity.—In a
proceeding for the probate of a will, the court’s area of inquiry is limited to an
examination of, and resolution on, the extrinsic validity of the will, the due execution
thereof, the testatrix’s testamentary capacity and the com-
________________
1
 Manila Railroad Co. vs. Attorney General, 20 Phil. 523.
450
450  SUPREME COURT REPORTS ANNOTATED  inexistent. There must be, in addition to such institution, a testamentary disposition
Nuguid vs. Nuguid, et al.
pliance with the requisites or solemnities prescribed by law. The intrinsic
validity of the will normally comes only after the court has declared that the will has
been duly authenticated. However, where practical considerations demand that the
intrinsic validity of the will be passed upon, even before it is probated, the Court
should meet that issue.
Same; Preterition; Omission of forced heirs in the will.—Where the deceased
left no descendants, legitimate or illegitimate, but she left forced heirs in the direct
ascending line—her parents, and her holographic will does not explicitly disinherit
them but simply omits their names altogether, the case is one of preterition of the
parents, not a case of ineffective disinheritance.
Same; Preterition distinguished from disinheritance.—Preterition “consists in
the omission in the testator’s will of the forced heirs or anyone of them, either
because they are not mentioned therein, or, though mentioned, they are neither
instituted as heirs nor are expressly disinherited.” (Neri vs. Akutin, 72 Phil., 325).
Disinheritance, in turn, “is a testamentary disposition depriving any compulsory heir
of his share in the legitime for a cause authorized by law.” (Justice J.B.L. Reyes and
R.C. Puno, “An Outline of Philippine Civil Law”, 1966 ed., Vol. III, p. 8, citing
cases.) Disinheritance is always “voluntary”; preterition, upon the other hand, is
presumed to be “involuntary” (Sánchez Román, Estudios de Derecho Civil, 2nd
edition, Volumen 2.o, p. 1131).
Same; Effects flowing from preterition and disinheritance.—The effects
flowing from preterition are totally different from those of disinheritance. Preterition
under Article 854 of the New Civil Code “shall annul the institution of heir”. This
annulment is in toto,unless in the will there are, in addition, testamentary dispositions
in the form of devises or legacies. In ineffective disinheritance under Article 918 of
the same Code, such disinheritance shall also “annul the institution of heirs”, but
only “insofar as it may prejudice the person disinherited”, which last phrase was
omitted in the case of preterition (III Tolentino, Civil Code of the Philippines, 1961
Edition, p. 172). Better stated yet, in disinheritance the nullity is limited to that
portion of the estate of which the disinherited heirs have been illegally deprived.
Same; When institution of heirs is void.—Where the onesentence will institutes
the petitioner as the sole, universal heir and preterits the parents of the testatrix, and
it contains no specif ic legacies or bequests, such universal institution of petitioner,
by itself, is void. And intestate succession ensues.
Same; When legacies and devises merit consideration.—Legacies and devises
merit consideration only when they are so expressly given as such in a will. Nothing
in Article 854 of the New Civil Code suggests that the mere institution of a universal
heir in a will—void because of preterition—would 
451
VOL. 17, JUNE 23, 1966  451 
Nuguid vs. Nuguid, et al.
give the heir so instituted a share in the inheritance. As to him, the will is
granting him bequests or legacies apart and separate from the nullified institution of
heir.
Same; Institution of heirs cannot be considered a legacy.—If every case of
institution of heirs may be made to fall into the concept of legacies and betterments
reducing the bequest accordingly, then the provisions of Articles 814 and 851 of the
old Civil Code, regarding total or partial nullity of the institution, would be
absolutely meaningless and will never have any application at all. And the remaining
provisions contained in said articles concerning the reduction of inofficious legacies
or betterments would be a surplusage because they would be absorbed by Article 817
of the same Code.
APPEAL from an order of the Court of First Instance of Rizal, San Diego, J.
The facts are stated in the opinion of the Court.
     Custodio O. Partade for petitioner and appellant.
     Beltran, Beltran and Beltran for oppositors and appellees.
23

SANCHEZ, J.:
Rosario Nuguid, a resident of Quezon City, died on December 30, 1962, single,
without descendants, legitimate or illegitimate. Surviving her were her legitimate
parents, Felix Nuguid and Paz Salonga Nuguid, and six (6) brothers and sisters,
namely: Alfredo, Federico, Remedios, Conrado, Lourdes and Alberto, all surnamed
Nuguid.
On May 18, 1963, petitioner Remedios Nuguid filed in the Court of First Instance of
Rizal a holographic will allegedly executed by Rosario Nuguid on November 17,
1951, some 11 years before her demise. Petitioner prayed that said will be admitted
to probate and that letters of administration with the will annexed be issued to her.
On June 25, 1963, Felix Nuguid and Paz Salonga Nuguid, concededly the legitimate
father and mother of the deceased Rosario Nuguid, entered their opposition to the
probate of her will. Ground therefor, inter alia, is that by the institution of petitioner
Remedios Nuguid as universal heir of the deceased, oppositors — who are
compulsory heirs of the deceased in the direct ascending line — were illegally
preterited and that in consequence the institution is void.
On August 29, 1963, before a hearing was had on the petition for probate and
objection thereto, oppositors moved to dismiss on the ground of absolute preterition.
On September 6, 1963, petitioner registered her opposition to the motion to
dismiss.1äwphï1.ñët
The court's order of November 8, 1963, held that "the will in question is a complete
nullity and will perforce create intestacy of the estate of the deceased Rosario
Nuguid" and dismissed the petition without costs.
A motion to reconsider having been thwarted below, petitioner came to this Court on
appeal.
1. Right at the outset, a procedural aspect has engaged our attention. The case is for
the probate of a will. The court's area of inquiry is limited — to an examination of,
and resolution on, the extrinsic validity of the will. The due execution thereof, the
testatrix's testamentary capacity, and the compliance with the requisites or
solemnities by law prescribed, are the questions solely to be presented, and to be
acted upon, by the court. Said court at this stage of the proceedings — is not called
upon to rule on the intrinsic validity or efficacy of the provisions of the will, the
legality of any devise or legacy therein.1
A peculiar situation is here thrust upon us. The parties shunted aside the question of
whether or not the will should be allowed probate. For them, the meat of the case is
the intrinsic validity of the will. Normally, this comes only after the court has
declared that the will has been duly authenticated.2 But petitioner and oppositors, in
the court below and here on appeal, travelled on the issue of law, to wit: Is the will
intrinsically a nullity?
We pause to reflect. If the case were to be remanded for probate of the will, nothing
will be gained. On the contrary, this litigation will be protracted. And for aught that
appears in the record, in the event of probate or if the court rejects the will,
probability exists that the case will come up once again before us on the same issue
of the intrinsic validity or nullity of the will. Result: waste of time, effort, expense,
plus added anxiety. These are the practical considerations that induce us to a belief
that we might as well meet head-on the issue of the validity of the provisions of the
will in question.3 After all, there exists a justiciable controversy crying for solution.
2. Petitioner's sole assignment of error challenges the correctness of the conclusion
below that the will is a complete nullity. This exacts from us a study of the disputed
will and the applicable statute.
Reproduced hereunder is the will:
Nov. 17, 1951
I, ROSARIO NUGUID, being of sound and disposing mind and memory, having
amassed a certain amount of property, do hereby give, devise, and bequeath all of the
property which I may have when I die to my beloved sister Remedios Nuguid, age
34, residing with me at 38-B Iriga, Q.C. In witness whereof, I have signed my name
this seventh day of November, nineteen hundred and fifty-one.
(Sgd.) Illegible
T/ ROSARIO NUGUID
The statute we are called upon to apply in Article 854 of the Civil Code which, in
part, provides:
ART. 854. The preterition or omission of one, some, or all of the
compulsory heirs in the direct line, whether living at the time of the
execution of the will or born after the death of the testator, shall annul the
institution of heir; but the devises and legacies shall be valid insofar as they
are not inofficious. ...
24
Except for inconsequential variation in terms, the foregoing is a reproduction of
Article 814 of the Civil Code of Spain of 1889, which is similarly herein copied, thus
—  testament; tacitly, they were deprived of their legitime; neither were they expressly
Art. 814. The preterition of one or all of the forced heirs in the direct line,
whether living at the time of the execution of the will or born after the death
of the testator, shall void the institution of heir; but the legacies and
betterments4 shall be valid, in so far as they are not inofficious. ...
A comprehensive understanding of the term preterition employed in the law
becomes a necessity. On this point Manresa comments:
La pretericion consiste en omitar al heredero en el testamento. O no se le
nombra siquiera o aun nombrandole como padre, hijo, etc., no se le instituya
heredero ni se le deshereda expresamente ni se le asigna parte alguna de los
bienes, resultando privado de un modo tacito de su derecho a legitima.
Para que exista pretericion, con arreglo al articulo 814, basta que en el
testamento omita el testador a uno cualquiera de aquellos a quienes por su
muerte corresponda la herencia forzosa.
Se necesita, pues, a) Que la omision se refiera a un heredero forzoso. b) Que
la omision sea completa; que el heredero forzoso nada reciba en el
testamento.
It may now appear trite bat nonetheless helpful in giving us a clear perspective of the
problem before us, to have on hand a clear-cut definition of the word annul:
To "annul" means to abrogate, to make void ... In re Morrow's Estate, 54 A.
342, 343, 204 Pa. 484.6
The word "annul" as used in statute requiring court to annul alimony
provisions of divorce decree upon wife's remarriage means to reduce to
nothing; to annihilate; obliterate; blot out; to make void or of no effect; to
nullify; to abolish. N.J.S.A. 2:50 — 38 (now N.J.S. 2A:34-35). Madden vs.
Madden, 40 A. 2d 611, 614, 136 N..J Eq. 132.7
ANNUL. To reduce to nothing; annihilate; obliterate; to make void or of no
effect; to nullify; to abolish; to do away with. Ex parte Mitchell, 123 W. Va.
283, 14 S.E. 2d. 771, 774.8
And now, back to the facts and the law. The deceased Rosario Nuguid left no
descendants, legitimate or illegitimate. But she left forced heirs in the direct
ascending line her parents, now oppositors Felix Nuguid and Paz Salonga Nuguid.
And, the will completely omits both of them: They thus received nothing by the
disinherited. This is a clear case of preterition. Such preterition in the words of
Manresa "anulara siempre la institucion de heredero, dando caracter absoluto a este
ordenamiento referring to the mandate of Article 814, now 854 of the Civil
Code.9 The one-sentence will here institutes petitioner as the sole, universal heir —
nothing more. No specific legacies or bequests are therein provided for. It is in this
posture that we say that the nullity is complete. Perforce, Rosario Nuguid died
intestate. Says Manresa:
En cuanto a la institucion de heredero, se anula. Lo que se anula deja de
existir, en todo o en parte? No se añade limitacion alguna, como en el
articulo 851, en el que se expresa que se anulara la institucion de heredero
en cuanto prejudique a la legitima del deseheredado Debe, pues, entenderse
que la anulacion es completa o total, y que este articulo como especial en el
caso que le motiva rige con preferencia al 817. 10
The same view is expressed by Sanchez Roman: — 
La consecuencia de la anulacion o nulidad de la institucion de heredero por
pretericion de uno, varios o todos los forzosos en linea recta, es la apertura
de la sucesion intestada total o parcial. Sera total, cuando el testador que
comete la pretericion, hubiese dispuesto de todos los bienes por titulo
universal de herencia en favor de los herederos instituidos, cuya institucion
se anula, porque asi lo exige la generalidad del precepto legal del art. 814, al
determinar, como efecto de la pretericion, el de que "anulara la institucion
de heredero." ... 11
Really, as we analyze the word annul employed in the statute, there is no escaping
the conclusion that the universal institution of petitioner to the entire inheritance
results in totally abrogating the will. Because, the nullification of such institution of
universal heir — without any other testamentary disposition in the will — amounts
to a declaration that nothing at all was written. Carefully worded and in clear terms,
Article 854 offers no leeway for inferential interpretation. Giving it an expansive
meaning will tear up by the roots the fabric of the statute. On this point, Sanchez
Roman cites the "Memoria annual del Tribunal Supreme, correspondiente a 1908",
which in our opinion expresses the rule of interpretation, viz:
... El art. 814, que preceptua en tales casos de pretericion la nulidad de la
institucion de heredero, no consiente interpretacion alguna favorable a la
persona instituida en el sentido antes expuesto aun cuando parezca, y en
algun caso pudiera ser, mas o menos equitativa, porque una nulidad no
significa en Derecho sino la suposicion de que el hecho o el acto no se ha
25
 realizado, debiendo por lo tanto procederse sobre tal base o supuesto, y
consiguientemente, en un testamento donde falte la institucion, es obligado
llamar a los herederos forzosos en todo caso, como habria que llamar a los
de otra clase, cuando el testador no hubiese distribudo todos sus bienes en
legados, siendo tanto mas obligada esta consecuencia legal cuanto que, en
materia de testamentos, sabido es, segun tiene declarado la jurisprudencia,
con repeticion, que no basta que sea conocida la voluntad de quien testa si
esta voluntad no aparece en la forma y en las condiciones que la ley ha
exigido para que sea valido y eficaz, por lo que constituiria una
interpretacion arbitraria, dentro del derecho positivo, reputar como legatario
a un heredero cuya institucion fuese anulada con pretexto de que esto se
acomodaba mejor a la voluntad del testador, pues aun cuando asi fuese, sera
esto razon para modificar la ley, pero no autoriza a una interpretacion
contraria a sus terminos y a los principios que informan la
testamentifaccion, pues no porque parezca mejor una cosa en el terreno del
Derecho constituyente, hay razon para convereste juicio en regla de
interpretacion, desvirtuando y anulando por este procedimiento lo que el
legislador quiere establecer. 12
3. We should not be led astray by the statement in Article 854 that, annullment
notwithstanding, "the devises and legacies shall be valid insofar as they are not
inofficious". Legacies and devises merit consideration only when they are so
expressly given as such in a will. Nothing in Article 854 suggests that
the mere institution of a universal heir in a will — void because of preterition —
would give the heir so instituted a share in the inheritance. As to him, the will is
inexistent. There must be, in addition to such institution, a testamentary disposition
granting him bequests or legacies apart and separate from the nullified institution of
heir. Sanchez Roman, speaking of the two component parts of Article 814, now 854,
states that preterition annuls the institution of the heir "totalmente por la pretericion";
but added (in reference to legacies and bequests) "pero subsistiendo ... todas aquellas
otras disposiciones que no se refieren a la institucion de heredero ... . 13 As Manresa
puts it, annulment throws open to intestate succession the entire inheritance including
"la porcion libre (que) no hubiese dispuesto en virtud de legado, mejora o
donacion. 14
As aforesaid, there is no other provision in the will before us except the institution of
petitioner as universal heir. That institution, by itself, is null and void. And, intestate
succession ensues.
4. Petitioner's mainstay is that the present is "a case of ineffective disinheritance
rather than one of preterition". 15From this, petitioner draws the conclusion that
Article 854 "does not apply to the case at bar". This argument fails to appreciate the
distinction between pretention and disinheritance.
Preterition "consists in the omission in the testator's will of the forced heirs or
anyone of them, either because they are not mentioned therein, or, though mentioned,
they are neither instituted as heirs nor are expressly disinherited." 16 Disinheritance,
in turn, "is a testamentary disposition depriving any compulsory heir of his share in
the legitime for a cause authorized by law. " 17 In Manresa's own words: "La
privacion expresa de la legitima constituye la desheredacion. La privacion tacita de
la misma se denomina pretericion." 18 Sanchez Roman emphasizes the distinction by
stating that disinheritance "es siempre voluntaria"; preterition, upon the other hand,
is presumed to be "involuntaria". 19 Express as disinheritance should be, the same
must be supported by a legal cause specified in the will itself. 20
The will here does not explicitly disinherit the testatrix's parents, the forced heirs. It
simply omits their names altogether. Said will rather than be labeled ineffective
disinheritance is clearly one in which the said forced heirs suffer from preterition.
On top of this is the fact that the effects flowing from preterition are totally different
from those of disinheritance. Preterition under Article 854 of the Civil Code, we
repeat, "shall annul the institution of heir". This annulment is in toto, unless in the
will there are, in addition, testamentary dispositions in the form of devises or
legacies. In ineffective disinheritance under Article 918 of the same Code, such
disinheritance shall also "annul the institution of heirs", put only "insofar as it may
prejudice the person disinherited", which last phrase was omitted in the case of
preterition. 21 Better stated yet, in disinheritance the nullity is limited to that portion
of the estate of which the disinherited heirs have been illegally deprived. Manresa's
expressive language, in commenting on the rights of the preterited heirs in the case
of preterition on the one hand and legal disinheritance on the other, runs thus:
"Preteridos, adquiren el derecho a todo; desheredados, solo les corresponde un tercio
o dos tercios, 22 el caso. 23
5. Petitioner insists that the compulsory heirs ineffectively disinherited are entitled to
receive their legitimes, but that the institution of heir "is not invalidated," although
the inheritance of the heir so instituted is reduced to the extent of said legitimes. 24
This is best answered by a reference to the opinion of Mr. Chief Justice Moran in
the Neri case heretofore cited, viz:
But the theory is advanced that the bequest made by universal title in favor
of the children by the second marriage should be treated
as legado and mejora and, accordingly, it must not be entirely annulled but
merely reduced. This theory, if adopted, will result in a complete abrogation
of Articles 814 and 851 of the Civil Code. If every case of institution of
heirs may be made to fall into the concept of legacies and betterments
reducing the bequest accordingly, then the provisions of Articles 814 and
851 regarding total or partial nullity of the institution, would. be absolutely
26
 meaningless and will never have any application at all. And the remaining
provisions contained in said article concerning the reduction of inofficious
legacies or betterments would be a surplusage because they would be
absorbed by Article 817. Thus, instead of construing, we would be
destroying integral provisions of the Civil Code.
The destructive effect of the theory thus advanced is due mainly to a failure
to distinguish institution of heirs from legacies and betterments, and a
general from a special provision. With reference to article 814, which is the
only provision material to the disposition of this case, it must be observed
that the institution of heirs is therein dealt with as a thing separate and
distinct from legacies or betterments. And they are separate and distinct not
only because they are distinctly and separately treated in said article but
because they are in themselves different. Institution of heirs is a bequest by
universal title of property that is undetermined. Legacy refers to specific
property bequeathed by a particular or special title. ... But again an
institution of heirs cannot be taken as a legacy. 25
The disputed order, we observe, declares the will in question "a complete nullity".
Article 854 of the Civil Code in turn merely nullifies "the institution of heir".
Considering, however, that the will before us solely provides for the institution of
petitioner as universal heir, and nothing more, the result is the same. The entire will
is null.
Upon the view we take of this case, the order of November 8, 1963 under review is
hereby affirmed. No costs allowed. So ordered.
G.R. No. 160530. November 20, 2007.*
CYNTHIA V. NITTSCHER, petitioner, vs. DR. WERNER KARL JOHANN
NITTSCHER (Deceased), ATTY. ROGELIO P. NOGALES and THE
REGIONAL TRIAL COURT OF MAKATI (Branch 59), respondents.
Probate; Letters Testamentary; Forum Shopping; Pleadings and
Practice; Where the petition for the issuance of letters testamentary is but a mere
continuation of the original petition for the probate of the decedent’s will, it is not an
initiatory pleading—hence, failure to include a certification against forum shopping
is not a ground for outright dismissal of the said petition.—Revised Circular No. 28-
91 and Administrative Circular No. 04-94 of the Court require a certification against
forum-shopping for all initiatory pleadings filed in court. However, in this case, the
petition for the issuance of letters testamentary is not an initiatory pleading, but a
mere continuation of the original petition for the probate of Dr. Nittscher’s will.
Hence, respondent’s failure to include a certification against forum shopping in his
petition for the issuance of letters testamentary is not a ground for outright dismissal
of the said petition.
Same; The authority of the probate court is limited to ascertaining whether the
testator, being of sound mind, freely executed the will in accordance with the
formalities prescribed by law—a widow’s claim of title to the properties forming
part of her husband’s estate should be settled in an ordinary action before the
regular courts.—As a final word, petitioner should realize that the allowance of her
husband’s will is conclusive only as to its due execution. The authority of the probate
court is limited to ascertaining whether the testator, being of sound mind, freely
executed the will in accordance with the formalities prescribed by law. Thus,
petitioner’s claim of title to the properties forming part of her husband’s estate
should be settled in an ordinary action before the regular courts.
PETITION for review on certiorari of the decision and resolution of the Court of
Appeals.
_______________
*
 SECOND DIVISION.
682
682  SUPREME COURT REPORTS ANNOTATED 
Nittscher vs. Nittscher
The facts are stated in the opinion of the Court.
     Potenciano A. Flores, Jr. for petitioner.
     R.P. Nogales Law Offices for private respondents.
QUISUMBING, J.:
27
For review on certiorari are the Decision1 dated July 31, 2003 and Resolution2 dated
October 21, 2003 of the Court of Appeals in CA-G.R. CV No. 55330, which
affirmed the Order3 dated September 29, 1995 of the Regional Trial Court (RTC),
Branch 59, Makati City, in SP Proc. No. M-2330 for the probate of a will.
The facts are as follows.
On January 31, 1990, Dr. Werner Karl Johann Nittscher filed with the RTC of
Makati City a petition for the probate of his holographic will and for the issuance of
letters testamentary to herein respondent Atty. Rogelio P. Nogales.
On September 19, 1991, after hearing and with due notice to the compulsory heirs,
the probate court issued an order allowing the said holographic will, thus:
WHEREFORE, premises considered, the Holographic Will of the
petitioner-testator Dr. Werner J. Nittscher executed pursuant to the
provision of the second paragraph of Article 838 of the Civil Code of the
Philippines on January 25, 1990 in Manila, Philippines, and proved in
accordance with the provision of Rule 76 of the Revised Rules of Court is
hereby allowed.
SO ORDERED.4
On September 26, 1994, Dr. Nittscher died. Hence, Atty. Nogales filed a petition for
letters testamentary for the administration of the estate of the deceased. Dr.
Nittscher’s surviving spouse, herein petitioner Cynthia V. Nittscher, moved for the
dismissal of the said petition. However, the court in its September 29, 1995 Order
denied petitioner’s motion to dismiss, and granted respondent’s petition for the
issuance of letters testamentary, to wit:
In view of all the foregoing, the motion to dismiss is DENIED. The petition
for the issuance of Letters Testamentary, being in order, is GRANTED.
Section 4, Rule 78 of the Revised Rules of Court, provides "when a will has
been proved and allowed, the court shall issue letters testamentary thereon
to the person named as executor therein, if he is competent, accepts the trust
and gives a bond as required by these rules." In the case at bar, petitioner
Atty. Rogelio P. Nogales of the R.P. Nogales Law Offices has been named
executor under the Holographic Will of Dr. Werner J. Nittscher. As prayed
for, let Letters Testamentary be issued to Atty. Rogelio P. Nogales, the
executor named in the Will, without a bond.
SO ORDERED.5
Petitioner moved for reconsideration, but her motion was denied for lack of merit.
On May 9, 1996, Atty. Nogales was issued letters testamentary and was sworn in as
executor.
Petitioner appealed to the Court of Appeals alleging that respondent’s petition for the
issuance of letters testamentary should have been dismissed outright as the RTC had
no jurisdiction over the subject matter and that she was denied due process.
The appellate court dismissed the appeal, thus:
WHEREFORE, the foregoing considered, the appeal is
hereby DISMISSED and the assailed Order is AFFIRMED in toto. The
court a quo is ordered to proceed with dispatch in the proceedings below.
SO ORDERED.6
Petitioner’s motion for reconsideration of the aforequoted decision was denied for
lack of merit. Hence, the present petition anchored on the following grounds:
I.
BOTH THE CA AND THE LOWER COURT ERRED IN NOT
DISMISSING OUTRIGHT THE PETITION FOR LETTERS …
TESTAMENTARY FILED BY ATTY. NOGALES WHEN,
OBVIOUSLY, IT WAS FILED IN VIOLATION OF REVISED
CIRCULAR NO. 28-91 AND ADMINISTRATIVE CIRCULAR NO. 04-
94 OF THIS HONORABLE COURT.
II.
THE CA ERRED IN NOT DECLARING THAT THE LOWER COURT
[HAS] NO JURISDICTION OVER THE SUBJECT MATTER OF THE
PRESENT SUIT.
III.
THE CA ERRED IN CONCLUDING THAT SUMMONS WERE
PROPERLY ISSUED TO THE PARTIES AND ALL PERSONS
INTERESTED IN THE PROBATE OF THE HOLOGRAPHIC WILL OF
DR. NITTSCHER.
IV.
28
 THE CA ERRED IN CONCLUDING THAT THE PETITIONER WAS
NOT DEPRIVED OF DUE PROCESS OF LAW BY THE LOWER
COURT.7
Petitioner contends that respondent’s petition for the issuance of letters testamentary
lacked a certification against forum-shopping. She adds that the RTC has no
jurisdiction over the subject matter of this case because Dr. Nittscher was allegedly
not a resident of the Philippines; neither did he leave real properties in the country.
Petitioner claims that the properties listed for disposition in her husband’s will
actually belong to her. She insists she was denied due process of law because she did
not receive by personal service the notices of the proceedings.
Respondent Atty. Nogales, however, counters that Dr. Nittscher did reside and own
real properties in Las Piñas, Metro Manila. He stresses that petitioner was duly
notified of the probate proceedings. Respondent points out that petitioner even
appeared in court to oppose the petition for the issuance of letters testamentary and
that she also filed a motion to dismiss the said petition. Respondent maintains that
the petition for the issuance of letters testamentary need not contain a certification
against forum-shopping as it is merely a continuation of the original proceeding for
the probate of the will.
We resolve to deny the petition.
As to the first issue, Revised Circular No. 28-918 and Administrative Circular No.
04-949 of the Court require a certification against forum-shopping for all initiatory
pleadings filed in court. However, in this case, the petition for the issuance of letters
testamentary is not an initiatory pleading, but a mere continuation of the original
petition for the probate of Dr. Nittscher’s will. Hence, respondent’s failure to include
a certification against forum-shopping in his petition for the issuance of letters
testamentary is not a ground for outright dismissal of the said petition.
Anent the second issue, Section 1, Rule 73 of the Rules of Court provides:
SECTION 1. Where estate of deceased persons settled. – If the decedent is
an inhabitant of the Philippines at the time of his death, whether a
citizen or an alien, his will shall be proved, or letters of administration
granted, and his estate settled, in the Court of First Instance (now
Regional Trial Court) in the province in which he resides at the time of
his death, and if he is an inhabitant of a foreign country, the Court of First
Instance (now Regional Trial Court) of any province in which he had estate.
… (Emphasis supplied.)
In this case, the RTC and the Court of Appeals are one in their finding that Dr.
Nittscher was a resident of Las Piñas, Metro Manila at the time of his death. Such
factual finding, which we find supported by evidence on record, should no longer be
disturbed. Time and again we have said that reviews on certiorari are limited to
errors of law. Unless there is a showing that the findings of the lower court are
totally devoid of support or are glaringly erroneous, this Court will not analyze or
weigh evidence all over again.10
Hence, applying the aforequoted rule, Dr. Nittscher correctly filed in the RTC of
Makati City, which then covered Las Piñas, Metro Manila, the petition for the
probate of his will and for the issuance of letters testamentary to respondent.
Regarding the third and fourth issues, we note that Dr. Nittscher asked for the
allowance of his own will. In this connection, Section 4, Rule 76 of the Rules of
Court states:
SEC. 4. Heirs, devisees, legatees, and executors to be notified by mail or
personally. – …
If the testator asks for the allowance of his own will, notice shall be sent
only to his compulsory heirs.
In this case, records show that petitioner, with whom Dr. Nittscher had no child, and
Dr. Nittscher’s children from his previous marriage were all duly notified, by
registered mail, of the probate proceedings. Petitioner even appeared in court to
oppose respondent’s petition for the issuance of letters testamentary and she also
filed a motion to dismiss the said petition. She likewise filed a motion for
reconsideration of the issuance of the letters testamentary and of the denial of her
motion to dismiss. We are convinced petitioner was accorded every opportunity to
defend her cause. Therefore, petitioner’s allegation that she was denied due process
in the probate proceedings is without basis.
As a final word, petitioner should realize that the allowance of her husband’s will is
conclusive only as to its due execution.11 The authority of the probate court is limited
to ascertaining whether the testator, being of sound mind, freely executed the will in
accordance with the formalities prescribed by law.12 Thus, petitioner’s claim of title
to the properties forming part of her husband’s estate should be settled in an ordinary
action before the regular courts.
WHEREFORE, the petition is DENIED for lack of merit. The assailed Decision
dated July 31, 2003 and Resolution dated October 21, 2003 of the Court of Appeals
in CA-G.R. CV No. 55330, which affirmed the Order dated September 29, 1995 of
the Regional Trial Court, Branch 59, Makati City, in SP Proc. No. M-2330
are AFFIRMED.
29
No pronouncement as to costs.
SO ORDERED.
G.R. No. 156407. January 15, 2014.*
THELMA M. ARANAS, petitioner, vs. TERESITA V. MERCADO, FELIMON
V. MERCADO, CARMENCITA M. SUTHERLAND, RICHARD V.
MERCADO, MA. TERESITA M. ANDERSON, and FRANKLIN L.
MERCADO, respondents.
Civil Law; Succession; The approval of the inventory and the concomitant
determination of the ownership as basis for inclusion or exclusion from the inventory
were provisional and subject to revision at anytime during the course of the
administration proceedings.—The assailed order of March 14, 2001 denying
Teresita’s motion for the approval of the inventory and the order dated May 18, 2001
denying her motion for reconsideration were interlocutory. This is because the
inclusion of the properties in the inventory was not yet a final determination of their
ownership. Hence, the approval of the inventory and the concomitant determination
of the ownership as basis for inclusion or exclusion from the inventory were
provisional and subject to revision at anytime during the course of the administration
proceedings.
Remedial Law; Civil Procedure; Appeals; The final judgment rule embodied in
the first paragraph of Section 1, Rule 41, Rules of Court, which also governs appeals
in special proceedings, stipulates that only the judgments, final orders (and
resolutions) of a court of law “that completely disposes of the case, or of a
particular matter therein when declared by these Rules to be appealable” may be the
subject of an appeal in due course.—An appeal would not be the correct recourse for
Teresita, et al. to take against the assailed orders. The final judgment rule embodied
in the first paragraph of Section 1, Rule 41, Rules of Court, which also governs
appeals in special proceedings, stipulates that only the judgments, final orders (and
resolutions) of a court of law “that completely disposes of the case, or of a particular
matter therein when declared by these Rules to be appealable” may be the subject of
an appeal in due course. The same rule states that an interlocutory order or resolution
(interlocu-
_______________
* FIRST DIVISION.
195tory because it deals with preliminary matters, or that the trial on the merits
is yet to be held and the judgment rendered) is expressly made non-appealable.
Same; Same; Same; Multiple Appeals; Multiple appeals are permitted in
special proceedings as a practical recognition of the possibility that material issues
may be finally determined at various stages of the special proceedings.—Multiple
appeals are permitted in special proceedings as a practical recognition of the
possibility that material issues may be finally determined at various stages of the
special proceedings. Section 1, Rule 109 of the Rules of Court enumerates the
specific instances in which multiple appeals may be resorted to in special
proceedings, viz.: Section 1. Orders or judgments from which appeals may be taken.
—An interested person may appeal in special proceedings from an order or judgment
rendered by a Court of First Instance or a Juvenile and Domestic Relations Court,
where such order or judgment: (a) Allows or disallows a will; (b) Determines who
are the lawful heirs of a deceased person, or the distributive share of the estate to
which such person is entitled; (c) Allows or disallows, in whole or in part, any claim
against the estate of a deceased person, or any claim presented on behalf of the estate
in offset to a claim against it; (d)Settles the account of an executor, administrator,
trustee or guardian; (e) Constitutes, in proceedings relating to the settlement of the
estate of a deceased person, or the administration of a trustee or guardian, a final
determination in the lower court of the rights of the party appealing, except that no
appeal shall be allowed from the appointment of a special administrator; and (f) Is
the final order or judgment rendered in the case, and affects the substantial rights of
the person appealing, unless it be an order granting or denying a motion for a new
trial or for reconsideration.
Civil Law; Succession; Settlement of Estates Deceased Persons; Under
Section 6(a), Rule 78 of the Rules of Court, the letters of administration may be
granted at the discretion of the court to the surviving spouse, who is competent and
willing to serve when the person dies intestate.—Under Section 6(a), Rule 78 of
the Rules of Court, the letters of administration may be granted at the discretion of
the court to the surviving spouse, who is competent and willing to serve when the
person dies intestate. Upon issuing the letters of administration to the surviving
spouse, the RTC becomes duty-
196bound to direct the preparation and submission of the inventory of the
properties of the estate, and the surviving spouse, as the administrator, has the duty
and responsibility to submit the inventory within three months from the issuance of
letters of administration pursuant to Rule 83 of the Rules of Court.
Same; Same; Same; The objective of the Rules of Court in requiring the
inventory and appraisal of the estate of the decedent is “to aid the court in revising
the accounts and determining the liabilities of the executor or the administrator, and
in making a final and equitable distribution (partition) of the estate and otherwise to
facilitate the administration of the estate.”—The objective of the Rules of Court in
30
requiring the inventory and appraisal of the estate of the decedent is “to aid the court
in revising the accounts and determining the liabilities of the executor or the
administrator, and in making a final and equitable distribution (partition) of the estate
and otherwise to facilitate the administration of the estate.” Hence, the RTC that
presides over the administration of an estate is vested with wide discretion on the
question of what properties should be included in the inventory. According
to Peralta v. Peralta, 71 Phil. 66 (1940), the CA cannot impose its judgment in order
to supplant that of the RTC on the issue of which properties are to be included or
excluded from the inventory in the absence of “positive abuse of discretion,” for in
the administration of the estates of deceased persons, “the judges enjoy ample
discretionary powers and the appellate courts should not interfere with or attempt to
replace the action taken by them, unless it be shown that there has been a positive
abuse of discretion.” As long as the RTC commits no patently grave abuse of
discretion, its orders must be respected as part of the regular performance of its
judicial duty.
Remedial Law; Civil Procedure; Courts; Jurisdiction; There is no dispute that
the jurisdiction of the trial court as an intestate court is special and limited .—There
is no dispute that the jurisdiction of the trial court as an intestate court is special and
limited. The trial court cannot adjudicate title to properties claimed to be a part of the
estate but are claimed to belong to third parties by title adverse to that of the
decedent and the estate, not by virtue of any right of inheritance from the decedent.
All that the trial court can do regarding said properties is to determine whether or not
they should be included in the inventory of properties to be administered by the
197administrator. Such determination is provisional and may be still revised.
Same; Evidence; Notarized Documents; A notarized deed of sale only enjoyed
the presumption of regularity in favor of its execution, but its notarization did not
per se guarantee the legal efficacy of the transaction under the deed, and what the
contents purported to be.—The fact that the deed of absolute sale executed by
Emigdio in favor of Mervir Realty was a notarized instrument did not sufficiently
justify the exclusion from the inventory of the properties involved. A notarized deed
of sale only enjoyed the presumption of regularity in favor of its execution, but its
notarization did not per se guarantee the legal efficacy of the transaction under the
deed, and what the contents purported to be. The presumption of regularity could be
rebutted by clear and convincing evidence to the contrary. As the Court has observed
in Suntay v. Court of Appeals: x x x. Though the notarization of the deed of sale in
question vests in its favor the presumption of regularity, it is not the intention nor the
function of the notary public to validate and make binding an instrument never, in
the first place, intended to have any binding legal effect upon the parties thereto. The
intention of the parties still and always is the primary consideration in
determining the true nature of a contract.   to be actually part of the estate. As long as the RTC commits no patent grave abuse
Civil Law; Land Titles; The Torrens system is not a mode of acquiring titles to
lands; it is merely a system of registration of titles to lands.—The fact that the
properties were already covered by Torrens titles in the name of Mervir Realty could
not be a valid basis for immediately excluding them from the inventory in view of
the circumstances admittedly surrounding the execution of the deed of assignment.
This is because: The Torrens system is not a mode of acquiring titles to lands; it is
merely a system of registration of titles to lands. However, justice and equity demand
that the titleholder should not be made to bear the unfavorable effect of the mistake
or negligence of the State’s agents, in the absence of proof of his complicity in a
fraud or of manifest damage to third persons. The real purpose of the Torrens system
is to quiet title to land and put a stop forever to any question as to the legality of the
title, except claims that were noted in the certificate at the time of registration or that
may arise subsequent thereto. Otherwise, the integrity of the Torrens system shall
forever be sullied by the ineptitude and ineffi-
198ciency of land registration officials, who are ordinarily presumed to have
regularly performed their duties.
Same; Succession; Collation; Article 1061 of the Civil Code required every
compulsory heir and the surviving spouse, to “bring into the mass of the estate any
property or right which he (or she) 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.”—Article 1061 of the Civil Code required every
compulsory heir and the surviving spouse, herein Teresita herself, to “bring into the
mass of the estate any property or right which he (or she) 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.” Section 2, Rule 90 of the Rules of
Court also provided that any advancement by the decedent on the legitime of an heir
“may be heard and determined by the court having jurisdiction of the estate
proceedings, and the final order of the court thereon shall be binding on the person
raising the questions and on the heir.” Rule 90 thereby expanded the special and
limited jurisdiction of the RTC as an intestate court about the matters relating to the
inventory of the estate of the decedent by authorizing it to direct the inclusion of
properties donated or bestowed by gratuitous title to any compulsory heir by the
decedent.
Same; Same; The determination of which properties should be excluded from
or included in the inventory of estate properties was well within the authority and
discretion of the Regional Trial Court (RTC) as an intestate court.—The
determination of which properties should be excluded from or included in the
inventory of estate properties was well within the authority and discretion of the
RTC as an intestate court. In making its determination, the RTC acted with
circumspection, and proceeded under the guiding policy that it was best to include all
properties in the possession of the administrator or were known to the administrator
to belong to Emigdio rather than to exclude properties that could turn out in the end
of discretion, its orders must be respected as part of the regular performance of its
judicial duty. Grave abuse of discretion means either that the judicial or quasi-
judicial power was exercised in an 
199arbitrary or despotic manner by reason of passion or personal hostility, or
that the respondent judge, tribunal or board evaded a positive duty, or virtually
31
refused to perform the duty enjoined or to act in contemplation of law, such as when
such judge, tribunal or board exercising judicial or quasi-judicial powers acted in a
capricious or whimsical manner as to be equivalent to lack of jurisdiction.
PETITION for review on certiorari of a decision of the Court of Appeals.
   The facts are stated in the opinion of the Court.
  Zosa & Quijano Law Offices for respondents.
BERSAMIN, J.:
The probate court is authorized to determine the issue of ownership of properties
for purposes of their inclusion or exclusion from the inventory to be submitted by the
administrator, but its determination shall only be provisional unless the interested
parties are all heirs of the decedent, or the question is one of collation or
advancement, or the parties consent to the assumption of jurisdiction by the probate
court and the rights of third parties are not impaired. Its jurisdiction extends to
matters incidental or collateral to the settlement and distribution of the estate, such as
the determination of the status of each heir and whether property included in the
inventory is the conjugal or exclusive property of the deceased spouse.
Antecedents
Emigdio S. Mercado (Emigdio) died intestate on January 12, 1991, survived by
his second wife, Teresita V. Mercado (Teresita), and their five children, namely:
Allan V. Mercado, Felimon V. Mercado, Carmencita M. Sutherland, Richard V.
Mercado, and Maria Teresita M. Anderson; and his two chil-
200dren by his first marriage, namely: respondent Franklin L. Mercado and
petitioner Thelma M. Aranas (Thelma).
Emigdio inherited and acquired real properties during his lifetime. He owned
corporate shares in Mervir Realty Corporation (Mervir Realty) and Cebu Emerson
Transportation Corporation (Cebu Emerson). He assigned his real properties in
exchange for corporate stocks of Mervir Realty, and sold his real property in Badian,
Cebu (Lot 3353 covered by Transfer Certificate of Title No. 3252) to Mervir Realty.
On June 3, 1991, Thelma filed in the Regional Trial Court (RTC) in Cebu City a
petition for the appointment of Teresita as the administrator of Emigdio’s estate
(Special Proceedings No. 3094-CEB).[1] The RTC granted the petition considering
that there was no opposition. The letters of administration in favor of Teresita were
issued on September 7, 1992.
As the administrator, Teresita submitted an inventory of the estate of Emigdio on
December 14, 1992 for the consideration and approval by the RTC. She indicated in
the inventory that at the time of his death, Emigdio had “left no real properties but
only personal properties” worth P6,675,435.25 in all, consisting of cash of
P32,141.20; furniture and fixtures worth P20,000.00; pieces of jewelry valued at
P15,000.00; 44,806 shares of stock of Mervir Realty worth P6,585,585.80; and 30
shares of stock of Cebu Emerson worth P22,708.25.[2]
Claiming that Emigdio had owned other properties that were excluded from the
inventory, Thelma moved that the RTC direct Teresita to amend the inventory, and
to be examined regarding it. The RTC granted Thelma’s motion through the order of
January 8, 1993.
_______________
[1] Instead of administratrix, the gender-fair term administrator is used.
[2] Rollo, p. 118.
201
On January 21, 1993, Teresita filed a compliance with the order of January 8,
1993,[3] supporting her inventory with copies of three certificates of stocks covering
the 44,806 Mervir Realty shares of stock;[4] the deed of assignment executed by
Emigdio on January 10, 1991 involving real properties with the market value of
P4,440,651.10 in exchange for 44,407 Mervir Realty shares of stock with total par
value of P4,440,700.00;[5] and the certificate of stock issued on January 30, 1979 for
300 shares of stock of Cebu Emerson worth P30,000.00.[6]
On January 26, 1993, Thelma again moved to require Teresita to be examined
under oath on the inventory, and that she (Thelma) be allowed 30 days within which
to file a formal opposition to or comment on the inventory and the supporting
documents Teresita had submitted.
On February 4, 1993, the RTC issued an order expressing the need for the parties
to present evidence and for Teresita to be examined to enable the court to resolve the
motion for approval of the inventory.[7]
On April 19, 1993, Thelma opposed the approval of the inventory, and asked
leave of court to examine Teresita on the inventory.
With the parties agreeing to submit themselves to the jurisdiction of the court on
the issue of what properties should be included in or excluded from the inventory,
the RTC set dates for the hearing on that issue.[8]
_______________
 
