G.R. No.

109963 October 13, 1999 HEIRS OF JOAQUIN TEVES: RICARDO TEVES, ARCADIA TEVES, TOMAS ZAMORA, FELICIA TEVES, HELEN TEVES, ALFREDO OSMEA, ROBERTO TEVES, JOAQUIN TEVES, III, PETER TEVES, MILDRED TEVES, WILSON MABILOG, LEONILO PATIGAYON, EDUARDO PATIGAYON, ALEXANDER PATIGAYON, ALDRIN PATIGAYON, NOEL PATIGAYON, VICTOR PATIGAYON, MA. TEVES PATERNO OCHOTORENA, EXEQUILA TEVES, EMILIO JO, EMILIANA TEVES, MILAGROS TEVES, EDSEL PINILI, VICENTE TEVES, EMILIANA ISO, ALBERTO TEVES, ERLINDA TEVES, DIOSDADO TEVES, VICTORIA TEVES AND VIVENCIO NARCISO, petitioners, vs. COURT OF APPEALS, HEIRS OF ASUNCION IT-IT NAMELY: ELISA IT-IT, SUSANA IT-IT, NORBERTO IT-IT, ISA-AC IT-IT, JR., JAIME IT-IT, FELICITAS IT-IT, TERESITA IT-IT, ANTONIO NODADO, CORAZON IT-IT, JIMMY LERO, DANILO IT-IT, EDITA GAMORA, PACITA VAILOCES, CRIS VAILOCES, CECILIA CIMAFRANCA and CECILIA FLOR CIMAFRANCA, respondents. GONZAGA-REYES, J.: Before us is a petition for review on certiorari assailing the decision of the Court of Appeals which was promulgated on August 18, 1992 affirming the July 11, 1991 decision 2 of Branch 38 of the Regional Trial Court of Negros Oriental in favor of defendants-appellees. The facts, as culled from the pleadings of the parties herein and the decision of the lower courts, are as follows: Marcelina Cimafranca and Joaquin Teves had nine children, namely Teotimo, Felicia, Pedro, Andres, Asuncion, Gorgonio, Cresenciano, Arcadia and Maria. Andres, however, predeceased both his parents and died without issue. After Marcelina Cimafranca and Joaquin Teves died, intestate and without debts, in 1943 and 1953, respectively, their children executed extrajudicial settlements purporting to adjudicate unto themselves the ownership over two parcels of land belonging to their deceased parents and to alienate their shares thereto in favor of their sister Asuncion Teves. The validity of these settlements executed pursuant to section 1 of Rule 74 of the Rules of Court is the primary issue in the present case.1wphi1.nt On May 9, 1984, plaintiffs-appellants Ricardo and Arcadia Teves filed a complaint with the Regional Trial Court of Negros Oriental for the partition and reconveyance of two parcels of land located in Dumaguete, designated as Lots 769-A and 6409, against the heirs of Asuncion Teves. The complaint was subsequently amended to include Maria Teves and the heirs of Teotimo, Felicia, Pedro, and Gorgonio Teves as plaintiffs and the spouses Lucresio Baylosis and Pacita Nocete, and Cecilia Cimafranca-Gamos and Cecilia Flor Cimafranca as defendants. 3 Plaintiffs-appellants alleged that defendants-appellees, without any justifiable reason, refused to partition the said parcels of land and to convey to plaintiffs their rightful shares. 4
1

Lot 769, covered by Original Certificate of Title (OCT) No. 4682-A, 5 is registered in the names of Urbana Cimafranca, one-fourth (1/4) share, Marcelina Cimafranca, the wife of Joaquin Teves, one-fourth (1/4) share, Domingo Villahermosa, one-eighth (1/8) share, Antero Villahermosa, one-eighth (1/8) share, Cecilia Cimafranca, one-eighth (1/8) share and Julio Cimafranca, one-eighth (1/8) share. The present controversy involves only Marcelina Cimafranca's one-fourth (1/4) share in the land, designated as Lot 769-A. On June 13, 1956, Teotimo, Felicia, Pedro, Asuncion, Gorgonio and Arcadia Teves executed a document entitled "Settlement of Estate and Sale," 6 adjudicating unto themselves, in equal shares, Lot 769-A and conveying their shares, interests and participations over the same in favor of Asuncion Teves for the consideration of P425.00. A similar deed denominated "Extrajudicial Settlement and Sale" 7 was signed by Maria Teves on April 21, 1959. Under such deed, Maria conveys her own share over Lot 769-A in favor of Asuncion Teves for the consideration of P80.00. The two settlements were denounced by the plaintiffs as spurious. The trial court summarized the claims of the plaintiffs, viz . . . Maria Teves Ochotorena herself, denied having executed this Extrajudicial Settlement and Sale over her share or interest in Lot 769 claiming that her signature in said document is a forgery. She disowns her signature declaring that as a married woman she always signs a document in her husband's family name. Further, she declared that on the date she purportedly signed said document in Dumaguete City before the notary public, she was in her home in Katipunan, Zamboanga del Norte. On Exhibit "G" which is likewise offered as Exhibit "3" for the defendants, plaintiffs hold that said document is spurious claiming that the signatures of Pedro Teves, Felicia Teves and Gorgonio Teves are all forgeries. To support this allegation, Helen T. Osmena, daughter of Felicia Teves and Erlinda Teves, daughter of Gorgonio Teves were presented as witnesses. Being allegedly familiar with the style and character of the handwriting of their parents these witnesses declared unequivocally that the signatures of their parents appearing on the document are forgeries. In sum, plaintiffs argue that these fraudulent documents which defendants rely in claiming ownership to the disputed properties are all nullities and have no force in law and could not be used as basis for any legal title. Consequently, in their view, they are entitled to the reliefs demanded particularly, to their respective shares of the disputed properties. 8.. The other property in dispute is Lot 6409 which was originally covered by OCT No. 9091 9 and was registered in the name of Joaquin Teves and his two sisters, Matea and Candida Teves. However, Matea and Candida died without issue, causing the entire property to pass to Joaquin Teves. On December 14, 1971, Lot 6409 was adjudicated and divided in equal shares in a "Deed of Extrajudicial Settlement & Sale" 10 executed by Joaquin Teves' children Asuncion, Teotimo, Felisia, Gorgonio, Arcadia and Maria Teves. In the same deed, the shares of these same heirs in Lot 6409

were sold to Asuncion Teves for P100.00. Asuncion Teves took possession of the land and acquired title 11 over the same on March 22, 1972. After her death in 1981, her children, defendants-appellees It-it herein, extrajudicially settled Asuncion Teves' property, adjudicating unto themselves Lot 6409. 12 On July 20, 1983 a new transfer certificate of title 13 was issued in the names of Asuncion Teves' children, namely Elisa, Susana, Norberto, Isaac, Jaime, Felicitas, Teresita, Corazon, and Danilo, all surnamed It-it. On July 2, 1984, the It-its sold Lot 6409 to defendants-appellees Lucrecio Baylosis, Sr. and Pacita Nocete-Baylosis for P20,000.00 14 and a transfer certificate of title 15 was issued in the name of the Baylosis couple. Plaintiffs-appellants claim that the Deed of Extrajudicial Settlement & Sale covering Lot 6409 is also spurious. Their arguments were discussed in the trial court's decision as follows Presented as Exhibit "D" and "1" for both the plaintiffs and defendants respectively, is a document denominated as "Extrajudicial Settlement and Sale" executed on December 4, 1971 by and among the heirs of Joaquin Teves and Marcelina Cimafranca. This document which gave birth to TCT No. 5761 over Lot 6409 registered in the name of Asuncion Teves It-it is questioned by the plaintiffs as spurious for the following reasons: 1. Erasure of the word "quitclaim" is superimposed with the word "sale" in handwriting. 2. The consideration of "One peso" stated in document is intercalated with the word "hundred" in handwriting. 3. The signature of Maria Teves Ochotorena, Pedro Teves and Felicia Teves are forgeries. 4. The thumbmark imposed on the name of Gorgonio Teves does not actually belong to Gorgonio Teves who was an educated man and skilled in writing according to his daughter. Aside from these defects which would make said document null and void, Arcadia Teves who is one of the living sisters of the mother of the principal defendants although confirming the authenticity of her signature averred that in reality no consideration was ever given to her and that her impression of the said document was that she was only giving her consent to sell her share of the land. Plaintiffs likewise contend that as regards the share of Ricardo Teves, son of Crescenciano Teves who predeceased Joaquin and Marcelina, it was not at all

