G.R. No. L-40502 November 29, 1976 VIRGINIA GARCIA FULE, an !"N"RA#LE $EVER" A.

%ALVAR, &re'( (n) *+ )e, Co+r, o- F(r', In',an.e o- La)+na, #ran./ V0, petitioners, vs. 1!E !"N"RA#LE C"UR1 "F A&&EAL$, 2 &RECI"$A #. GARCIA an AGU$1INA #. GARCIA, respondents. These two interrelated cases bring to Us the question of what the word "resides" in Section 1, Rule 73 of the Revised Rules f !ourt, referring to the situs of the settle"ent of the estate of deceased persons, "eans. #dditionall$, the rule in the appoint"ent of a special ad"inistrator is sought to be reviewed. n %a$ &, 1'73, (irginia ). *ule filed with the !ourt of *irst +nstance of ,aguna, at !ala"ba, presided over b$ -udge Severo #. %alvar, a petition for letters of ad"inistration, doc.eted as Sp. /roc. 0o. &71!, alleging, inter alia, "that on #pril &2, 1'73, #"ado ). )arcia, a property owner of Calamba, Laguna, died intestate in the !it$ of %anila, leaving real estate and personal properties in !ala"ba, ,aguna, and in other places, within the 3urisdiction of the 4onorable !ourt." #t the sa"e ti"e, she "oved ex parte for her appoint"ent as special ad"inistratri5 over the estate. n even date, %a$ &, 1'73, -udge %alvar granted the "otion. # "otion for reconsideration was filed b$ /reciosa 6. )arcia on %a$ 7, 1'73, contending that the order appointing (irginia ). *ule as special ad"inistratri5 was issued without 3urisdiction, since no notice of the petition for letters of ad"inistration has been served upon all persons interested in the estate8 there has been no dela$ or cause for dela$ in the proceedings for the appoint"ent of a regular ad"inistrator as the surviving spouse of #"ado ). )arcia, she should be preferred in the appoint"ent of a special ad"inistratri58 and, (irginia ). *ule is a debtor of the estate of #"ado ). )arcia. /reciosa 6. )arcia, therefore, pra$ed that she be appointed special ad"inistratri5 of the estate, in lieu of (irginia ). *ule, and as regular ad"inistratri5 after due hearing. 9hile this reconsideration "otion was pending resolution before the !ourt, /reciosa 6. )arcia filed on %a$ &', 1'73 a "otion to re"ove (irginia ). *ule as special ad"inistratri5 alleging, besides the 3urisdictional ground raised in the "otion for reconsideration of %a$ 7, 1'73 that her appoint"ent was obtained through erroneous, "isleading and:or inco"plete "isrepresentations8 that (irginia ). *ule has adverse interest against the estate8 and that she has shown herself unsuitable as ad"inistratri5 and as officer of the court. +n the "eanti"e, the notice of hearing of the petition for letters of ad"inistration filed b$ (irginia ). *ule with the !ourt of *irst +nstance of !ala"ba, ,aguna, was published on %a$ 17, &;, and 31, 1'73, in the Bayanihan, a wee.l$ publication of general circulation in Southern ,u<on. n -une 2, 1'73, /reciosa 6. )arcia received a "Supple"ental /etition for the #ppoint"ent of Regular #d"inistrator = filed b$ (irginia ). *ule. This supple"ental petition "odified the original petition in four aspects> ?1@ the allegation that during the lifeti"e of the deceased #"ado ). )arcia, he was elected as !onstitutional Aelegate for the *irst Aistrict of ,aguna and his last place of residence was at !ala"ba, ,aguna8 ?&@ the deletion of the na"es of /reciosa 6. )arcia and #gustina )arcia as legal heirs of #"ado ). )arcia8 ?3@ the allegation that !arolina !arpio, who was si"pl$ listed as heir in the original petition, is the surviving spouse of #"ado ). )arcia and that she has e5pressl$ renounced her preferential right to the ad"inistration of the estate in favor of (irginia ). *ule8 and ?;@ that (irginia ). *ule be appointed as the regular ad"inistratri5. The ad"ission of this supple"ental petition was opposed b$ /reciosa 6. )arcia for the reason, a"ong others, that it atte"pts to confer 3urisdiction on the !ourt of *irst +nstance of ,aguna, of which the court was not possessed at the beginning because the original petition was deficient. n -ul$ 1', 1'73, /reciosa 6. )arcia filed an opposition to the original and supple"ental petitions for letters of ad"inistration, raising the issues of 3urisdiction, venue, lac. of interest of (irginia ). *ule in the estate of #"ado ). )arcia, and disqualification of (irginia ) *ule as special ad"inistratri5. #n o"nibus "otion was filed b$ (irginia ). *ule on #ugust &B, 1'73, pra$ing for authorit$ to ta.e possession of properties of the decedent allegedl$ in the hands of third persons as well as to secure cash advances fro" the !ala"ba Sugar /lanters !ooperative %ar.eting #ssociation, +nc. /reciosa 6. )arcia opposed the "otion, calling attention to the li"itation "ade b$ -udge %alvar on the power of the special ad"inistratri5, vi<., "to "a.ing an inventor$ of the personal and real properties "a.ing up the state of the deceased."

4owever, b$ -ul$ &, 1'73, -udge %alvar and alread$ issued an order, received b$ /reciosa 6. )arcia onl$ on -ul$ 31, 1'73, den$ing the "otion of /reciosa 6. )arcia to reconsider the order of %a$ &, 1'73, appointing (irginia ). *ule as special ad"inistratri5, and ad"itting the supple"entation petition of %a$ 17,1'73. n #ugust 31, 1'73, /reciosa 6. )arcia "oved to dis"iss the petition, because ?1@ 3urisdiction over the petition or over the parties in interest has not been acquired b$ the court8 ?&@ venue was i"properl$ laid8 and ?3@ (irginia ). *ule is not a part$ in interest as she is not entitled to inherit fro" the deceased #"ado ). )arcia. n Septe"ber &7, 1'73, /reciosa 6. )arcia filed a supple"ental "otion to substitute (irginia ). *ule as special ad"inistratri5, reasoning that the said (irginia ). *ule ad"itted before before the court that she is a full1blooded sister of /ablo ). #lcalde, an illegiti"ate son of #ndrea #lcalde, with who" the deceased #"ado ). )arcia has no relation. Three "otions were filed b$ /reciosa 6. )arcia on 0ove"ber 1;, 1'73, one, to en3oin the special ad"inistratri5 fro" ta.ing possession of properties in the hands of third persons which have not been deter"ined as belonging to #"ado ). )arcia8 another, to re"ove the special ad"inistratri5 for acting outside her authorit$ and against the interest of the estate8 and still another, filed in behalf of the "inor #gustina 6. )arcia, to dis"iss the petition for want of cause of action, 3urisdiction, and i"proper venue. n 0ove"ber &7, 1'73, -udge %alvar resolved the pending o"nibus "otion of (irgina ). *ule and the "otion to dis"iss filed b$ /reciosa 6. )arcia. Resolving the "otion to dis"iss, -udge %alvar ruled that the powers of the special ad"inistratri5 are those provided for in Section &, Rule 7B of the Rules of !ourt, 1 sub3ect onl$ to the previous qualification "ade b$ the court that the ad"inistration of the properties sub3ect of the "ar.eting agree"ent with the !anlubang Sugar /lanters !ooperative %ar.eting #ssociation should re"ain with the latter8 and that the special ad"inistratri5 had alread$ been authori<ed in a previous order of #ugust &B, 1'73 to ta.e custod$ and possession of all papers and certificates of title and personal effects of the decedent with the !anlubang Sugar /lanters !ooperative %ar.eting #ssociation, +nc. Ra"on %ercado, of the !anlubang Sugar /lanters !ooperative %ar.eting #ssociation, +nc., was ordered to deliver to /reciosa 6. )arcia all certificates of title in her na"e without an$ qualif$ing words li.e ""arried to #"ado )arcia" does not appear. Regarding the "otion to dis"iss, -udge %alvar ruled that the issue of 3urisdiction had alread$ been resolved in the order of -ul$ &, 1'73, den$ing /reciosa 6. )arcia=s "otion to reconsider the appoint"ent of (irginia ). *ule and ad"itting the supple"ental petition, the failure of (irginia ). *ule to allege in her original petition for letters of ad"inistration in the place of residence of the decedent at the ti"e of his death was cured. -udge %alvar further held that /reciosa 6. )arcia had sub"itted to the 3urisdiction of the court and had waived her ob3ections thereto b$ pra$ing to be appointed as special and regular ad"inistratri5 of the estate. #n o"nibus "otion was filed b$ /reciosa 6. )arcia on Aece"ber &7, 1'73 to clarif$ or reconsider the foregoing order of -udge %alvar, in view of previous court order li"iting the authorit$ of the special ad"inistratri5 to the "a.ing of an inventor$. /reciosa 6. )arcia also as.ed for the resolution of her "otion to dis"iss the petitions for lac. of cause of action, and also that filed in behalf of #gustina 6. )arcia. Resolution of her "otions to substitute and re"ove the special ad"inistratri5 was li.ewise pra$ed for. n Aece"ber 1', 1'73, -udge %alvar issued two separate orders, the first, den$ing /reciosa 6. )arcia=s "otions to substitute and re"ove the special ad"inistratri5, and the second, holding that the power allowed the special ad"inistratri5 enables her to conduct and sub"it an inventor$ of the assets of the estate. n -anuar$ 7, 1'7;, /reciosa 6. )arcia "oved for reconsideration of the foregoing orders of 0ove"ber &7, 1'73 and Aece"ber 1', 1'73, insofar as the$ sustained or failed to rule on the issues raised b$ her> ?a@ legal standing ?cause of action@ of (irginia ). *ule8 ?b@ venue8 ?c@ 3urisdiction8 ?d@ appoint"ent, qualification and re"oval of special ad"inistratri58 and ?e@ deliver$ to the special ad"inistratri5 of chec.s and papers and effects in the office of the !ala"ba Sugar /lanters !ooperative %ar.eting #ssociation, +nc. n %arch &7, 1'73, -udge %alvar issued the first questioned order den$ing /reciosa 6. )arcia=s "otion for reconsideration of -anuar$ 7, 1'7;. n -ul$ 1', 1'7;, -udge %alvar issued the other three questioned orders> one, directing Ra"on %ercado, of the !ala"ba Sugar /lanters !ooperative %ar.eting #ssociation, +nc., to furnish (irginia ). *ule, as special ad"inistratri5, cop$ of the state"ent of accounts and final liquidation of sugar pool, as well as to deliver to her the corresponding a"ount due the estate8 another, directing /reciosa 6. )arcia to deliver to (irginia ). *ule two "otor vehicles presu"abl$ belonging to the estate8 and another,