[3] Id., at p. 125.
[4] Id., at pp. 127-129.
[5] Id., at p. 130.
[6] Id., at p. 134.
[7] Id., at p. 56.
[8] Id., at p. 135.
202Ruling of the RTC
After a series of hearings that ran for almost eight years, the RTC issued on
March 14, 2001 an order finding and holding that the inventory submitted by
Teresita had excluded properties that should be included, and accordingly ruled:
WHEREFORE, in view of all the foregoing premises and considerations,
the Court hereby denies the administratrix’s motion for approval of
inventory. The Court hereby orders the said administratrix to re-do the
inventory of properties which are supposed to constitute as the estate of the
late Emigdio S. Mercado by including therein the properties mentioned in the
last five immediately preceding paragraphs hereof and then submit the
revised inventory within sixty (60) days from notice of this order.
The Court also directs the said administratrix to render an account of her
administration of the estate of the late Emigdio S. Mercado which had come
to her possession. She must render such accounting within sixty (60) days
from notice hereof.
32
 SO ORDERED.[9]
On March 29, 2001, Teresita, joined by other heirs of Emigdio, timely sought the
reconsideration of the order of March 14, 2001 on the ground that one of the real
properties affected, Lot No. 3353 located in Badian, Cebu, had already been sold to
Mervir Realty, and that the parcels of land covered by the deed of assignment had
already come into the possession of and registered in the name of Mervir Realty.
[10] Thelma opposed the motion.
On May 18, 2001, the RTC denied the motion for reconsideration,[11] stating
that there was no cogent reason for the re-
_______________
 [9] Id., at p. 140.
[10] Id., at p. 24.
[11] Id., at p. 156.
203consideration, and that the movants’ agreement as heirs to submit to the RTC the
issue of what properties should be included or excluded from the inventory already
estopped them from questioning its jurisdiction to pass upon the issue.
Decision of the CA  for certiorari because the order of the RTC directing a new inventory of properties
Alleging that the RTC thereby acted with grave abuse of discretion in refusing to
approve the inventory, and in ordering her as administrator to include real properties
that had been transferred to Mervir Realty, Teresita, joined by her four children and
her stepson Franklin, assailed the adverse orders of the RTC promulgated on March
14, 2001 and May 18, 2001 by petition for certiorari, stating:
I (retired), and concurred by Associate Justice Salvador J. Valdez, Jr.
THE HONORABLE RESPONDENT JUDGE HAS COMMITTED GRAVE
ABUSE OF JURISDICTION (sic) AMOUNTING TO LACK OR EXCESS
OF JURISDICTION IN HOLDING THAT THE REAL PROPERTY
WHICH WAS SOLD BY THE LATE EMIGDIO S. MERCADO DURING
HIS LIFETIME TO A PRIVATE CORPORATION (MERVIR REALTY
CORPORATION) BE INCLUDED IN THE INVENTORY OF THE
ESTATE OF THE LATE EMIGDIO S. MERCADO.
II
THE HONORABLE RESPONDENT JUDGE HAS COMMITTED GRAVE
ABUSE OF JURISDICTION (sic) AMOUNTING TO LACK OR EXCESS
OF JURISDICTION IN HOLDING THAT REAL PROPERTIES WHICH
ARE IN THE POSSESSION OF AND ALREADY REGISTERED IN THE
NAME (OF) PRIVATE CORPORATION (MERVIR REALTY
CORPORATION) BE INCLUDED IN THE INVENTORY OF THE
ESTATE OF THE LATE EMIGDIO S. MERCADO.204
III
THE HONORABLE RESPONDENT JUDGE HAS COMMITTED GRAVE
ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN HOLDING THAT PETITIONERS ARE NOW
ESTOPPED FROM QUESTIONING ITS JURISDICTION IN PASSING
UPON THE ISSUE OF WHAT PROPERTIES SHOULD BE INCLUDED
IN THE INVENTORY OF THE ESTATE OF THE LATE EMIGDIO
MERCADO.[12]
On May 15, 2002, the CA partly granted the petition for certiorari, disposing as
follows:[13]
 