affected in that extrajudicial settlement and sale since neither Crescenciano Teves nor his son Ricardo Teves participated in its execution. xxx xxx xxx Likewise, plaintiffs offered TCT No. 5761 for Lot 6409 registered in the name of Asuncion Teves It-it as Exhibit "B" as proof that said property was later titled in trust for all the heirs of Joaquin Teves and which was used later as basis in effecting a deed of sale in favor of co-defendant Lucresio Baylosis. In this light, the plaintiffs argue that the sale of said property is a nullity for it was not only attended with bad faith on the part of both the vendor and the vendee but primarily the vendor had no right at all to part with said property which is legally owned by others. 16 In answer to plaintiffs-appellants' charges of fraud, defendantsappellees maintained that the assailed documents were executed with all the formalities required by law and are therefore binding and legally effective as bases for acquiring ownership or legal title over the lots in question. Furthermore, it is contended that plaintiffsappellants have slept on their rights and should now be deemed to have abandoned such rights. 17 The trial court ruled in favor of defendants-appellees and rendered judgment dismissing the complaint with costs against plaintiffsappellants. As regards Lot 6409, the court declared that the Extrajudicial Settlement and Sale executed by the heirs of Joaquin Teves and Marcelina Cimafranca was duly executed with all the formalities required by law, thus, validly conveying Lot 6409 in favor of Asuncion Teves. Moreover, it stated that, even granting the truth of the imputed infirmities in the deed, the right of plaintiffsappellants to bring an action for partition and reconveyance was already barred by prescription. An action for the annulment of a partition must be brought within four years from the discovery of the fraud, while an action for the reconveyance of land based upon an implied or constructive trust prescribes after ten years from the registration of the deed or from the issuance of the title. The complaint in this case was filed on May 9, 1984, exactly 12 years, 1 month and 17 days after the issuance of the transfer certificate of title in the name of Asuncion Teves on March 22, 1972. Thus, ownership over Lot 6409 rightfully belonged to defendants-appellees It-it. Moreover, the trial court held that the extrajudicial settlements over both Lots 6409 and 769, having been prepared and acknowledged before a notary public, are public documents, vested with public interest, the sanctity of which deserves to be upheld unless overwhelmed by clear and convincing evidence. The evidence presented by the plaintiffs to support their charges of forgery was considered by the court insufficient to rebut the legal presumption of validity accorded to such documents. 18

The Court of Appeals upheld the trial court's decision affirming the validity of the extrajudicial statements, with a slight modification. It disposed of the case, thus WHEREFORE, premises considered, the decision appealed from is AFFIRMED with the modification in that herein defendant-appellees are hereby ORDERED to partition Lot 769-A and deliver to plaintiffappellant Ricardo Teves one-eight (sic) (1/8) portion thereof corresponding to the share of his deceased father Cresenciano Teves. No costs. The appellate court said that plaintiffs-appellants' biased and interested testimonial evidence consisting of mere denials of their signatures in the disputed instruments is insufficient to prove the alleged forgery and to overcome the evidentiary force of the notarial documents. It also ruled that the plaintiffs-appellants' claim over Lot 6409 was barred by prescription after the lapse of ten years from the issuance of title in favor of Asuncion Teves, while their claim over Lot 769-A is barred by laches since more than 25 years has intervened between the sale to Asuncion Teves and the filing of the present case in 1984. The appellate court noted that the conveyance of Lot 769-A in favor of Asuncion Teves did not affect the share of Cresenciano Teves as he was not a signatory to the settlements. It also found that Ricardo Teves, Cresenciano's heir, is in possession of a portion of Lot 769-A and that defendants-appellees do no not claim ownership over such portion. Thus, the defendants-appellees It-it were ordered to partition and convey to Ricardo Teves his one-eighth share over Lot 769-A.1wphi1.nt As regards the extrajudicial settlement involving Lot 6409, although it was found by the appellate court that Cresenciano Teves was also not a signatory thereto, it held that it could not order the reconveyance of the latter's share in such land in favor of his heir Ricardo Teves because Cresenciano had predeceased Joaqin Teves. Moreover, Ricardo Teves, by a deed simply denominated as "Agreement" executed on September 13, 1955 wherein he was represented by his mother, authorized the heirs of Joaquin Teves to sell his share in Lot 6409. 19 Plaintiffs-appellants assailed the appellate court's decision upon the following grounds I. IN CONSIDERING RICARDO TEVES AS BOUND BY THE SIGNATURE OF HIS MOTHER, INSPITE OF DEATH OF CRESENCIANO TEVES IN 1944; AND UNDER THE OLD CIVIL CODE THE SPOUSE CANNOT INHERIT EXCEPT THE USUFRUCT; II. IN UPHOLDING SWEEPINGLY THE PRESUMPTION OF REGULARITY OF NOTARIZED DEED, DESPITE CLEAR, CONVINCING, SUBSTANTIAL AND SUFFICIENT EVIDENCE THAT MARIA OCHOTORENA WAS IN MINDANAO; THE NOTARY PULIC DID NOT KNOW MARIA OCHOTORENA AND THE SIGNATURES OF THE OTHER HEIRS IN THE

QUESTIONED DOCUMENT ARE BELIED BY COMPARISON WITH THE GENUINE SIGNATURE IN EXH. "E"; III. IN VALIDATING THE ONE PESO CONSIDERATION, INSPITE OF NO OTHER VALUABLE CONSIDERATION, THE SUPERIMPOSED P100 WAS UNILATERALLY INSERTED, SHOWING FICTITIOUS AND SIMULATED CONSIDERATION; AND IV. PRESCRIPTION DOES NOT START FROM A VOID CONTRACT. 20 We affirm that the extrajudicial settlements executed by the heirs of Joaquin Teves and Marcelina Cimafranca are legally valid and binding. The extrajudicial settlement of a decedent's estate is authorized by section 1 of Rule 74 of the Rules of Court, which provides in pertinent part that If the decedent left no will and no debts and the heirs are all of age, or the minors are represented by their judicial or legal representatives duly authorized for the purpose, the parties may, without securing letters of administration, divide the estate among themselves as they see fit by means of a public instrument filed in the office of the register of deeds, . . . xxx xxx xxx Thus, for a partition pursuant to section 1 of Rule 74 to be valid, the following conditions must concur: (1) the decedent left no will; (2) the decedent left no debts, or if there were debts left, all had been paid; (3) the heirs are all of age, or if they are minors, the latter are represented by their judicial guardian or legal representatives; (4) the partition was made by means of a public instrument or affidavit duly filed with the Register of Deeds. 21 We uphold, finding no cogent reason to reverse, the trial and appellate courts' factual finding that the evidence presented by plaintiffs-appellants is insufficient to overcome the evidentiary value of the extrajudicial settlements. The deeds are public documents and it has been held by this Court that a public document executed with all the legal formalities is entitled to a presumption of truth as to the recitals contained therein. 22 In order to overthrow a certificate of a notary public to the effect that the grantor executed a certain document and acknowledged the fact of its execution before him, mere preponderance of evidence will not suffice. Rather, the evidence must be so clear, strong and convincing as to exclude all reasonable dispute as to the falsity of the certificate. When the evidence is conflicting, the certificate will be upheld. 23 The appellate court's ruling that the evidence presented by plaintiffs-appellants

does not constitute the clear, strong, and convincing evidence necessary to overcome the positive value of the extrajudicial settlements executed by the parties, all of which are public documents, being essentially a finding of fact, is entitled to great respect by the appellate court and should not be disturbed on appeal. 24 It is noted that the Deed of Extrajudicial Settlement & Sale covering Lot 6409 purports to divide Joaquin Teves' estate among only six of his heirs, namely Asuncion, Teotimo, Felisia, Gorgonio, Arcadia and Maria Teves. 25 It does not mention nor bear the signatures of either Pedro or Cresenciano Teves although they are both intestate heirs of Joaquin Teves and as such, are entitled to a proportionate share of the decedent's estate. Contrary to the ruling of the appellate court, the fact that Cresenciano predeceased Joaquin Teves does not mean that he or, more accurately, his heirs, lose the right to share in the partition of the property for this is a proper case for representation, wherein the representative is raised to the place and degree of the person represented and acquires the rights which the latter would have if he were living. 26 However, notwithstanding their non-inclusion in the settlement, the action which Pedro and Cresenciano might have brought for the reconveyance of their shares in the property has already prescribed. An action for reconveyance based upon an implied trust pursuant to article 1456 of the Civil Code prescribes in ten years from the registration of the deed or from the issuance of the title. 27 Asuncion Teves acquired title over Lot 6409 in 1972, but the present case was only filed by plaintiffs-appellants in 1984, which is more than 10 years from the issuance of title. 28 The division of Lot 769-A, on the other hand, was embodied in two deeds. The first extrajudicial settlement was entered into by Teotimo, Felicia, Pedro, Gorgonio, Arcadia and Asuncion Teves in 1956 29, while the second deed was executed in 1959 by Maria Teves. 30 Cresenciano was not a signatory to either settlement. However, in contrast to the extrajudicial settlement covering Lot 6409, the two extrajudicial settlements involving Lot 769-A do not purport to exclude Cresenciano from his participation in Lot 769-A or to cede his share therein in favor of Asuncion. The settlement clearly adjudicated the property in equal shares in favor of the eight heirs of Marcelina Cimafranca. Moreover, the deeds were intended to convey to Asuncion Teves only the shares of those heirs who affixed their signatures in the two documents. The pertinent portions of the extrajudicial settlement executed in 1956, of which substantively identical provisions are included in the 1959 deed, provide xxx xxx xxx 5. That by virtue of the right of succession the eight heirs above mentioned inherit and adjudicate unto themselves in equal shares Lot No. 769-A and our title thereto is evidenced by the O.C. of Title No. 4682-A of the Land Records of Negros Oriental.