directing Ra"on %ercado to deliver to the court all certificates of title in his possession in the na"e of /reciosa 6. )arcia, whether qualified with the word "single" or ""arried to #"ado )arcia." Auring the hearing of the various incidents of this case ?Sp. /roc. &71!@ before -udge %alvar, &(irginia ). *ule presented the death certificate of #"ado ). )arcia showing that his residence at the ti"e of his death was Cue<on !it$. n her part, /reciosa 6. )arcia presented the residence certificate of the decedent for 1'73 showing that three "onths before his death his residence was in Cue<on !it$. (irginia ). *ule also testified that #"ado ). )arcia was residing in !ala"ba, ,aguna at the ti"e of his death, and that he was a delegate to the 1'71 !onstitutional !onvention for the first district of ,aguna. n -ul$ &2, 1'7;, /reciosa 6. )arcia and #gustina 6. )arcia co""enced a special action for certiorari and:or prohibition and preli"inar$ in3unction before the !ourt of #ppeals, doc.eted as !#1).R. 0o. B3&&11S/. pri"aril$ to annul the proceedings before -udge %alvar in Sp. /roc. 0o. &71! of the !ourt of *irst +nstance of ,aguna, or, in the alternative, to vacate the questioned four orders of that court, vi<., one dated %arch &7, 1'7;, den$ing their "otion for reconsideration of the order den$ing their "otion to dis"iss the cri"inal and supple"ental petitions on the issue, a"ong others, of 3urisdiction, and the three others, all dated -ul$ 1', 1'7;, directing the deliver$ of certain properties to the special ad"inistratri5, (irginia ). *ule, and to the court. n -anuar$ 3B, 1'7D, the !ourt of #ppeals rendered 3udg"ent annulling the proceedings before -udge Severo #. %alvar in Sp. /roc. &71! of the !ourt of *irst +nstance of !ala"ba, ,aguna, for lac. of 3urisdiction. Aenied of their "otion for reconsideration on %arch 31, 1'7D, (irginia ). *ule forthwith elevated the "atter to Us on appeal b$ certiorari. The case was doc.eted as ).R. 0o. ,1;BDB&. 4owever, even before (irginia ). *ule could receive the decision of the !ourt of #ppeals, /reciosa 6. )arcia had alread$ filed on *ebruar$ 1, 1'7D a petition for letters of ad"inistration before the !ourt of *irst +nstance of Ri<al, Cue<on !it$ 6ranch, doc.eted as Sp. /roc. 0o. C1 1'737, over the sa"e intestate estate of #"ado ). )arcia. n *ebruar$ 1B, 1'7D, /reciosa 6. )arcia urgentl$ "oved for her appoint"ent as special ad"inistratri5 of the estate. -udge (icente ). Ericta granted the "otion and appointed /reciosa 6. )arcia as special ad"inistratri5 upon a bond of /3B,BBB.BB. /reciosa 6. )arcia qualified and assu"ed the office. *or the first ti"e, on *ebruar$ 1;, 1'7D, /reciosa 6. )arcia infor"ed -udge Ericta of the pendenc$ of Sp. /roc. 0o. &71! before -udge %alvar of the !ourt of *irst +nstance of ,aguna, and the annul"ent of the proceedings therein b$ the !ourt of #ppeals on -anuar$ 3B, 1'7D. She "anifested, however, her willingness to withdraw Sp. /roc. C11'737 should the decision of the !ourt of #ppeals annulling the proceedings before the !ourt of *irst +nstance of ,aguna in Sp. /roc. 0o. &71! have not $et beco"e final, it being the sub3ect of a "otion for reconsideration. n %arch 1B, 1'73, -udge Ericta ordered the suspension of the proceedings before his court until /reciosa 6. )arcia infor" the court of the final outco"e of the case pending before the !ourt of #ppeals. This notwithstanding, /reciosa 6. )arcia filed on Aece"ber 11, 1'7D, an "Urgent /etition for #uthorit$ to /a$ Estate bligations." n Aece"ber 13, 1'7D, (irginia ). *ule filed a "Special #ppearance to Cuestion (enue and -urisdiction" reiterating the grounds stated in the previous special appearance of %arch 3, 1'7D, and calling attention that the decision of the !ourt of #ppeals and its resolution den$ing the "otion for reconsideration had been appealed to this !ourt8 that the parties had alread$ filed their respective briefs8 and that the case is still pending before the !ourt. n Aece"ber 17, 1'7D, -udge Ernani !ru< /ano, who succeeded -udge Ericta, issued an order granting /reciosa 6. )arcia=s "Urgent /etition for #uthorit$ to /a$ Estate bligations" in that the pa$"ents were for the benefit of the estate and that there hangs a cloud of doubt on the validit$ of the proceedings in Sp. /roc. 0o. &71! of the !ourt of *irst +nstance of ,aguna. # co"pliance of this rder was filed b$ /reciosa 6. )arcia on -anuar$ 1&,1'72.

n *ebruar$ ;,1'7;, (+R)+0+# ). *U,E instituted G.R. No. L-426 !, a petition for certiorari with te"porar$ restraining order, to annul the proceedings in Sp. /roc. 0o. C11'737 and to restrain -udge Ernani !ru< /aFo fro" further acting in the case. # restraining order was issued on *ebruar$ ', 1'72.

9e dis"iss the appeal in G.R. No. L-4!"!2 and the petition for certiorari in G.R. No. L426 ! for the reasons and considerations hereinafter stated. 1. Section 1, Rule 73 of the Revised Rules of !ourt provides> " #f the $e%e$ent i& an inhabitant of the 'hilippine& at the time of hi& $eath, whether a citi<en or an alien, hi& will &hall be pro(e$, or letter& of a$mini&tration grante$, an$ hi& e&tate &ettle$, in the Court of )ir&t #n&tan%e in the pro(in%e in whi%h he re&i$e& at the time of hi& $eath , and if he is an inhabitant of a foreign countr$, the !ourt of *irst +nstance of an$ province in which he had estate. The court first ta.ing cogni<ance of the settle"ent of the estate of a decedent, shall e5ercise 3urisdiction to the e5clusion of all other courts. The 3urisdiction assu"ed b$ 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, e5cept in an appeal fro" that court, in the original case, or when the want of 3urisdiction appears on the record." 9ith particular regard to letters of ad"inistration, Section &, Rule 7' of the Revised Rules of !ourt de"ands that the petition therefor should affir"ativel$ show the e5istence of 3urisdiction to "a.e the appoint"ent sought, and should allege all the necessar$ facts, such as death, the na"e and la&t re&i$en%e of the decedent, the e5istence, and situs if need be, of assets, intestac$, where this is relied upon, and the right of the person who see.s ad"inistration, as ne5t of .in, creditor, or otherwise, to be appointed. The fact of death of the intestate and his last residence within the countr$ are foundation facts upon which all subsequent proceedings in the ad"inistration of the estate rest, and that if the intestate was not an inhabitant of the state at the ti"e of his death, and left no assets in the state, no 3urisdiction is conferred on the court to grant letters of ad"inistration. 3 The aforequoted Section 1, Rule 73 ?for"erl$ Rule 7D, Section 1@, specificall$ the clause "so far as it depends on the place of residence of the decedent, or of the location of the estate," is in realit$ a "atter of venue, as the caption of the Rule indicates> "Settle"ent of Estate of Aeceased /ersons.*enue and /rocesses. ; +t could not have been intended to define the 3urisdiction over the sub3ect "atter, because such legal provision is contained in a law of procedure dealing "erel$ with procedural "atters. /rocedure is one thing8 3urisdiction over the sub3ect "atter is another. The power or authorit$ of the court over the sub3ect "atter "e5isted and was fi5ed before procedure in a given cause began." That power or authorit$ is not altered or changed b$ procedure, which si"pl$ directs the "anner in which the power or authorit$ shall be full$ and 3ustl$ e5ercised. There are cases though that if the power is not e5ercised confor"abl$ with the provisions of the procedural law, purel$, the court atte"pting to e5ercise it loses the power to e5ercise it legall$. 4owever, this does not a"ount to a loss of 3urisdiction over the sub3ect "atter. Rather, it "eans that the court "a$ thereb$ lose 3urisdiction over the person or that the 3udg"ent "a$ thereb$ be rendered defective for lac. of so"ething essential to sustain it. The appearance of this provision in the procedural law at once raises a strong presu"ption that it has nothing to do with the 3urisdiction of the court over the sub3ect "atter. +n plain words, it is 3ust a "atter of "ethod, of convenience to the parties. D The -udiciar$ #ct of 1';7, as a"ended, confers upon !ourts of *irst +nstance 3urisdiction over all probate cases independentl$ of the place of residence of the deceased. 6ecause of the e5istence of nu"erous !ourts of *irst +nstance in the countr$, the Rules of !ourt, however, purposedl$ fi5es the venue or the place where each case shall be brought. # fortiori, the place of residence of the deceased in settle"ent of estates, probate of will, and issuance of letters of ad"inistration does not constitute an ele"ent of 3urisdiction over the sub3ect "atter. +t is "erel$ constitutive of venue. #nd it is upon this reason that the Revised Rules of !ourt properl$ considers the province where the estate of a deceased person shall be settled as "venue." 2 &. 6ut, the far1ranging question is this> 9hat does the ter" "resides" "eanG Aoes it refer to the actual residence or do"icile of the decedent at the ti"e of his deathG 9e la$ down the doctrinal rule that the ter" "resides" connotes ex (i termini "actual residence" as distinguished fro" "legal residence or do"icile." This ter" "resides," li.e, the ter"s "residing" and "residence," is elastic and should be interpreted in the light of the ob3ect or purpose of the statute or rule in which it is e"plo$ed. 7 +n the application of venue statutes and rules H Section 1, Rule 73 of the Revised Rules of !ourt is of such nature H residence rather than do"icile is the significant factor. Even where the statute uses the word "do"icile" still it is construed as "eaning residence and not do"icile in the technical sense. So"e cases "a.e a distinction between the ter"s "residence" and "do"icile" but as generall$ used in statutes fi5ing venue, the ter"s are s$non$"ous, and conve$ the sa"e "eaning as the ter" "inhabitant." 7 +n other words, "resides" should be viewed or understood in its popular sense, "eaning, the personal, actual or ph$sical habitation of a person, actual residence or place of abode. +t signifies ph$sical presence in a place and actual sta$ thereat. +n this popular sense, the ter" "eans "erel$ residence, that is, personal residence, not legal residence or do"icile. ' Residence si"pl$ requires bodil$ presence as an inhabitant in a given place, while do"icile requires bodil$ presence in that place and also an intention to "a.e it one=s