WHEREFORE, FOREGOING PREMISES CONSIDERED, this petition
is GRANTED partially. The assailed Orders dated March 14, 2001 and May
18, 2001 are hereby reversed and set aside insofar as the inclusion of parcels
of land known as Lot No. 3353 located at Badian, Cebu with an area of
53,301 square meters subject matter of the Deed of Absolute Sale dated
November 9, 1989 and the various parcels of land subject matter of the Deeds
of Assignment dated February 17, 1989 and January 10, 1991 in the revised
inventory to be submitted by the administratrix is concerned and affirmedin
all other respects.
SO ORDERED.
The CA opined that Teresita, et al. had properly filed the petition
was interlocutory; that pursuant to Article 1477 of the Civil Code, to the effect that
the ownership of the thing sold “shall be transferred to the vendee”
_______________
[12] Id., at p. 25.
[13] Id., at pp. 21-34; penned by Associate Justice Mercedes Gozo-Dadole
(retired/deceased) and Associate Justice Amelita G. Tolentino.
205upon its “actual and constructive delivery,” and to Article 1498 of the Civil Code,
to the effect that the sale made through a public instrument was equivalent to the
delivery of the object of the sale, the sale by Emigdio and Teresita had transferred
the ownership of Lot No. 3353 to Mervir Realty because the deed of absolute sale
executed on November 9, 1989 had been notarized; that Emigdio had thereby ceased
to have any more interest in Lot 3353; that Emigdio had assigned the parcels of land
to Mervir Realty as early as February 17, 1989 “for the purpose of saving, as in
avoiding taxes with the difference that in the Deed of Assignment dated January 10,
1991, additional seven (7) parcels of land were included”; that as to the January 10,
1991 deed of assignment, Mervir Realty had been “even at the losing end
considering that such parcels of land, subject matter(s) of the Deed of Assignment
dated February 12, 1989, were again given monetary consideration through shares of
stock”; that even if the assignment had been based on the deed of assignment dated
January 10, 1991, the parcels of land could not be included in the inventory
“considering that there is nothing wrong or objectionable about the estate planning
scheme”; that the RTC, as an intestate court, also had no power to take cognizance of
and determine the issue of title to property registered in the name of third persons or
corporation; that a property covered by the Torrens system should be afforded the
presumptive conclusiveness of title; that the RTC, by disregarding the presumption,
had transgressed the clear provisions of law and infringed settled jurisprudence on
the matter; and that the RTC also gravely abused its discretion in holding that
33
Teresita, et al. were estopped from questioning its jurisdiction because of their
agreement to submit to the RTC the issue of which properties should be included in
the inventory.
The CA further opined as follows:
In the instant case, public respondent court erred when it ruled that
petitioners are estopped from ques-
206tioning its jurisdiction considering that they have already agreed to submit
themselves to its jurisdiction of determining what properties are to be
included in or excluded from the inventory to be submitted by the
administratrix, because actually, a reading of petitioners’ Motion for
Reconsideration dated March 26, 2001 filed before public respondent court
clearly shows that petitioners are not questioning its jurisdiction but the
manner in which it was exercised for which they are not estopped, since that
is their right, considering that there is grave abuse of discretion amounting to
lack or in excess of limited jurisdiction when it issued the assailed Order
dated March 14, 2001 denying the administratrix’s motion for approval of the
inventory of properties which were already titled and in possession of a third
person that is, Mervir Realty Corporation, a private corporation, which under
the law possessed a personality distinct and separate from its stockholders,
and in the absence of any cogency to shred the veil of corporate fiction, the
presumption of conclusiveness of said titles in favor of Mervir Realty
Corporation should stand undisturbed.
Besides, public respondent court acting as a probate court had no
authority to determine the applicability of the doctrine of piercing the veil of
corporate fiction and even if public respondent court was not merely acting in
a limited capacity as a probate court, private respondent nonetheless failed to
adjudge competent evidence that would have justified the court to impale the
veil of corporate fiction because to disregard the separate
jurisdictional personality of a corporation, the wrongdoing must be clearly
and convincingly established since it cannot be presumed.[14]
On November 15, 2002, the CA denied the motion for reconsideration of
Teresita, et al.[15]
_______________
[14] Rollo, pp. 32-33.
[15] Rollo, p. 35.
207Issue  subject of an appeal, but only after a judgment has been rendered, with the
Did the CA properly determine that the RTC committed grave abuse of
discretion amounting to lack or excess of jurisdiction in directing the inclusion of
certain properties in the inventory notwithstanding that such properties had been
either transferred by sale or exchanged for corporate shares in Mervir Realty by the
decedent during his lifetime?
Ruling of the Court  discretion. Then is certiorari under Rule 65 allowed to be resorted to.
The appeal is meritorious.
I of the inventory and the order dated May 18, 2001 denying her motion for
Was certiorari the proper recourse  reconsideration were interlocutory. This is because the inclusion of the properties in
to assail the questioned orders of the RTC? 
The first issue to be resolved is procedural. Thelma contends that the resort to the
special civil action for certiorari to assail the orders of the RTC by Teresita and her
co-respondents was not proper.
Thelma’s contention cannot be sustained.  
The propriety of the special civil action for certiorari as a remedy depended on
whether the assailed orders of the RTC were final or interlocutory in nature.
In Pahila-Garrido v. Tortogo,[16] the Court distinguished
between final and interlocutory orders as follows:
The distinction between a final order and an interlocutory order is well
known. The first disposes of the subject matter in its entirety or terminates a
particular proceeding or action, leaving nothing more to be done except to
enforce by execution what the court has determined, but the latter does not
completely dispose of the case but leaves something else to be decided upon.
An in-
_______________
 
[16] G.R. No. 156358, August 17, 2011, 655 SCRA 553, 566-567.
208terlocutory order deals with preliminary matters and the trial on the merits
is yet to be held and the judgment rendered. The test to ascertain whether or
not an order or a judgment is interlocutory or final is: does the order or
judgment leave something to be done in the trial court with respect to the
merits of the case? If it does, the order or judgment is interlocutory;
otherwise, it is final.
The order dated November 12, 2002, which granted the application for
the writ of preliminary injunction, was an interlocutory, not a final, order, and
should not be the subject of an appeal. The reason for disallowing an appeal
from an interlocutory order is to avoid multiplicity of appeals in a single
action, which necessarily suspends the hearing and decision on the merits of
the action during the pendency of the appeals. Permitting multiple appeals
will necessarily delay the trial on the merits of the case for a considerable
length of time, and will compel the adverse party to incur unnecessary
expenses, for one of the parties may interpose as many appeals as there are
incidental questions raised by him and as there are interlocutory orders
rendered or issued by the lower court. An interlocutory order may be the
ground for appealing the order being included in the appeal of the judgment
itself.
The remedy against an interlocutory order not subject of an appeal is an
appropriate special civil action under Rule 65, provided that the interlocutory
order is rendered without or in excess of jurisdiction or with grave abuse of
The assailed order of March 14, 2001 denying Teresita’s motion for the approval
34
the inventory was not yet a final determination of their ownership. Hence, the
approval of the inventory and the concomitant determination of the ownership as
basis for inclu-
209sion or exclusion from the inventory were provisional and subject to revision at
anytime during the course of the administration proceedings.
In Valero Vda. De Rodriguez v. Court of Appeals,[17] the Court, in affirming the
decision of the CA to the effect that the order of the intestate court excluding certain
real properties from the inventory was interlocutory and could be changed or
modified at anytime during the course of the administration proceedings, held that
the order of exclusion was not a final but an interlocutory order “in the sense that it
did not settle once and for all the title to the San Lorenzo Village lots.” The Court
observed there that:
The prevailing rule is that for the purpose of determining whether a
certain property should or should not be included in the inventory, the
probate court may pass upon the title thereto but such determination is
not conclusive and is subject to the final decision in a separate action
regarding ownership which may be instituted by the parties (3 Moran’s
Comments on the Rules of Court, 1970 Edition, pages 448-9 and
473; Lachenal vs. Salas, L-42257, June 14, 1976, 71 SCRA 262, 266).
[18] (Bold emphasis supplied)
To the same effect was De Leon v. Court of Appeals,[19]where the Court
declared that a “probate court, whether in a testate or intestate proceeding, can only
pass upon questions of title provisionally,” and reminded, citing Jimenez v. Court of
Appeals, that the “patent reason is the probate court’s limited jurisdiction and the
principle that questions of title or ownership, which result in inclusion or exclusion
from the inventory of the property, can only be settled in a separate action.” In-
_______________
[17] No. L-39532, July 20, 1979, 91 SCRA 540.
[18] Id., at pp. 545-546.
[19] G.R. No. 128781, August 6, 2002, 386 SCRA 216, 226-227.
210deed, in the cited case of Jimenez v. Court of Appeals,[20]the Court pointed out:
All that the said court could do as regards the said properties is determine
whether they should or should not be included in the inventory or list of
properties to be administered by the administrator. If there is a dispute as to
the ownership, then the opposing parties and the administrator have to
resort to an ordinary action for a final determination of the conflicting
claims of title because the probate court cannot do so. (Bold emphasis
supplied)
On the other hand, an appeal would not be the correct recourse for Teresita, et al.
to take against the assailed orders. The final judgment rule embodied in the first
paragraph of Section 1, Rule 41, Rules of Court,[21] which also governs ap-
_______________
[20] G.R. No. 75773, April 17, 1990, 184 SCRA 367, 372.
[21] Section 1, Rule 41 of the Rules of Court (as amended under A.M. No. 07-7-
12-SC; effective December 27, 2007) provides:  appropriate special civil action as provided in Rule 65.
Section 1. Subject of appeal.—An appeal may be taken from a judgment or
final order that completely disposes of the case, or of a particular matter therein
when declared by these Rules to be appealable. 
No appeal may be taken from: 
(a) An order denying a petition for relief or any similar motion seeking relief
from judgment; 
(b) An interlocutory order; 
(c) An order disallowing or dismissing an appeal; 
(d)  An order denying a motion to set aside a judgment by consent, confession
or compromise on the ground of fraud, mistake or duress, or any other ground
vitiating consent; 
(e) An order of execution; 
(f)  A judgment or final order for or against one or more of several parties or in
separate claims, counterclaims, cross-claims and third-party complaints, while the
main case is pending, unless the court allows an appeal therefrom; and 
(g) An order dismissing an action without prejudice.
211peals in special proceedings, stipulates that only the judgments, final orders (and
resolutions) of a court of law “that completely disposes of the case, or of a particular
matter therein when declared by these Rules to be appealable” may be the subject of
an appeal in due course. The same rule states that an interlocutory order or resolution
(interlocutory because it deals with preliminary matters, or that the trial on the merits
is yet to be held and the judgment rendered) is expressly made non-appealable.
Multiple appeals are permitted in special proceedings as a practical recognition
of the possibility that material issues may be finally determined at various stages of
the special proceedings. Section 1, Rule 109 of the Rules of Court enumerates the
specific instances in which multiple appeals may be resorted to in special
proceedings, viz.:
Section 1. Orders or judgments from which appeals may be taken.—
An interested person may appeal in special proceedings from an order or
judgment rendered by a Court of First Instance or a Juvenile and Domestic
Relations Court, where such order or judgment:  
(a) Allows or disallows a will;
(b) Determines who are the lawful heirs of a deceased person, or the
distributive share of the estate to which such person is entitled;
(c) Allows or disallows, in whole or in part, any claim against the estate
of a deceased person, or any claim presented on behalf of the estate in offset
to a claim against it;  
(d) Settles the account of an executor, administrator, trustee or
guardian;
(e) Constitutes, in proceedings relating to the settlement of the estate of
a deceased person, or the administration of a trustee or guardian, a final
determination in
_______________
In any of the foregoing circumstances, the aggrieved party may file an
35
 212the lower court of the rights of the party appealing, except that no appeal
shall be allowed from the appointment of a special administrator; and   and equitable distribution (partition) of the estate and other-
(f) Is the final order or judgment rendered in the case, and affects the
substantial rights of the person appealing, unless it be an order granting or
denying a motion for a new trial or for reconsideration.
Clearly, the assailed orders of the RTC, being interlocutory, did not come under
any of the instances in which multiple appeals are permitted.
II
Did the RTC commit grave abuse of discretion in directing the inclusion of
the properties in the estate of the decedent?  question of what properties should be included in the inventory. According
In its assailed decision, the CA concluded that the RTC committed grave abuse
of discretion for including properties in the inventory notwithstanding their having
been transferred to Mervir Realty by Emigdio during his lifetime, and for
disregarding the registration of the properties in the name of Mervir Realty, a third
party, by applying the doctrine of piercing the veil of corporate fiction.
Was the CA correct in its conclusion?
The answer is in the negative. It is unavoidable to find that the CA, in reaching
its conclusion, ignored the law and the facts that had fully warranted the assailed
orders of the RTC.
Under Section 6(a), Rule 78 of the Rules of Court, the letters of administration
may be granted at the discretion of the court to the surviving spouse, who is
competent and willing to serve when the person dies intestate. Upon issuing the
letters of administration to the surviving spouse, the RTC becomes duty-bound to
direct the preparation and submission of the inventory of the properties of the estate,
and the surviving spouse, as the administrator, has the duty and responsibility
213to submit the inventory within three months from the issuance of letters of
administration pursuant to Rule 83 of the Rules of Court, viz.:
Section 1. Inventory and appraisal to be returned within three months.
—Within three (3) months after his appointment every executor or
administrator shall return to the court a true inventory and appraisal of all
the real and personal estate of the deceased which has come into his
possession or knowledge. In the appraisement of such estate, the court may
order one or more of the inheritance tax appraisers to give his or their
assistance.
The usage of the word all in Section 1, supra, demands the inclusion of all the
real and personal properties of the decedent in the inventory.[22] However, the
word all is qualified by the phrase which has come into his possession or knowledge,
which signifies that the properties must be known to the administrator to belong to
the decedent or are in her possession as the administrator. Section 1 allows no
exception, for the phrase true inventory implies that no properties appearing to
belong to the decedent can be excluded from the inventory, regardless of their being
in the possession of another person or entity.   parties, not by virtue of any right of inheritance from the deceased but by title
The objective of the Rules of Court in requiring the inventory and appraisal of
the estate of the decedent is “to aid the court in revising the accounts and
determining the liabilities of the executor or the administrator, and in making a final
_______________
[22] The word all means “every one, or the whole number of particular; the
whole number” (3 Words and Phrases 212, citing State v. Maine Cent. R. Co., 66
Me. 488, 510). Standing alone, the word all means exactly what it imports; that is,
nothing less than all (Id., at p. 213, citing In re Staheli’s Will, 57 N.Y.S.2d 185, 188).
214wise to facilitate the administration of the estate.”[23]Hence, the RTC that
presides over the administration of an estate is vested with wide discretion on the
to Peralta v. Peralta,[24] the CA cannot impose its judgment in order to supplant
that of the RTC on the issue of which properties are to be included or excluded from
the inventory in the absence of “positive abuse of discretion,” for in the
administration of the estates of deceased persons, “the judges enjoy ample
discretionary powers and the appellate courts should not interfere with or attempt to
replace the action taken by them, unless it be shown that there has been a positive
abuse of discretion.”[25] As long as the RTC commits no patently grave abuse of
discretion, its orders must be respected as part of the regular performance of its
judicial duty.
There is no dispute that the jurisdiction of the trial court as an intestate court is
special and limited. The trial court cannot adjudicate title to properties claimed to be
a part of the estate but are claimed to belong to third parties by title adverse to that of
the decedent and the estate, not by virtue of any right of inheritance from the
decedent. All that the trial court can do regarding said properties is to determine
whether or not they should be included in the inventory of properties to be
administered by the administrator. Such determination is provisional and may be still
revised. As the Court said in Agtarap v. Agtarap:[26]
The general rule is that the jurisdiction of the trial court, either as a
probate court or an intestate court, relates only to matters having to do with
the probate of the will and/or settlement of the estate of deceased persons, but
does not extend to the determination of questions of
_______________
[23] Siy Chong Keng v. Collector of Internal Revenue, 60 Phil. 493, 500 (1934).
[24] 71 Phil. 66 (1940).
[25] Id., at p. 68.
[26] G.R. No. 177099, June 8, 2011, 651 SCRA 455.
215ownership that arise during the proceedings. The patent rationale for this
rule is that such court merely exercises special and limited jurisdiction. As
held in several cases, a probate court or one in charge of estate proceedings,
whether testate or intestate, cannot adjudicate or determine title to properties
claimed to be a part of the estate and which are claimed to belong to outside
adverse to that of the deceased and his estate. All that the said court could do
as regards said properties is to determine whether or not they should be
included in the inventory of properties to be administered by the
36
 administrator. If there is no dispute, there poses no problem, but if there is,
then the parties, the administrator, and the opposing parties have to resort to
an ordinary action before a court exercising general jurisdiction for a final
determination of the conflicting claims of title.
However, this general rule is subject to exceptions as justified by
expediency and convenience.
First, the probate court may provisionally pass upon in an intestate or
a testate proceeding the question of inclusion in, or exclusion from, the
inventory of a piece of property without prejudice to final determination
of ownership in a separate action. Second, if the interested parties are all
heirs to the estate, or the question is one of collation or advancement, or
the parties consent to the assumption of jurisdiction by the probate court
and the rights of third parties are not impaired, then the probate court is
competent to resolve issues on ownership. Verily, its jurisdiction extends to
matters incidental or collateral to the settlement and distribution of the estate,
such as the determination of the status of each heir and whether the
property in the inventory is conjugal or exclusive property of the
deceased spouse.[27] (Italics in the original; bold emphasis supplied)
_______________
 
[27] Id., at pp. 471-473, citing, among others, Coca v. Pizarras Vda. De
Pangilinan, No. L-27082, January 31, 1978, 81 SCRA 278, 283; Alvarez v.
Espiritu, No. L-18833, August 14, 1965, 14 SCRA 
216It is clear to us that the RTC took pains to explain the factual bases for its
directive for the inclusion of the properties in question in its assailed order of March
14, 2001, viz.:
In the first place, the administratrix of the estate admitted that Emigdio
Mercado was one of the heirs of Severina Mercado who, upon her death, left
several properties as listed in the inventory of properties submitted in Court
in Special Proceedings No. 306-R which are supposed to be divided among
her heirs. The administratrix admitted, while being examined in Court by the
counsel for the petitioner, that she did not include in the inventory submitted
by her in this case the shares of Emigdio Mercado in the said estate of
Severina Mercado. Certainly, said properties constituting Emigdio Mercado’s
share in the estate of Severina Mercado should be included in the inventory
of properties required to be submitted to the Court in this particular case.
In the second place, the administratrix of the estate of Emigdio Mercado
also admitted in Court that she did not include in the inventory shares of
stock of Mervir Realty Corporation which are in her name and which were
paid by her from money derived from the taxicab business which she and her
husband had since 1955 as a conjugal undertaking. As these shares of stock
partake of being conjugal in character, one-half thereof or of the value thereof
should be included in the inventory of the estate of her husband.
 
_______________
892, 899; Cunanan v. Amparo, 80 Phil. 227 (1948); and Pascual v. Pascual, 73
Phil. 561 (1942).
217
In the third place, the administratrix of the estate of Emigdio Mercado
admitted, too, in Court that she had a bank account in her name at Union
Bank which she opened when her husband was still alive. Again, the money
in said bank account partakes of being conjugal in character, and so, one-half
thereof should be included in the inventory of the properties constituting as
estate of her husband.
In the fourth place, it has been established during the hearing in this case
that Lot No. 3353 of Pls-657-D located in Badian, Cebu containing an area of
53,301 square meters as described in and covered by Transfer Certificate of
Title No. 3252 of the Registry of Deeds for the Province of Cebu is still
registered in the name of Emigdio S. Mercado until now. When it was the
subject of Civil Case No. CEB-12690 which was decided on October 19,
1995, it was the estate of the late Emigdio Mercado which claimed to be the
owner thereof. Mervir Realty Corporation never intervened in the said case in
order to be the owner thereof. This fact was admitted by Richard Mercado
himself when he testified in Court.
x x x So the said property located in Badian, Cebu should be included in the
inventory in this case.
Fifthly and lastly, it appears that the assignment of several parcels of land
by the late Emigdio S. Mercado to Mervir Realty Corporation on January 10,
1991 by virtue of the Deed of Assignment signed by him on the said day
(Exhibit N for the petitioner and Exhibit 5 for the administratrix) was a transfer
in contemplation of death. It was made two days before he died on January 12,
1991. A transfer made in contemplation of death is one prompted by the
thought that the transferor has not long to live and made in place of a
testamentary disposition (1959 Prentice Hall, p. 3909). Section 78 of the
National Internal Revenue Code of 1977 provides that the gross estate of the
decedent shall be determined by including the value at the time of his death of
all property to the extent of any interest therein of which the decedent has at
any time made a transfer in contemplation of death. So, the inventory to be
approved in this case should still include the said properties of Emigdio
Mercado which were transferred by him in contemplation of death. Besides, the
said properties actually appeared to be still registered in the name of Emigdio
S. Mercado at least ten (10) months after his death, as shown by the
certification issued by the Cebu City Assessor’s Office on October 31, 1991
(Exhibit O).[28]
_______________
[28] Rollo, pp. 139-140.
218Thereby, the RTC strictly followed the directives of the Rules of Court and
the jurisprudence relevant to the procedure for preparing the inventory by the
administrator. The aforequoted explanations indicated that the directive to include
37
the properties in question in the inventory rested on good and valid reasons, and thus
was far from whimsical, or arbitrary, or capricious.
Firstly, the shares in the properties inherited by Emigdio from Severina Mercado
should be included in the inventory because Teresita, et al. did not dispute the fact
about the shares being inherited by Emigdio.
Secondly, with Emigdio and Teresita having been married prior to the effectivity
of the Family Code in August 3, 1988, their property regime was the conjugal
partnership of gains.[29] For purposes of the settlement of Emigdio’s estate, it was
unavoidable for Teresita to include his shares in the conjugal partnership of gains.
The party asserting that specific property acquired during that property regime did
not pertain to the conjugal partnership of gains carried the burden of proof, and that
party must prove the exclusive ownership by one of them by clear, categorical, and
convincing evidence.[30] In the absence of or pending the presentation of such proof,
the conjugal partnership of Emigdio and Teresita must be provisionally liquidated to
establish who the real owners of the affected properties were,[31] and which of the
properties should form part of the estate of Emigdio. The portions that pertained to
the estate of Emigdio must be included in the inventory.
Moreover, although the title over Lot 3353 was already registered in the name of
Mervir Realty, the RTC made findings that put that title in dispute. Civil Case No.
CEB-12692, a
_______________
[29] See Family Code, Art. 105, 116.
[30] Dewara v. Lamela, G.R. No. 179010, April 11, 2011, 647 SCRA 483, 490,
citing Coja v. Court of Appeals, G.R. No. 151153, December 10, 2007, 539 SCRA
517, 528.
[31] See Alvarez v. Espiritu, No. L-18833, August 14, 1965, 14 SCRA 892, 899.
219dispute that had involved the ownership of Lot 3353, was resolved in favor of the
estate of Emigdio, and Transfer Certificate of Title No. 3252 covering Lot 3353 was
still in Emigdio’s name. Indeed, the RTC noted in the order of March 14, 2001, or
ten years after his death, that Lot 3353 had remained registered in the name of
Emigdio.
Interestingly, Mervir Realty did not intervene at all in Civil Case No. CEB-
12692. Such lack of interest in Civil Case No. CEB-12692 was susceptible of various
interpretations, including one to the effect that the heirs of Emigdio could have
already threshed out their differences with the assistance of the trial court. This
interpretation was probable considering that Mervir Realty, whose business was
managed by respondent Richard, was headed by Teresita herself as its President. In
other words, Mervir Realty appeared to be a family corporation.
Also, the fact that the deed of absolute sale executed by Emigdio in favor of
Mervir Realty was a notarized instrument did not sufficiently justify the exclusion
from the inventory of the properties involved. A notarized deed of sale only enjoyed
the presumption of regularity in favor of its execution, but its notarization did not per
se guarantee the legal efficacy of the transaction under the deed, and what the
contents purported to be. The presumption of regularity could be rebutted by clear
and convincing evidence to the contrary.[32] As the Court has observed in Suntay v.
Court of Appeals:[33]
x x x. Though the notarization of the deed of sale in question vests in its favor
the presumption of regularity, it is not the intention nor the function of the
notary public to
_______________
[32] San Juan v. Offril, G.R. No. 154609, April 24, 2009, 586 SCRA 439, 445-
446 citing Nazareno v. Court of Appeals, G.R. No. 138842, October 18, 2000, 343
SCRA 637, 652.
[33] G.R. No. 114950, December 19, 1995, 251 SCRA 430, 452-453, cited
in Nazareno v. Court of Appeals, G.R. No. 138842, October 18, 2000, 343 SCRA
637, 652.
220validate and make binding an instrument never, in the first place, intended
to have any binding legal effect upon the parties thereto. The intention of the
parties still and always is the primary consideration in determining the
true nature of a contract. (Bold emphasis supplied)
It should likewise be pointed out that the exchange of shares of stock of Mervir
Realty with the real properties owned by Emigdio would still have to be inquired
into. That Emigdio executed the deed of assignment two days prior to his death was a
circumstance that should put any interested party on his guard regarding the
exchange, considering that there was a finding about Emigdio having been sick of
cancer of the pancreas at the time.[34] In this regard, whether the CA correctly
characterized the exchange as a form of an estate planning scheme remained to be
validated by the facts to be established in court.
The fact that the properties were already covered by Torrens titles in the name of
Mervir Realty could not be a valid basis for immediately excluding them from the
inventory in view of the circumstances admittedly surrounding the execution of the
deed of assignment. This is because:
The Torrens system is not a mode of acquiring titles to lands; it is merely
a system of registration of titles to lands. However, justice and equity demand
that the titleholder should not be made to bear the unfavorable effect of the
mistake or negligence of the State’s agents, in the absence of proof of his
complicity in a fraud or of manifest damage to third persons. The real
purpose of the Torrens system is to quiet title to land and put a stop forever to
any question as to the legality of the title, except claims that were noted in the
certificate at the time of registration or that may arise subsequent thereto.
Otherwise, the integrity of the Torrens system shall forever be sullied by
the ineptitude and inefficiency of land
_______________
[34] Rollo, p. 138.
221registration officials, who are ordinarily presumed to have regularly
performed their duties.[35]
Assuming that only seven titled lots were the subject of the deed of assignment
of January 10, 1991, such lots should still be included in the inventory to enable the
38
parties, by themselves, and with the assistance of the RTC itself, to test and resolve
the issue on the validity of the assignment. The limited jurisdiction of the RTC as an
intestate court might have constricted the determination of the rights to the properties
arising from that deed,[36] but it does not prevent the RTC as intestate court from
ordering the inclusion in the inventory of the properties subject of that deed. This is
because the RTC as intestate court, albeit vested only with special and limited
jurisdiction, was still “deemed to have all the necessary powers to exercise such
jurisdiction to make it effective.”[37]
Lastly, the inventory of the estate of Emigdio must be prepared and submitted for
the important purpose of resolving the difficult issues of collation and advancement
to the heirs. Article 1061 of the Civil Code required every compulsory heir and the
surviving spouse, herein Teresita herself, to “bring into the mass of the estate any
property or right which he (or she) 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.” Section 2, Rule 90 of the Rules of Court also provided that
any
_______________
[35] Rabaja Ranch Development Corporation v. AFP Retirement and Separation
Benefits System, G.R. No. 177181, July 7, 2009, 592 SCRA 201, 217,
citing Republic v. Guerrero, G.R. No. 133168, March 28, 2006, 485 SCRA 424, 445.
[36] Reyes-Mesugas v. Reyes, G.R. No. 174835, March 22, 2010, 616 SCRA
345, 350, citing Pio Barretto Realty Development, Inc. v. Court of Appeals, Nos. L-
62431-33, August 3, 1984, 131 SCRA 606.
[37] Pio Barretto Realty Development, Inc. v. Court of Appeals, supra at p. 621.
222advancement by the decedent on the legitime of an heir “may be heard and
determined by the court having jurisdiction of the estate proceedings, and the final
order of the court thereon shall be binding on the person raising the questions and
on the heir.” Rule 90 thereby expanded the special and limited jurisdiction of the
RTC as an intestate court about the matters relating to the inventory of the estate of
the decedent by authorizing it to direct the inclusion of properties donated or
bestowed by gratuitous title to any compulsory heir by the decedent.[38]
The determination of which properties should be excluded from or included in
the inventory of estate properties was well within the authority and discretion of the
RTC as an intestate court. In making its determination, the RTC acted with
circumspection, and proceeded under the guiding policy that it was best to include all
properties in the possession of the administrator or were known to the administrator
to belong to Emigdio rather than to exclude properties that could turn out in the end
to be actually part of the estate. As long as the RTC commits no patent grave abuse
of discretion, its orders must be respected as part of the regular performance of its
judicial duty. Grave abuse of discretion means either that the judicial or quasi-
judicial power was exercised in an arbitrary or despotic manner by reason of passion
or personal hostility, or that the respondent judge, tribunal or board evaded a positive
duty, or virtually refused to perform the duty enjoined or to act in contemplation of
law, such as when such judge, tribunal or board exercising judicial or quasi-judicial
powers acted in a capricious or whimsical manner as to be equivalent to lack of
jurisdiction.[39]
_______________
[38] Gregorio v. Madarang, G.R. No. 185226, February 11, 2010, 612 SCRA
340, 345.
[39] Delos Santos v. Metropolitan Bank and Trust Company, G.R. No. 153852,
October 24, 2012, 684 SCRA 410, 422-423.
223In light of the foregoing, the CA’s conclusion of grave abuse of discretion on the
part of the RTC was unwarranted and erroneous.
WHEREFORE, the Court GRANTS the petition for review
on certiorari; REVERSES and SETS ASIDE the decision promulgated on May 15,
2002; REINSTATES the orders issued on March 14, 2001 and May 18, 2001 by the
Regional Trial Court in Cebu; DIRECTS the Regional Trial Court in Cebu to
proceed with dispatch in Special Proceedings No. 3094-CEB entitled Intestate Estate
of the late Emigdio Mercado, Thelma Aranas, petitioner, and to resolve the case;
and ORDERS the respondents to pay the costs of suit.
SO ORDERED.
Sereno (CJ.), Leonardo-De Castro, Villarama, Jr. and Reyes, JJ., concur.
Petition granted, judgment reversed and set aside.
Notes.—The term collation has two distinct concepts: first, it is a mere
mathematical operation by the addition of the value of donations made by the testator
to the value of the hereditary estate; and second, it is the return to the hereditary
estate of property disposed of by lucrative title by the testator during his lifetime.
(Arellano vs. Pascual, 638 SCRA 826 [2010])
The determination as to the existence of co-ownership is necessary in the
resolution of an action for partition. (Lacbayan vs. Samoy, Jr., 645 SCRA 677
[2011])
——o0o——
39
 G.R. No. 176943. October 17, 2008.*
DANILO ALUAD, LEONORA ALUAD, DIVINA ALUAD, PROSPERO
ALUAD, and CONNIE ALUAD, petitioners, vs. ZENAIDO ALUAD,
respondent.
Civil Law; Ownership; For the right to dispose of a thing without other
limitations than those established by law is an attribute of ownership.—The
statement in the Deed of Donation reading “anytime during the lifetime of the
DONOR or anyone of them who should survive, they could use, encumber or even
dispose of any or even all the parcels of land herein donated” means that Matilde
retained ownership of the lots and reserved in her the right to dispose them. For the
right to dispose of a thing without other limitations than those established by law is
an attribute of ownership. The phrase in the Deed of Donation “or anyone of
them who should survive” is of course out of sync. For the Deed of Donation clearly
stated that it would take effect upon the death of the donor,
_______________