THAT FOR AND IN CONSIDERATION of the sum of FOUR HUNDRED TWENTY-FIVE (P425.00) PESOS, Philippine Currency which we have received from ASUNCION TEVES; WE, Teotimo, Felicia, Pedro, Gorgonio and Arcadia, all surnamed Teves, do hereby sell, transfer and convey unto Asuncion Teves, married to Isaac Itit, Filipino, of legal age and resident of and with postal address in the City of Dumaguete, all our shares, interests and participations over Lot 769-A of the subdivision plan, Psd, being a portion of Lot No. 769 of the Cadastral Survey of Dumaguete, her heirs, successors and assigns, together with all the improvements thereon. xxx xxx xxx It has even been admitted by both parties that Ricardo Teves is in possession of an undetermined portion of Lot 769-A and defendants-appellees It-it do not claim ownership over his share in the land. 31 Thus, contrary to the appellate court's ruling, there is no basis for an action for reconveyance of Ricardo Teves' share since, in the first place, there has been no conveyance. Ricardo Teves is entitled to the ownership and possession of one-eighth of Lot 769-A. Neither does Ricardo Teves have a right to demand partition of Lot 769-A because the two extajudicial settlements have already effectively partitioned such property. Every act which is intended to put an end to indivision among co-heirs and legatees or devisees is deemed to be a partition, although it should purport to be a sale, an exchange, a compromise, or any other transaction. 32 The extrajudicial settlements executed in 1956 and 1959 adjudicated Lot 769-A in equal shares unto the eight heirs of Marcelina Cimafranca. Such a partition, which was legally made, confers upon each heir the exclusive ownership of the property adjudicated to him. 33 Although Cresenciano, Ricardo's predecessor-in-interest, was not a signatory to the extrajudicial settlements, the partition of Lot 769-A among the heirs was made in accordance with their intestate shares under the law. 34 With regards to the requisite of registration of extrajudicial settlements, it is noted that the extrajudicial settlements covering Lot 769-A were never registered. However, in the case of Vda. de Reyes vs. CA, 35 the Court, interpreting section 1 of Rule 74 of the Rules of Court, upheld the validity of an oral partition of the decedent's estate and declared that the non-registration of an extrajudicial settlement does not affect its intrinsic validity. It was held in this case that [t]he requirement that a partition be put in a public document and registered has for its purpose the protection of creditors and at the same time the protection of the heirs

themselves against tardy claims. The object of registration is to serve as constructive notice to others. It follows then that the intrinsic validity of partition not executed with the prescribed formalities does not come into play when there are no creditors or the rights of creditors are not affected. Where no such rights are involved, it is competent for the heirs of an estate to enter into an agreement for distribution in a manner and upon a plan different from those provided by law. Thus, despite its non-registration, the extrajudicial settlements involving Lot 769-A are legally effective and binding among the heirs of Marcelina Cimafranca since their mother had no creditors at the time of her death. Except for the portion of Lot 769-A occupied by Ricardo Teves, both parcels of land have been and continue to be in the possession of Asuncion Teves and her successors-in-interest. 36 Despite this, no explanation was offered by plaintiffs-appellants as to why they instituted the present action questioning the extrajudicial settlements only in 1984, which is more than 25 years after the assailed conveyance of Lot 769-A and more than 10 years after the issuance of a transfer certificate of title over Lot 6409, both in favor of Asuncion Teves. Such tardiness indubitably constitutes laches, which is the negligence or omission to assert a right within a reasonable time, warranting a presumption that the party entitled to assert it either has abandoned it or declined to assert it. 37 Thus, even assuming that plaintiffs-appellants had a defensible cause of action, they are barred from pursuing the same by reason of their long and inexcusable inaction. An extrajudicial settlement is a contract and it is a well-entrenched doctrine that the law does not relieve a party from the effects of a contract, entered into with all the required formalities and with full awareness of what he was doing, simply because the contract turned out to be a foolish or unwise investment. 38 Therefore, although plaintiffs-appellants may regret having alienated their hereditary shares in favor of their sister Asuncion, they must now be considered bound by their own contractual acts. WHEREFORE, the August 18, 1992 decision of the Court of Appeals is hereby AFFIRMED. No pronouncements as to costs.

G.R. No. L-18148

February 28, 1963

DEOGRACIAS BERNARDO, executor of the testate estate of the deceased EUSEBIO CAPILI; and the instituted heirs, namely: ARMANDO CAPILI and ARTURO BERNARDO, ET AL., petitioners, vs. HON. COURT OF APPEALS and THE HEIRS OF THE LATE HERMOGENA

REYES, namely: FRANCISCO REYES, ET AL., and JOSE ISIDORO, ET AL., respondents. Ambrosio Padilla Law Offices Romerico F. Flores for respondents. BARRERA, J.: This is a petition by certiorari for the review of the decision of the Court of Appeals affirming that of the Court of First Instance of Bulacan holding that the probate court in Special Proceeding 1101 had jurisdiction to determine the validity of the deed of donation in question and to pass upon the question of title or ownership of the properties mentioned therein. The facts are briefly stated in the appealed decision of the Court of Appeals as follows: Eusebio Capili and Hermogena Reyes were husband and wife. The first died on July 27, 1958 and a testate proceeding for the settlement of his estate was instituted in the Court of the Fist Instance of Bulacan. His will was admitted to probate on October 9, 1958, disposing of his properties in favor of his widow; his cousins Armando, Ursula, and Buenaventura, all surnamed Capili; and Arturo, Deogracias and Eduardo, all surnamed Bernardo. Hermogena Reyes herself died on April 24, 1959. Upon petition of Deogracias Bernardo, executor of the estate of the deceased Eusebio Capili, she was substituted by her collateral relatives and intestate heirs, namely, Marcos, Vicente, Francisco and Dominga, all surnamed Reyes; and Jose, Constancia, Raymunda and Elena, all surnamed Isidoro. On June 12, 1959, the executor filed a project of partition in the testate proceeding in accordance with the terms of the will, adjudicating the estate of Eusebio Capili among the testamentary heirs with the exception of Hermogena Reyes, whose share was alloted to her collateral relatives aforementioned. On June 16, 1959 these relatives filed an opposition to the executor's project of partition and submitted a counter-project of partition of their own, claiming 1/2 of the properties mentioned in the will of the deceased Eusebio Capili on the theory that they belonged not to the latter alone but to the conjugal partnership of the spouses. The probate court, in two orders dated June 24, 1959 and February 10, 1960, respectively, set the two projects of partition for hearing, at which evidence was presented by the parties, followed by the submission of memoranda discussing certain legal issues. In the memorandum for the executor and the instituted heirs it was contended: (1) that the properties disposed of in the will of the deceased Eusebio Capili belonged to him exclusively and for petitioners.

not to the conjugal partnership, because Hermogena Reyes had donated to him her half share of such partnership; (2) that the collateral heirs of Hermogena Reyes had no lawful standing or grounds to question the validity of the donation; and (3) that even assuming that they could question the validity of the donation, the same must be litigated not in the testate proceeding but in a separate civil action. Wherefore, the parties respectfully pray that the foregoing stipulation of facts be admitted and approved by this Honorable Court, without prejudice to the parties adducing other evidence to prove their case not covered by this stipulation of facts. 1wph1.t The oppositors and heirs of Hermogena Reyes, on their part, argued that the deed of donation itself was determinative of the original conjugal character to the properties, aside from the legal presumption laid down in Article 160 of the Civil Code, and that since the donation was null and void the deceased Eusebio Capili did not become owner of the share of his wife and therefore could not validly dispose of it in his will. On September 14, 1960, the probate court, the Honorable M. Mejia presiding, issued an order declaring the donation void without making any specific finding as to its juridical nature, that is, whether it was inter vivos or mortis causa, for the reason that, considered under the first category, it falls under Article 133 of the Civil Code, which prohibits donations between spouses during the marriage; and considered under the second category, it does not comply with the formalities of a will as required by Article 728 in relation to Article 805 of the same Code, there being no attestation clause. In the same order the court disapproved both projects of partition and directed the executor to file another," dividing the property mentioned in the last will and testament of the deceased Eusebio Capili and the properties mentioned in the deed of donation, Exhibit B, between the instituted heirs of the deceased Eusebio Capili and the legal heirs of the deceased Hermogena Reyes, upon the basis that the said properties were conjugal properties of the deceased spouses." On September 27, 1960, the executor filed a motion for new trial, reiterating and emphasizing the contention previously raised in their memorandum that the probate court had no jurisdiction to take cognizance of the claim of the legal heirs of Hermogena Reyes involving title to the properties mentioned in the will of Eusebio Capili and taking exception to the court's declaration of the nullity of the donation "without stating facts or provision of law on which it was based." The motion for new trial was denied in an order dated October 3, 1960.