do"icile. 1B 0o particular length of ti"e of residence is required though8 however, the residence "ust be "ore than te"porar$. 11 3. Aivergent clai"s are "aintained b$ (irginia ). *ule and /reciosa 6. )arcia on the residence of the deceased #"ado ). )arcia at the ti"e of his death. +n her original petition for letters of ad"inistration before the !ourt of *irst +nstance of !ala"ba, ,aguna, (irginia ). *ule "easel$ stated "?t@hat on #pril &2,1'73, #"ado ). )arcia, a property owner of Calamba, Laguna, died intestate in the !it$ of %anila, leaving real estate and personal properties in !ala"ba, ,aguna, and in other places within the 3urisdiction of this 4onorable !ourt." /reciosa 6. )arcia assailed the petition for failure to satisf$ the 3urisdictional require"ent and i"proper la$ing of venue. *or her, the quoted state"ent avers no do"icile or residence of the deceased #"ado ). )arcia. To sa$ that as "propert$ owner of !ala"ba, ,aguna," he also resides in !ala"ba, ,aguna, is, according to her, non &e+uitur. n the contrar$, /reciosa 6. )arcia clai"s that, as appearing in his death certificate presented b$ (irginia ). *ule herself before the !ala"ba court and in other papers, the last residence of #"ado ). )arcia was at 11 !ar"el #venue, !ar"el Subdivision, Cue<on !it$. /arentheticall$, in her a"ended petition, (irginia ). *ule categoricall$ alleged that #"ado ). )arcia=s "last place of residence was at !ala"ba, ,aguna." n this issue, 9e rule that the last place of residence of the deceased #"ado ). )arcia was at 11 !ar"el #venue, !ar"el Subdivision, Cue<on !it$, and not at !ala"ba, ,aguna. # death certificate is ad"issible to prove the residence of the decedent at the ti"e of his death. 1& #s it is, the death certificate of #"ado ). )arcia, which was presented in evidence b$ (irginia ). *ule herself and also b$ /reciosa 6. )arcia, shows that his last place of residence was at 11 !ar"el #venue, !ar"el Subdivision, Cue<on !it$. #side fro" this, the deceased=s residence certificate for 1'73 obtained three "onths before his death8 the %ar.eting #gree"ent and /ower of #ttorne$ dated 0ove"ber 1&, 1'71 turning over the ad"inistration of his two parcels of sugar land to the !ala"ba Sugar /lanters !ooperative %ar.eting #ssociation, +nc.8 the Aeed of Aonation dated -anuar$ 7, 1'73, transferring part of his interest in certain parcels of land in !ala"ba, ,aguna to #gustina 6. )arcia8 and certificates of titles covering parcels of land in !ala"ba, ,aguna, show in bold docu"ents that #"ado ). )arcia=s last place of residence was at Cue<on !it$. 9ithal, the conclusion beco"es i"perative that the venue for (irginia !. *ule=s petition for letters of ad"inistration was i"properl$ laid in the !ourt of *irst +nstance of !ala"ba, ,aguna. 0evertheless, the long1settled rule is that ob3ection to i"proper venue is sub3ect to waiver. Section ;, Rule ; of the Revised Rules of !ourt states> "9hen i"proper venue is not ob3ected to in a "otion to dis"iss, it is dee"ed waived." +n the case before Us the !ourt of #ppeals had reason to hold that in as.ing to substitute (irginia ). *ule as special ad"inistratri5, /reciosa 6. )arcia did not necessaril$ waive her ob3ection to the 3urisdiction or venue assu"ed b$ the !ourt of *irst +nstance of !ala"ba, ,aguna, but availed of a "ere practical resort to alternative re"ed$ to assert her rights as surviving spouse, while insisting on the enforce"ent of the Rule fi5ing the proper venue of the proceedings at the last residence of the decedent. ;. /reciosa 6. )arcia=s challenge to (irginia ). *ule=s appoint"ent as special ad"inistratri5 is another issue of perple5it$. /reciosa 6. )arcia clai"s preference to the appoint"ent as surviving spouse. Section 1 of Rule 7B provides that "?w@hen there is dela$ in granting letters testa"entar$ or of ad"inistration b$ an$ cause including an appeal fro" the allowance or disallowance of a will, the court "a$ appoint a &pe%ial a$mini&trator to ta.e possession and charge of the estate of the deceased until the questions causing the dela$ are decided and e5ecutors or ad"inistrators appointed. 13 *or"erl$, the appoint"ent of a special ad"inistrator was onl$ proper when the allowance or disallowance of a will is under appeal. The new Rules, however, broadened the basis for appoint"ent and such appoint"ent is now allowed when there is dela$ in granting letters testa"entar$ or ad"inistration by any %au&e e.g., parties cannot agree a"ong the"selves. 1; 0evertheless, the discretion to appoint a special ad"inistrator or not lies in the probate court. 1D That, however, is no authorit$ for the 3udge to beco"e partial, or to "a.e his personal li.es and disli.es prevail over, or his passions to rule, his 3udg"ent. E5ercise of that discretion "ust be based on reason, equit$, 3ustice and legal principle. There is no reason wh$ the sa"e funda"ental and legal principles governing the choice of a regular ad"inistrator should not be ta.en into account in the appoint"ent of a special ad"inistrator. 120othing is wrong for the 3udge to consider the order of preference in the appoint"ent of a regular ad"inistrator in appointing a special ad"inistrator. #fter all, the consideration that overrides all others in this respect is the benefi%ial intere&t 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 e5clusive propert$ of the decedent, besides her share in the con3ugal partnership. *or such reason, she would have as such, if not "ore, interest in ad"inistering the entire estate correctl$ than an$ other ne5t of .in. The good or bad ad"inistration of a propert$ "a$ affect rather the fruits than the na.ed ownership of a propert$. 17 (irginia ). *ule, however, disputes the status of /reciosa 6. )arcia as the widow of the late #"ado ). )arcia. 9ith equal force, /reciosa 6. )arcia "aintains that (irginia ). *ule has no

relation whatsoever with #"ado ). )arcia, or that, she is a "ere illegiti"ate sister of the latter, incapable of an$ successional rights. 1' n this point, 9e rule that /reciosa 6. )arcia is prima fa%ie entitled to the appoint"ent of special ad"inistratri5. +t needs be e"phasi<ed that in the issuance of such appoint"ent, which is but te"porar$ and subsists onl$ until a regular ad"inistrator is appointed, &B the appointing court does not deter"ine who are entitled to share in the estate of the decedent but who is entitled to the ad"inistration. The issue of heirship is one to be deter"ined in the decree of distribution, and the findings of the court on the relationship of the parties in the ad"inistration as to be the basis of distribution. &1 The preference of /reciosa 6. )arcia is with sufficient reason. +n a Aonation +nter (ivos e5ecuted b$ the deceased #"ado ). )arcia on -anuar$ 7, 1'73 in favor of #gustina 6. )arcia, he indicated therein that he is "arried to /reciosa 6. )arcia. && +n his certificate of candidac$ for the office of Aelegate to the !onstitutional !onvention for the *irst Aistrict of ,aguna filed on Septe"ber 1, 1'7B, he wrote therein the na"e of /reciosa 6. 6anaticla as his spouse. &3 *aced with these docu"ents and the presu"ption that a "an and a wo"an deporting the"selves as husband and wife have entered into a lawful contract of "arriage, /reciosa 6. )arcia can be reasonabl$ believed to be the surviving spouse of the late #"ado ). )arcia. ,emper prae&umitur pro matrimonio.&; D. Under these circu"stances and the doctrine laid down in !uenco vs. !ourt of #ppeals, &D this !ourt under its supervisor$ authorit$ over all inferior courts "a$ properl$ decree that venue in the instant case was properl$ assu"ed b$ and transferred to Cue<on !it$ and that it is in the interest of 3ustice and avoidance of needless dela$ that the Cue<on !it$ court=s e5ercise of 3urisdiction over the settle"ent of the estate of the deceased #"ado ). )arcia and the appoint"ent of special ad"inistratri5 over the latter=s estate be approved and authori<ed and the !ourt of *irst +nstance of ,aguna be disauthori<ed fro" continuing with the case and instead be required to transfer all the records thereof to the !ourt of *irst +nstance of Cue<on !it$ for the continuation of the proceedings. 2. #ccordingl$, the rder of -udge Ernani !ru< /ano of Aece"ber 17, 1'7D, granting the "Urgent /etition for #uthorit$ to /a$ Estate bligations" filed b$ /reciosa 6. )arcia in Sp. /roc. 0o. C11'737, sub3ect "atter of ).R. 0o. ,1;&27B, and ordering the !anlubang Sugar Estate to deliver to her as special ad"inistratri5 the su" of /;7,77;.7B for pa$"ent of the su" of estate obligations is hereb$ upheld. +0 (+E9 * T4E * RE) +0), the petitions of petitioner (irginia )arcia *ule in ).R. 0o. ,1;BDB& and in ).R. 0o. ,;&27B are hereb$ denied, with costs against petitioner. S RAEREA.