* SECOND DIVISION.
698
698 SUPREME COURT REPORTS ANNOTATED
Aluad vs. Aluad
hence, said phrase could only have referred to the donor Matilde. Petitioners
themselves concede that such phrase does not refer to the donee, thus: x x x [I]t is
well to point out that the last provision (sentence) in the disputed paragraph should
only refer to Matilde Aluad, the donor, because she was the only surviving spouse at
the time the donation was executed on 14 November 1981, as her husband – Crispin
Aluad [–] had long been dead as early as 1975.
Same; Wills and Succession; Donation; The donation being then mortis causa,
the formalities of a will should have been observed but they were not, as it was
witnessed by only two, not three or more witnesses following Article 805 of the Civil
Code.—As the Court of Appeals observed, “x x x [t]hat the donation is mortis
causa is fortified by Matilde’s acts of possession as she continued to pay the taxes
for the said properties which remained under her name; appropriated the produce;
and applied for free patents for which OCTs were issued under her name.” The
donation being then mortis causa, the formalities of a will should have been
observed but they were not, as it was witnessed by only two, not three or more
witnesses following Article 805 of the Civil Code. Further, the witnesses did not
even sign the attestation clause the execution of which clause is a requirement

40
separate from the subscription of the will and the affixing of signatures on the left-
hand margins of the pages of the will.
Same; Same; An unsigned attestation clause results in an unattested will.—
x x x Article 805 particularly segregates the requirement that the instrumental
witnesses sign each page of the will from the requisite that the will be “attested and
subscribed by [the instrumental witnesses]. The respective intents behind these two
classes of signature[s] are distinct from each other. The signatures on the left-hand
corner of every page signify, among others, that the witnesses are aware that the page
they are signing forms part of the will. On the other hand, the signatures to the
attestation clause establish that the witnesses are referring to the statements
contained in the attestation clause itself. Indeed, the attestation clause is separate and
apart from the disposition of the will. An unsigned attestation clause results in an
unattested will. Even if the instrumental witnesses signed the left-hand margin of
the page containing the unsigned attestation clause, such signatures cannot
demonstrate these witnesses’ undertakings in the clause, since the signatures that do
appear on the page were directed towards a wholly different avowal.699
VOL. 569, OCTOBER 17, 2008 699
Aluad vs. Aluad
Same; Same; Every will must be acknowledged before a notary public by the
testator and the witnesses.—The witnesses did not acknowledge the will before the
notary public, which is not in accordance with the requirement of Article 806 of the
Civil Code that every will must be acknowledged before a notary public by the
testator and the witnesses. More. The requirement that all the pages of the will must
be numbered correlatively in letters placed on the upper part of each page was not
also followed.
Same; Same; Donations; The Deed of Donation which is, as already
discussed, one of mortis causa, not having followed the formalities of a will, it is
void and transmitted no right to petitioners’ mother.—The Deed of Donation which
is, as already discussed, one of mortis causa, not having followed the formalities of a
will, it is void and transmitted no right to petitioners’ mother. But even
assuming arguendo that the formalities were observed, since it was not probated, no
right to Lot Nos. 674 and 676 was transmitted to Maria. Matilde thus validly
disposed of Lot No. 674 to respondent by her last will and testament, subject of
course to the qualification that her (Matilde’s) will must be probated. With respect to
Lot No. 676, the same had, as mentioned earlier, been sold by Matilde to respondent
on August 26, 1991.
Civil Procedure; Appeals; As a general rule, points of law, theories, and
issues not brought to the attention of the trial court cannot be raised for the first time
on appeal.—Petitioners failed to raise the issue of acquisitive prescription before the
lower courts, however, they having laid their claim on the basis of inheritance from
their mother. As a general rule, points of law, theories, and issues not brought to the
attention of the trial court cannot be raised for the first time on appeal. For a contrary
rule would be unfair to the adverse party who would have no opportunity to present
further evidence material to the new theory, which it could have done had it been
aware of it at the time of the hearing before the trial court.
PETITION for review on certiorari of a decision of the Court of Appeals.
   The facts are stated in the opinion of the Court.
  Jose S. Diloy, Jr. for petitioners.
  Orlanda B. Lumawag for respondent.
700
700 SUPREME COURT REPORTS ANNOTATED
Aluad vs. Aluad
CARPIO-MORALES, J.:
Petitioners’ mother, Maria Aluad (Maria), and respondent Zenaido Aluad were
raised by the childless spouses Matilde Aluad (Matilde) and Crispin Aluad (Crispin).
Crispin was the owner of six lots identified as Lot Nos. 674, 675, 676, 677, 680,
and 682 of the Pilar Cadastre, Capiz. After Crispin died, his wife Matilde adjudicated
the lots to herself.1
On November 14, 1981, Matilde executed a document entitled “Deed of
Donation of Real Property Inter Vivos”2(Deed of Donation) in favor of petitioners’
mother Maria3covering all the six lots which Matilde inherited from her husband
Crispin. The Deed of Donation provided:
“That, for and in consideration of the love and affection of the DONOR
[Matilde] for the DONEE [Maria], the latter being adopted and hav[ing] been
brought up by the former the DONOR, by these presents, transfer and convey, BY
WAY OF DONATION, unto the DONEE the property above-described, to become
effective upon the death of the DONOR, but in the event that the DONEE
should die before the DONOR, the present donation shall be deemed
rescinded and [of] no further force and effect; Provided, however, that anytime
during the lifetime of the DONOR or anyone of them who should survive, they could
use[,] encumber or even dispose of any or even all of the parcels of land herein
donated.”4(Emphasis and underscoring supplied)
On September 30, 1986, Original Certificates of Title over Lot Nos. 674 and 676
were issued in Matilde’s name.
On August 26, 1991, Matilde sold Lot No. 676 to respondent by a Deed of
Absolute Sale of Real Property.5
_______________
1 Exhibit “G,” Records, pp. 172-173.
2 Exhibit “A,” id., at pp. 164-165.
3 Maria Aluad, as donee, accepted the donation as expressly stated in the deed
and confirmed by her signature thereon (Exhibit “A-3,” [vide note 2]).
4 Exhibit “A-1,” id., at p. 164.
5 Exhibit “1,” id., at p. 221.
701
VOL. 569, OCTOBER 17, 2008 701
Aluad vs. Aluad
41
 Subsequently or on January 14, 1992, Matilde executed a last will and
testament,6 devising Lot Nos. 675, 677, 682, and 680 to Maria, and her “remaining
properties” including Lot No. 674 to respondent.
Matilde died on January 25, 1994, while Maria died on September 24 of the same
year.7
On August 21, 1995, Maria’s heirs-herein petitioners filed before the Regional
Trial Court (RTC) of Roxas City a Complaint,8 for declaration and recovery of
ownership and possession of Lot Nos. 674 and 676, and damages against respondent,
alleging:
“That in 1978, plaintiff[s] possessed the two (2) parcels of land above-described
until January 1991 when defendant entered and possessed the two (2) parcels of land
claiming as the adopted son of Crispin Aluad who refused to give back possession
until Matilde Aluad died in [1994] and then retained the possession thereof up to and
until the present time, thus, depriving the plaintiffs of the enjoyment of said parcels
of land x x x;
That after the death of Matilde R. Aluad, the plaintiffs succeeded by inheritance
by right of representation from their deceased mother, Maria Aluad who is the sole
and only daughter of Matilde Aluad[.]”9
To the complaint respondent alleged in his Answer.10
“That Lot 674 is owned by the defendant as this lot was adjudicated to him in the
Last Will and Testament of Matilde Aluad x x x while Lot 676 was purchased by
him from Matilde Aluad. These two lots are in his possession as true owners
thereof.”11(Underscoring supplied)
Petitioners later filed a Motion for Leave to Amend Complaint Already Filed to
Conform to Evidence12 to which it annexed an
_______________
6  Exhibit “2,” id., at pp. 222-223.
7  Exhibits “B” – “C,” id., at pp. 166-167.
8  Id., at pp. 1-6.
9  Id., at p. 3.
10 Id., at pp. 15-21.
11 Id., at pp. 18-19.
12 Id., at pp. 102-104.
702
702 SUPREME COURT REPORTS ANNOTATED
Aluad vs. Aluad
Amended Complaint13 which cited the donation of the six lots via Deed of Donation
in favor of their mother Maria. Branch 15 of the RTC granted the motion and
admitted the Amended Complaint.14
Respondent filed an Amended Answer15 contending, inter alia, that the Deed of
Donation is forged and falsified and petitioners’ change of theory showed that “said
document was not existing at the time they filed their complaint and was concocted
by them after realizing that their false claim that their mother was the only daughter
of Matild[e] Aluad cannot in anyway be established by them”;16 and that if ever said
document does exist, the same was already revoked by Matilde “when [she]
exercised all acts of dominion over said properties until she sold Lot 676 to
defendant and until her death with respect to the other lots without any opposition
from Maria Aluad.”17
The trial court, by Decision18 of September 20, 1996, held that Matilde could not
have transmitted any right over Lot Nos. 674 and 676 to respondent, she having
previously alienated them to Maria via the Deed of Donation. Thus it disposed:
“WHEREFORE, in view of the foregoing, judgment is hereby rendered:
1. Declaring the plaintiffs as the rightful owners of the subject Lots Nos. 674
and 676, Pilar Cadastre;
2. Ordering the defendant to deliver the possession of the subject lots to the
plaintiffs;
3. Ordering the defendant to pay the plaintiffs:
a. Thirty thousand pesos (P30,000.00) as attorney’s fees;
b. Twenty thousand pesos (P20,000.00), representing the income from
subject Lot 676, a year from 1991 up to the time said lot is
_______________
13 Id., at pp. 105-110.
14 Id., at pp. 121-122.
15 Id., at pp. 132-139.
16 Id., at p. 134.
17 Id., at pp. 136-137.
18 Id., at pp. 238-247.
703
VOL. 569, OCTOBER 17, 2008 703
Aluad vs. Aluad
delivered to the plaintiffs, together with the interest thereof at the legal rate
until fully paid;
c. Ten thousand pesos (P10,000.00), representing the income from the
subject Lot No. 674, a year from 1991 up to the time said lot is delivered to
the plaintiffs, plus legal interest thereof at the legal rate until fully paid; and
d. The costs of the suit.
Defendant’s counterclaim is ordered dismissed for lack of merit.
SO ORDERED.”19
On petitioners’ motion, the trial court directed the issuance of a writ of execution
pending appeal.20 Possession of the subject lots appears to have in fact been taken by
petitioners.
By Decision21 of August 10, 2006, the Court of Appeals reversed the trial court’s
decision, it holding that the Deed of Donation was actually a donation mortis causa,
not inter vivos, and as such it had to, but did not, comply with the formalities of a
will. Thus, it found that the Deed of Donation was witnessed by only two witnesses
42
and had no attestation clause which is not in accordance with Article 805 of the Civil
Code, reading:
“Art. 805. Every will, other than a holographic will, must be subscribed at the
end thereof by the testator himself or by the testator’s name written by some other
person in his presence, and by his express direction, and attested and subscribed by
three or more credible witnesses in the presence of the testator and of one another.  25 Rollo, pp. 18-50.
The testator or the person requested by him to write his name and the
instrumental witnesses of the will shall, also sign, as aforesaid, each and every page
thereof, except the last on the left margin and all the pages shall be numbered
correlatively in letters placed on the upper part of each page.
_______________
19 Id., at pp. 246-247.
20 Id., at pp. 260-261.
21 Penned by Court of Appeals Associate Justice Priscilla Baltazar-Padilla, with
the concurrence of Associate Justices Pampio A. Abarintos and Marlene Gonzales-
Sison; CA Rollo, pp. 130-146.
704
704 SUPREME COURT REPORTS ANNOTATED
Aluad vs. Aluad
The attestation shall state the number of pages used upon which the will is
written, and the fact that that testator signed the will and every page thereof, or
caused some other person to write his name, under his express direction, in the
presence of the instrumental witnesses, and that the latter witnessed and signed the
will and all the pages thereof in the presence of the testator, and of one another.
If the attestation clause is in a language not known to the witnesses, it shall be
interpreted to them.”
While the appellate court declared respondent as the rightful owner of Lot
No. 676, it did not so declare with respect to Lot No. 674, as Matilde’s last will and
testament had not yet been probated. Thus the Court of Appeals disposed:
“WHEREFORE, finding the instant petition worthy of merit, the same is
hereby GRANTED and the Decision of the Regional Trial Court of Roxas City,
Branch 15, dated 20 September 1996, in Civil Case No. V-6686 for declaration of
ownership, recovery of ownership and possession, and damages
is REVERSED and SET ASIDE.
A new one is entered in its stead declaring defendant-appellant as the lawful
owner of Lot [No.] 676 of the Pilar Cadastre. Accordingly, plaintiffs-appellees are
directed to return the possession of the said lot to the defendant-appellant.
Moreover, plaintiffs-appellees are ordered to pay P40,000.00 to defendant-
appellant as attorney’s fees and litigation expenses.
Costs against plaintiffs-appellees.
SO ORDERED.”22 (Emphasis in the original; underscoring supplied)
Their Motion for Reconsideration23 having been denied,24 petitioners filed the
present Petition for Review,25contending that the Court of Appeals erred:
_______________
22 Id., at pp. 145-146.
23 Id., at pp. 155-159.
24 Id., at pp. 166-167.
705
VOL. 569, OCTOBER 17, 2008 705
Aluad vs. Aluad
I
X X X WHEN IT REVERSED THE DECISION OF THE COURT BELOW (RTC,
Branch 15, Roxas City) HOLDING THAT THE DEED OF DONATION INTER
VIVOS IN FAVOR OF PETITIONERS’ MOTHER IS IN FACT A
DONATION MORTIS CAUSA.
II
X X X WHEN IT RULED THAT RESPONDENT IS THE RIGHTFUL OWNER
OF LOT NO. 676 AS LOT BUYER ON THE BASIS OF A DEED OF SALE
EXECUTED BY THE DONOR WHO HAD NO MORE RIGHT TO SELL THE
SAME.
III
X X X WHEN IT FAILED TO DECLARE PETITIONERS THE RIGHTFUL
OWNER OF LOT NO. 674 AFTER HAVING RULED WHEN IT HELD THAT
RESPONDENT CANNOT BE DECLARED OWNER THEREOF.
IV
X X X WHEN IT HELD THAT THE ISSUANCE OF A WRIT OF EXECUTION
PENDING APPEAL IS IN VIOLATION OF PARAGRAPH (a) SECTION 2, RULE
39, OF THE RULES OF COURT (AND ORDERING PETITIONERS TO RETURN
POSSESSION OF LOT 676 TO RESPONDENT) AND ORDERING
PETITIONERS TO PAY ATTORNEY’S FEES AND COST[S] OF SUIT.26
As did the appellate court, the Court finds the donation to petitioners’ mother one
of mortis causa, it having the following characteristics:
(1) It conveys no title or ownership to the transferee before the death of the
transferor; or what amounts to the same thing, that the transferor should retain the
ownership (full or naked) and control of the property while alive;
(2) That before the death of the transferor, the transfer should be revocable by
the transferor at will, ad nutum; but revocability may be provided for indirectly by
means of a reserved power in the donor to dispose of the properties conveyed; and
_______________
26 Id., at pp. 29-30.
706
706 SUPREME COURT REPORTS ANNOTATED
Aluad vs. Aluad