On appeal to the Court of Appeals the order appealed from being affirmed, petitioners filed this present petition for review by certiorari. The petitioners-appellants contend that the appellate court erred in not declaring that the probate court, having limited and special jurisdiction, had generally no power to adjudicate title and erred in applying the exception to the rule. In a line of decisions, this Court consistently held that as a general rule, question as to title to property cannot be passed upon on testate or intestate proceedings,"1 except where one of the parties prays merely for the inclusion or exclusion from the inventory of the property, in which case the probate court may pass provisionally upon the question without prejudice to its final determination in a separate action.2 However, we have also held that when the parties interested are all heirs of the deceased, it is optional to them to submit to the probate court a question as to title to property, and when so submitted, said probate court may definitely pass judgment thereon (Pascual v. Pascual, 73 Phil. 561; Manalac v. Ocampo, et al., 73 Phil. 661); and that with the consent of the parties, matters affecting property under judicial administration may be taken cognizance of by the court in the course of intestate proceeding, provided interests of third persons are not prejudiced (Cunanan v. Amparo, 80 Phil. 229, 232). In the light of this doctrine, may it be said correctly that the trial court as well as the Court of Appeals erred in upholding the power of the probate court in this case to adjudicate in the testate proceedings, the question as to whether the properties herein involved belong to the conjugal partnership of Eusebio Capili and Hermogena Reyes, or to the deceased husband exclusively? At the outset, let it be clarified that the matter at issue is not a question of jurisdiction, in the sense advanced by appellants that the trial court had completely no authority to pass upon the title to the lands in dispute, and that its decision on the subject is null and void and does not bind even those who had invoked its authority and submitted to its decision because, it is contended, jurisdiction is a creature of law and parties to an action can not vest, extend or broaden it. If appellants' contention is correct, then there can be no exception to the no-jurisdiction theory. But as has been stated in the case of Cunanan v. Amparo (supra) the Supreme Court speaking through Mr. Justice Pedro Tuason: "Determination of title to property is within the jurisdiction of Courts of First Instance. The responding Soriano's objection (that the probate court lacked jurisdiction to order the delivery of the possession of the lots to the estate) relates exclusively to the procedure, which is distinct from jurisdiction. It affects only personal rights to a mode of practice (the filing of an independent ordinary action) which may be waived". Strictly speaking, it is more a question of jurisdiction over the person, not over the subject matter, for the jurisdiction to try controversies between heirs of a deceased person regarding the ownership of properties alleged to belong to his estate, has been recognized to be vested in probate courts. This is so because the purpose of an administration proceeding is the liquidation of the estate and

distribution of the residue among the heirs and legatees. Liquidation means determination of all the assets of the estate and payment of all the debts and expenses.3 Thereafter, distribution is made of the decedent's liquidated estate among the persons entitled to succeed him. The proceeding is in the nature of an action of partition, in which each party is required to bring into the mass whatever community property he has in his possession. To this end, and as a necessary corollary, the interested parties may introduce proofs relative to the ownership of the properties in dispute. All the heirs who take part in the distribution of the decedent's estate are before the court, and subject to the jurisdiction thereof, in all matters and incidents necessary to the complete settlement of such estate, so long as no interests of third parties are affected.4 In the case now before us, the matter in controversy is the question of ownership of certain of the properties involved whether they belong to the conjugal partnership or to the husband exclusively. This is a matter properly within the jurisdiction of the probate court which necessarily has to liquidate the conjugal partnership in order to determine the estate of the decedent which is to be distributed among his heirs who are all parties to the proceedings, including, of course, the widow, now represented because of her death, by her heirs who have been substituted upon petition of the executor himself and who have appeared voluntarily. There are no third parties whose rights may be affected. It is true that the heirs of the deceased widow are not heirs of the testator-husband, but the widow is, in addition to her own right to the conjugal property. And it is this right that is being sought to be enforced by her substitutes. Therefore, the claim that is being asserted is one belonging to an heir to the testator and, consequently, it complies with the requirement of the exception that the parties interested (the petitioners and the widow, represented by dents) are all heirs claiming title under the testator. Petitioners contend additionally that they have never submitted themselves to the jurisdiction of the probate court, for the purpose of the determination of the question of ownership of the disputed properties. This is not borne by the admitted facts. On the contrary, it is undisputed that they were the ones who presented the project of partition claiming the questioned properties as part of the testator's asset. The respondents, as representatives or substitutes of the deceased widow opposed the project of partition and submitted another. As the Court of Appeals said, "In doing so all of them must be deemed to have submitted the issue for resolution in the same proceeding. Certainly, the petitioners can not be heard to insist, as they do, on the approval of their project of partition and, thus, have the court take it for granted that their theory as to the character of the properties is correct, entirely without regard to the opposition of the respondents". In other words, by presenting their project of partition including therein the disputed lands (upon the claim that they were donated by the wife to her husband), petitioners themselves put in issue the question of ownership of the properties which is well within the competence of the probate court and just because of an opposition thereto, they can not thereafter withdraw either their appearance or the issue from the jurisdiction of the court. Certainly, there is here a waiver where the parties who raise the objection are the ones who set the court in

motion.5 They can not be permitted to complain if the court, after due hearing, adjudges question against them.6 Finally, petitioners-appellants claim that appellees are estopped to raise the question of ownership of the properties involved because the widow herself, during her lifetime, not only did not object to the inclusion of these properties in the inventory of the assets of her deceased husband, but also signed an extra-judicial partition of those inventoried properties. But the very authorities cited by appellants require that to constitute estoppel, the actor must have knowledge of the facts and be appraised of his rights at the time he performs the act constituting estoppel, because silence without knowledge works no estoppel.7 In the present case, the deceased widow acted as she did because of the deed of donation she executed in favor of her husband not knowing that such deed was illegal, if inter-vivos, and ineffectual if mortis-causa, as it has not been executed with the required formalities similar to a will. WHEREFORE, the decision of the Court of Appeals being in accordance with law, the same is hereby affirmed with costs against appellants. So ordered. G.R. No. L-40502 November 29, 1976 VIRGINIA GARCIA FULE, and HONORABLE SEVERO A. MALVAR, Presiding Judge, Court of First Instance of Laguna, Branch Vl, petitioners, vs. THE HONORABLE COURT OF APPEALS, * PRECIOSA B. GARCIA and AGUSTINA B. GARCIA, respondents. G.R. No. L-42670 November 29, 1976 VIRGINIA GARCIA FULE, petitioner, vs. HONORABLE ERNANI C. PAO, Presiding Judge of Court of First Instance of Rizal, Quezon City, Branch XVIII, and PRECIOSA B. GARCIA, respondents. Francisco Carreon for petitioners. Augusto G. Gatmaytan for private respondents. MARTIN, J.: These two interrelated cases bring to Us the question of what the word "resides" in Section 1, Rule 73 of the Revised Rules Of Court, referring to the situs of the settlement of the estate of deceased persons, means. Additionally, the rule in the appointment of a special administrator is sought to be reviewed. On May 2, 1973, Virginia G. Fule filed with the Court of First Instance of Laguna, at Calamba, presided over by Judge Severo A. Malvar, a

petition for letters of administration, docketed as Sp. Proc. No. 27-C, alleging, inter alia, "that on April 26, 1973, Amado G. Garcia, a property owner of Calamba, Laguna, died intestate in the City of Manila, leaving real estate and personal properties in Calamba, Laguna, and in other places, within the jurisdiction of the Honorable Court." At the same time, she moved ex parte for her appointment as special administratrix over the estate. On even date, May 2, 1973, Judge Malvar granted the motion. A motion for reconsideration was filed by Preciosa B. Garcia on May 8, 1973, contending that the order appointing Virginia G. Fule as special administratrix was issued without jurisdiction, since no notice of the petition for letters of administration has been served upon all persons interested in the estate; there has been no delay or cause for delay in the proceedings for the appointment of a regular administrator as the surviving spouse of Amado G. Garcia, she should be preferred in the appointment of a special administratrix; and, Virginia G. Fule is a debtor of the estate of Amado G. Garcia. Preciosa B. Garcia, therefore, prayed that she be appointed special administratrix of the estate, in lieu of Virginia G. Fule, and as regular administratrix after due hearing. While this reconsideration motion was pending resolution before the Court, Preciosa B. Garcia filed on May 29, 1973 a motion to remove Virginia G. Fule as special administratrix alleging, besides the jurisdictional ground raised in the motion for reconsideration of May 8, 1973 that her appointment was obtained through erroneous, misleading and/or incomplete misrepresentations; that Virginia G. Fule has adverse interest against the estate; and that she has shown herself unsuitable as administratrix and as officer of the court. In the meantime, the notice of hearing of the petition for letters of administration filed by Virginia G. Fule with the Court of First Instance of Calamba, Laguna, was published on May 17, 24, and 31, 1973, in the Bayanihan, a weekly publication of general circulation in Southern Luzon. On June 6, 1973, Preciosa B. Garcia received a "Supplemental Petition for the Appointment of Regular Administrator ' filed by Virginia G. Fule. This supplemental petition modified the original petition in four aspects: (1) the allegation that during the lifetime of the deceased Amado G. Garcia, he was elected as Constitutional Delegate for the First District of Laguna and his last place of residence was at Calamba, Laguna; (2) the deletion of the names of Preciosa B. Garcia and Agustina Garcia as legal heirs of Amado G. Garcia; (3) the allegation that Carolina Carpio, who was simply listed as heir in the original petition, is the surviving spouse of Amado G. Garcia and that she has expressly renounced her preferential right to the administration of the estate in favor of Virginia G. Fule; and (4) that Virginia G. Fule be appointed as the regular administratrix. The admission of this supplemental petition was opposed by Preciosa B. Garcia for the reason, among others, that it attempts to confer jurisdiction on the Court of First Instance of Laguna, of which the court was not possessed at the beginning because the original petition was deficient.