G.R. No. L-13143

Febr+ar4 23, 1965

6E"GRACIA$ #ERNAR6", e7e.+,or o- ,/e ,e',a,e e',a,e o- ,/e e.ea'e EU$E#I" CA&ILI8 an ,/e (n',(,+,e /e(r', name049 AR%AN6" CA&ILI an AR1UR" #ERNAR6", E1 AL., petitioners, vs. !"N. C"UR1 "F A&&EAL$ an 1!E !EIR$ "F 1!E LA1E !ER%"GENA RE:E$, name049 FRANCI$C" RE:E$, E1 AL., an *"$E I$I6"R", E1 AL., respondents. This is a petition b$ %ertiorari for the review of the decision of the !ourt of #ppeals affir"ing that of the !ourt of *irst +nstance of 6ulacan holding that the probate court in Special /roceeding 11B1 had 3urisdiction to deter"ine the validit$ of the deed of donation in question and to pass upon the question of title or ownership of the properties "entioned therein. The facts are briefl$ stated in the appealed decision of the !ourt of #ppeals as follows> Eusebio !apili and 4er"ogena Re$es were husband and wife. The first died on -ul$ &7, 1'D7 and a testate proceeding for the settle"ent of his estate was instituted in the !ourt of the *ist +nstance of 6ulacan. 4is will was ad"itted to probate on ctober ', 1'D7, disposing of his properties in favor of his widow8 his cousins #r"ando, Ursula, and 6uenaventura, all surna"ed !apili8 and #rturo, Aeogracias and Eduardo, all surna"ed 6ernardo. 4er"ogena Re$es herself died on #pril &;, 1'D'. Upon petition of Aeogracias 6ernardo, e5ecutor of the estate of the deceased Eusebio !apili, she was substituted b$ her collateral relatives and intestate heirs, na"el$, %arcos, (icente, *rancisco and Ao"inga, all surna"ed Re$es8 and -ose, !onstancia, Ra$"unda and Elena, all surna"ed +sidoro. n -une 1&, 1'D', the e5ecutor filed a pro3ect of partition in the testate proceeding in accordance with the ter"s of the will, ad3udicating the estate of Eusebio !apili a"ong the testa"entar$ heirs with the e5ception of 4er"ogena Re$es, whose share was alloted to her collateral relatives afore"entioned. n -une 12, 1'D' these relatives filed an opposition to the e5ecutor=s pro3ect of partition and sub"itted a counter1pro3ect of partition of their own, clai"ing 1:& of the properties "entioned in the will of the deceased Eusebio !apili on the theor$ that the$ belonged not to the latter alone but to the con3ugal partnership of the spouses. The probate court, in two orders dated -une &;, 1'D' and *ebruar$ 1B, 1'2B, respectivel$, set the two pro3ects of partition for hearing, at which evidence was presented b$ the parties, followed b$ the sub"ission of "e"oranda discussing certain legal issues. +n the "e"orandu" for the e5ecutor and the instituted heirs it was contended> ?1@ that the properties disposed of in the will of the deceased Eusebio !apili belonged to hi" e5clusivel$ and not to the con3ugal partnership, because 4er"ogena Re$es had donated to hi" her half share of such partnership8 ?&@ that the collateral heirs of 4er"ogena Re$es had no lawful standing or grounds to question the validit$ of the donation8 and ?3@ that even assu"ing that the$ could question the validit$ of the donation, the sa"e "ust be litigated not in the testate proceeding but in a separate civil action. 9herefore, the parties respectfull$ pra$ that the foregoing stipulation of facts be ad"itted and approved b$ this 4onorable !ourt, without pre3udice to the parties adducing other evidence to prove their case not covered b$ this stipulation of facts. -.wph/-.01t The oppositors and heirs of 4er"ogena Re$es, on their part, argued that the deed of donation itself was deter"inative of the original con3ugal character to the properties, aside fro" the legal presu"ption laid down in #rticle 12B of the !ivil !ode, and that since the donation was null and void the deceased Eusebio !apili did not beco"e owner of the share of his wife and therefore could not validl$ dispose of it in his will. n Septe"ber 1;, 1'2B, the probate court, the 4onorable %. %e3ia presiding, issued an order declaring the donation void without "a.ing an$ specific finding as to its 3uridical nature, that is, whether it was inter vivos or "ortis causa, for the reason that, considered under the first categor$, it falls under #rticle 133 of the !ivil !ode, which prohibits donations between spouses during the "arriage8 and considered under the second categor$, it does not co"pl$ with the for"alities of a will as required b$ #rticle 7&7 in relation to #rticle 7BD of the sa"e !ode, there being no attestation clause. +n the sa"e order the court disapproved both pro3ects of partition and directed the e5ecutor to file another," dividing the propert$ "entioned in the last will and testa"ent of the deceased Eusebio !apili and the properties "entioned in the deed of donation, E5hibit 6, between the instituted heirs of the deceased Eusebio !apili and the legal heirs of the deceased 4er"ogena Re$es, upon the basis that the said properties were con3ugal properties of the deceased spouses." n Septe"ber &7, 1'2B, the e5ecutor filed a "otion for new trial, reiterating and e"phasi<ing the contention previousl$ raised in their "e"orandu" that the probate court had no 3urisdiction to ta.e cogni<ance of the clai" of the legal heirs of 4er"ogena Re$es involving title to the properties "entioned in the will of

Eusebio !apili and ta.ing e5ception to the court=s declaration of the nullit$ of the donation "without stating facts or provision of law on which it was based." The "otion for new trial was denied in an order dated ctober 3, 1'2B. n appeal to the !ourt of #ppeals the order appealed fro" being affir"ed, petitioners filed this present petition for review b$ %ertiorari. The petitioners1appellants contend that the appellate court erred in not declaring that the probate court, having li"ited and special 3urisdiction, had generall$ no power to ad3udicate title and erred in appl$ing the e5ception to the rule. +n a line of decisions, this !ourt consistentl$ held that as a general rule, question as to title to propert$ cannot be passed upon on testate or intestate proceedings,"1 e5cept where one of the parties pra$s "erel$ for the inclusion or e5clusion fro" the inventor$ of the propert$, in which case the probate court "a$ pass provisionall$ upon the question without pre3udice to its final deter"ination in a separate action.& 4owever, we have also held that when the parties interested are all heirs of the deceased, it is optional to the" to sub"it to the probate court a question as to title to propert$, and when so sub"itted, said probate court "a$ definitel$ pass 3udg"ent thereon ?/ascual v. /ascual, 73 /hil. D218 %analac v. ca"po, et al., 73 /hil. 221@8 and that with the consent of the parties, "atters affecting propert$ under 3udicial ad"inistration "a$ be ta.en cogni<ance of b$ the court in the course of intestate proceeding, provided interests of third persons are not pre3udiced ?!unanan v. #"paro, 7B /hil. &&', &3&@. +n the light of this doctrine, "a$ it be said correctl$ that the trial court as well as the !ourt of #ppeals erred in upholding the power of the probate court in this case to ad3udicate in the testate proceedings, the question as to whether the properties herein involved belong to the con3ugal partnership of Eusebio !apili and 4er"ogena Re$es, or to the deceased husband e5clusivel$G #t the outset, let it be clarified that the "atter at issue is not a question of 3urisdiction, in the sense advanced b$ appellants that the trial court had co"pletel$ no authorit$ to pass upon the title to the lands in dispute, and that its decision on the sub3ect is null and void and does not bind even those who had invo.ed its authorit$ and sub"itted to its decision because, it is contended, 3urisdiction is a creature of law and parties to an action can not vest, e5tend or broaden it. +f appellants= contention is correct, then there can be no e5ception to the no1 3urisdiction theor$. 6ut as has been stated in the case of Cunanan (. 2mparo 3&upra4 the Supre"e !ourt spea.ing through %r. -ustice /edro Tuason> "Aeter"ination of title to propert$ is within the 3urisdiction of !ourts of *irst +nstance. The responding Soriano=s ob3ection ?that the probate court lac.ed 3urisdiction to order the deliver$ of the possession of the lots to the estate@ relates e5clusivel$ to the procedure, which is distinct fro" 3urisdiction. +t affects onl$ personal rights to a "ode of practice ?the filing of an independent ordinar$ action@ which "a$ be waived". Strictl$ spea.ing, it is "ore a question of 3urisdiction over the person, not over the sub3ect "atter, for the 3urisdiction to tr$ controversies between heirs of a deceased person regarding the ownership of properties alleged to belong to his estate, has been recogni<ed to be vested in probate courts. This is so because the purpose of an ad"inistration proceeding is the liquidation of the estate and distribution of the residue a"ong the heirs and legatees. ,iquidation "eans deter"ination of all the assets of the estate and pa$"ent of all the debts and e5penses.3 Thereafter, distribution is "ade of the decedent=s liquidated estate a"ong the persons entitled to succeed hi". The proceeding is in the nature of an action of partition, in which each part$ is required to bring into the "ass whatever co""unit$ propert$ he has in his possession. To this end, and as a necessar$ corollar$, the interested parties "a$ introduce proofs relative to the ownership of the properties in dispute. #ll the heirs who ta.e part in the distribution of the decedent=s estate are before the court, and sub3ect to the 3urisdiction thereof, in all "atters and incidents necessar$ to the co"plete settle"ent of such estate, so long as no interests of third parties are affected.; +n the case now before us, the "atter in controvers$ is the question of ownership of certain of the properties involved H whether the$ belong to the con3ugal partnership or to the husband e5clusivel$. This is a "atter properl$ within the 3urisdiction of the probate court which necessaril$ has to liquidate the con3ugal partnership in order to deter"ine the estate of the decedent which is to be distributed a"ong his heirs who are all parties to the proceedings, including, of course, the widow, now represented because of her death, b$ her heirs who have been substituted upon petition of the e5ecutor hi"self and who have appeared voluntaril$. There are no third parties whose rights "a$ be affected. +t is true that the heirs of the deceased widow are not heirs of the testator1husband, but the widow is, in addition to her own right to the con3ugal propert$. #nd it is this right that is being sought to be enforced b$ her substitutes. Therefore, the clai" that is being asserted is one belonging to an heir to the testator and, consequentl$, it co"plies with the require"ent of the e5ception that the parties