43
 (3) That the transfer should be void if the transferor should survive the
transferee.27 (Emphasis and underscoring supplied)
The phrase in the earlier-quoted Deed of Donation “to become effective upon the
death of the DONOR” admits of no other interpretation than to mean that Matilde did
not intend to transfer the ownership of the six lots to petitioners’ mother during her
(Matilde’s) lifetime.28
The statement in the Deed of Donation reading “anytime during the lifetime of
the DONOR or anyone of them who should survive, they could use, encumber or
even dispose of any or even all the parcels of land herein donated”29 means that
Matilde retained ownership of the lots and reserved in her the right to dispose them.
For the right to dispose of a thing without other limitations than those established by
law is an attribute of ownership.30 The phrase in the Deed of Donation “or anyone of
them who should survive” is of course out of sync. For the Deed of Donation clearly
stated that it would take effect upon the death of the donor, hence, said phrase could
only have referred to the donor Matilde. Petitioners themselves concede that such
phrase does not refer to the donee, thus:
“x x x [I]t is well to point out that the last provision (sentence) in the disputed
paragraph should only refer to Matilde Aluad, the donor, because she was the only
surviving spouse at the time the donation was executed on 14 November 1981, as her
husband – Crispin Aluad [–] had long been dead as early as 1975.”31
_______________
27 Maglasang v. Heirs of Corazon Cabatingan, 432 Phil. 548, 554; 383 SCRA 6,
10-11 (2002); Reyes v. Mosqueda, G.R. No. 45262, July 23, 1990, 187 SCRA 661,
670-671; Bonsato, et al. v. Court of Appeals, et al., 95 Phil. 481, 487 (1954).
28 Ibid.
29 Exhibit “A-1,” Records, p. 164.
30 Vide Civil Code, Article 428: “The owner has the right to enjoy and dispose
of a thing, without other limitations than those established by law x x x.”
31 Rollo, p. 37.
707
VOL. 569, OCTOBER 17, 2008 707
Aluad vs. Aluad
The trial court, in holding that the donation was inter vivos, reasoned:
“x x x The donation in question is subject to a resolutory term or period when the
donor provides in the aforequoted provisions, “but in the event that the DONEE
should die before the DONOR, the present donation shall be deemed rescinded and
[of] no further force and effect”. When the donor provides that should the “DONEE”
xxx die before the DONOR, the present donation shall be deemed rescinded and [of]
no further force and effect” the logical construction thereof is that after the execution
of the subject donation, the same became effective immediately and shall be
”deemed rescinded and [of] no further force and effect” upon the arrival of a
resolutory term or period, i.e., the death of the donee which shall occur before that
of the donor. Understandably, the arrival of this resolutory term or period cannot
rescind and render of no further force and effect a donation which has never become
effective, because, certainly what donation is there to be rescinded and rendered of
no further force and effect upon the arrival of said resolutory term or period if there
was no donation which was already effective at the time when the donee
died?”32 (Italics supplied)
A similar ratio in a case had been brushed aside by this Court, however, thus:
“x x x [P]etitioners contend that the stipulation on rescission in case petitioners
[donee] die ahead of [donor] Cabatingan is a resolutory condition that confirms the
nature of the donation as inter vivos.
Petitioners’ arguments are bereft of merit.33
x x x x
x x x The herein subject deeds expressly provide that the donation shall be
rescinded in case [donees] the petitioners predecease [the donor] Conchita
Cabatingan. As stated in Reyes v. Mosqueda, one of the decisive  characteristics of a
donation mortis causa is that the transfer should be considered void if the donor
should survive the donee. This is exactly what Cabatingan provided for in her
donations. If she really intended that the donation should take effect during her
lifetime and that the ownership of
_______________
32 Records, pp. 242-243.
33 Maglasang v. Heirs of Corazon Cabatingan, supra note 27 at pp. 553-554.
708
708 SUPREME COURT REPORTS ANNOTATED
Aluad vs. Aluad
the properties donated to the donee or independently of, and not by reason of her
death, she would not have expressed such proviso in the subject
deeds.”34 (Underscoring supplied)
As the Court of Appeals observed, “x x x [t]hat the donation is mortis causa is
fortified by Matilde’s acts of possession as she continued to pay the taxes for the said
properties which remained under her name; appropriated the produce; and applied
for free patents for which OCTs were issued under her name.”35
The donation being then mortis causa, the formalities of a will should have been
observed36 but they were not, as it was witnessed by only two, not three or more
witnesses following Article 805 of the Civil Code.37
Further, the witnesses did not even sign the attestation clause38 the execution of
which clause is a requirement separate from the subscription of the will and the
affixing of signatures on the left-hand margins of the pages of the will. So the Court
has emphasized:
“x x x Article 805 particularly segregates the requirement that the instrumental
witnesses sign each page of the will from the requisite that the will be “attested and
subscribed by [the instrumental witnesses]. The respective intents behind these two
classes of signature[s] are distinct from each other. The signatures on the left-hand
corner of every page signify, among others, that the witnesses are aware that the page
44
they are signing forms part of the will. On the other hand, the signatures to the
attestation clause establish that the witnesses are referring to the statements
contained in the attestation clause itself. Indeed, the attestation clause is separate and
apart from the disposition of the will. An unsigned  141-142. Vide Cagro v. Cagro, 92 Phil. 1032, 1033-1034 (1953).
_______________
34 Id., at p. 556.
35 CA Rollo, p. 140.
36 Civil Code, Article 728:
Donations which are to take effect upon the death of the donor partake of
the nature of testamentary provisions and shall be governed by the rules
established in the Title on Succession.
Alejandro v. Judge Geraldez, 168 Phil. 404, 414-415 (1977).
37 Civil Code, Article 805.
38 Exhibit “A,” Records, p. 165.
709
VOL. 569, OCTOBER 17, 2008 709
Aluad vs. Aluad
attestation clause results in an unattested will. Even if the instrumental witnesses
signed the left-hand margin of the page containing the unsigned attestation clause,
such signatures cannot demonstrate these witnesses’ undertakings in the clause, since
the signatures that do appear on the page were directed towards a wholly different
avowal.
x x x It is the witnesses, and not the testator, who are requiredunder Article 805
to state the number of pages used upon which the will is written; the fact that the
testator had signed the will and every page thereof; and that they witnessed and
signed the will and all the pages thereof in the presence of the testator and of one
another. The only proof in the will that the witnesses have stated these elemental
facts would be their signatures on the attestation clause.”39 (Emphasis and
underscoring supplied)
Furthermore, the witnesses did not acknowledge the will before the notary
public,40 which is not in accordance with the requirement of Article 806 of the Civil
Code that every will must be acknowledged before a notary public by the testator and
the witnesses.
More. The requirement that all the pages of the will must be numbered
correlatively in letters placed on the upper part of each page was not also followed.41
The Deed of Donation which is, as already discussed, one of mortis causa, not
having followed the formalities of a will, it is void and transmitted no right to
petitioners’ mother. But even assuming arguendo that the formalities were observed,
since it was not probated, no right to Lot Nos. 674 and 676 was transmitted to
Maria.42 Matilde thus validly disposed of Lot No. 674 to respondent by her last will
and testament, subject of course to the qualification that her (Matilde’s) will must be
probated. With respect to Lot No. 676, the same had, as mentioned earlier, been sold
by Matilde to respondent on August 26, 1991.
_______________
39 Azuela v. Court of Appeals, G.R. No. 122880, April 12, 2006, 487 SCRA 119,
40 Exhibit “A,” Records, p. 165.
41 Id., at pp. 164-165. Vide Civil Code, Article 805.
42 Rules of Court, Rule 75, Section 1.
710
710 SUPREME COURT REPORTS ANNOTATED
Aluad vs. Aluad
Petitioners nevertheless argue that assuming that the donation of Lot No. 674 in
favor of their mother is indeed mortis causa, hence, Matilde could devise it to
respondent, the lot should nevertheless have been awarded to them because they had
acquired it by acquisitive prescription, they having been in continuous,
uninterrupted, adverse, open, and public possession of it in good faith and in the
concept of an owner since 1978.43
Petitioners failed to raise the issue of acquisitive prescription before the lower
courts, however, they having laid their claim on the basis of inheritance from their
mother. As a general rule, points of law, theories, and issues not brought to the
attention of the trial court cannot be raised for the first time on appeal. 44 For a
contrary rule would be unfair to the adverse party who would have no opportunity to
present further evidence material to the new theory, which it could have done had it
been aware of it at the time of the hearing before the trial court.45
WHEREFORE, the petition is DENIED.
SO ORDERED.
Quisumbing (Chairperson), Tinga, Velasco, Jr. and Brion, JJ., concur.
Petition denied.
 
Note.—Before any will can have force or validity it must be probated—this
cannot be dispensed with and is a matter of public policy; A Partition Agreement
which was executed pursuant to a will that was not probated can not be given effect.
(Rodriguez vs. Rodriguez, 532 SCRA 642 [2007])
——o0o——
45
 G.R. No. 176831. January 15, 2010.*
UY KIAO ENG, petitioner, vs. NIXON LEE, respondent.
Remedial Law; Mandamus; Definition of Mandamus; Definition recognizes
the public character of the remedy and clearly excludes the idea that it may be
resorted to for the purpose of enforcing the performance of duties in which the
public has no interest.—Mandamus is a command issuing from a court of law of
competent jurisdiction, in the name of the state or the sovereign, directed to some
inferior court, tribunal, or board, or to some corporation or person requiring the
performance of a particular duty therein specified, which duty results from the
official station of the party to whom
_______________
* THIRD DIVISION.
 
 
212
the writ is directed or from operation of law. This definition recognizes the
public character of the remedy, and clearly excludes the idea that it may be resorted
to for the purpose of enforcing the performance of duties in which the public has no
interest. The writ is a proper recourse for citizens who seek to enforce a public right
and to compel the performance of a public duty, most especially when the public
right involved is mandated by the Constitution. As the quoted provision
instructs, mandamus will lie if the tribunal, corporation, board, officer, or person
unlawfully neglects the performance of an act which the law enjoins as a duty
resulting from an office, trust or station.
Same; Same; Grounds for the issuance of the writ of mandamus; It is essential
to the issuance of a writ of mandamus that the relator should have a clear legal right
to the thing demanded and it must be imperative duty of respondent to perform the
act required.—The writ of mandamus, however, will not issue to compel an official
to do anything which is not his duty to do or which it is his duty not to do, or to give
to the applicant anything to which he is not entitled by law. Nor will mandamus issue
to enforce a right which is in substantial dispute or as to which a substantial doubt
exists, although objection raising a mere technical question will be disregarded if the
right is clear and the case is meritorious. As a rule, mandamus will not lie in the
absence of any of the following grounds: [a] that the court, officer, board, or person
against whom the action is taken unlawfully neglected the performance of an act
which the law specifically enjoins as a duty resulting from office, trust, or station; or
[b] that such court, officer, board, or person has unlawfully excluded
petitioner/relator from the use and enjoyment of a right or office to which he is
entitled. On the part of the relator, it is essential to the issuance of a writ
of mandamus that he should have a clear legal right to the thing demanded and it
must be the imperative duty of respondent to perform the act required.
Same; Same; Mandamus will not lie to enforce purely private contract rights
and will not lie against an individual unless some obligation in the nature of a public
or quasi-public duty is imposed.—Recognized further in this jurisdiction is the
principle that mandamus cannot be used to enforce contractual obligations.
Generally, mandamus will not lie to enforce purely private contract rights, and will
not lie against an individual unless some obligation in the na-
 
 
213
ture of a public or quasi-public duty is imposed. The writ is not appropriate to
enforce a private right against an individual. The writ of mandamus lies to enforce
the execution of an act, when, otherwise, justice would be obstructed; and, regularly,
issues only in cases relating to the public and to the government; hence, it is called a
prerogative writ. To preserve its prerogative character, mandamus is not used for the
redress of private wrongs, but only in matters relating to the public.
Same; Same; Mandamus can be issued only in cases where the usual modes of
procedure and forms of remedy are powerless to afford relief.—An important
principle followed in the issuance of the writ is that there should be no plain, speedy
and adequate remedy in the ordinary course of law other than the remedy
of mandamusbeing invoked. In other words, mandamus can be issued only in cases
where the usual modes of procedure and forms of remedy are powerless to afford
relief. Although classified as a legal remedy, mandamus is equitable in its nature and
its issuance is generally controlled by equitable principles. Indeed, the grant of the
writ of mandamus lies in the sound discretion of the court.
PETITION for review on certiorari of the amended decision and resolution of the
Court of Appeals.
The facts are stated in the opinion of the Court.
   Suarez and Narvasa Law Firm for petitioner.
   Urbano, Palamos & Perdigon for respondent.
 
NACHURA, J.:
 
Before the Court is a petition for review on certiorariunder Rule 45 of the Rules
of Court, assailing the August 23, 2006 Amended Decision 1 of the Court of Appeals
(CA) in CA-G.R.
_______________
1 Penned by Associate Justice Eliezer R. De Los Santos, with Associate Justices
Jose C. Reyes, Jr. and Arturo G. Tayag, concurring; Rollo, pp. 26-29.
 
 
214
46
SP No. 91725 and the February 23, 2007 Resolution,2denying the motion for
reconsideration thereof.
The relevant facts and proceedings follow.
Alleging that his father passed away on June 22, 1992 in Manila and left a
holographic will, which is now in the custody of petitioner Uy Kiao Eng, his mother,
respondent Nixon Lee filed, on May 28, 2001, a petition for mandamuswith
damages, docketed as Civil Case No. 01100939, before the Regional Trial Court
(RTC) of Manila, to compel petitioner to produce the will so that probate
proceedings for the allowance thereof could be instituted. Allegedly, respondent had
already requested his mother to settle and liquidate the patriarch’s estate and to
deliver to the legal heirs their respective inheritance, but petitioner refused to do so
without any justifiable reason.3
In her answer with counterclaim, petitioner traversed the allegations in the
complaint and posited that the same be dismissed for failure to state a cause of
action, for lack of cause of action, and for non-compliance with a condition
precedent for the filing thereof. Petitioner denied that she was in custody of the
original holographic will and that she knew of its whereabouts. She, moreover,
asserted that photocopies of the will were given to respondent and to his siblings. As
a matter of fact, respondent was able to introduce, as an exhibit, a copy of the will in
Civil Case No. 224-V-00 before the RTC of Valenzuela City. Petitioner further
contended that respondent should have first exerted earnest efforts to amicably settle
the controversy with her before he filed the suit.4
The RTC heard the case. After the presentation and formal offer of respondent’s
evidence, petitioner demurred, contend-
_______________
2 Penned by Associate Justice Arturo G. Tayag, with Associate Justices Rodrigo
V. Cosico and Jose C. Reyes, Jr., concurring; Rollo, pp. 31-32.
3 Records, pp. 1-4.
4 Id., at pp. 14-19.
 
 
215
ing that her son failed to prove that she had in her custody the original holographic
will. Importantly, she asserted that the pieces of documentary evidence presented,
aside from being hearsay, were all immaterial and irrelevant to the issue involved in
the petition—they did not prove or disprove that she unlawfully neglected the
performance of an act which the law specifically enjoined as a duty resulting from an
office, trust or station, for the court to issue the writ of mandamus.5
The RTC, at first, denied the demurrer to evidence.6 In its February 4, 2005
Order,7 however, it granted the same on petitioner’s motion for reconsideration.
Respondent’s motion for reconsideration of this latter order was denied on
September 20, 2005.8 Hence, the petition was dismissed.
Aggrieved, respondent sought review from the appellate court. On April 26,
2006, the CA initially denied the appeal for lack of merit. It ruled that the writ
of mandamus would issue only in instances when no other remedy would be
available and sufficient to afford redress. Under Rule 76, in an action for the
settlement of the estate of his deceased father, respondent could ask for the
presentation or production and for the approval or probate of the holographic will.
The CA further ruled that respondent, in the proceedings before the trial court, failed
to present sufficient evidence to prove that his mother had in her custody the original
copy of the will.9
Respondent moved for reconsideration. The appellate court, in the assailed
August 23, 2006 Amended Decision,10granted the motion, set aside its earlier ruling,
issued the writ, and ordered the production of the will and the payment of attorney’s
fees. It ruled this time that respondent was able to show
_______________
5  Id., at pp. 227-229.
6  Id., at pp. 238 and 262-263.
7  Id., at pp. 320-321.
8  Id., at pp. 399-401.
9  CA Rollo, pp. 45-51.
10 Supra note 1.
 
 
216
by testimonial evidence that his mother had in her possession the holographic will.
Dissatisfied with this turn of events, petitioner filed a motion for reconsideration.
The appellate court denied this motion in the further assailed February 23, 2007
Resolution.11
Left with no other recourse, petitioner brought the matter before this Court,
contending in the main that the petition for mandamus is not the proper remedy and
that the testimonial evidence used by the appellate court as basis for its ruling is
inadmissible.12
The Court cannot sustain the CA’s issuance of the writ.
The first paragraph of Section 3 of Rule 65 of the Rules of Court pertinently
provides that—
“SEC. 3. Petition for mandamus.—When any tribunal, corporation, board,
officer or person unlawfully neglects the performance of an act which the law
specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully
excludes another from the use and enjoyment of a right or office to which such other
is entitled, and there is no other plain, speedy and adequate remedy in the ordinary
course of law, the person aggrieved thereby may file a verified petition in the proper
court, alleging the facts with certainty and praying that judgment be rendered
commanding the respondent, immediately or at some other time to be specified by
the court, to do the act required to be done to protect the rights of the petitioner, and
47
to pay the damages sustained by the petitioner by reason of the wrongful acts of the
respondent.”13
 
Mandamus is a command issuing from a court of law of competent jurisdiction,
in the name of the state or the sovereign, directed to some inferior court, tribunal, or
board, or to some corporation or person requiring the performance of a particular
duty therein specified, which duty results from the
_______________
11 Supra note 2.
12 Rollo, pp. 139-146.
13 Italics supplied.
 
 
217
official station of the party to whom the writ is directed or from operation of
law.14 This definition recognizes the public character of the remedy, and clearly
excludes the idea that it may be resorted to for the purpose of enforcing the perfor-
mance of duties in which the public has no interest.15 The writ is a proper recourse
for citizens who seek to enforce a public right and to compel the performance of a
public duty, most especially when the public right involved is mandated by the
Constitution.16 As the quoted provision instructs, mandamus will lie if the tribunal,
corporation, board, officer, or person unlawfully neglects the performance of an act
which the law enjoins as a duty resulting from an office, trust or station.17
The writ of mandamus, however, will not issue to compel an official to do
anything which is not his duty to do or which it is his duty not to do, or to give to the
applicant anything to which he is not entitled by law.18 Nor will mandamus issue to
enforce a right which is in substantial dispute or as to which a substantial doubt
exists, although objection raising a mere technical question will be disregarded if the
right is clear and
_______________
14 Abaga v. Panes, G.R. No. 147044, August 24, 2007, 531 SCRA 56, 61-62.
15 Segre v. Ring, 163 A.2d 4, 5 (1960).
16 Enriquez v. Office of the Ombudsman, G.R. Nos. 174902-06, February 15,
2008, 545 SCRA 618, 625; Lumanlaw v. Peralta, Jr., G.R. No. 164953, February 13,
2006, 482 SCRA 396, 417.
17 Mayuga v. Court of Appeals, G.R. No. 123899, August 30, 1996, 261 SCRA
309, 316-317; Reyes v. Zamora, No. L-46732, May 5, 1979, 90 SCRA 92,
112; Kapisanan ng mga Manggagawa sa Manila Railroad Company Credit Union,
Inc. v. Manila Railroad Company, No. L-25316, February 28, 1979, 88 SCRA
616, 621; Gabutas v. Castellanes, No. L-17323, June 23, 1965, 14 SCRA 376,
379; Alzate v. Aldana, No. L-18085, May 31, 1963, 8 SCRA 219, 223; Dulay v.
Merrera, No. L-17084, August 30, 1962, 5 SCRA 922, 926; Quintero v. Martinez,
84 Phil. 496, 497 (1949).
18 Tangonan v. Paño, No. L-45157, June 27, 1985, 137 SCRA 245,
255;Gonzalez v. Board of Pharmacy, 20 Phil. 367, 375 (1911).
 
 
218
the case is meritorious.19 As a rule, mandamus will not lie in the absence of any of
the following grounds: [a] that the court, officer, board, or person against whom the
action is taken unlawfully neglected the performance of an act which the law
specifically enjoins as a duty resulting from office, trust, or station; or [b] that such
court, officer, board, or person has unlawfully excluded petitioner/relator from the
use and enjoyment of a right or office to which he is entitled.20 On the part of the
relator, it is essential to the issuance of a writ of mandamus that he should have a
clear legal right to the thing demanded and it must be the imperative duty of
respondent to perform the act required.21
Recognized further in this jurisdiction is the principle that mandamus cannot be
used to enforce contractual obligations.22
_______________
19 Palileo v. Ruiz Castro, 85 Phil. 272, 275 (1949).
20 Samson v. Office of the Ombudsman, G.R. No. 117741, September 29, 2004,
439 SCRA 315, 325.
21 University of San Agustin, Inc. v. Court of Appeals, G.R. No. 100588, March
7, 1994, 230 SCRA 761, 771.
22 Manalo v. PAIC Savings Bank, G.R. No. 146531, March 18, 2005, 453 SCRA
747, 754-755; National Marketing Corporation v. Cloribel, No. L-27260, April 29,
1968, 23 SCRA 398, 403; National Marketing Corporation v. Cloribel, No. L-
26585, March 13, 1968, 22 SCRA 1033, 1037-1038. See,
however, Mantrade/FMMC Division Employees and Workers Union v. Bacungan,
No. L-48437, September 30, 1986, 144 SCRA 510, in which the Court
considered mandamus as an appropriate equitable remedy to compel a corporation to
grant holiday pay to its monthly salaried employees. See also Hager v. Bryan, 19
Phil. 138 (1911), cited in Ponce v. Alsons Cement Corporation, G.R. No. 139802,
December 10, 2002, 393 SCRA 602, 614-615, and in Rural Bank of Salinas, Inc. v.
Court of Appeals, G.R. No. 96674, June 26, 1992, 210 SCRA 510, 515-516, in which
the Court ruled that mandamus may be issued to compel the secretary of a
corporation to make a transfer of the stock on the books of the corporation if it
affirmatively appears that he has failed or refused so to do, upon the demand either
of the person in whose name the stock is registered, or of some person holding a
power of attorney for that purpose from the registered owner of the stock.
 
 
219
48
 Generally, mandamus will not lie to enforce purely private contract rights, and
will not lie against an individual unless some obligation in the nature of a public or
quasi-public duty is imposed.23 The writ is not appropriate to enforce a private right
against an individual.24 The writ of mandamus lies to enforce the execution of an act,
when, otherwise, justice would be obstructed; and, regularly, issues only in cases
relating to the public and to the government; hence, it is called a prerogative
writ.25 To preserve its prerogative character, mandamus is not used for the redress of
private wrongs, but only in matters relating to the public.26
Moreover, an important principle followed in the issuance of the writ is that there
should be no plain, speedy and adequate remedy in the ordinary course of law other
than the remedy of mandamus being invoked.27 In other words, man-
_______________
23 Carroll v. American Agricultural Chemical Co., 167 S.E. 597 (1932).
24 Crawford v. Tucker, 64 So.2d 411, 415 (1953).
25 The American Asylum at Hartford for the education and instruction of the
Deaf and Dumb v. The President, Directors and Company of the Phoenix Bank, 4
Conn. 172, 1822 WL 12 (Conn.), 10 Am.Dec. 112 (1822). See, however, Bassett v.
Atwater, 32 L.R.A. 575, 65 Conn. 355, 32 A. 937 (1895), in which the Supreme
Court of Errors of Connecticut recognized the principle that, in the issuance of the
writ of mandamus, the value of the matter, or the degree of its importance to the
public police, should not be scrupulously weighed. If there be a right, and no other
specific remedy, mandamus should not be denied.
26 State ex rel. Moyer v. Baldwin, 83 N.E. 907, 908 (1908).
27 Pimentel III v. Commission on Elections, G.R. No. 178413, March 13, 2008,
548 SCRA 169, 209; Balindong v. Dacalos, G.R. No. 158874, November 10, 2004,
441 SCRA 607, 612; Rodriguez v. Court of Appeals, G.R. No. 134278, August 7,
2002, 386 SCRA 492, 499; see Manalo v. Gloria, G.R. No. 106692, September 1,
1994, 236 SCRA 130, 136-137, in which the Court ruled that petitioner’s claim for
backwages could be the appropriate subject of an ordinary civil action and there is
absolutely no showing that the said remedy is not plain, speedy and adequate.
 
 
220
damus can be issued only in cases where the usual modes of procedure and forms of
remedy are powerless to afford relief.28 Although classified as a legal
remedy, mandamusis equitable in its nature and its issuance is generally controlled
by equitable principles.29 Indeed, the grant of the writ of mandamus lies in the sound
discretion of the court.
In the instant case, the Court, without unnecessarily ascertaining whether the
obligation involved here—the production of the original holographic will—is in the
nature of a public or a private duty, rules that the remedy of mandamus cannot be
availed of by respondent Lee because there lies another plain, speedy and adequate
remedy in the ordinary course of law. Let it be noted that respondent has a photocopy
of the will and that he seeks the production of the original for purposes of probate.
The Rules of Court, however, does not prevent him from instituting probate
proceedings for the allowance of the will whether the same is in his possession or
not. Rule 76, Section 1 relevantly provides:
“Section 1. Who may petition for the allowance of will.—Any executor,
devisee, or legatee named in a will, or any other person interested in the estate, may,
at any time, after the death of the testator, petition the court having jurisdiction to
have the will allowed, whether the same be in his possession or not, or is lost or
destroyed.”
 
An adequate remedy is further provided by Rule 75, Sections 2 to 5, for the
production of the original holographic will. Thus—
“SEC. 2. Custodian of will to deliver.—The person who has custody of a will
shall, within twenty (20) days after he knows of the death of the testator, deliver the
will to the court having jurisdiction, or to the executor named in the will.
_______________
28 Segre v. Ring, supra note 15.
29 Walter Laev, Inc. v. Karns, 161 N.W.2d 227, 229 (1968).
 
 
221
SEC. 3. Executor to present will and accept or refuse trust.—A person named
as executor in a will shall within twenty (20) days after he knows of the death of the
testator, or within twenty (20) days after he knows that he is named executor if he
obtained such knowledge after the death of the testator, present such will to the court
having jurisdiction, unless the will has reached the court in any other manner, and
shall, within such period, signify to the court in writing his acceptance of the trust or
his refusal to accept it.
SEC. 4. Custodian and executor subject to fine for neglect.—A person who
neglects any of the duties required in the two last preceding sections without excuse
satisfactory to the court shall be fined not exceeding two thousand pesos.
SEC. 5. Person retaining will may be committed.—A person having custody of
a will after the death of the testator who neglects without reasonable cause to deliver
the same, when ordered so to do, to the court having jurisdiction, may be committed
to prison and there kept until he delivers the will.”30
 
There being a plain, speedy and adequate remedy in the ordinary course of law
for the production of the subject will, the remedy of mandamus cannot be availed of.
Suffice it to state that respondent Lee lacks a cause of action in his petition. Thus, the
Court grants the demurrer.
WHEREFORE, premises considered, the petition for review on certiorari is
GRANTED. The August 23, 2006 Amended Decision and the February 23, 2007
Resolution of the Court of Appeals in CA-G.R. SP No. 91725 are REVERSED and
49
SET ASIDE. Civil Case No. 01100939 before the Regional Trial Court of Manila is
DISMISSED.
SO ORDERED.
Corona (Chairperson), Velasco, Jr., Peralta andMendoza, JJ., concur.
_______________
30 Theses rules were taken from Sections 626-629 of Act No. 190, “An Act
providing a Code of Procedure in Civil Actions and Special Proceedings in the
Philippine Islands,” enacted on August 9, 1901.
 