On July 19, 1973, Preciosa B. Garcia filed an opposition to the original and supplemental petitions for letters of administration, raising the issues of jurisdiction, venue, lack of interest of Virginia G. Fule in the estate of Amado G. Garcia, and disqualification of Virginia G Fule as special administratrix. An omnibus motion was filed by Virginia G. Fule on August 20, 1973, praying for authority to take possession of properties of the decedent allegedly in the hands of third persons as well as to secure cash advances from the Calamba Sugar Planters Cooperative Marketing Association, Inc. Preciosa B. Garcia opposed the motion, calling attention to the limitation made by Judge Malvar on the power of the special administratrix, viz., "to making an inventory of the personal and real properties making up the state of the deceased." However, by July 2, 1973, Judge Malvar and already issued an order, received by Preciosa B. Garcia only on July 31, 1973, denying the motion of Preciosa B. Garcia to reconsider the order of May 2, 1973, appointing Virginia G. Fule as special administratrix, and admitting the supplementation petition of May 18,1973. On August 31, 1973, Preciosa B. Garcia moved to dismiss the petition, because (1) jurisdiction over the petition or over the parties in interest has not been acquired by the court; (2) venue was improperly laid; and (3) Virginia G. Fule is not a party in interest as she is not entitled to inherit from the deceased Amado G. Garcia. On September 28, 1973, Preciosa B. Garcia filed a supplemental motion to substitute Virginia G. Fule as special administratrix, reasoning that the said Virginia G. Fule admitted before before the court that she is a full-blooded sister of Pablo G. Alcalde, an illegitimate son of Andrea Alcalde, with whom the deceased Amado G. Garcia has no relation. Three motions were filed by Preciosa B. Garcia on November 14, 1973, one, to enjoin the special administratrix from taking possession of properties in the hands of third persons which have not been determined as belonging to Amado G. Garcia; another, to remove the special administratrix for acting outside her authority and against the interest of the estate; and still another, filed in behalf of the minor Agustina B. Garcia, to dismiss the petition for want of cause of action, jurisdiction, and improper venue. On November 28, 1973, Judge Malvar resolved the pending omnibus motion of Virgina G. Fule and the motion to dismiss filed by Preciosa B. Garcia. Resolving the motion to dismiss, Judge Malvar ruled that the powers of the special administratrix are those provided for in Section 2, Rule 80 of the Rules of Court, 1 subject only to the previous qualification made by the court that the administration of the properties subject of the marketing agreement with the Canlubang Sugar Planters Cooperative Marketing Association should remain with the latter; and that the special administratrix had already been authorized in a previous order of August 20, 1973 to take custody and possession of all papers and certificates of title and personal

effects of the decedent with the Canlubang Sugar Planters Cooperative Marketing Association, Inc. Ramon Mercado, of the Canlubang Sugar Planters Cooperative Marketing Association, Inc., was ordered to deliver to Preciosa B. Garcia all certificates of title in her name without any qualifying words like "married to Amado Garcia" does not appear. Regarding the motion to dismiss, Judge Malvar ruled that the issue of jurisdiction had already been resolved in the order of July 2, 1973, denying Preciosa B. Garcia's motion to reconsider the appointment of Virginia G. Fule and admitting the supplemental petition, the failure of Virginia G. Fule to allege in her original petition for letters of administration in the place of residence of the decedent at the time of his death was cured. Judge Malvar further held that Preciosa B. Garcia had submitted to the jurisdiction of the court and had waived her objections thereto by praying to be appointed as special and regular administratrix of the estate. An omnibus motion was filed by Preciosa B. Garcia on December 27, 1973 to clarify or reconsider the foregoing order of Judge Malvar, in view of previous court order limiting the authority of the special administratrix to the making of an inventory. Preciosa B. Garcia also asked for the resolution of her motion to dismiss the petitions for lack of cause of action, and also that filed in behalf of Agustina B. Garcia. Resolution of her motions to substitute and remove the special administratrix was likewise prayed for. On December 19, 1973, Judge Malvar issued two separate orders, the first, denying Preciosa B. Garcia's motions to substitute and remove the special administratrix, and the second, holding that the power allowed the special administratrix enables her to conduct and submit an inventory of the assets of the estate. On January 7, 1974, Preciosa B. Garcia moved for reconsideration of the foregoing orders of November 28, 1973 and December 19, 1973, insofar as they sustained or failed to rule on the issues raised by her: (a) legal standing (cause of action) of Virginia G. Fule; (b) venue; (c) jurisdiction; (d) appointment, qualification and removal of special administratrix; and (e) delivery to the special administratrix of checks and papers and effects in the office of the Calamba Sugar Planters Cooperative Marketing Association, Inc. On March 27, 1973, Judge Malvar issued the first questioned order denying Preciosa B. Garcia's motion for reconsideration of January 7, 1974. On July 19, 1974, Judge Malvar issued the other three questioned orders: one, directing Ramon Mercado, of the Calamba Sugar Planters Cooperative Marketing Association, Inc., to furnish Virginia G. Fule, as special administratrix, copy of the statement of accounts and final liquidation of sugar pool, as well as to deliver to her the corresponding amount due the estate; another, directing Preciosa B. Garcia to deliver to Virginia G. Fule two motor vehicles presumably belonging to the estate; and another, directing Ramon Mercado to deliver to the court all certificates of title in his possession in the name of Preciosa B. Garcia, whether qualified with the word "single" or "married to Amado Garcia." During the hearing of the various incidents of this case (Sp. Proc. 27C) before Judge Malvar, 2 Virginia G. Fule presented the death

certificate of Amado G. Garcia showing that his residence at the time of his death was Quezon City. On her part, Preciosa B. Garcia presented the residence certificate of the decedent for 1973 showing that three months before his death his residence was in Quezon City. Virginia G. Fule also testified that Amado G. Garcia was residing in Calamba, Laguna at the time of his death, and that he was a delegate to the 1971 Constitutional Convention for the first district of Laguna. On July 26, 1974, Preciosa B. Garcia and Agustina B. Garcia commenced a special action for certiorari and/or prohibition and preliminary injunction before the Court of Appeals, docketed as CAG.R. No. 03221-SP. primarily to annul the proceedings before Judge Malvar in Sp. Proc. No. 27-C of the Court of First Instance of Laguna, or, in the alternative, to vacate the questioned four orders of that court, viz., one dated March 27, 1974, denying their motion for reconsideration of the order denying their motion to dismiss the criminal and supplemental petitions on the issue, among others, of jurisdiction, and the three others, all dated July 19, 1974, directing the delivery of certain properties to the special administratrix, Virginia G. Fule, and to the court. On January 30, 1975, the Court of Appeals rendered judgment annulling the proceedings before Judge Severo A. Malvar in Sp. Proc. 27-C of the Court of First Instance of Calamba, Laguna, for lack of jurisdiction. Denied of their motion for reconsideration on March 31, 1975, Virginia G. Fule forthwith elevated the matter to Us on appeal by certiorari. The case was docketed as G.R. No. L-40502. However, even before Virginia G. Fule could receive the decision of the Court of Appeals, Preciosa B. Garcia had already filed on February 1, 1975 a petition for letters of administration before the Court of First Instance of Rizal, Quezon City Branch, docketed as Sp. Proc. No. Q-19738, over the same intestate estate of Amado G. Garcia. On February 10, 1975, Preciosa B. Garcia urgently moved for her appointment as special administratrix of the estate. Judge Vicente G. Ericta granted the motion and appointed Preciosa B. Garcia as special administratrix upon a bond of P30,000.00. Preciosa B. Garcia qualified and assumed the office. For the first time, on February 14, 1975, Preciosa B. Garcia informed Judge Ericta of the pendency of Sp. Proc. No. 27-C before Judge Malvar of the Court of First Instance of Laguna, and the annulment of the proceedings therein by the Court of Appeals on January 30, 1975. She manifested, however, her willingness to withdraw Sp. Proc. Q19738 should the decision of the Court of Appeals annulling the proceedings before the Court of First Instance of Laguna in Sp. Proc. No. 27-C have not yet become final, it being the subject of a motion for reconsideration. On March 10, 1973, Judge Ericta ordered the suspension of the proceedings before his court until Preciosa B. Garcia inform the court of the final outcome of the case pending before the Court of Appeals. This notwithstanding, Preciosa B. Garcia filed on December