interested ?the petitioners and the widow, represented b$ dents@ are all heirs clai"ing title under the testator. /etitioners contend additionall$ that the$ have never sub"itted the"selves to the 3urisdiction of the probate court, for the purpose of the deter"ination of the question of ownership of the disputed properties. This is not borne b$ the ad"itted facts. n the contrar$, it is undisputed that the$ were the ones who presented the pro3ect of partition clai"ing the questioned properties as part of the testator=s asset. The respondents, as representatives or substitutes of the deceased widow opposed the pro3ect of partition and sub"itted another. #s the !ourt of #ppeals said, "+n doing so all of the" "ust be dee"ed to have sub"itted the issue for resolution in the sa"e proceeding. !ertainl$, the petitioners can not be heard to insist, as the$ do, on the approval of their pro3ect of partition and, thus, have the court ta.e it for granted that their theor$ as to the character of the properties is correct, entirel$ without regard to the opposition of the respondents". +n other words, b$ presenting their pro3ect of partition including therein the disputed lands ?upon the clai" that the$ were donated b$ the wife to her husband@, petitioners the"selves put in issue the question of ownership of the properties H which is well within the co"petence of the probate court H and 3ust because of an opposition thereto, the$ can not thereafter withdraw either their appearance or the issue fro" the 3urisdiction of the court. !ertainl$, there is here a waiver where the parties who raise the ob3ection are the ones who set the court in "otion. D The$ can not be per"itted to co"plain if the court, after due hearing, ad3udges question against the". 2 *inall$, petitioners1appellants clai" that appellees are estopped to raise the question of ownership of the properties involved because the widow herself, during her lifeti"e, not onl$ did not ob3ect to the inclusion of these properties in the inventor$ of the assets of her deceased husband, but also signed an e5tra13udicial partition of those inventoried properties. 6ut the ver$ authorities cited b$ appellants require that to constitute estoppel, the actor "ust have .nowledge of the facts and be appraised of his rights at the ti"e he perfor"s the act constituting estoppel, because silence without .nowledge wor.s no estoppel. 7 +n the present case, the deceased widow acted as she did because of the deed of donation she e5ecuted in favor of her husband not .nowing that such deed was illegal, if inter1vivos, and ineffectual if "ortis1causa, as it has not been e5ecuted with the required for"alities si"ilar to a will. 94ERE* RE, the decision of the !ourt of #ppeals being in accordance with law, the sa"e is hereb$ affir"ed with costs against appellants. So ordered.

G.R. No. L-1725 %a4 50, 1949 LU; %AR<UE; 6E $AN6"VAL, 'etitioner, vs. VICEN1E $AN1IAG", =+ )e o- ,/e Co+r, oF(r', In',an.e o- <+e>on &rov(n.e, #ran./ III, Re&pon$ent. This is a special civil action of certiorari filed b$ the petitioner against the respondent -udge 4on. (icente Santiago.chanroblesvirtualawlibrar$ chanrobles virtual law librar$ The herein petitioner instituted a special proceeding in the !ourt of *irst +nstance of *irst +nstance of Cue<on /rovince for then probate of the will and codicil e5ecuted b$ the deceased Aaniel %arque< in which she was designated as e5ecutri5. The will and codicil were allowed and the petitioner was appointed on #ugust 12, 1';2, e5ecutri5 in accordance with the will but before the petitioner qualified as e5ecutri5 the three heirs instituted in the will all age "ade an e5tra3udicial partition of all the properties of he deceased on ctober D, 1';2 and entered into the possession of their respective share without the authorit$ and approval of the court. n #ugust &&, 1';7, that is one $ear after the probate of the will and appoint"ent of the petitioner as e5ecutri5 the respondent 3udge required the petitioner to qualit$ as such and file a bind of /D,BBB. +n response thereto the petitioner infor"ed the respondent 3udge that it was not necessar$ for her to qualif$ because the heirs had alread$ "ade an e5tra3udicial partition in accordance with the will as shown b$ the cop$ the cop$ of said partition which she sub"itted to the court. +n view of the answer of the petitioner the respondent 3udge ordered the e5ecutri5 to qualif$ as such within fort$1eight hour and declared the e5tra3udicial agree"ent of partition entered into b$ the heirs null and void, on the ground that the probate proceedings having been co""enced 3udiciall$ it "ust also be ter"inated 3udiciall$. # "otion for reconsideration was filed b$ the petitioner and denied b$ the court hence, the filing of the present petition for certiorari.chanroblesvirtualawlibrar$ chanrobles virtual law librar$ 9e are of the opinion, and so hold, that the respondent, -udge or !ourt of *irst +nstance of Cue<on /rovince, wherein the deceased was residing at the ti"e of his death, has acquired e5clusive 3urisdiction to settle the testate estate of the deceased Aaniel %arque< and over the heirs and other person interested in the estate of the deceased fro" the "o"ent the application for the probate of the decedent=s will was filed with the said court and the publication required b$ law were "ade8 and the heirs of the deceased %arque< could not divest the !ourt of *irst +nstance of its alread$ acquired 3urisdiction b$ the "ere fact of dividing e5tra3udiciall$ the estate of the deceased a"ong the"selves.chanroblesvirtualawlibrar$ chanrobles virtual law librar$ +f the e5tra3udicial partition "ade b$ the heirs of the deceased wassub"itted to the court and approved b$ the respondent 3udge after verif$ing that it does not pre3udiciall$ affect the rights of third parties, the testate proceedings pending in the court would have been legall$ thereb$ ter"inated. #n e5tra3udicial partition of the estate of a deceased b$ the heirs beco"es a 3udicial partition after its approval b$ the court which had previousl$ acquired 3urisdiction of the estate b$ the filing of an application for the probate of the decedent=s will8 but as the testate proceeding is ter"inated in such case without the necessar$ publication ofnotices to creditors and other persons interested in the estate required ina required in a regular 3udicial ad"inistration, the effect of such 3udicial partition would be the sa"e as if it had been effected e5tra3udiciall$ without the intervention of the court under the provisions of section1,of Rule 7;, that is, sub3ect to the clai"s against the distributees b$ persons "entioned in sections ; and D, of the sa"e rule. ?%c%ic.ing (&. S$ !onbieng. &1 /hil., &11.@chanrobles virtual law librar$ +n view of the foregoing, the petition for %ertiorari is denied with costs against the petitioner, because the respondent 3udge did not e5ceed his 3urisdiction in not giving the deed of e5tra3udicial settle"ent or partition of the estate of the deceased the effect of ter"inating the testate proceedingover which the court has acquired e5clusive 3urisdiction since said partition was not sub"itted to said court for approval. So ordered.chanroblesvirtualawlibrar$ chanrobles virtual law librar$

G.R. No. L-6476

November 13, 1955

FRANCI$C" 6E #"R*A a' E7e.+,or o- ,/e E',a,e o- ,/e e.ea'e *"$EFA 1ANGC", petitioner, vs. #IENVENI6" A. 1AN, a' *+ )e o- ,/e Co+r, o- F(r', In',an.e o- R(>a0, an *"$E 6E #"R*A, respondents. This is a petition for man$amu& to co"pel respondent -udge 6ienvenido #. Tan to approve and ad"it the record on appeal filed before hi" and to give due course to the appeal. The facts involved as gathered fro" the record "a$ be briefl$ stated as follows. n ctober &D, 1';B, petitioner *rancisco de 6or3a filed a petition in the lower court for the probate of the ,ast 9ill and Testa"ent of his deceased wife -osefa Tangco. The will was probated on #pril &, 1';1, and na"ed *rancisco de 6or3a as e5ecutor thereof. ne of the heirs who is now one of the respondents herein -ose de 6or3a appealed the case to the !ourt of #ppeals but later his "otion for dis"issal of the appeal as granted. #ll the records of the case were destro$ed or lost during the last /acific war but were on -anuar$ 1, 1';2, reconstituted. n %arch &2 of that $ear *rancisco de 6or3a qualified as e5ecutor and ad"inistrator. Aue to the ph$sical inabilit$ of *rancisco de 6or3a to full$ ad"inister the estate he being quite wea. and unable to see, on #ugust &D, 1'D1, on petition of %atilde de 6or3a, one of the heirs, the lower court appointed !risanto de 6or3a, another heir, as co1ad"inistrator. !risanto qualified as co1ad"inistrator on #ugust &', 1'D1. n #pril ', 1'D&, the trial court according to petitioner, without petition of or notice to an$one appointed respondent -ose de 6or3a as co1ad"inistrator, this, after holding in abe$ance consideration of *rancisco de 6or3a=s a"ended account dated %arch &D, 1'D&. *rancisco, %atilde and !risanto "oved for reconsideration of the appoint"ent of -ose de 6or3a but b$ order of #ugust 1;, 1'D&, respondent -udge indirectl$ denied the "otion for reconsideration, and acting upon an alleged ex-parte petition of the heirs -ose, !risanto, !a$etano and %atilde, all surna"ed Ae 6or3a, revo.ed the appoint"ent of !risanto as co1ad"inistrator and directed ad"inistrator -ose de 6or3a to co""ent on the a"ended account filed b$ *rancisco de 6or3a. n -ul$ &&, 1'D&, *rancisco, %atilde and !risanto filed a notice of appeal fro" the order appointing -ose de 6or3a as co1ad"inistrator and the order den$ing the "otion for reconsideration and later the$ filed the corresponding record on appeal. 6$ order of Aece"ber &7, 1'D&, respondent -udge Tan disapproved the record on appeal and refused to give due course to the appeal on the ground that the appoint"ent of -ose de 6or3a as co1ad"inistrator was interlocutor$ in nature and so was not appealable. 4ence, this petition for man$amu&, as alread$ stated, to co"pel respondent -udge to approve the record on appeal and to give due course to the appeal. #n order appointing a regular ad"inistrator is appealable ?See S$ 4ong Eng (&. S$ ,iac Su$, 7 /hil., D';@. n the other hand, according to Rule 1BD, section 1 ?e@ an order appointing a special ad"inistrator is not appealable. Respondents contend that a co1ad"inistrator is not a regular or general ad"inistrator, and his duties and functions rather parta.e those of a special ad"inistrator8 consequentl$, his appoint"ent is not sub3ect to appeal. 9e cannot share this view. The powers and functions of a special ad"inistrator are quite li"ited. Under Rule 71, section 1, a special ad"inistrator is appointed onl$ when there is a dela$ in granting letters testa"entar$ or of ad"inistration occasioned b$ an appeal fro" allowance or disallowance of a will or fro" an$ other cause, and such special ad"inistrator is authori<ed to collect and ta.e charge of the estate until the questions causing the dela$ are decided and an e5ecutor or ad"inistrator thereon appointed. Under Rule 77 section 7, a special ad"inistrator is also appointed when the regular e5ecutor or ad"inistrator has a clai" against the estate he represents and said special ad"inistrator shall have the sa"e power and sub3ect to the sa"e liabilit$ as a regular e5ecutor or ad"inistrator. +n other words, a special ad"inistrator is appointed onl$ for a li"ited ti"e and for a specific purpose. 0aturall$, because of the te"porar$ and special character of his appoint"ent, it was dee"ed b$ the law not advisable for an$ part$ to appeal fro" said te"porar$ appoint"ent. n the other hand, a co1 ad"inistrator perfor"s all the functions and duties and e5ercises all the powers of a regular ad"inistrator, onl$ that he is not alone in the ad"inistration. *urther ta.ing into consideration the circu"stances obtaining in this case, that petitioner *rancisco de 6or3a though originall$ designated ad"inistrator, is and has for several $ears been one onl$ in na"e due to his ph$sical and "ental disabilit$, as a result of which respondent -ose de 6or3a is now practicall$ the sole ad"inistrator there is no question that for all practical and legal purposes the appoint"ent of -ose de 6or3a as co1ad"inistrator is equivalent to and has the sa"e effect as a sole regular or general ad"inistrator. +n view of the foregoing, holding that the appoint"ent of a co1ad"inistrator, especiall$ in the present case, is appealable, the petition for man$amu& is granted and respondent -udge is hereb$ directed to approve the record on appeal and to give due course to the appeal. 0o costs.