222
Petition granted, amended decision and resolution reversed and set aside.
Note.—It is elementary that mandamus applies as a remedy only where
petitioner’s right is founded clearly on law and not when it is doubtful. (Calim vs.
Guerrero, 517 SCRA 412 [2007])
 
——o0o——
G.R. No. 203770. November 23, 2016.*
MANUELA AZUCENA MAYOR, petitioner, vs. EDWIN TIU and DAMIANA
CHARITO MARTY, respondents.
Persons and Family Relations; Artificial Persons; Artificial persons include
(1) a collection or succession of natural persons forming a corporation; and (2) a
collection of property to which the law attributes the capacity of having rights and
duties. This class of artificial persons is recognized only to a limited extent in our
law. Example is the estate of a bankrupt or deceased person.—Artificial persons
include (1) a collection or succession of natural persons forming a corporation; and
(2) a collection of property to which the law attributes the capacity of having rights
and duties. This class of artificial persons is recognized only to a limited extent in
our law. Example is the estate of a bankrupt or deceased person.
Same; Same; The estate of the deceased person is a juridical person separate
and distinct from the person of the decedent and any other corporation. This status
of an estate comes about by operation of law.—From this pronouncement, it can be
gleaned that the estate of the deceased person is a juridical person separate and
distinct from the person of the decedent and any other corporation. This status of an
estate comes about by operation of law. This is in consonance with the basic tenet
under corporation law that a corporation has a separate personality distinct from its
stockholders and from other corporations to which it may be connected.
Piercing the Veil of Corporate Fiction; Under this doctrine, the court looks at
the corporation as a mere collection of individuals or an aggregation of persons
undertaking business as a group, disregarding the separate juridical personality of
the corporation unifying the group.—The doctrine of piercing the corporate veil has
no relevant application in this case. Under this doctrine, the court looks at the
corporation as a mere collection of individuals or an aggregation of persons
undertaking business as a group, disregarding the separate juridical personality of the
corporation unifying the group.
_______________
*  SECOND DIVISION.
257
VOL. 810, NOVEMBER 23, 2016 257
Mayor vs. Tiu
Another formulation of this doctrine is that when two business enterprises are
owned, conducted and controlled by the same parties, both law and equity will, when
necessary to protect the rights of third parties, disregard the legal fiction that two
corporations are distinct entities and treat them as identical or as one and the same.
Same; The purpose behind piercing a corporation’s identity is to remove the
barrier between the corporation and the persons comprising it to thwart the
fraudulent and illegal schemes of those who use the corporate personality as a shield
for undertaking certain proscribed activities.—The purpose behind piercing a
corporation’s identity is to remove the barrier between the corporation and the
persons comprising it to thwart the fraudulent and illegal schemes of those who use
the corporate personality as a shield for undertaking certain proscribed activities.
Same; Mere ownership by a single stockholder or by another corporation of
all or nearly all of the capital stocks of a corporation is not of itself a sufficient
reason for disregarding the fiction of separate corporate personalities.—The probate
court ordered the lessees of the corporation to remit rentals to the estate’s
50
administrator without taking note of the fact that the decedent was not the absolute
owner of Primrose but only an owner of shares thereof. Mere ownership by a single
stockholder or by another corporation of all or nearly all of the capital stocks of a
corporation is not of itself a sufficient reason for disregarding the fiction of separate
corporate personalities. Moreover, to disregard the separate juridical personality of a
corporation, the wrongdoing cannot be presumed, but must be clearly and
convincingly established.
Probate Courts; For the purpose of determining whether a certain property
should, or should not, be included in the inventory of estate properties, the probate
court may pass upon the title thereto, but such determination is provisional, not
conclusive, and is subject to the final decision in a separate action to resolve title. —
In Pastor, Jr. v. Court of Appeals, 122 SCRA 885 (1983), the Court explained that,
as a rule, the question of ownership was an extraneous matter which the probate
court could not resolve with finality. Thus, for the purpose of determining whether a
certain property should, or should not, be included in the inventory of estate
properties, the probate court may pass upon the title thereto, but such determination
is
 
 
258
258 SUPREME COURT REPORTS ANNOTATED
Mayor vs. Tiu
provisional, not conclusive, and is subject to the final decision in a separate
action to resolve title.
Same; It is a well-settled rule that a probate court or one in charge of
proceedings, whether testate or intestate, cannot adjudicate or determine title to
properties claimed to be part of the estate but which are equally claimed to belong to
outside parties.—It is a well-settled rule that a probate court or one in charge of
proceedings, whether testate or intestate, cannot adjudicate or determine title to
properties claimed to be part of the estate but which are equally claimed to belong to
outside parties. It can only determine whether they should, or should not, be included
in the inventory or list of properties to be overseen by the administrator. If there is no
dispute, well and good; but if there is, then the parties, the administrator and the
opposing parties have to resort to an ordinary action for a final determination of the
conflicting claims of title because the probate court cannot do so.
Same; Torrens System; The existence of a Torrens title may not be discounted
as a mere incident in special proceedings for the settlement of the estate of deceased
persons.—The probate court should have recognized the incontestability accorded to
the Torrens title of Primrose over Marty’s arguments of possible dissipation of
properties. In fact, in the given setting, even evidence purporting to support a claim
of ownership has to yield to the incontestability of a Torrens title, until after the same
has been set aside in the manner indicated in the law itself. In other words, the
existence of a Torrens title may not be discounted as a mere incident in special
proceedings for the settlement of the estate of deceased persons.
Piercing the Veil of Corporate Fiction; Piercing the veil of corporate entity
applies to determination of liability not of jurisdiction; it is basically applied only to
determine established liability.—Piercing the veil of corporate entity applies to
determination of liability not of jurisdiction; it is basically applied only to determine
established liability. It is not available to confer on the court a jurisdiction it has not
acquired, in the first place, over a party not impleaded in a case.
Same; The doctrine of piercing the veil of corporate fiction comes to play only
during the trial of the case after the court has already acquired jurisdiction over the
corporation.—The doctrine of
 
 
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Mayor vs. Tiu
piercing the veil of corporate fiction comes to play only during the trial of the
case after the court has already acquired jurisdiction over the corporation. Hence,
before this doctrine can be even applied, based on the evidence presented, it is
imperative that the court must first have jurisdiction over the corporation.
Same; A corporation not impleaded in a suit cannot be subject to the court’s
process of piercing the veil of its corporate fiction.— Hence, a corporation not
impleaded in a suit cannot be subject to the court’s process of piercing the veil of its
corporate fiction. Resultantly, any proceedings taken against the corporation and its
properties would infringe on its right to due process.
PETITION for review on certiorari of the resolutions of the Court of Appeals.
The facts are stated in the opinion of the Court.
   Michael Felipe A. Mercado for petitioner.
   Pacifico Borja for Mr. Tiu.
   Chavez, Miranda, Aseoche Law Offices for Mrs. Marty.
MENDOZA, J.:
 
This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court
assailing the October 5, 20111 and September 24, 20122 Resolutions of the Court of
Appeals (CA) in C.A.-G.R. S.P. No. 06256, which dismissed the petition filed by
Remedios Tiu (Remedios) and Manuela Azucena Mayor (Manuela) for procedural
infirmities. The said CA petition
_______________
1  Rollo, pp. 80-82. Penned by Associate Justice Eduardo B. Peralta, Jr. and
concurred in by Associate Justices Pampio A. Abarintos and Gabriel T. Ingles of the
Eighteenth Division, Court of Appeals, Cebu City.
2  Id., at pp. 84-85. Penned by Executive Justice Pampio A. Abarintos and
concurred in by Associate Justices Gabriel T. Ingles and Carmelita Salandanan
Manahan.
 
51
  
260
260 SUPREME COURT REPORTS ANNOTATED
Mayor vs. Tiu
challenged the January 20, 20113 and June 10, 20114Orders of the Regional Trial
Court, Branch 6, Tacloban City (RTC-Br. 6), in Sp. Proc. No. 2008-05-30, a case for
Probate of Last Will and Testament and Issuance of Letters of Testamentary.
 
The Antecedents
 
On May 25, 2008, Rosario Guy-Juco Villasin Casilan (Rosario), the widow of
the late Primo Villasin (Primo), passed away and left a holographic Last Will and
Testament,5 wherein she named her sister, Remedios Tiu (Remedios), and her niece,
Manuela Azucena Mayor (Manuela), as executors. Immediately thereafter, Remedios
and Manuela filed a petition for the probate of Rosario’s holographic will6 with
prayer for the issuance of letters testamentary (probate proceedings). The petition
was raffled to the Regional Trial Court, Branch 9, Tacloban City (RTC-Br. 9) and
docketed as Sp. Proc. No. 2008-05-30. They averred that Rosario left properties
valued at approximately P2.5 million.
On May 29, 2008, respondent Damiana Charito Marty (Marty) claiming to be the
adopted daughter of Rosario, filed a petition for letters of administration before the
RTC, Branch 34, Tacloban City (RTC-Br. 34), docketed as Sp. Proc. No. 2008-05-
32, but it was not given due course because of the probate proceedings. Per records,
this dismissal is subject of a separate proceeding filed by Marty with the CA Cebu
City, docketed as C.A.-G.R. S.P. No. 04003.7
On June 12, 2008, in its Order,8 the RTC-Br. 9 found the petition for probate of
will filed by Remedios and Manuela as sufficient in form and substance and set the
case for hearing.
_______________
3  Id., at pp. 536-541.
4  Id., at pp. 113-114.
5  Id., at pp. 681-683.
6  Id., at pp. 116-118.
7  Id., at p. 51.
8  Id., at p. 123.
 
 
261
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Mayor vs. Tiu
Consequently, Marty filed her Verified Urgent Manifestation and Motion,9 dated
June 23, 2008, stating that Remedios kept the decedent Rosario a virtual hostage for
the past ten (10) years and her family was financially dependent on her which led to
the wastage and disposal of the properties owned by her and her husband, Primo.
Marty averred that until the alleged will of the decedent could be probated and
admitted, Remedios and her ten (10) children had no standing to either possess or
control the properties comprising the estate of the Villasins. She prayed for the
probate court to: 1) order an immediate inventory of all the properties subject of the
proceedings; 2) direct the tenants of the estate, namely, Mercury Drug and
Chowking, located at Primrose Hotel, to deposit their rentals with the court; 3) direct
Metrobank, P. Burgos Branch, to freeze the accounts in the name of Rosario,
Primrose Development Corporation (Primrose) or Remedios; and 4) lock up the
Primrose Hotel in order to preserve the property until final disposition by the court.
On July 8, 2008, Remedios and Manuela filed their Comment/Opposition 10 to the
urgent manifestation averring that Marty was not an adopted child of the Villasins
based on a certification issued by the Office of the Clerk of Court of Tacloban City,
attesting that no record of any adoption proceedings involving Marty existed in their
records. They also argued that the probate court had no jurisdiction over the
properties mistakenly claimed by Marty as part of Rosario’s estate because these
properties were actually owned by, and titled in the name of, Primrose. Anent the
prayer to direct the tenants to deposit the rentals to the probate court, Remedios and
Manuela countered that the probate court had no jurisdiction over properties owned
by third persons, particularly by Primrose, the latter having a separate and distinct
personality from the decedent’s estate.
_______________
9   Id., at pp. 124-127.
10  Id., at pp. 133-140.
 
 
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262 SUPREME COURT REPORTS ANNOTATED
Mayor vs. Tiu
In her Reply,11 dated July 15, 2008, Marty cited an order of the Court of First
Instance of Leyte (CFI Leyte) in S.P. No. 1239,12 claiming that as early as March 3,
1981, the veil of corporate entity of Primrose was pierced on the ground that it was a
closed family corporation controlled by Rosario after Primo’s death. Thus, Marty
alleged that “piercing” was proper in the case of Rosario’s estate because the
incorporation of Primrose was founded on a fraudulent consideration, having been
done in contemplation of Primo’s death.
Further, on July 22, 2008, in her Opposition to the Petition for the Approval of
the Will of the Late Rosario Guy-Juco Villasin Casilan, 13 Marty impugned the
authenticity of her holographic will.
Meanwhile, Edwin Tiu (Edwin), a son of Remedios, also filed his
Opposition,14 dated June 13, 2008.
After a protracted exchange of pleadings, the parties submitted their respective
memoranda.
52
 
The January 14, 2009 Order
 
In its January 14, 2009 Order,15 the RTC-Br. 9 granted the motion of Marty and
appointed the OIC Clerk of Court as special administrator of the Estate. The Probate
Court also ordered Mercury Drug and Chowking to deposit the rental income to the
court and Metrobank to freeze the bank accounts mentioned in the motion of Marty.
The doctrine of piercing the corporate veil was applied in the case considering that
Rosario had no other properties that comprised her estate other than Primrose.
According to the probate court, for
_______________
11  Id., at pp. 168-177.
12  Entitled In the Matter of the Intestate Estate of Primo A. Villasin Avestruz
Villasin.
13  Rollo, pp. 144-146.
14  Id., at pp. 147-151.
15  Id., at pp. 277-284.
 
 
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Mayor vs. Tiu
the best interest of whoever would be adjudged as the legal heirs of the Estate, it was
best to preserve the properties from dissipation.
On January 22, 2009, Remedios and Manuela filed their Motion for
Inhibition16 on the ground of their loss of trust and confidence in RTC-Br. 9
Presiding Judge Rogelio C. Sescon (Judge Sescon) to dispense justice. Later, they
also filed their Motion for Reconsideration Ad Cautelam,17dated February 3, 2009,
arguing that Rosario’s estate consisted only of shares of stock in Primrose and not
the corporation itself. Thus, the probate court could not order the lessees of the
corporation to remit the rentals to the Estate’s administrator. With regard to the
appointment of a special administrator, Remedios and Manuela insisted that it be
recalled. They claimed that if ever there was a need to appoint one, it should be the
two of them because it was the desire of the decedent in the will subject of the
probation proceedings.
In its Order,18 dated March 27, 2009, the RTC-Br. 9 denied the motion for
reconsideration for lack of merit and affirmed its January 14, 2009 Order. The
presiding judge, Judge Sescon, also granted the motion for inhibition and ordered
that the records of the case be referred to the RTC Executive Judge for re-raffling.
The case was later re-raffled to RTC-Br. 6, Judge Alphinor C. Serrano, presiding
judge.
Aggrieved by the denial of their motion for reconsideration, Remedios and
Manuela filed a petition for certiorari with the CA in Cebu City, docketed as C.A.-
G.R. S.P. No. 04254, assailing the January 14, 2009 and March 27, 2009 Orders of
the RTC-Br. 9.19
_______________
16  Id., at pp. 285-297.
17  Id., at pp. 304-324.
18  Id., at pp. 337-342.
19  Id., at pp. 343-369.
 
 
264
264 SUPREME COURT REPORTS ANNOTATED
Mayor vs. Tiu
Ruling of the CA
 
In its October 16, 2009 Decision,20 the CA reversed the assailed orders of the
RTC-Br. 9, except as to the appointment of a special administrator insofar as this
relates to properties specifically belonging to the “Estate.” It held that Primrose had
a personality separate and distinct from the estate of the decedent and that the
probate court had no jurisdiction to apply the doctrine of piercing the corporate
veil.
According to the CA, nowhere in the assailed orders of the probate court was it
stated that its determination of the title of the questioned properties was only for the
purpose of determining whether such properties ought to be included in the
inventory. When the probate court applied the doctrine of “piercing,” in effect, it
adjudicated with finality the ownership of the properties in favor of the Estate. The
CA stated that RTC-Br. 9 had no jurisdiction to adjudicate ownership of a property
claimed by another based on adverse title; and that questions like this must be
submitted to a court of general jurisdiction and not to a probate court.
The CA added that assuming that the probate court’s determination on the issue
of ownership was merely intended to be provisional, Marty’s contentions still had no
merit. The properties, which she claimed to be part of the estate of Rosario and over
which she claimed co-ownership, comprised of real properties registered under the
Torrens system. As such, Primrose was considered the owner until the titles to those
properties were nullified in an appropriate ordinary action. The CA further stated that
the RTC erroneously relied on the order issued by the CFI Leyte in 1981, in the
probate proceedings involving the estate of Primo. Whatever determination the CFI
made at the time regarding the title of the
_______________
20  Id., at pp. 420-433.
 
 
265
53
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Mayor vs. Tiu
properties was merely provisional, hence, not conclusive as to the ownership.
By reason of the favorable decision by the CA, Remedios and Manuela filed their
Motion to Partially Revoke the Writ of Execution Enforcing the January 14, 2009
Order of the Honorable Court and Manifestation in Compliance with the October 21,
2009 Order (Ad Cautelam),21 dated October 27, 2009.
In its Order,22 dated November 17, 2009, the RTC-Br. 6 partially granted the
motion as it revoked the power of the special administrator to oversee the day-to-day
operations of Primrose. It also revoked the order with respect to Mercury Drug and
Chowking, reasoning out that the said establishments dealt with Primrose, which had
a personality distinct and separate from the estate of the decedent. In the said order,
Atty. Blanche A. Salino nominated by oppositors Marty and Edwin, was appointed
special administrator to oversee the day-to-day operations of the estate. The same
order also upheld the January 14, 2009 Order, as to the conduct and inventory of all
the properties comprising the estate.
This order was not questioned or appealed by the parties.
 
Omnibus Motion
 
On September 24, 2010, or almost ten (10) months after the November 17, 2009
Order of the probate court was issued, Marty, together with her new counsel, filed
her Omnibus Motion,23 praying for the probate court to: 1) order Remedios and
Manuela to render an accounting of all the properties and assets comprising the
estate of the decedent; 2) deposit or consign all rental payments or other passive
income derived
_______________
21  Id., at pp. 437-442.
22  Id., at pp. 456-459.
23  Id., at pp. 460-475.
 
 
266
266 SUPREME COURT REPORTS ANNOTATED
Mayor vs. Tiu
from the properties comprising the estate; and 3) prohibit the disbursement of funds
comprising the estate of the decedent without formal motion and approval by the
probate court.
 
Ruling of the RTC-Br. 6
 
In its January 20, 2011 Order, the RTC-Br. 6 granted Marty’s Omnibus Motion.
Although it agreed with the October 16, 2009 CA Decision reversing the January 14,
2009 Order of the RTC-Br. 9, nonetheless, it acknowledged the urgency and
necessity of appointing a special administrator. According to the probate court,
considering that there was clear evidence of a significant decrease of Rosario’s
shares in the outstanding capital stock of Primrose, 24 prudence dictated that an
inquiry into the validity of the transfers should be made. A final determination of this
matter would be outside the limited jurisdiction of the probate court, but it was
likewise settled that the power to institute an action for the recovery of a property
claimed to be part of the estate was normally lodged with the executor or
administrator. Thus, the probate court disposed:
WHEREFORE, for the reasons aforestated, and so as not to render moot any
action that the special administrator, or the regular administrator upon the latter’s
qualification and appointment, may deem appropriate to take on the matter (i.e.,
Whether or not to institute in the name of the estate the appropriate action for the
recovery of the shares of stock), this Court hereby GRANTS Oppositor Marty’s
Omnibus Motion, dated September 24, 2010, and thus hereby:
1. DIRECTS petitioners, either individually or jointly, to: (a) RENDER AN
ACCOUNTING of all the properties and assets comprising the estate of the
decedent that may have come into their possession; and (b) DEPOSIT OR
CONSIGN all the rentals payments or such other passive incomes from the
properties and as-
_______________
24  As reported in the General Information Sheet for 2008.
 
 
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Mayor vs. Tiu
sets registered in the name of Primrose Development Corporation, including all
income derived from the Primrose Hotel and the lease contracts with Mercury Drug
and Chowking Restaurant, both within fifteen (15) days from receipt of this Order;
2. DIRECTS the Special Administrator to take possession and charge of the
properties comprising the decedent’s estate, specially those pertaining to the
sharesholding of the decedent in Primrose Development Corporation, to determine
whether or not action for the recovery of the shares of stock supposedly transferred
from the decedent to petitioners Remedios Tiu, Manuela Azucena Mayor should be
instituted in the name of the estate against the said transferees and to submit a Report
on the foregoing matters to this Court, within fifteen (15) days from receipt of this
Order; and
3. ORDERS that no funds comprising the estate of the decedent shall be
disbursed without formal Motion therefor, with the conformity of the Special
Administrator, duly approved by this Court.
SO ORDERED.25 [Underscoring supplied]
 
54
 The partial motion for reconsideration of the above order filed by Remedios and
Manuela was denied in the other assailed order of the RTC-Br. 6, dated June 10,
2011.26
Dissatisfied, Remedios and Manuela availed of the special civil action
of certiorari under Rule 65, and filed a petition before the CA.
 
Action by the CA
The CA, however, in its October 5, 2011 Resolution,27dismissed the same based
on the following infirmities: 1) there was no proper proof of service of a copy of the
petition on the
_______________
25  Rollo, pp. 540-541.
26  Id., at pp. 113-114.
27  Id., at pp. 80-82.
 
 
268
268 SUPREME COURT REPORTS ANNOTATED
Mayor vs. Tiu
respondents which was sent by registered mail; 2) petitioners failed to indicate on the
petition the material date when the motion for reconsideration was filed; 3) the copy
of the assailed order was not certified true and correct by the officer having custody
of the original copy; and 4) the serial number of the commission of the notary public,
the province-city where he was commissioned, the office address of the notary public
and the roll of attorney’s number were not properly indicated on the verification and
certification of non-forum shopping.
Remedios and Manuela moved for reconsideration of the assailed CA resolution,
but to no avail, as the appellate court denied the motion in its September 24, 2012
Resolution.
Hence, this petition before the Court, filed only by Manuela as Remedios had
also passed away, and anchored on the following:
 
Grounds
 
I.
 
THE HONORABLE COURT OF APPEALS COMMITTED GROSS AND
REVERSIBLE ERROR IN THE APPLICATION OF LAW AND THE RULES
WARRANTING REVIEW WHEN IT MISAPPLIED SECTION 13, RULE 13
OF THE RULES OF COURT AND DECLARED THAT THERE WAS NO
PROPER PROOF OF SERVICE BY REGISTERED MAIL.
II.
 
THE HONORABLE COURT OF APPEALS COMMITTED GROSS AND
REVERSIBLE ERROR IN THE APPLICATION OF LAW AND THE RULES
WARRANTING REVIEW WHEN IT MISAPPLIED JURISPRUDENCE AND
RULE 65 AND IT HELD THAT PETITIONER MAYOR DID NOT COMPLY
WITH THE MATERIAL DATE RULE.
 
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Mayor vs. Tiu
 
III.
 
THE HONORABLE COURT OF APPEALS COMMITTED GROSS AND
REVERSIBLE ERROR IN THE APPLICATION OF LAW AND THE
RULES WARRANTING REVIEW WHEN IT DECLARED THAT
PETITIONER MAYOR FAILED TO COMPLY WITH THE REQUIREMENT
OF SECTION 1, RULE 65 FOR FAILING TO ATTACH CERTIFIED TRUE
COPY OF THE ORDER OF THE TRIAL COURT.
 
IV.
 
THE HONORABLE COURT OF APPEALS COMMITTED GROSS AND
REVERSIBLE ERROR IN THE APPLICATION OF LAW AND THE RULES
WARRANTING REVIEW WHEN IT DECLARED THAT PETITIONER
MAYOR DID NOT COMPLY WITH THE REQUIREMENT OF
VERIFICATION AND CERTIFICATION AGAINST FORUM SHOPPING.
 
V.
 
THE HONORABLE COURT OF APPEALS COMMITTED GROSS AND
REVERSIBLE ERROR IN THE APPLICATION OF LAW AND THE RULES
WARRANTING REVIEW WHEN IT ALLOWED TECHNICALITIES TO BE
USED TO DEFEAT SUBSTANTIAL RIGHT OF THE PARTIES.
 
VI.
 
PETITIONERS HAVE GOOD CAUSE AND A MERITORIOUS CASE
AGAINST HEREIN RESPONDENTS AS PARAGRAPH 1(B) OF THE
DISPOSITIVE PORTION OF THE FIRST ASSAILED ORDER SHOULD
HAVE BEEN REVERSED BECAUSE IT OVERTURNS THE DECISION OF
55
THE COURT OF APPEALS DATED 16 OCTOBER 2009 WHICH HAS
LONG BECOME FINAL AND EXECUTORY.28
_______________
28  Id., at pp. 58-59.
 