11, 1975, an "Urgent Petition for Authority to Pay Estate Obligations." On December 13, 1975, Virginia G. Fule filed a "Special Appearance to Question Venue and Jurisdiction" reiterating the grounds stated in the previous special appearance of March 3, 1975, and calling attention that the decision of the Court of Appeals and its resolution denying the motion for reconsideration had been appealed to this Court; that the parties had already filed their respective briefs; and that the case is still pending before the Court. On December 17, 1975, Judge Ernani Cruz Pano, who succeeded Judge Ericta, issued an order granting Preciosa B. Garcia's "Urgent Petition for Authority to Pay Estate Obligations" in that the payments were for the benefit of the estate and that there hangs a cloud of doubt on the validity of the proceedings in Sp. Proc. No. 27-C of the Court of First Instance of Laguna. A compliance of this Order was filed by Preciosa B. Garcia on January 12,1976. On February 4,1974, VIRGINIA G. FULE instituted G.R. No. L-42670, a petition for certiorari with temporary restraining order, to annul the proceedings in Sp. Proc. No. Q-19738 and to restrain Judge Ernani Cruz Pao from further acting in the case. A restraining order was issued on February 9, 1976. We dismiss the appeal in G.R. No. L-40502 and the petition for certiorari in G.R. No. L-42670 for the reasons and considerations hereinafter stated. 1. Section 1, Rule 73 of the Revised Rules of Court provides: "If the decedent is an inhabitant of the Philippines at the time of his death, whether a citizen or an alien, his will shall be proved, or letters of administration granted, and his estate settled, in the Court of First Instance in the province in which he resides at the time of his death, and if he is an inhabitant of a foreign country, the Court of First Instance of any province in which he had estate. The court first taking cognizance of the settlement of the estate of a decedent, shall exercise jurisdiction to the exclusion of all other courts. The jurisdiction assumed by a court, so far as it depends on the place of residence of the decedent, or of the location of his estate, shall not be contested in a suit or proceeding, except in an appeal from that court, in the original case, or when the want of jurisdiction appears on the record." With particular regard to letters of administration, Section 2, Rule 79 of the Revised Rules of Court demands that the petition therefor should affirmatively show the existence of jurisdiction to make the appointment sought, and should allege all the necessary facts, such as death, the name and last residence of the decedent, the existence, and situs if need be, of assets, intestacy, where this is relied upon, and the right of the person who seeks administration, as next of kin, creditor, or otherwise, to be appointed. The fact of death of the intestate and his last residence within the country are foundation facts upon which all subsequent proceedings in the administration of the estate rest, and that if the

intestate was not an inhabitant of the state at the time of his death, and left no assets in the state, no jurisdiction is conferred on the court to grant letters of administration. 3 The aforequoted Section 1, Rule 73 (formerly Rule 75, Section 1), specifically the clause "so far as it depends on the place of residence of the decedent, or of the location of the estate," is in reality a matter of venue, as the caption of the Rule indicates: "Settlement of Estate of Deceased Persons. Venue and Processes. 4 It could not have been intended to define the jurisdiction over the subject matter, because such legal provision is contained in a law of procedure dealing merely with procedural matters. Procedure is one thing; jurisdiction over the subject matter is another. The power or authority of the court over the subject matter "existed and was fixed before procedure in a given cause began." That power or authority is not altered or changed by procedure, which simply directs the manner in which the power or authority shall be fully and justly exercised. There are cases though that if the power is not exercised conformably with the provisions of the procedural law, purely, the court attempting to exercise it loses the power to exercise it legally. However, this does not amount to a loss of jurisdiction over the subject matter. Rather, it means that the court may thereby lose jurisdiction over the person or that the judgment may thereby be rendered defective for lack of something essential to sustain it. The appearance of this provision in the procedural law at once raises a strong presumption that it has nothing to do with the jurisdiction of the court over the subject matter. In plain words, it is just a matter of method, of convenience to the parties. 5 The Judiciary Act of 1948, as amended, confers upon Courts of First Instance jurisdiction over all probate cases independently of the place of residence of the deceased. Because of the existence of numerous Courts of First Instance in the country, the Rules of Court, however, purposedly fixes the venue or the place where each case shall be brought. A fortiori, the place of residence of the deceased in settlement of estates, probate of will, and issuance of letters of administration does not constitute an element of jurisdiction over the subject matter. It is merely constitutive of venue. And it is upon this reason that the Revised Rules of Court properly considers the province where the estate of a deceased person shall be settled as "venue." 6 2. But, the far-ranging question is this: What does the term "resides" mean? Does it refer to the actual residence or domicile of the decedent at the time of his death? We lay down the doctrinal rule that the term "resides" connotes ex vi termini "actual residence" as distinguished from "legal residence or domicile." This term "resides," like, the terms "residing" and "residence," is elastic and should be interpreted in the light of the object or purpose of the statute or rule in which it is employed. 7 In the application of venue statutes and rules Section 1, Rule 73 of the Revised Rules of Court is of such nature residence rather than domicile is the significant factor. Even where the statute uses the word "domicile" still it is construed as meaning residence and not domicile in the technical sense. Some cases make a distinction between the terms "residence" and "domicile" but as generally used in statutes fixing venue, the terms

are synonymous, and convey the same meaning as the term "inhabitant." 8 In other words, "resides" should be viewed or understood in its popular sense, meaning, the personal, actual or physical habitation of a person, actual residence or place of abode. It signifies physical presence in a place and actual stay thereat. In this popular sense, the term means merely residence, that is, personal residence, not legal residence or domicile. 9 Residence simply requires bodily presence as an inhabitant in a given place, while domicile requires bodily presence in that place and also an intention to make it one's domicile. 10 No particular length of time of residence is required though; however, the residence must be more than temporary. 11 3. Divergent claims are maintained by Virginia G. Fule and Preciosa B. Garcia on the residence of the deceased Amado G. Garcia at the time of his death. In her original petition for letters of administration before the Court of First Instance of Calamba, Laguna, Virginia G. Fule measely stated "(t)hat on April 26,1973, Amado G. Garcia, a property owner of Calamba, Laguna, died intestate in the City of Manila, leaving real estate and personal properties in Calamba, Laguna, and in other places within the jurisdiction of this Honorable Court." Preciosa B. Garcia assailed the petition for failure to satisfy the jurisdictional requirement and improper laying of venue. For her, the quoted statement avers no domicile or residence of the deceased Amado G. Garcia. To say that as "property owner of Calamba, Laguna," he also resides in Calamba, Laguna, is, according to her, non sequitur. On the contrary, Preciosa B. Garcia claims that, as appearing in his death certificate presented by Virginia G. Fule herself before the Calamba court and in other papers, the last residence of Amado G. Garcia was at 11 Carmel Avenue, Carmel Subdivision, Quezon City. Parenthetically, in her amended petition, Virginia G. Fule categorically alleged that Amado G. Garcia's "last place of residence was at Calamba, Laguna." On this issue, We rule that the last place of residence of the deceased Amado G. Garcia was at 11 Carmel Avenue, Carmel Subdivision, Quezon City, and not at Calamba, Laguna. A death certificate is admissible to prove the residence of the decedent at the time of his death. 12 As it is, the death certificate of Amado G. Garcia, which was presented in evidence by Virginia G. Fule herself and also by Preciosa B. Garcia, shows that his last place of residence was at 11 Carmel Avenue, Carmel Subdivision, Quezon City. Aside from this, the deceased's residence certificate for 1973 obtained three months before his death; the Marketing Agreement and Power of Attorney dated November 12, 1971 turning over the administration of his two parcels of sugar land to the Calamba Sugar Planters Cooperative Marketing Association, Inc.; the Deed of Donation dated January 8, 1973, transferring part of his interest in certain parcels of land in Calamba, Laguna to Agustina B. Garcia; and certificates of titles covering parcels of land in Calamba, Laguna, show in bold documents that Amado G. Garcia's last place of residence was at Quezon City. Withal, the conclusion becomes imperative that the venue for Virginia C. Fule's petition for letters of administration was improperly laid in the Court of First Instance of Calamba, Laguna. Nevertheless, the long-settled rule is that objection to improper venue is subject to waiver. Section 4, Rule 4 of the Revised Rules of Court states: "When improper venue is not