G.R. No'. L-21953-59 %a4 29, 1970 VICEN1E URIAR1E, petitioner, vs. 1!E C"UR1 "F FIR$1 IN$1ANCE "F NEGR"$ "CCI6EN1AL ?12,/ *+ (.(a0 6(',r(.,@ 1!E

C"UR1 "F FIR$1 IN$1ANCE "F %ANILA, #RANC! IV, *UAN URIAR1E ;A%AC"NA an !IGINI" URIAR1E, respondents. n ctober 3, 1'23 petitioner (icente Uriarte filed an original petition for %ertiorari H doc.eted as ).R. ,1&1'37 H against the respondents -uan Uriarte Ia"acona, 4iginio Uriarte, and the !ourts of *irst +nstance of 0egros ccidental and of %anila, 6ranch +(, who will be referred to hereinafter as the 0egros !ourt and the %anila !ourt, respectivel$ H pra$ing> ... that after due proceedings 3udg"ent be rendered annulling the orders of 1' #pril 1'23 ?#nne5 =4=@ and 11 -ul$ 1'23 ?#nne5 =+=@ of respondent 0egros court dis"issing the first instituted Special /roceeding 0o. 23;;, supra, and the order of 1 -ul$ 1'23 ?#nne5 =J=@ of respondent %anila court den$ing petitioner=s omnibu& "otion to intervene and to dis"iss the later1instituted Special /roceeding 0o. D13'2, &upra, both special proceedings pertaining to the settle"ent of the sa"e estate of the sa"e deceased, and consequentl$ annulling all proceedings had in Special /roceeding 0o. D13'28 &upra, of the respondent %anila court as all ta.en without 3urisdiction. *or the preservation of the rights of the parties pending these proceedings, petitioner pra$s for the issuance of a writ of preli"inar$ in3unction en3oining respondents %anila court, -uan Uriarte Ia"acona and 4iginio Uriarte fro" proceeding with Special /roceeding 0o. D13'2, &upra, until further orders of this !ourt. Reasons in support of said petition are stated therein as follows> 2. Respondent 0egros court erred in dis"issing its Special /roceeding 0o. 23;;, supra, and failing to declare itself =the court first ta.ing cogni<ance of the settle"ent of the estate of= the deceased Aon -uan Uriarte $ )oite as prescribed in Rule 7D section 1 of the Rules of !ourt. Respondent %anila court erred in failing to dis"iss its Special /roceeding 0o. D13'2, supra, notwithstanding proof of prior filing of Special /roceeding 0o. 23;;, &upra, in the 0egros court. The writ of preli"inar$ in3unction pra$ed for was granted and issued b$ this !ourt on &;, 1'23. ctober

n #pril &&, 1'2; petitioner filed against the sa"e respondents a pleading entitled SU//,E%E0T#, /ET+T+ 0 * R %#0A#%US H doc.eted in this !ourt as ).R. 0o. ,1&1'3' H pra$ing, for the reasons therein stated, that 3udg"ent be rendered annulling the orders issued b$ the 0egros !ourt on Aece"ber 7, 1'23 and *ebruar$ &2, 1'2;, the first disapproving his record on appeal and the second den$ing his "otion for reconsideration, and further co""anding said court to approve his record on appeal and to give due course to his appeal. n -ul$ 1D, 1'2; 9e issued a resolution deferring action on this Supple"ental /etition until the original action for certiorari ?).R. ,1&1'37@ is ta.en up on the "erits. n ctober &1, 1'23 the respondents in ).R. ,1&1'37 filed their answer traversing petitioner=s contention that the respondent courts had co""itted grave abuse of discretion in relation to the "atters alleged in the petition for%ertiorari. +t appears that on 0ove"ber 2, 1'21 petitioner filed with the 0egros !ourt a petition for the settle"ent of the estate of the late Aon -uan Uriarte $ )oite ?Special /roceeding 0o. 23;;@ alleging therein, inter alia, that, as a natural son of the latter, he was his sole heir, and that, during the lifeti"e of said decedent, petitioner had instituted !ivil !ase 0o. 21;& in the sa"e !ourt for his co"pulsor$ ac.nowledg"ent as such natural son. Upon petitioner=s "otion the 0egros !ourt appointed the /hilippine 0ational 6an. as special ad"inistrator on 0ove"ber 13, 1'21 and two da$s later it set the date for the hearing of the petition and ordered that the requisite notices be published in accordance with law. The record discloses, however, that, for one reason or another, the /hilippine, 0ational 6an. never actuall$ qualified as special ad"inistrator. n Aece"ber 1', 1'21, 4iginio Uriarte, one of the two private respondents herein, filed an opposition to the above1"entioned petition alleging that he was a nephew of the deceased -uan Uriarte $ )oite who had "e5ecuted a ,ast 9ill and Testa"ent in Spain, a dul$ authenticated cop$ whereof has been requested and which shall be sub"itted to this 4onorable !ourt upon receipt thereof," and further questioning petitioner=s capacit$ and interest to co""ence the intestate proceeding. n #ugust &7, 1'2&, -uan Uriarte Ia"acona, the other private respondent, co""enced Special /roceeding 0o. D13'2 in the %anila !ourt for the probate of a docu"ent alleged to be the last will of the deceased -uan Uriarte $ )oite, and on the sa"e date he filed in Special /roceeding 0o. 23;; of the 0egros !ourt a "otion to dis"iss the sa"e on the following