 
270
270 SUPREME COURT REPORTS ANNOTATED
Mayor vs. Tiu
Petitioner Manuela argued that:
1)   There was actual compliance with Section 13, Rule 13 of the Rules of Court. The
CA petition was accompanied by a notarized affidavit of service and filing of
registered mail. At the time the petition was filed, this was the best evidence of
the service. The other registry receipts for the other parties were also attached to
the petition. Further, the available registry return card was furnished the CA in
the motion for reconsideration.29
2)   The failure of the petition to comply with the rule on a statement of material
dates could be excused because the dates were evident from the records.30
3)   The petitioner went to the RTC of Tacloban to secure certified true copies of the
assailed orders. Only the stamped name of the Clerk of Court, however, appeared
thereon, because the particular branch had no stamp pad which had the phrase for
certification. The branch did not even have a typewriter in order to affix the
phrase on the copies. These inadequacies could not be attributed to the
petitioners.31
4)  The lack of information pertaining to the notary public in the verification and
certification against forum shopping should not invalidate the same because,
again, it was not attributable to the parties.32
_______________
29  Id., at pp. 59-60.
30  Id., at pp. 62-64.
31  Id., at pp. 64-66.
32  Id., at pp. 66-68.
 
 
271
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Mayor vs. Tiu
5)  Technicalities should never be used to defeat the substantive rights of a party.33
 
In its January 23, 2013 Resolution,34 the Court ordered the respondents to file
their respective comments. Marty, in her Comment, insisted that the petitioner failed
to comply with the procedural requirements as stated by the CA.35
In her Reply to Comment,36 petitioner Manuela clarified that the affidavit of
service was executed on August 31, 2011, which was after the petition was signed by
the lawyers and after it was verified by the petitioner herself. After contesting
Marty’s arguments on the alleged procedural infirmities of the petitions with the CA
and this Court, Manuela asserted that the final and executory October 16, 2009
Decision of the CA already held that Primrose had a personality separate and distinct
from the estate of decedent Rosario.
Meanwhile, in his Manifestation,37 dated May 29, 2013, Edwin affirmed that he
and Manuela decided to patch up their differences and agreed to settle amicably.
Accordingly, he manifested that he was withdrawing from the case pursuant to their
agreement.
On June 18, 2014, Manuela filed her Motion for Issuance of Temporary
Restraining Order and Writ of Preliminary Injunction38 on the ground that a flurry of
orders had been is-
_______________
33  Id., at pp. 68-70.
34  Id., at pp. 1265-1266.
35  That petitioners did not comply with the requirement of the rules on service
of its petition before the CA; That petitioners did not comply with the material date
rule; That the petitioners failed to attach a certified true copy of the assailed Order in
their petition with the CA; That the verification and certification of non-forum
shopping attached to the petition with the CA is defective.
36  Rollo, pp. 1292-1301.
37  Id., at pp. 1347-1349.
 
 
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272 SUPREME COURT REPORTS ANNOTATED
Mayor vs. Tiu
sued by the RTC-Br. 6 in the implementation of the assailed January 20, 2011 Order,
such as the Order,39 dated May 27, 2013, wherein the probate court vaguely ordered
“the inventory of the exact extent of the ‘decedent’s estate.’” Then another order was
issued appointing an auditing firm to conduct an inventory/audit of the Estate
including the rentals and earnings derived from the lease of Mercury Drug and
Chowking Restaurant, as tenants of Primrose.40According to petitioner Manuela,
although an inventory of the assets of the decedent was proper, the probate court
ordered an inventory of the assets of Primrose, a separate and distinct entity.
Manuela asserts that it was clearly in error.
In her Supplement to the Motion for Issuance of Temporary Restraining Order
and Writ of Preliminary Injunction,41 dated June 17, 2013, Manuela informed the
Court that the inventory and accounting of Primrose would already commence on
June 19, 2013.
56
 Marty filed her Opposition,42 dated July 3, 2013, stating that the petition of
Manuela had been rendered moot and academic as the probate court had declared her
as the sole heir of Rosario and appointed her administrator of the estate. She argued
that an injunctive relief would work injustice to the estate because of the total
assimilation by petitioner of the shareholdings of the decedent in Primrose and her
share in the corporation’s income corresponding to her shareholdings.
Finding that the requisites for preliminary injunctive relief were present,43 the
Court issued the TRO44 in favor of Manuela
_______________
38  Id., at pp. 1322-1328.
39  Id., at pp. 1333-1337.
40  Id., at pp. 1338-1339.
41  Id., at pp. 1340-1342.
42  Id., at pp. 1360-1368.
43  The requisites for preliminary injunctive relief are: a) the invasion of right
sought to be protected is material and substantial; b) the right of the complainant is
clear and unmistakable; and c) there is an urgent and paramount necessity for the
writ to prevent serious damage.
 
 
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Mayor vs. Tiu
on October 14, 2013. At the outset, the Court was convinced that the rights of
Primrose sought to be protected by the grant of injunctive relief were material and
substantial and the TRO was issued in order to prevent any irreparable damage to a
corporate entity that could arise from the conduct of an accounting by the court-
appointed inventory.
 
The Court’s Ruling
 
The Court now resolves the subject case by the issuance of a permanent
injunction, as prayed for by petitioner Manuela. This position is supported by law
and jurisprudence, as follows:
First. Artificial persons include (1) a collection or succession of natural persons
forming a corporation; and (2) a collection of property to which the law attributes the
capacity of having rights and duties. This class of artificial persons is recognized
only to a limited extent in our law. Example is the estate of a bankrupt or deceased
person.45From this pronouncement, it can be gleaned that the estate of the deceased
person is a juridical person separate and distinct from the person of the decedent and
any other corporation. This status of an estate comes about by operation of law. This
is in consonance with the basic tenet under corporation law that a corporation has a
separate personality distinct from its stockholders and from other corporations to
which it may be connected.46
Second. The doctrine of piercing the corporate veil has no relevant application in
this case. Under this doctrine, the court looks at the corporation as a mere collection
of individuals or an aggregation of persons undertaking business as a
_______________
44  Rollo, pp. 1373-1376.
45  2 Rapalje & L. Law Dict. 954., as cited in Limjoco v. Intestate Estate of
Fragante, No. L-770, April 27, 1948.
46  Concept Builders, Inc. v. NLRC, 326 Phil. 955, 964; 257 SCRA 149, 158
(1996).
 
 
274
274 SUPREME COURT REPORTS ANNOTATED
Mayor vs. Tiu
group, disregarding the separate juridical personality of the corporation unifying the
group. Another formulation of this doctrine is that when two business enterprises are
owned, conducted and controlled by the same parties, both law and equity will, when
necessary to protect the rights of third parties, disregard the legal fiction that two
corporations are distinct entities and treat them as identical or as one and the
same.47 The purpose behind piercing a corporation’s identity is to remove the barrier
between the corporation and the persons comprising it to thwart the fraudulent and
illegal schemes of those who use the corporate personality as a shield for undertaking
certain proscribed activities.48
Here, instead of holding the decedent’s interest in the corporation separately as a
stockholder, the situation was reversed. Instead, the probate court ordered the lessees
of the corporation to remit rentals to the estate’s administrator without taking note of
the fact that the decedent was not the absolute owner of Primrose but only an owner
of shares thereof. Mere ownership by a single stockholder or by another corporation
of all or nearly all of the capital stocks of a corporation is not of itself a sufficient
reason for disregarding the fiction of separate corporate personalities.49 Moreover, to
disregard the separate juridical personality of a corporation, the wrongdoing cannot
be presumed, but must be clearly and convincingly established.50
_______________
47  Pantranco Employees Association (PEA-PTGWO) v. National Labor
Relations Commission, 581 SCRA 598 (2009), citing General Credit Corporation v.
Alsons Development and Investment Corporation, 542 Phil. 219, 231; 513 SCRA
225, 238 (2007).
48  Francisco Motors Corporation v. Court of Appeals, 368 Phil. 374, 385; 309
SCRA 72, 83 (1999).
57
 49  Traders Royal Bank v. Court of Appeals, 336 Phil. 15, 29; 269 SCRA 15, 30
(1997).
50  Matuguina Integrated Wood Products, Inc. v. Court of Appeals, 331 Phil.
795, 814; 263 SCRA 490, 509 (1996).
 
 
275
VOL. 810, NOVEMBER 23, 2016 275
Mayor vs. Tiu
Third. A probate court is not without limits in the determination of the scope of
property covered in probate proceedings. In a litany of cases, the Court had defined
the parameters by which a probate court may extend its probing arms in the
determination of the question of title in probate proceedings. In Pastor, Jr. v. Court
of Appeals,51the Court explained that, as a rule, the question of ownership was an
extraneous matter which the probate court could not resolve with finality. Thus, for
the purpose of determining whether a certain property should, or should not, be
included in the inventory of estate properties, the probate court may pass upon the
title thereto, but such determination is provisional, not conclusive, and is subject to
the final decision in a separate action to resolve title. It is a well-settled rule that a
probate court or one in charge of proceedings, whether testate or intestate, cannot
adjudicate or determine title to properties claimed to be part of the estate but which
are equally claimed to belong to outside parties. It can only determine whether they
should, or should not, be included in the inventory or list of properties to be overseen
by the administrator. If there is no dispute, well and good; but if there is, then the
parties, the administrator and the opposing parties have to resort to an ordinary action
for a final determination of the conflicting claims of title because the probate court
cannot do so.52
In this case, respondent Marty argues that the subject properties and the parcel of
land on which these were erected should be included in the inventory of Rosario’s
estate. More so, the arrears from the rental of these properties were later on ordered
to be remitted to the administrator of the estate grounded on the allegation that
Rosario had no other properties other than her interests in Primrose. To the Court’s
mind, this holding of the probate court was in utter disregard of the undisputed fact
the subject land is registered under the Tor-
_______________
51  207 Phil. 758; 122 SCRA 885 (1983).
52  Morales v. CFI of Cavite, Br. V, 230 Phil. 456, 465; 146 SCRA 373, 381-382
(1986).
 
 
276
276 SUPREME COURT REPORTS ANNOTATED
Mayor vs. Tiu
rens system in the name of Primrose, a third person who may be prejudiced by the
orders of the probate court. In Valera v. Inserto,53 the Court stated:
x x x, settled is the rule that a Court of First Instance (now Regional Trial Court),
acting as a probate court, exercises but limited jurisdiction, and thus has no power to
take cognizance of and determine the issue of title to property claimed by a third
person adversely to the decedent, unless the claimant and all the other parties having
legal interest in the property consent, expressly or impliedly, to the submission of the
question to the probate court for adjudgment, or the interests of third persons are not
thereby prejudiced, the reason for the exception being that the question of whether or
not a particular matter should be resolved by the Court in the exercise of its general
jurisdiction or of its limited jurisdiction as a special court (e.g., probate, land
registration, etc.), is in reality not a jurisdictional but in essence of procedural one,
involving a mode of practice which may be waived.
 
x x x x
 
x x x These considerations assume greater cogency where, as here, the
Torrens title to the property is not in the decedent’s names but in others, a
situation on which this Court has already had occasion to rule .54 [Emphasis and
underscoring supplied]
 
Thus, the probate court should have recognized the incontestability accorded to
the Torrens title of Primrose over Marty’s arguments of possible dissipation of
properties. In fact, in the given setting, even evidence purporting to support a claim
of ownership has to yield to the incontestability of a Torrens title, until after the same
has been set aside in the manner indicated in the law itself. In other words, the
existence of a Torrens title may not be discounted as a mere incident in
_______________
53  233 Phil. 552; 149 SCRA 533 (1987).
54  Id., at pp. 562-563; pp. 542-543.
 
 
277
VOL. 810, NOVEMBER 23, 2016 277
Mayor vs. Tiu
special proceedings for the settlement of the estate of deceased persons. Put clearly,
if a property covered by Torrens title is involved, “the presumptive conclusiveness of
such title should be given due weight, and in the absence of strong compelling
evidence to the contrary, the holder thereof should be considered as the owner of the
property in controversy until his title is nullified or modified in an appropriate
ordinary action, particularly, when as in the case at bar, possession of the property
itself is in the persons named in the title.”55
58
 Additionally, Presidential Decree (P.D.) No. 152956proscribes a collateral attack
on a Torrens title:
Sec. 48. Certificate not subject to collateral attack.—A certificate of title shall not
be subject to collateral attack. It cannot be altered, modified or cancelled except in a
direct proceeding in accordance with law.
 
In Cuizon v. Ramolete,57 the property subject of the controversy was duly
registered under the Torrens system. To this, Court categorically stated:
Having been apprised of the fact that the property in question was in the possession
of third parties and more important, covered by a transfer certificate of title issued in
the name of such third parties, the respondent court should have denied the
motion of the respondent administrator and excluded the property in question
from the inventory of the property of the estate. It had no authority to deprive
such third persons of their possession and ownership of the property.58 x x x
[Emphasis and underscoring supplied]
_______________
55  Bolisay v. Alcid, 174 Phil. 463, 470; 85 SCRA 213, 220 (1978).
56  The Property Registration Decree.
57  214 Phil. 436; 129 SCRA 495 (1984).
58  Id., at p. 442; p. 501.
 
 
278
278 SUPREME COURT REPORTS ANNOTATED
Mayor vs. Tiu
A perusal of the records of this case would show that no compelling evidence
was ever presented to substantiate the position of Marty that Rosario and Primrose
were one and the same, justifying the inclusion of the latter’s properties in the
inventory of the decedent’s properties. This has remained a vacant assertion. At
most, what Rosario owned were shares of stock in Primrose. In turn, this boldly
underscores the fact that Primrose is a separate and distinct personality from the
estate of the decedent. Inasmuch as the real properties included in the inventory of
the estate of Rosario are in the possession of, and are registered in the name of,
Primrose, Marty’s claims are bereft of any logical reason and conclusion to pierce
the veil of corporate fiction.
Fourth. The probate court in this case has not acquired jurisdiction over
Primrose and its properties. Piercing the veil of corporate entity applies to
determination of liability not of jurisdiction; it is basically applied only to determine
established liability. It is not available to confer on the court a jurisdiction it has not
acquired, in the first place, over a party not impleaded in a case. 59 This is so because
the doctrine of piercing the veil of corporate fiction comes to play only during the
trial of the case after the court has already acquired jurisdiction over the corporation.
Hence, before this doctrine can be even applied, based on the evidence presented, it
is imperative that the court must first have jurisdiction over the corporation.60
Hence, a corporation not impleaded in a suit cannot be subject to the court’s
process of piercing the veil of its corporate fiction. Resultantly, any proceedings
taken against the corporation and its properties would infringe on its right to due
process.
_______________
59  Kukan International Corporation v. Reyes, 646 Phil. 210, 234; 631 SCRA
596, 598-599 (2010).
60  Agbayani, A., Commentaries and Jurisprudence on the Commercial Laws of
the Philippines, p. 18 (1991).
 
 
279
VOL. 810, NOVEMBER 23, 2016 279
Mayor vs. Tiu
In the case at bench, the probate court applied the doctrine of piercing the
corporate veil ratiocinating that Rosario had no other properties that comprise her
estate other than her shares in Primrose. Although the probate court’s intention to
protect the decedent’s shares of stock in Primrose from dissipation is laudable, it is
still an error to order the corporation’s tenants to remit their rental payments to the
estate of Rosario.
Considering the above disquisition, the Court holds that a permanent and final
injunction is in order in accordance with Section 9, Rule 58 of the Rules of Court
which provides that  “[i]f after the trial of the action it appears that the applicant is
entitled to have the act or acts complained of permanently enjoined, the court shall
grant a final injunction perpetually restraining the party or person enjoined from the
commission or continuance of the act or acts or confirming the preliminary
mandatory injunction.” Undoubtedly, Primrose stands to suffer an irreparable injury
from the subject order of the probate court.
WHEREFORE, the petition is GRANTED. The Temporary Restraining Order,
dated June 14, 2013, is hereby made PERMANENT, effective immediately. The
Regional Trial Court, Branch 6, Tacloban City, is ENJOINED from enforcing and
implementing its January 20, 2011 and June 10, 2011 Orders, insofar as the corporate
properties of Primrose Development Corporation are concerned, to avert irreparable
damage to a corporate entity, separate and distinct from the Estate of Rosario Guy-
Juco Villasin Casilan.
SO ORDERED.
Carpio (Chairperson), Velasco, Jr.,** Del Castillo and Leonen, JJ., concur.
_______________
** Designated additional member per Raffle dated September 17, 2014.
59
  
280
280 SUPREME COURT REPORTS ANNOTATED
Mayor vs. Tiu
Petition granted, temporary restraining order made permanent.
Note.—The control necessary to invoke the instrumentality or alter ego rule is
not majority or even complete stock control but such domination of finances, policies
and practices that the controlled corporation has, so to speak, no separate mind, will
or existence of its own, and is but a conduit for its principal. (WPM International
Trading, Inc. vs. Labayen, 735 SCRA 297 [2014])
 
——o0o——
No. L-56504. May 7, 1987.*
POMPILLO VALERA and EUMELIA VALERA CABADO,
petitioners, vs. HON. JUDGE SANCHO Y. INSERTO, in his capacity as
Presiding Judge, Court of First Instance of Iloilo, Branch 1, and MANUEL R.
FABIANA, respondents.
Nos. L-59867-68. May 7, 1987.
EUMELIA V. CABADO, POMPILLO VALERA and HON. MIDPANTAO L.
ADIL, petitioners-appellants, vs.MANUEL FABIANA, JOSE GARIN and HON.
COURT OF APPE ALS (Tenth Division), respondents-appellants.
Remedial Law; Special Proceedings; Estates; Jurisdiction of probate court,
Rule that a court of first instance (now RTC) acting as a probate court exercises but
limited jurisdiction and without power to determine the issue of title to property
claimed by a third person adversely to the decedent; Exception; Reason for
exception.—As regards the first issue, settled is the rule that a Court of First Instance
(now Regional Trial Court), acting as a Probate Court, exercises but limited
jurisdiction, and thus has no power to take cognizance of and determine the issue of
title to property claimed by a third person adversely to the decedent, unless the
claimant and all the other parties having legal interest in the property consent,
expressly or impliedly, to the submission of the question to the Probate Court for
adjudgment, or the interests of third persons are not thereby prejudiced, the reason
for the exception being that the question of whether or not a particular matter should
be resolved by the Court in the exercise of its general jurisdiction or of its limited
jurisdiction as a special court (e.g., probate, land registration, etc), is in reality not a
jurisdictional but in essence of procedural one, involving a mode of practice which
may be waived.
Same; Same; Same; Same; Function of resolving whether or not property
should be included in the estate inventory is clearly within the probate court's
competence, which determination is merely provisional in character, Exception to
the rule, not applicable in case at bar.—The facts obtaining in this case, however, do
not call for the application of the exception to the rule. As already earlier stressed, it 
_______________
*
 FIRST DIVISION.
534
534  SUPREME COURT REPORTS ANNOTATED 
Valera vs. Inserto
was at all times clear to the Court as well as to the parties that if cognizance
was being taken of the question of title over the fishpond, it was not for the purpose
of settling the issue definitely and permanently, and writing "finis" thereto, the
question being explicitly left for determination "in an ordinary civil action/' but
merely to determine whether it should or should not be included in the inventory.
This function of resolving whether or not property should be included in the estate
inventory is, to be sure, one clearly within the Probate Court's competence, although
the Court's determination is only provisional in character, not conclusive, and is
subject to the final decision in a separate action that may be instituted by the parties.
Same; Same; Same; Same; Hearing by the probate court on the issue arising
from the parties' conflicting claims over the fishpond, valid; Purpose of hearing; If a
third person asserts a right to the property contrary to the decedent's, the probate
court has no authority to resolve the issue but a separate action must be instituted.—
The same norm governs the situation contemplated in Section 6, Rule 87 of the Rules
of Court, expressly invoked by the Probate Court in justification of its holding a
hearing on the issue arising from the parties' conflicting claims over the fishpond.
The examination provided in the cited section is intended merely to elicit evidence
relevant to property of the decedent from persons suspected of having possession or
knowledge thereof, or of having concealed, embezzled, or conveyed away the same.
Of course, if the latter lays no claim to the property and manifests willingness to turn
it over to the estate, no difficulty arises; the Probate Court simply issues the
60
appropriate direction for the delivery of the property to the estate. On the other hand,
if the third person asserts a right to the property contrary to the decedent's, the
Probate Court would have no authority to resolve the issue; a separate action must be
instituted by the administrator to recover the property.
Same; Same; Same; Same; Probate court authorized to admit a complaint in
intervention after obtaining the consent of all interested parties to its assumption of
jurisdiction over the question of title to the properties.—Parenthetically, in the light
of the foregoing principles, the Probate Court could have admitted and taken
cognizance of Fabiana's complaint in intervention, after obtaining the consent of all
interested parties to its assumption of jurisdiction over the question of title to the
fishpond, or ascertaining the absence of objection thereto, But it did not. It dismissed
the complaint in intervention instead. And all this is now water under the bridge.
535
VOL. 149, MAY 7, 1987  535 
Valera vs. Inserto
Same; Same; Same; Same; Execution, not a case of; Where the determination
by the probate court of the question of title to the property was merely provisional, it
cannot be the subject of execution, and where the Torrens title to the property is not
in the decedent's name but in others.—Since the determination by the Probate Court
of the question of title to the fishpond was merely provisional, not binding on the
property with any character of authority, definiteness or permanence, having been
made only for purposes of inclusion in the inventory and upon evidence adduced at
the hearing of a motion, it cannot and should not be subject of execution, as against
its possessor who has set up title in himself (or in another) adversely to the decedent,
and whose right to possess has not been ventilated and adjudicated in an appropriate
action. These considerations assume greater cogency where, as here, the Torrens title
to the property is not in the decedents' names but in others, a situation on which this
Court has already had occasion to rule.
Same; Same; Same; Same; Primary jurisdiction over title issue in court
taking cognizance of separate action, deemed superior to the contrary order of the
probate court in the exercise of provisional jurisdiction over the same question;
Reason.—Since, too, both the Probate Court and the estate administrators are one in
the recognition of the proposition that title to the f ishpond could in the premises
only be appropriately determined in a separate action, the actual filing of such a
separate action should have been anticipated, and should not therefore have come as
a surprise, to the latter. And since moreover, implicit in that recognition is also the
acknowledgment of the superiority of the authority of the court in which the separate
action is filed over the issue of title, the estate administrators may not now be heard
to complain that in such a separate action, the court should have issued orders
necessarily involved in or flowing from the assumption of that jurisdiction. Those
orders cannot in any sense be considered as undue interference with the jurisdiction
of the Probate Court. Resulting from the exercise of primary jurisdiction over the
question of ownership involving estate property claimed by the estate, they must be
deemed superior to otherwise contrary orders issued by the Probate Court in the
exercise of what may be regarded as merely secondary, or provisional, jurisdiction
over the same question.
PETITIONS to review the judgment of the Court of First Instance of Iloilo, Br. I and
Court of Appeals.
The facts are stated in the opinion of the Court.
536
536  SUPREME COURT REPORTS ANNOTATED 
Valera vs. Inserto
     Eduardo S. Baranda and Avelino T. Javellana for petitioners.
     Dominador G. Garin for private respondents.
NARVASA, J.:
Conflicting claims over a fishpond asserted by the administrators of the estate of
deceased spouses, on the one hand, and by the heirs of a daughter of said spouses and
their lessee, on the other, have given rise to the proceedings now docketed in this
Court as (1) G.R. No. 56504 and (2) G.R. Nos. 59867-68. 
Sp. Proc. No. 2223, CFI, Iloilo 
In the proceedings for the settlement of the intestate estate of the decedent spouses,
Rafael Valera and Consolacion Sarrosa 1 — in which Eumelia Cabado and Pompiro
Valera had been appointed administrators 2 — the heirs of a deceased daughter of the
spouses, Teresa Garin, filed a motion asking that the Administratrix, Cabado, be
declared in contempt for her failure to render an accounting of her
administration. 3 Cabado replied that no accounting could be submitted unless Jose
Garin, Teresa's husband and the movant heirs' father, delivered to the administrator
an 18-hectare fishpond in Baras, Barotoc Nuevo, Iloilo, belonging to the estate and
she in turn moved for the return thereof to the estate, 4 so that it might be partitioned
among the decedents' heirs. Jose Garin opposed the plea for the fishpond's return to
the estate, asserting that the property was owned by his children and this was why it
had never been included in any inventory of the estate. 
The Court, presided over by Hon. Judge Midpantao Adil, viewed the Garin Heirs'
motion for contempt, as well as Cabado's prayer for the fishpond's return to the
estate, as having given rise to a claim for the recovery of an asset of the estate within
the purview of Section 6, Rule 87 of the Rules of Court. 5 It accordingly set said
incidents for hearing during which the parties presentee evidence in substantiation of
their positions. 6 Thereafter, the Court issued an Order dated September 17, 1980
commanding the Heirs of Teresa Garin "to reconvey immediately the fishpond in
question * * to the intestate Estate of the Spouses. 7
61
The Order was predicated upon the Court's factual findings mainly derived from the the matter 10 was meant "merely to determine whether or not the fishpond should be
testimony of the two administrators that:  included as part of the estate and whether or not the person holding it should be made
to deliver and/or return ** (it) to the estate. 11 And so it was emphasized in another
1. the fishpond originally belonged to the Government, and had been given in lease Order, denying reconsideration of the Order of September 17, 1980, which states
to Rafael Valera in his lifetime;  that: 

2. Rafael Valera ostensibly sold all his leasehold rights in the fishpond to his **(i)t is never the intendment of this court to write a finish to the
daughter, Teresa Garin; but the sale was fictitious, having been resorted to merely so issue of ownership of the fishpond in dispute. The movants may
that she might use the property to provide for her children's support and education, pursue their claim of ownership over the same in an ordinary civil
and was subject to the resolutory term that the fishpond should revert to Rafael action. Meanwhile, however, it is the finding of this probate court
Valera upon completion of the schooling of Teresa Garin's Children; and  that the fishpond must be delivered to the estate. 