objected to in a motion to dismiss, it is deemed waived." In the case before Us the Court of Appeals had reason to hold that in asking to substitute Virginia G. Fule as special administratrix, Preciosa B. Garcia did not necessarily waive her objection to the jurisdiction or venue assumed by the Court of First Instance of Calamba, Laguna, but availed of a mere practical resort to alternative remedy to assert her rights as surviving spouse, while insisting on the enforcement of the Rule fixing the proper venue of the proceedings at the last residence of the decedent. 4. Preciosa B. Garcia's challenge to Virginia G. Fule's appointment as special administratrix is another issue of perplexity. Preciosa B. Garcia claims preference to the appointment as surviving spouse. Section 1 of Rule 80 provides that "(w)hen there is delay in granting letters testamentary or of administration by any cause including an appeal from the allowance or disallowance of a will, the court may appoint a special administrator to take possession and charge of the estate of the deceased until the questions causing the delay are decided and executors or administrators appointed. 13 Formerly, the appointment of a special administrator was only proper when the allowance or disallowance of a will is under appeal. The new Rules, however, broadened the basis for appointment and such appointment is now allowed when there is delay in granting letters testamentary or administration by any cause e.g., parties cannot agree among themselves. 14 Nevertheless, the discretion to appoint a special administrator or not lies in the probate court. 15 That, however, is no authority for the judge to become partial, or to make his personal likes and dislikes prevail over, or his passions to rule, his judgment. Exercise of that discretion must be based on reason, equity, justice and legal principle. There is no reason why the same fundamental and legal principles governing the choice of a regular administrator should not be taken into account in the appointment of a special administrator. 16 Nothing is wrong for the judge to consider the order of preference in the appointment of a regular administrator in appointing a special administrator. After all, the consideration that overrides all others in this respect is the beneficial interest of the appointee in the estate of the decedent. 17 Under the law, the widow would have the right of succession over a portion of the exclusive property of the decedent, besides her share in the conjugal partnership. For such reason, she would have as such, if not more, interest in administering the entire estate correctly than any other next of kin. The good or bad administration of a property may affect rather the fruits than the naked ownership of a property. 18 Virginia G. Fule, however, disputes the status of Preciosa B. Garcia as the widow of the late Amado G. Garcia. With equal force, Preciosa B. Garcia maintains that Virginia G. Fule has no relation whatsoever with Amado G. Garcia, or that, she is a mere illegitimate sister of the latter, incapable of any successional rights. 19 On this point, We rule that Preciosa B. Garcia is prima facie entitled to the appointment of special administratrix. It needs be emphasized that in the issuance of such appointment, which is but temporary and subsists only until a regular administrator is appointed, 20 the appointing court does not determine who are entitled to share in the estate of the decedent but who is entitled to the administration. The issue of heirship is one to be determined in the decree of distribution, and the findings of the court on the relationship of the parties in the administration as

to be the basis of distribution. 21 The preference of Preciosa B. Garcia is with sufficient reason. In a Donation Inter Vivos executed by the deceased Amado G. Garcia on January 8, 1973 in favor of Agustina B. Garcia, he indicated therein that he is married to Preciosa B. Garcia. 22 In his certificate of candidacy for the office of Delegate to the Constitutional Convention for the First District of Laguna filed on September 1, 1970, he wrote therein the name of Preciosa B. Banaticla as his spouse. 23 Faced with these documents and the presumption that a man and a woman deporting themselves as husband and wife have entered into a lawful contract of marriage, Preciosa B. Garcia can be reasonably believed to be the surviving spouse of the late Amado G. Garcia. Semper praesumitur pro matrimonio. 24 5. Under these circumstances and the doctrine laid down in Cuenco vs. Court of Appeals, 25 this Court under its supervisory authority over all inferior courts may properly decree that venue in the instant case was properly assumed by and transferred to Quezon City and that it is in the interest of justice and avoidance of needless delay that the Quezon City court's exercise of jurisdiction over the settlement of the estate of the deceased Amado G. Garcia and the appointment of special administratrix over the latter's estate be approved and authorized and the Court of First Instance of Laguna be disauthorized from continuing with the case and instead be required to transfer all the records thereof to the Court of First Instance of Quezon City for the continuation of the proceedings. 6. Accordingly, the Order of Judge Ernani Cruz Pano of December 17, 1975, granting the "Urgent Petition for Authority to Pay Estate Obligations" filed by Preciosa B. Garcia in Sp. Proc. No. Q-19738, subject matter of G.R. No. L-42670, and ordering the Canlubang Sugar Estate to deliver to her as special administratrix the sum of P48,874.70 for payment of the sum of estate obligations is hereby upheld. IN VIEW OF THE FOREGOING, the petitions of petitioner Virginia Garcia Fule in G.R. No. L-40502 and in G.R. No. L42670 are hereby denied, with costs against petitioner.

On April 17, 1991, Perico instituted a petition for issuance of letters of administration before the Regional Trial Court of Quezon City, Branch 99, over the estate of his parents, docketed as Special Proceedings No. Q-91-8507.1 Pending the appointment of a regular administrator, Perico moved that he be appointed as special administrator. He alleged that his brother, Rodolfo, was gradually dissipating the assets of the estate. More particularly, Rodolfo was receiving rentals from real properties without rendering any accounting, and forcibly opening vaults belonging to their deceased parents and disposing of the cash and valuables therein. Rodolfo moved for the dismissal of the petition on the ground of improper venue.2 He argued that the deceased spouses did not reside in Quezon City either during their lifetime or at the time of their deaths. The decedents actual residence was in Angeles City, Pampanga, where his late mother used to run and operate a bakery. As the health of his parents deteriorated due to old age, they stayed in Rodolfos residence at 61 Scout Gandia Street, Quezon City, solely for the purpose of obtaining medical treatment and hospitalization. Rodolfo submitted documentary evidence previously executed by the decedents, consisting of income tax returns, voters affidavits, statements of assets and liabilities, real estate tax payments, motor vehicle registration and passports, all indicating that their permanent residence was in Angeles City, Pampanga.1wphi1.nt In his opposition,3 Perico countered that their deceased parents actually resided in Rodolfos house in Quezon City at the time of their deaths. As a matter of fact, it was conclusively declared in their death certificates that their last residence before they died was at 61 Scout Gandia Street, Quezon City.4 Rodolfo himself even supplied the entry appearing on the death certificate of their mother, Andrea, and affixed his own signature on the said document. Rodolfo filed a rejoinder, stating that he gave the information regarding the decedents residence on the death certificates in good faith and through honest mistake. He gave his residence only as reference, considering that their parents were treated in their late years at the Medical City General Hospital in Mandaluyong, Metro Manila. Their stay in his house was merely transitory, in the same way that they were taken at different times for the same purpose to Pericos residence at Legaspi Towers in Roxas Boulevard. The death certificates could not, therefore, be deemed conclusive evidence of the decedents residence in light of the other documents showing otherwise.5 The court required the parties to submit their respective nominees for the position.6 Both failed to comply, whereupon the trial court ordered that the petition be archived.7 Subsequently, Perico moved that the intestate proceedings be revived.8 After the parties submitted the names of their respective nominees, the trial court designated Justice Carlos L. Sundiam as special administrator of the estate of Ignacio Jao Tayag and Andrea Jao.9

G.R. No. 128314

May 29, 2002 petitioner,

RODOLFO V. JAO, vs. COURT OF APPEALS and PERICO V. JAO, respondents. YNARES-SANTIAGO, J.:

Rodolfo and Perico Jao were the only sons of the spouses Ignacio Jao Tayag and Andrea V. Jao, who died intestate in 1988 and 1989, respectively. The decedents left real estate, cash, shares of stock and other personal properties.

On April 6, 1994, the motion to dismiss filed by petitioner Rodolfo was denied, to wit: A mere perusal of the death certificates of the spouses issued separately in 1988 and 1989, respectively, confirm the fact that Quezon City was the last place of residence of the decedents. Surprisingly, the entries appearing on the death certificate of Andrea V. Jao were supplied by movant, Rodolfo V. Jao, whose signature appears in said document. Movant, therefore, cannot disown his own representation by taking an inconsistent position other than his own admission. xxx xxx xxx. WHEREFORE, in view of the foregoing consideration, this court DENIES for lack of merit movants motion to dismiss. SO ORDERED.10 Rodolfo filed a petition for certiorari with the Court of Appeals, which was docketed as CA-G.R. SP No. 35908. On December 11, 1996, the Court of Appeals rendered the assailed decision, the dispositive portion of which reads: WHEREFORE, no error, much less any grave abuse of discretion of the court a quo having been shown, the petition for certiorari is hereby DISMISSED. The questioned order of the respondent Judge is affirmed in toto. SO ORDERED.
11