grounds> ?1@ that, as the deceased -uan Uriarte $ )oite had left a last will, there was no legal basis to proceed with said intestate proceedings, and ?&@ that petitioner (icente Uriarte had no legal personalit$ and interest to initiate said intestate proceedings, he not being an ac.nowledged natural son of the decedent. # cop$ of the /etition for /robate and of the alleged 9ill were attached to the %otion to Ais"iss. /etitioner opposed the aforesaid "otion to dis"iss contending that, as the 0egros !ourt was first to ta.e cogni<ance of the settle"ent of the estate of the deceased -uan Uriarte $ )oite, it had acquired e5clusive 3urisdiction over sa"e pursuant to Rule 7D, Section 1 of the Rules of !ourt. n #pril 1', 1'23, the 0egros !ourt sustained -uan Uriarte Ia"acona=s "otion to dis"iss and dis"issed the Special /roceeding 0o. 23;; pending before it. 4is "otion for reconsideration of said order having been denied on -ul$ &7, 1'23, petitioner proceeded to file his notice of appeal, appeal bond and record on appeal for the purpose of appealing fro" said orders to this court on questions of law. The ad"inistrator with the will anne5ed appointed b$ the %anila !ourt in Special /roceeding 0o. D13'2 ob3ected to the approval of the record on appeal, and under date of Aece"ber 7, 1'23 the 0egros !ourt issued the following order> ppositor pra$s that the record on appeal filed b$ the petitioner on -ul$ &7, 1'23, be dis"issed for having been filed out of ti"e and for being inco"plete. +n the "eanti"e, before the said record on appeal was approved b$ this !ourt, the petitioner filed a petition for certiorari before the Supre"e !ourt entitled *i%ente 5riarte, 'etitioner, (&. Court of )ir&t #n&tan%e of Negro& 6%%i$ental, et al., ).R. 0o. ,1&1'37, bringing this case squarel$ before the Supre"e !ourt on questions of law which is tanta"ount to petitioner=s abandoning his appeal fro" this !ourt. 94ERE* RE, in order to give wa$ to the certiorari, the record on appeal filed b$ the petitioner is hereb$ disapproved. +n view of the above1quoted order, petitioner filed the supple"ental petition for "anda"us "entioned heretofore. n #pril 1D, 1'23 (icente Uriarte filed an "nibus %otion in Special /roceeding 0o. D13'2 pending in the %anila !ourt, as.ing for leave to intervene therein8 for the dis"issal of the petition and the annul"ent of the proceedings had in said special proceeding. This "otion was denied b$ said court in its order of -ul$ 1 of the sa"e $ear. +t is ad"itted that, as alleged in the basic petition filed in Special /roceeding 0o. 23;; of the 0egros !ourt, (icente Uriarte filed in the sa"e court, during the lifeti"e of -uan Uriarte $ )oite, !ivil !ase 0o. 21;& to obtain 3udg"ent for his co"pulsor$ ac.nowledg"ent as his natural child. !learl$ inferrable fro" this is that at the ti"e he filed the action, as well as when he co""enced the aforesaid special proceeding, he had not $et been ac.nowledged as natural son of -uan Uriarte $ )oite. Up to this ti"e, no final 3udg"ent to that effect appears to have been rendered. The record further discloses that the special proceeding before the 0egros !ourt has not gone farther than the appoint"ent of a special ad"inistrator in the person of the /hilippine 0ational 6an. who, as stated heretofore, failed to qualif$. n the other hand, it is not disputed that, after proper proceedings were had in Special /roceeding 0o. D13'2, the %anila !ourt ad"itted to probate the docu"ent sub"itted to, it as the last will of -uan Uriarte $ )oite, the petition for probate appearing not to have been contested. +t appears further that, as stated heretofore, the order issued b$ the %anila !ourt on -ul$ 1, 1'23 denied petitioner. (icente Uriarte=s "nibus %otion for +ntervention, Ais"issal of /etition and #nnul"ent of said proceedings. ,i.ewise, it is not denied that to the "otion to dis"iss the special proceeding pending before the 0egros !ourt filed b$ 4iginio Uriarte were attached a cop$ of the alleged last will of -uan Uriarte $ )oite and of the petition filed with the %anila !ourt for its probate. +t is clear, therefore, that al"ost fro" the start of Special /roceeding 0o. 23;;, the 0egros !ourt and petitioner (icente Uriarte .new of the e5istence of the aforesaid last will and of the proceedings for its probate. The principal legal questions raised in the petition for certiorari are ?a@ whether or not the 0egros !ourt erred in dis"issing Special /roceeding 0o. 22;;, on the one hand, and on the other, ?b@ whether the %anila !ourt si"ilarl$ erred in not dis"issing Special /roceeding 0o. D13'2 notwithstanding proof of the prior filing of Special /roceeding 0o. 23;; in the 0egros !ourt.

Under the -udiciar$ #ct of 1';7 KSection ;;, paragraph ?e@L, !ourts of *irst +nstance have original e5clusive 3urisdiction over "all "atters of probate," that is, over special proceedings for the settle"ent of the estate of deceased persons H whether the$ died testate or intestate. 9hile their 3urisdiction over such sub3ect "atter is be$ond question, the "atter of (enue, or the particular !ourt of *irst +nstance where the special proceeding should be co""enced, is regulated b$ for"er Rule 7D, Section 1 of the Rules of !ourt, now Section 1, Rule 73 of the Revised Rules of !ourt, which provides that the estate of a decedent inhabitant of the /hilippines at the ti"e of his death, whether a citi<en or an alien, shall be in the court of first instance in the province in which he resided at the ti"e of his death, and if he i& an inhabitant of a foreign %ountry, the %ourt of fir&t in&tan%e of any pro(in%e in whi%h he ha$ e&tate . #ccordingl$, when the estate to be settled is that of a non1resident alien H li.e the deceased -uan Uriarte $ )oite H the !ourts of *irst +nstance in provinces where the deceased left an$ propert$ have concurrent 3urisdiction to ta.e cogni<ance of the proper special proceeding for the settle"ent of his estate. +n the case before Us, these !ourts of *irst +nstance are the 0egros and the %anila !ourts H province and cit$ where the deceased -uan Uriarte $ )oite left considerable properties. *ro" this pre"ise petitioner argues that, as the 0egros !ourt had first ta.en cogni<ance of the special proceeding for the settle"ent of the estate of said decedent ?Special /roceeding 0o. 23;;@, the %anila !ourt no longer had 3urisdiction to ta.e cogni<ance of Special /roceeding 0o. D13'2 intended to settle the estate of the sa"e decedent in accordance with his alleged will, and that consequentl$, the first court erred in dis"issing Special /roceeding 0o. 23;;, while the second court si"ilarl$ erred in not dis"issing Special /roceeding 0o. D13'2. +t can not be denied that a special proceeding intended to effect the distribution of the estate of a deceased person, whether in accordance with the law on intestate succession or in accordance with his will, is a "probate "atter" or a proceeding for the settle"ent of his estate. +t is equall$ true, however, that in accordance with settled 3urisprudence in this 3urisdiction, testate proceedings, for the settle"ent of the estate of a deceased person ta.e precedence over intestate proceedings for the sa"e purpose. Thus it has been held repeatedl$ that, if in the course of intestate proceedings pending before a court of first instance it is found it hat the decedent had left a last will, proceedings for the probate of the latter should replace the intestate proceedings even if at that stage an ad"inistrator had alread$ been appointed, the latter being required to render final account and turn over the estate in his possession to the e5ecutor subsequentl$ appointed. This, however, is understood to be without pre3udice that should the alleged last will be re3ected or is disapproved, the proceeding shall continue as an intestac$. #s alread$ adverted to, this is a clear indication that proceedings for the probate of a will en3o$ priorit$ over intestate proceedings. Upon the facts before Us the question arises as to whether -uan Uriarte Ia"acona should have filed the petition for the probate of the last will of -uan Uriarte $ )oite with the 0egros !ourt H particularl$ in Special /roceeding 0o. 23;; H or was entitled to co""ence the corresponding separate proceedings, as he did, in the %anila !ourt. The following considerations and the facts of record would see" to support the view that he should have sub"itted said will for probate to the 0egros !ourt, either in a separate special proceeding or in an appropriate "otion for said purpose filed in the alread$ pending Special /roceeding 0o. 23;;. +n the first place, it is not in accord with public polic$ and the orderl$ and ine5pensive ad"inistration of 3ustice to unnecessaril$ "ultipl$ litigation, especiall$ if several courts would be involved. This, in effect, was the result of the sub"ission of the will aforesaid to the %anila !ourt. +n the second place, when respondent 4iginio Uriarte filed an opposition to (icente Uriarte=s petition for the issuance of letters of ad"inistration, he had alread$ infor"ed the 0egros !ourt that the deceased -uan Uriarte $ )oite had left a will in Spain, of which a cop$ had been requested for &ubmi&&ion to &ai$ %ourt8 and when the other respondent, -uan Uriarte Ia"acona, filed his "otion to dis"iss Special /roceeding 0o. 23;;, he had sub"itted to the 0egros !ourt a cop$ of the alleged will of the decedent, fro" which fact it "a$ be inferred that, li.e 4iginio Uriarte, he .new before filing the petition for probate with the %anila !ourt that there was alread$ a special proceeding pending in the 0egros !ourt for the settle"ent of the estate of the sa"e deceased person. #s far as 4iginio Uriarte is concerned, it see"s quite clear that in his opposition to petitioner=s petition in Special /roceeding 0o. 23;;, he had e5pressl$ pro"ised to sub"it said will for probate to the 0egros !ourt. 6ut the fact is that instead of the aforesaid will being presented for probate to the 0egros !ourt, -uan Uriarte Ia"acona filed the petition for the purpose with the %anila !ourt. 9e can not accept petitioner=s contention in this regard that the latter court had no 3urisdiction to consider said petition, albeit we sa$ that it was not the proper (enue therefor. +t is well settled in this 3urisdiction that wrong (enue is "erel$ a wai(eable procedural defect, and, in the light of the circu"stances obtaining in the instant case, we are of the opinion, and so hold, that petitioner has waived the right to raise such ob3ection or is precluded fro" doing