3. with the income generated by the fishpond, the property was eventually purchased Clearly, there is no incompatibility between the exercise of the
from the Government by the Heirs of Teresa Garin, collectively named as such in the power of this probate court under Section 6 in relation to Section 7,
Original Certificate of Title issued in their favor.  both of Rule 87, and the contention of the movants that the proper
forum to settle the issue of ownership should be in a court of
Upon these facts, Judge Adil ruled that an implied trust had been created, obligating general jurisdiction. 12 
Teresa Garin's heirs to restore the property to the Valera Spouses' Estate, in
accordance with Articles 1453 and 1455 of the Civil Code providing as follows:  Judge Adil afterwards granted the administrators' motion for execution of the order
pending appeal, and directed the sheriff to enforce the direction for the Garin Heirs
Article 1453. When property is conveyed to a person in reliance to reconvey the fishpond to the estate. 13 The corresponding writ was served on
upon his declared intentions to hold it for, or transfer it to another Manuel Fabiana, the supposed encargado or caretaker. Voicing no objection to the
or the grantor, there is an implied trust in favor of the person for writ, and declaring to the sheriff that he was a mere lessee, 14 Fabiana voluntarily
whose benefit it is contemplated.  relinquished possession of the fishpond to the sheriff. The latter, in turn, delivered it
to the administrators. 15
Article 1455. When any trustee, guardian or other person holding a
fiduciary relationship uses trust funds for the purchase of property Later however, Fabiana filed a complaint-in-intervention with the Probate Court
and causes a conveyance to be made to him or to a third person, a seeking vindication of his right to the possession of the fishpond, based on a contract
trust is established by operation of law in favor of the person to of lease between himself, as lessee, and Jose Garin, as lessor. 16 But Judge Adil
whom the fund belongs.  dismissed his complaint on the following grounds, to wit: 

The Court also held that the action for reconveyance based on constructive trust had
not yet prescribed, Cabado's motion for the fishpond's reversion to the estate having
been filed well within ten (10) years from June 30, 1980, the date on which Teresa
Garin's heirs allegedly acquired title over it. 8
There seems little doubt, however, that the Court's pronouncement regarding the
estate's title to the fishpond was merely provisional in character, made solely to
determine whether or not the fishpond should be included in the inventory of estate
assets. So it was evidently understood by the administrators who have more than
once asserted that "the probate court has jurisdiction to determine the ownership of
the fishpond for purposes of inclusion in the inventory of the properties. 9 So it was
made clear by the Probate Court itself which, at the outset, stated that the hearing on
(1) it was filed out of time because not only had judgment been rendered, but
execution as regards transfer of possession had already taken place; and 
(2) the lease contract had not been registered and hence was not binding as against
the estate. 17 
G.R. No. 56504
Fabiana thereupon instituted a separate action for injunction and damages, with
application for a preliminary injunction. This was docketed as Civil Case No. 13742
and assigned to Branch I of the Iloilo CFI, Hon. Sancho Y. Inserto,
presiding. 18 Judge Inserto issued a temporary restraining order enjoining estate

62
administrators from disturbing Fabiana in the possession of the fishpond, as
lessee. 19  property on the theory that it had merely been borrowed; and
The estate administrators filed a motion to dismiss the complaint and to dissolve the
temporary restraining order, averring that the action was barred by the Probate
Court's prior judgment which had exclusive jurisdiction over the issue of the lease,
and that the act sought to be restrained had already been accomplished, Fabiana
having voluntarily surrendered possession of the fishpond to the sheriff. 20 When
Judge Inserto failed to act on their motion within what the administrators believed to
be a reasonable time, considering the circumstances of the Case, the administrators
filed with the Supreme Court a special civil action for certiorari and mandamus, with
a prayer for Preliminary mandatory injunction and temporary restraining order,
which was docketed as G.R. No. 56504. 21 In their petition, the administrators
contended that Branch I of the Iloilo CFI (Judge Inserto, presiding) could not and
should not interfere with the Probate Court (Branch I I, Judge Adil, presiding) in the
legitimate exercise of its j jurisdiction over the proceedings for the Settlement of the
estate of the Valera Spouses. 
G.R. Nos. 59867-68 
In the meantime, Jose Garin — having filed a motion for reconsideration of the
above mentioned order of Judge Adil (declaring the estate to be the owner of the
fishpond), in which he asserted that the Probate Court, being of limited jurisdiction,
had no competence to decide the ownership of the fishpond,22 which motion had
been denied 23-filed a notice of appeal from said Order.24 But he quickly abandoned
the appeal when, as aforestated 25 Judge Adil authorized execution of the order
pending appeal, instead, he initiated a special action for certiorari prohibition and
mandamus )with prayer for preliminary injunction) in the Court of Appeals, therein
docketed as CA-G. R. No. SP-1154-R.
Fabiana followed suit. He instituted in the same Court of Appeals his own action for
certiorari and injunction, docketed as CA-G.R. No. SP-11577-R; this,
notwithstanding the pendency in judge Inserto's sala of the case he had earlier
filed. 26
These two special civil actions were jointly decided by the Court of Appeals. The
Court granted the petitions and ruled in substance that:  may be waived. 30
1. The Probate Court indeed possessed no jurisdiction to resolve the issue of
ownership based merely on evidence adduced at the hearing of a "counter-motion"
conducted under Section 6, Rule 87;  as well as to the parties that if cognizance was being taken of the question of title
2. The original and transfer certificates of title covering the fishpond stand in the
names of the Heirs of Teresa Garin as registered owners, and therefore no
presumption that the estate owns the fishpond is warranted to justify return of the
 
3. Even assuming the Probate Court's competence to resolve the ownership question,
the estate administrators would have to recover possession of the fishpond by
separate action, in view of the lessee's claim of right to superior possession, as lessee
thereof. 
From this joint judgment, the administrators have taken separate appeals to this
Court by certiorari,27 docketed as G.R. Nos. 59867 and 59868. They ascribe to the
Appellate Court the following errors, viz: Page 542 
1) in holding that the Probate Court (Judge Adil, Presiding) had no jurisdiction to
take cognizance of and decide the issue of title covering a fishpond being claimed by
an heir adversely to the decedent spouses; 
2) in ruling that it was needful for the administrators to file a separate action for the
recovery of the possession of the fishpond then in the hands of a third person; and 
3) in sanctioning the act of a CFI Branch in interfering with and overruling the final
judgment of another branch, acting as probate Court, and otherwise frustrating and
inhibiting the enforcement and implementation of said judgment. 
Jurisdiction of Probate Court 
As regards the first issue, settled is the rule that a Court of First Instance (now
Regional Trial Court), acting as a Probate Court, exercises but limited
jurisdiction, 28 and thus has no power to take cognizance of and determine the issue
of title to property claimed by a third person adversely to the decedent, unless the
claimant and all the Other parties having legal interest in the property consent,
expressly or impliedly, to the submission of the question to the Probate Court for
adjudgment, or the interests of third persons are not thereby prejudiced, 29 the reason
for the exception being that the question of whether or not a particular matter should
be resolved by the Court in the exercise of its general jurisdiction or of its limited
jurisdiction as a special court (e.g., probate, land registration, etc., is in reality not a
jurisdictional but in essence of procedural one, involving a mode of practice which
The facts obtaining in this case, however, do not call for the application of the
exception to the rule. As already earlier stressed, it was at all times clear to the Court
over the fishpond, it was not for the purpose of settling the issue definitely and
permanently, and writing "finis" thereto, the question being explicitly left for
63
determination "in an ordinary civil action," but merely to determine whether it should
or should not be included in the inventory. 31 This function of resolving whether or
not property should be included in the estate inventory is, to be sure, one clearly
within the Probate Court's competence, although the Court's determination is only
provisional in character, not conclusive, and is subject to the final decision in a
separate action that may be instituted by the parties. 32
conclusiveness of such title should be given due weight, and in the
absence of strong compelling evidence to the contrary, the holder
thereof should be consider as the owner of the property in
controversy until his title is nullified or modified in an appropriate
ordinary action, particularly, when as in the case at bar, possession
of the property itself is in the persons named in the title. 35

The same norm governs the situation contemplated in Section 6, Rule 87 of the Rules
of Court, expressly invoked by the Probate Court in justification of its holding a
hearing on the issue arising from the parties' conflicting claims over the
fishpond. 33 The examination provided in the cited section is intended merely to elicit
evidence relevant to property of the decedent from persons suspected of having
possession or knowledge thereof, or of having concealed, embezzled, or conveyed
away the same. Of course, if the latter lays no claim to the property and manifests
willingness to tum it over to the estate, no difficulty arises; the Probate Court simply
issues the appropriate direction for the delivery of the property to the estate. On the
other hand, if the third person asserts a right to the property contrary to the
decedent's, the Probate Court would have no authority to resolve the issue; a separate
action must be instituted by the administrator to recover the property. 34
Parenthetically, in the light of the foregoing principles, the Probate Court could have
admitted and taken cognizance of Fabiana's complaint in intervention after obtaining
the consent of all interested parties to its assumption of jurisdiction over the question
of title to the fishpond, or ascertaining the absence of objection thereto. But it did
not. It dismissed the complaint in intervention instead. And all this is now water
under the bridge.  jurisdiction over the same question.
Primary Jurisdiction over Title issue in 
Court Taking Cognizance of Separate Action 
Since, too, both the Probate Court and the estate administrators are one in the
recognition of the proposition that title to the fishpond could in the premises only be
appropriately determined in a separate action, 36 the actual firing of such a separate
action should have been anticipated, and should not therefore have come as a
surprise, to the latter. And since moreover, implicit in that recognition is also the
acknowledge judgment of the superiority of the authority of the court in which the
separate action is filed over the issue of title, the estate administrators may not now
be heard to complain that in such a separate action, the court should have issued
orders necessarily involved in or flowing from the assumption of that jurisdiction.
Those orders cannot in any sense be considered as undue interference with the
jurisdiction of the Probate Court. Resulting from the exercise of primary jurisdiction
over the question of ownership involving estate property claimed by the estate, they
must be deemed superior to otherwise contrary orders issued by the Probate Court in
the exercise of what may be, regarded as merely secondary, or provisional,
 

Possession of Fishpond Pending  WHEREFORE, the petition in G.R. No. 56504 is DISMISSED, for lack of merit.
The petitions in G.R. No. 59867 and G.R. No. 59868 are DENIED, and the judgment
Determination of Title Thereto  of the Appellate Court, subject thereof, is affirmed in toto. The temporary restraining
order dated April 1, 1981 is lifted. Costs against petitioners.
Since the determination by the Probate Court of the question of title to the fishpond
was merely provisional, not binding on the property with any character of authority,
definiteness or permanence, having been made only for purposes of in. conclusion in
the inventory and upon evidence adduced at the hearing of a motion, it cannot and
should not be subject of execution, as against its possessor who has set up title in
himself (or in another) adversely to the decedent, and whose right to possess has not
been ventilated and adjudicated in an appropriate action. These considerations
assume greater cogency where, as here, the Torrens title to the property is not in the
decedents' names but in others, a situation on which this Court has already had
occasion to rule. 

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

a property covered by Torrens title is involved, the presumptive
64
G.R. No. 230404 January 31, 2018

IN THE MATTER OF THE INTESTATE ESTATE OF REYNALDO

GUZMAN RODRIGUEZ; ANITA ONG TAN,Petitioner 
vs.
ROLANDO C. RODRIGUEZ, RACQUELR. GEGAJO*, ROSALINDA R.
LANDON, REYNALDO C. RODRIGUEZ, JR., ESTER R. FULGENCIO,
RAFAEL C. RODRIGUEZ and REYNEST C. RODRIGUEZ, Respondents

DECISION

TIJAM, J.:

Before Us is a Petition for Review on Certiorari, 1 assailing the Decision2 dated June

13, 2016 and Resolution3 dated March 3, 2017 of the Court of Appeals (CA) in CA-
G.R. CV No. 105665 filed by petitioner Anita Ong Tan (Anita).

The Facts of the Case

Respondents Rolando Rodriguez, Racquel Gegajo, Rosalinda Landon, Reynaldo

Rodriguez, Jr., Ester Fulgencio, Rafael Rodriguez and Reynest Rodriguez are
children of Reynaldo Rodriguez (Reynaldo) and Ester Rodriguez (Ester), who died
on August 27, 2008 and September 11, 2004 respectively. 4

Reynaldo and Ester left several properties to their surviving children. On February
13, 2009, respondents executed an Extrajudicial Settlement of the Estate of the late
Reynaldo and Ester. 5

On the other hand, Anita is a co-depositor in a Joint Account under the name Anita
Ong Tan and Reynaldo with account number 003149-0718-56 in the Bank of the
Philippine Islands (BPI). When Reynaldo passed away, said joint account continued
to be in active status.6

On August 31, 2009, BPI sent a letter to Anita and informed her that her joint
account with Reynaldo would become dormant if no transaction will be made. As
such, Anita decided to withdraw her funds. BPI, however, required her to submit

65
additional requirements, one of which is the extrajudicial settlement of the heirs of
Reynaldo. 7 To comply with the same, Anita approached respondents and asked them
to sign a waiver of rights to the said joint account. Respondents refused to sign the
waiver as they believed that the funds in the said joint account belonged to their
father. 8
Respondents then submitted documents to BPI for the release of half of the funds
deposited in said joint account.9
BPI withheld the release of the funds because of the conflicting claims between
Anita and respondents. 10
In 2011, Anita filed before the trial court a petition for the: (a) settlement of the
Intestate Estate of the late Reynaldo; and (b) issuance of letters of administration to
any competent neutral willing person, other than any of the heirs of Reynaldo.
Anita alleged that the funds used to open the BPI joint account were her exclusive
funds, which came from her East West Bank (East West) account. To prove her
claim, she presented as evidence a Debit Memo from East West Bank, which was
used for the issuance of a Manager's Check in the amount of One Million Twenty-
One Thousand Eight Hundred SixtyEight and 30/100 Pesos (₱1,021,868.30), which
exact amount was deposited to the BPI joint account. 11 Anita presented the
testimony of Mineleo Serrano, Branch Manager of East West in Tomas Morato, to
corroborate her testimony that the subject amount came from her East West
account. 12
Respondents filed a Motion to Dismiss, arguing that the funds deposited in the BPI
joint account belonged exclusively to Reynaldo.
In 2014, Rolando Rodriguez was appointed and took his oath as an administrator of
the subject estate.
In an Order13 dated March 13, 2015, the Regional Trial Court (RTC) ruled in favor of
Anita. The RTC held that Anita sufficiently adduced evidence to rebut the
presumption that the funds deposited under the BPI joint account of Anita and
Reynaldo were owned by them in common. The fallo reads:
WHEREFORE, petitioner's claim against the estate of deceased Reynaldo G.
Rodriguez is hereby GRANTED. Accordingly, Rolando Rodriguez, in his capacity
as the appointed Administrator of the intestate estate of Reynaldo G. Rodriguez, is
hereby directed to withdraw, together with the petitioner, the funds under Joint
Account No. 003149-0718-56 deposited with the Bank of the Philippine Islands,
Kamuning Branch, Quezon City and the entire proceeds thereof be given to
petitioner.
SO ORDERED.14
Respondents filed a motion for reconsideration, but it was denied in an Order dated
May 25, 2015.
Undaunted, respondents filed an appeal before the CA.
In a Decision15 dated June 13, 2016, the CA reversed the ruling of the RTC. In giving
credence to respondents' contention, the CA maintained that the presumption of co-
ownership as regards the nature of joint accounts was not sufficiently overturned, as
Anita failed to prove that she is indeed the sole owner of the funds therein. The CA
disposed thus:
WHEREFORE, the instant appeal is hereby PARTIALLY GRANTED. The
assailed Order dated March 13, 2015 and Order dated May 25, 2015 of the
Region[ al] Trial Court[,] Branch 74, Malabon City is hereby MODIFIED.
The bank deposit under the Joint Account number 003149-0718-56 is to be divided
in equal shares between Petitioner-appellee on one hand and the Respondents-
appellants on the other on a 50-50 proposition.
SO ORDERED. 16
Anita filed a motion for reconsideration, which was denied m a Resolution17 dated
March 3, 2017, thus:
WHEREFORE, petitioner-appellee's Motion for Reconsideration is
hereby DENIED for lack of merit.1âwphi1
SO ORDERED.18
The Issue
In sum, the sole issue in this case is whether or not the CA erred in declaring Anita
and Reynaldo as co-owners of the subject bank deposits despite the evidence
submitted by Anita to prove otherwise.
The Ruling of the Court
66
A joint account is one that is held jointly by two or more natural persons, or by two
or more juridical persons or entities. Under such setup, the depositors are joint
owners or co-owners of the said account, and their share in the deposits shall be
presumed equal, unless the contrary is proved. 19 The nature of joint accounts is
governed by the rule on co-ownership embodied in Article 485 of the Civil Code, to
wit:
Art. 485. The share of the co-owners, in the benefits as well as in the charges, shall
be proportional to their respective interests. Any stipulation in a contract to the
contrary shall be void.
The portions belonging to the co-owners in the co-ownership shall be presumed
equal, unless the contrary is proved.
While the rule is that the shares of the owners of the joint account holders are equal,
the same may be overturned by evidence to the contrary. Hence, the mere fact that an
account is joint is not conclusive of the fact that the owners thereof have equal
claims over the funds in question.
In line with this, it is also indispensable to consider whether or not there exists a
survivorship agreement between the co-depositors. In said agreement, the co-
depositors agree that upon the death of either of them, the share pertaining to the
deceased shall accrue to the surviving co-depositor or he can withdraw the entire
deposit.20
It must be noted that there exists no survivorship agreement between Anita and
Reynaldo. Hence, it is but rightful to determine their respective shares based on
evidence presented during trial.
On this note, the Court agrees with the findings of the lower court that Anita
sufficiently proved that she owns the funds in the BPI joint account exclusively.
It can be gleaned from the records that the money in the BPI joint account amounts
to One Million Twenty-One Thousand Eight Hundred Sixty-Eight Pesos and Thirty
Centavos (₱1,021,868.30), and it is undisputed that said amount came from Anita's
personal account with East West. In East West, Anita opened a Trust Placement in
August 2007 with the amount of Two Million Fourteen Thousand Twenty-Four
Pesos and Twenty-Five Centavos (₱2,014,024.25). Based on East West's records, as
testified to by· its Branch Manager, two withdrawals were subsequently made: first,
in the amount of One Million Twenty-One Thousand Eight Hundred Sixty-Eight
Pesos and 30 Centavos (₱1,021,868.30); and second, in the amount of One Million
Three Thousand One Hundred Eleven Pesos and Eleven Centavos (₱1,003,111.11 ).
In all such withdrawals, manager's checks were issued.
The exact amount which was first withdrawn from the East West account, i.e., One
Million Twenty-One Thousand Eight Hundred Sixty-Eight Pesos and Thirty
Centavos (₱1,021,868.30), was the exact amount used to open the BPI joint account.
Notable is the fact that these transactions occurred within the same day on November
14, 2007.21 It is also significant to consider that no further transaction in said joint
account was made after the same was opened until the death of Reynaldo.
With all these, it is apparent that Anita owned the funds exclusively as she
sufficiently overturned the presumption under the law. It bears stressing that despite
the evidence shown by Anita, respondents failed to refute her evidence, other than
their bare allegations that Anita and Reynaldo had an amorous relationship and that
Anita had no source of income to sustain the funds in a bank. 22
The Court also takes note of the fact that respondents admitted that they knew the
existence of the joint account, yet they still failed to include the same in the list of
included properties in the inventory when they executed an extrajudicial settlement.
Their failure to include said joint account in the list of the items owned by Reynaldo
for the purposes of determining his estate obviously refutes their claim that Reynaldo
was the sole owner of the funds in said joint account.
Taken together, the Court finds the ruling of the trial court that Anita is the sole
owner of the funds in question proper.1âwphi1
Lastly, noteworthy is the fact that even if the probing arms of an intestate court is
limited, it is equally important to consider the call of the exercise of its power of
adjudication especially so when the case calls for the same, to wit:
While it may be true that the Regional Trial Court, acting in a restricted capacity and
exercising limited jurisdiction as a probate court, is competent to issue orders
involving inclusion or exclusion of certain properties in the inventory of the estate of
the decedent, and to adjudge, albeit, provisionally the question of title over
properties, it is no less true that such authority conferred upon by law and reinforced
by jurisprudence, should be exercised judiciously, with due regard and caution to the
peculiar circumstances of each individual case.23
The facts obtaining in this case call for the determination of the ownership of the
funds contained in the BPI joint account; for the intestate estate of Reynaldo has
already been extrajudicially settled by his heirs. The trial court, in this case,
exercised sound judiciousness when it ruled out the inclusion of the BPI joint
account in the estate of the decedent.
Equally important is the rule that the determination of whether or not a particular
matter should be resolved by the Court of First Instance in the exercise of its general
67
jurisdiction or of its limited jurisdiction as a special court (probate, land registration,
etc.) is in reality not a jurisdictional question. It is in essence a procedural question
involving a mode of practice "which may be waived."24

Such waiver introduces the exception to the general rule that while the probate court
exercises limited jurisdiction, it may settle questions relating to ownership when the
claimant and all other parties having legal interest in the property consent, expressly
or impliedly, to the submission of the question to the probate court for adjudgment.25

Such waiver was evident from the fact that the respondents sought for affirmative
relief before the court a quo as they claimed ownership over the funds in the joint
account of their father to the exclusion of his co-depositor.

In this case, the Court notes that the parties submitted to the· jurisdiction of the
intestate court in settling the issue of the ownership of the joint account. While
respondents filed a Motion to Dismiss, which hypothetically admitted all the
allegations in Anita's petition, the same likewise sought affirmative relief from the
intestate court. Said affirmative relief is embodied in respondents' claim of
ownership over the funds in said joint account to the exclusion of Anita, when in fact
said funds in the joint account was neither mentioned nor included in the inventory
of the intestate estate of the late Reynaldo. Therefore, respondents impliedly agreed
to submit the issue of ownership before the trial court, acting as an intestate court,
when they raised an affirmative relief before it. To reiterate, the exercise of the trial
court of its limited jurisdiction is not jurisdictional, but procedural; hence, waivable.

WHEREFORE, premises considered, the Petition is GRANTED. The Decision

dated June 13, 2016 and Resolution dated March 3, 2017 of the Court of Appeals in
CA-G.R. CV No. 105665 are REVERSED and SET ASIDE.Accordingly, the Order
dated March 13, 2015 of the Regional Trial' Court of Malabon City, Branch 74
is REINSTATED.

SO ORDERED.

68