DECEDENTS TO ESTABLISH THEIR PERMANENT RESIDENCE IN ANOTHER PLACE. IV RESPONDENT COURT ERRED IN APPLYING BY ANALOGY THE RESIDENCE CONTEMPLATED IN SEC. 2 OF RULE 4 FOR THE PURPOSE OF SERVING SUMMONS TO A DEFENDANT IN A PERSONAL ACTION TO THE RESIDENCE CONTEMPLATED IN SEC. 1 OF RULE 73 FOR THE PURPOSE OF DETERMINING VENUE IN THE SETTLEMENT OF THE ESTATE OF A DECEASED. V RESPONDENT COURT ERRED IN GIVING MORE WEIGHT TO THE ENTRY OF PETITIONER AND PRIVATE RESPONDENT IN THE RESPECTIVE DEATH CERTIFICATES OF THE DECEDENTS RATHER THAN THE OVERWHELMING EVIDENCE SHOWING THE CLEAR INTENTION OF THE DECEDENTS TO ESTABLISH THEIR PERMANENT RESIDENCE IN ANGELES CITY. VI RESPONDENT COURT ERRED IN APPLYING THE PRINCIPLE OF ESTOPPEL AS AGAINST PETITIONER WHICH CAN NOT BE MORE PERSUASIVE THAN THE CLEAR INTENTION OF THE DECEDENTS THEMSELVES TO ESTABLISH PERMANENT RESIDENCE IN ANGELES CITY. VII RESPONDENT COURT ERRED IN DISMISSING THE PETITION FOR CERTIORARI DESPITE THE CLEAR ABUSE OF DISCRETION ON THE PART OF THE TRIAL COURT IN INSISTING TO TAKE COGNIZANCE OF SP. PROCEEDING NO. Q-91-8507.13 The main issue before us is: where should the settlement proceedings be had --- in Pampanga, where the decedents had their permanent residence, or in Quezon City, where they actually stayed before their demise? Rule 73, Section 1 of the Rules of Court states:

exclusion of all other courts. The jurisdiction assumed by a court, so far as it depends on the place of residence of the decedent, or of the location of his estate, shall not be contested in a suit or proceeding, except in an appeal from that court, in the original case, or when the want of jurisdiction appears on the record. (underscoring ours) Clearly, the estate of an inhabitant of the Philippines shall be settled or letters of administration granted in the proper court located in the province where the decedent resides at the time of his death. Petitioner Rodolfo invokes our ruling in the case of Eusebio v. Eusebio, et al.,14 where we held that the situs of settlement proceedings shall be the place where the decedent had his permanent residence or domicile at the time of death. In determining residence at the time of death, the following factors must be considered, namely, the decedent had: (a) capacity to choose and freedom of choice; (b) physical presence at the place chosen; and (c) intention to stay therein permanently.15 While it appears that the decedents in this case chose to be physically present in Quezon City for medical convenience, petitioner avers that they never adopted Quezon City as their permanent residence.1wphi1.nt The contention lacks merit. The facts in Eusebio were different from those in the case at bar. The decedent therein, Andres Eusebio, passed away while in the process of transferring his personal belongings to a house in Quezon City. He was then suffering from a heart ailment and was advised by his doctor/son to purchase a Quezon City residence, which was nearer to his doctor. While he was able to acquire a house in Quezon City, Eusebio died even before he could move therein. In said case, we ruled that Eusebio retained his domicile --- and hence, residence --in San Fernando, Pampanga. It cannot be said that Eusebio changed his residence because, strictly speaking, his physical presence in Quezon City was just temporary. In the case at bar, there is substantial proof that the decedents have transferred to petitioners Quezon City residence. Petitioner failed to sufficiently refute respondents assertion that their elderly parents stayed in his house for some three to four years before they died in the late 1980s. Furthermore, the decedents respective death certificates state that they were both residents of Quezon City at the time of their demise. Significantly, it was petitioner himself who filled up his late mothers death certificate. To our mind, this unqualifiedly shows that at that time, at least, petitioner recognized his deceased mothers residence to be Quezon City. Moreover, petitioner failed to contest the entry in Ignacios death certificate, accomplished a year earlier by respondent. The recitals in the death certificates, which are admissible in evidence, were thus properly considered and presumed to be correct

Rodolfos motion for reconsideration was denied by the Court of Appeals in the assailed resolution dated February 17, 1997.12 Hence, this petition for review, anchored on the following grounds: I RESPONDENT COURT HAD DECIDED A QUESTION OF SUBSTANCE IN A WAY NOT IN ACCORD WITH THE LAW AND IS DIRECTLY CONTRADICTORY TO THE APPLICABLE DECISION ALREADY RENDERED BY THIS HONORABLE COURT. II RESPONDENT COURT ERRED IN DISREGARDING THE RULING OF THIS HONORABLE COURT IN THE CASE OF EUSEBIO VS. EUSEBIO, 100 PHILS. 593, WHICH CLEARLY INTERPRETED WHAT IS MEANT BY RESIDENCE IN SEC. 1 OF RULE 73 OF THE RULES OF COURT. III RESPONDENT COURT ERRED IN HOLDING THAT PHYSICAL PRESENCE IN A PLACE AT THE TIME OF DEATH IS DETERMINATIVE OF DECEDENTS RESIDENCE RATHER THAN THE INTENTION OF THE

Where estate of deceased persons be settled. If the decedent is an inhabitant of the Philippines at the time of his death, whether a citizen or an alien, his will shall be proved, or letters of administration granted, and his estate settled, in the Court of First Instance in the province in which he resides at the time of his death, and if he is an inhabitant of a foreign country, the Court of First Instance of any province in which he had estate. The court first taking cognizance of the settlement of the estate of a decedent shall exercise jurisdiction to the

by the court a quo. We agree with the appellate courts observation that since the death certificates were accomplished even before petitioner and respondent quarreled over their inheritance, they may be relied upon to reflect the true situation at the time of their parents death. The death certificates thus prevailed as proofs of the decedents residence at the time of death, over the numerous documentary evidence presented by petitioner. To be sure, the documents presented by petitioner pertained not to residence at the time of death, as required by the Rules of Court, but to permanent residence or domicile. In Garcia-Fule v. Court of Appeals,16 we held: xxx xxx xxx the term "resides" connotes ex vi termini "actual residence" as distinguished from "legal residence or domicile." This term "resides", like the terms "residing" and "residence", is elastic and should be interpreted in the light of the object or purpose of the statute or rule in which it is employed. In the application of venue statutes and rules Section 1, Rule 73 of the Revised Rules of Court is of such nature residence rather than domicile is the significant factor. Even where the statute uses the word "domicile" still it is construed as meaning residence and not domicile in the technical sense. Some cases make a distinction between the terms "residence" and "domicile" but as generally used in statutes fixing venue, the terms are synonymous, and convey the same meaning as the term "inhabitant." In other words, "resides" should be viewed or understood in its popular sense, meaning, the personal, actual or physical habitation of a person, actual residence or place of abode. It signifies physical presence in a place and actual stay thereat. In this popular sense, the term means merely residence, that is, personal residence, not legal residence or domicile. Residence simply requires bodily presence as an inhabitant in a given place, while domicile requires bodily presence in that place and also an intention to make it ones domicile. No particular length of time of residence is required though; however, the residence must be more than temporary.17 Both the settlement court and the Court of Appeals found that the decedents have been living with petitioner at the time of their deaths and for some time prior thereto. We find this conclusion to be substantiated by the evidence on record. A close perusal of the challenged decision shows that, contrary to petitioners assertion, the court below considered not only the decedents physical presence in Quezon City, but also other factors indicating that the decedents stay therein was more than temporary. In the absence of any substantial showing that the lower courts factual findings stemmed from an erroneous apprehension of the evidence presented, the same must be held to be conclusive and binding upon this Court. Petitioner strains to differentiate between the venue provisions found in Rule 4, Section 2,18 on ordinary civil actions, and Rule 73,

Section 1, which applies specifically to settlement proceedings. He argues that while venue in the former understandably refers to actual physical residence for the purpose of serving summons, it is the permanent residence of the decedent which is significant in Rule 73, Section 1. Petitioner insists that venue for the settlement of estates can only refer to permanent residence or domicile because it is the place where the records of the properties are kept and where most of the decedents properties are located. Petitioners argument fails to persuade. It does not necessarily follow that the records of a persons properties are kept in the place where he permanently resides. Neither can it be presumed that a persons properties can be found mostly in the place where he establishes his domicile. It may be that he has his domicile in a place different from that where he keeps his records, or where he maintains extensive personal and business interests. No generalizations can thus be formulated on the matter, as the question of where to keep records or retain properties is entirely dependent upon an individuals choice and peculiarities. At any rate, petitioner is obviously splitting straws when he differentiates between venue in ordinary civil actions and venue in special proceedings. In Raymond v. Court of Appeals19 and Bejer v. Court of Appeals,20 we ruled that venue for ordinary civil actions and that for special proceedings have one and the same meaning. As thus defined, "residence", in the context of venue provisions, means nothing more than a persons actual residence or place of abode, provided he resides therein with continuity and consistency.21 All told, the lower court and the Court of Appeals correctly held that venue for the settlement of the decedents intestate estate was properly laid in the Quezon City court. WHEREFORE, in view of the foregoing, the petition is DENIED, and the decision of the Court of Appeals in CA-G.R. SP No. 35908 is AFFIRMED.