so b$ laches. +t is enough to consider in this connection that petitioner .new of the e5istence of a will e5ecuted b$ -uan Uriarte $ )oite since Aece"ber 1', 1'21 when 4iginio Uriarte filed his opposition to the initial petition filed in Special /roceeding 0o. 23;;8 that petitioner li.ewise was served with notice of the e5istence ?presence@ of the alleged last will in the /hilippines and of the filing of the petition for its probate with the %anila !ourt since #ugust &7, 1'2& when -uan Uriarte Ia"acona filed a "otion for the dis"issal of Special /roceeding 0o. 23;;. #ll these notwithstanding, it was onl$ on #pril 1D, 1'23 that he filed with the %anila !ourt in Special /roceeding 0o. D13'2 an "nibus "otion as.ing for leave to intervene and for the dis"issal and annul"ent of all the proceedings had therein up to that date8 thus enabling the %anila !ourt not onl$ to appoint an ad"inistrator with the will anne5ed but also to ad"it said will to probate "ore than five "onths earlier, or "ore specificall$, on ctober 31, 1'2&. To allow hi" now to assail the e5ercise of 3urisdiction over the probate of the will b$ the %anila !ourt and the validit$ of all the proceedings had in Special /roceeding 0o. D13'2 would put a pre"iu" on his negligence. %oreover, it "ust be re"e"bered that this !ourt is not inclined to annul proceedings regularl$ had in a lower court even if the latter was not the proper (enue therefor, if the net result would be to have the sa"e proceedings repeated in so"e other court of si"ilar 3urisdiction8 "ore so in a case li.e the present where the ob3ection against said proceedings is raised too late. +n his order of #pril 1', 1'23 dis"issing Special /roceeding 0o. 23;;, -udge *ernande< of the 0egros !ourt said that he was "not inclined to sustain the contention of the petitioner that inas"uch as the herein petitioner has instituted !ivil !ase 0o. 21;& for co"pulsor$ ac.nowledg"ent b$ the decedent such action 3ustifies the institution b$ hi" of this proceedings. +f the petitioner is to be consistent with the authorities cited b$ hi" in support of his contention, the proper thing for hi" to do would be to intervene in the testate estate proceedings entitled Special /roceedings 0o. D13'2 in the !ourt of *irst +nstance of %anila instead of "aintaining an independent action, for indeed his supposed interest in the estate of the decedent is of his doubtful character pending the final decision of the action for co"pulsor$ ac.nowledg"ent." 9e believe in connection with the above "atter that petitioner is entitled to prosecute !ivil !ase 0o. 21;& until it is finall$ deter"ined, or intervene in Special /roceeding 0o. D13'2 of the %anila !ourt, if it is still open, or to as. for its reopening if it has alread$ been closed, so as to be able to sub"it for deter"ination the question of his ac.nowledg"ent as natural child of the deceased testator, said court having, in its capacit$ as a probate court, 3urisdiction to declare who are the heirs of the deceased testator and whether or not a particular part$ is or should be declared his ac.nowledged natural child ?++ %oran on Rules of !ourt, 1'D7 Ed., p. ;728 !onde vs. #ba$a, 13 /hil. &;'8 Severino vs. Severino, ;; /hil. 3;38 ,ope< vs. ,ope<, 27 /hil. &&7, and -i"oga1on vs. 6el"onte, ;7 . ). 111'@. !o"ing now to the supple"ental petition for man$amu& ?).R. 0o. ,1&1'3'@, 9e are of the opinion, and so hold, that in view of the conclusions heretofore stated, the sa"e has beco"e "oot and acade"ic. +f the said supple"ental petition is successful, it will onl$ result in co"pelling the 0egros !ourt to give due course to the appeal that petitioner was ta.ing fro" the orders of said court dated Aece"ber 7, 1'23 and *ebruar$ &2, 1'2;, the first being the order of said court dis"issing Special /roceeding 0o. 23;;, and the second being an order den$ing petitioner=s "otion for the reconsideration of said order of dis"issal. Said orders being, as a result of what has been said heretofore be$ond petitioner=s power to contest, the conclusion can not be other than that the intended appeal would serve no useful purpose, or, worse still, would enable petitioner to circu"vent our ruling that he can no longer question the validit$ of said orders. +0 (+E9 * T4E * RE) +0) ! 0S+AER#T+ 0S, 3udg"ent is hereb$ rendered den$ing the writs pra$ed for and, as a result, the petition for %ertiorari filed in ).R. 0o. ,1&1'37, as well as the supple"ental petition for man$amu&doc.eted as ).R. 0o. ,1&1'3', are hereb$ dis"issed. The writ of preli"inar$ in3unction heretofore issued is set aside. 9ith costs against petitioner.

G.R. No. L-3409

6e.ember 23, 1956 e.ea'e An re' E+'eb(o. EUGENI"

In ,/e %a,,er o- ,/e In,e',a,e o- ,/e EU$E#I", petitioner1appellee, vs.

A%AN6A EU$E#I", *UAN EU$E#I", 6ELFIN EU$E#I", VICEN1E EU$E#I", an EU$E#I",oppositors1appellants.

CARL"$

This case instituted on 0ove"ber 12, 1'D3, when Eugenio Eusebio filed with the !ourt of *irst +nstance of Ri<al, a petition for his appoint"ent as ad"inistrator of the estate of his father, #ndres Eusebio, who died on 0ove"ber &7, 1'D&, residing, according to said petition, in the !it$ of Cue<on. n Aece"ber ;, 1'D3, #"anda, (irginia, -uan, Aelfin, (icente and !arlos, all surna"ed Eusebio, ob3ected to said petition, stating that the$ are illegiti"ate children of the deceased and that the latter was do"iciled in San *ernando, /a"panga, and pra$ing, therefore, that the case be dis"issed upon the ground that venue had been i"properl$ filed. 6$ an order, dated %arch 1B, 1'D;, said court overruled this ob3ection and granted said petition. 4ence, the case is before us on appeal ta.en, fro" said order, b$ #"anda Eusebio, and her afore"entioned sister and brothers. The appeal hinges on the situs of the residence of #ndres Eusebio on 0ove"ber &7, 1'D&, for Rule 7D, section 1, of the Rules of !ourt, provides> 7here e&tate of $e%ea&e$ per&on& &ettle$. H +f the decedent is an inhabitant of the /hilippines at the ti"e of his death, whether a citi<ens or an alien, his will shall be proved, or letters of ad"inistration granted, and his estate, in the !ourt of *irst +nstance in the province in which he resides at the ti"e of his death, and if he is an inhabitant of a foreign countr$, the !ourt of *irst +nstance of an$ province in which he had estate. The court first ta.ing cogni<ance of the settle"ent of the estate of a decedent, shall e5ercise 3urisdiction to the e5clusion of all other courts. The 3urisdiction assu"ed b$ 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, e5cept in an appeal fro" that court, in the original case, or when the want of 3urisdiction appears on the record. +t is not disputed that up to, at least, ctober &', 1'D&, #ndres Eusebio was, and had alwa$s been, do"iciled in San *ernando, /a"panga, where he had his ho"e, as well as so"e other properties. +nas"uch as his heart was in bad condition and his son, Ar. -esus Eusebio, who treated hi", resided at 0o. ;1 /. *lorentino St., Cue<on !it$, on ctober &', 1'D&, #ndres Eusebio bought a house and lot at 77'1# EspaFa E5tention, in said !it$ ?E5hibit &@. 9hile transferring his belongings to this house, soon thereafter, the decedent suffered a stro.e ?probabl$ heart failure@, for which reason Ar. Eusebio too. hi" to his ?Ar. Eusebio=s@ afore"entioned residence, where the decedent re"ained until he was brought to the UST 4ospital, in the !it$ of %anila, so"eti"es before 0ove"ber &2, 1'D&. n this date, he contracted "arriage in arti%ulo morti& with his co""on law wife, !oncepcion (illanueva, in said hospital. Two ?&@ da$s later, he died therein of "acute left ventricular failure secondar$ to h$pertensive heart disease", at the age of sevent$1four ?7;@ $ears ?E5hibit #@. !onsequentl$, he never sta$ed or even slept in said house at EspaFa E5tention. +t being apparent fro" the foregoing that the do"icile of origin of the decedent was San *ernando, /a"panga, where he resided for over sevent$ ?7B@ $ears, the presu"ption is that he retained such do"icile, and, hence, residence, in the absence of satisfactor$ proof to the contrar$, for it is well1settled that "a do"icile once acquired is retained until a new do"icile is gained" ?%inor, !onflict of ,aws, p.7B8 Restate"ent of the ,aw on !onflict of ,aws, p. ;78 +n re Estate of -ohnson, 1'& +owa, 77@. Under the circu"stances surrounding the case at bar, if #ndres Eusebio established another do"icile, it "ust have been one of choice, for which the following conditions are essential, na"el$> ?1@ capacit$ to choose and freedo" of choice8 ?&@ ph$sical presence at the place chosen8 and ?3@ intention to sta$ therein per"anentl$ ?%inor, !onflict of ,aws, pp. 1B'111B8 )oogrich, !onflict of ,aws, p. 12'8 (elilla (&. /osadas, 2& /hil., 2&;8 Iuellig (&. Republic of the /hilippines, ;2 ff. )a<. Suppl. 0o. 11, p. &&B@. #d"ittedl$, the decedent was 3uridicall$ capable of choosing a do"icile and had been in Cue<on !it$ several da$s prior to his de"ise. Thus, the issue narrows down to whether he intended to sta$ in that place per"anentl$. There is no direct evidence of such intent. 0either does the decedent appears to have "anifested his wish to live indefinitel$ in said cit$. 4is son, petitioner1appellee, who too. the witness stand, did not testif$ thereon, despite the allegation, in his answer to the afore"ention, opposition of the appellants herein, that "the deceased ?had@ decided to reside . . . for the rest of his life, in Cue<on !it$". %oreover, said appellee did not introduce the testi"on$ of his legiti"ate full brother and son of the decedent, Ar. -esus Eusebio, upon whose advice, presu"abl$, the house and lot at 0o. 77'1# EspaFa E5tention was purchased, and who, therefore, "ight have cast so"e light on his ?decedent=s@ purpose in bu$ing said propert$. This notwithstanding, the lower court held that the decedent=s intent to sta$ per"anentl$ in Cue<on !it$ is ""anifest" fro" the acquisition of said propert$ and the transfer of his belonging thereto. This conclusion is untenable.lawphil.net

The afore"entioned house and lot were bought b$ the decedent because he had been adviced to do so "due to his illness", in the ver$ words of herein appellee. +t is not i"probable H in fact, its is ver$ li.el$ H that said advice was given and followed in order that the patient could be near his doctor and have a "ore effective treat"ent. +t is well settled that "do"icile is not co""onl$ changed b$ presence in a place "erel$ for one=s own health", even if coupled with ".nowledge that one will never again be able, on account of illness, to return ho"e." ?The !onflict of ,aws, b$ 6eale, (ol. +, pp. 17&11738 see, also, Shenton (&. #bbott, %d., 1D., #. &d. 'B28 U.S. (&. Jnight, A. !. %ont., &'1 *ed. 1&'@. #gain, the decedent did not part with, or alienate, his house in San *ernando, /a"panga. %oreover, so"e of his children, who used to live with hi" in San *ernando, /a"panga, re"ained in that "unicipalit$. Then, again, in the deed E5hibit &, b$ virtue of which said propert$ at 0o. 77'1# EspaFa E5tention, Cue<on !it$, was conve$ed to hi", on ctober &', 1'D&, or le&& than a month before hi& $eath, the decedent gave ,an )ernan$o, 'ampanga, as his residence. Si"ilarl$, the "#" and "6" residence certificates used b$ the decedent in a.nowledging said E5hibit &, before a notar$ public, was issued in ,an )ernan$o, 'ampanga. ,astl$, the "arriage contract E5hibit 1, signed b$ the deceased when he was "arried, in arti%ulo morti&, to !oncepcion (illanueva, at the UST 4ospital, on 0ove"ber &2, 1'D&, or two ?&@ da$s prior to his de"ise, stated that his residence is ,an )ernan$o, /a"panga. +t is worth$ of notice that #lfonso Eusebio, one of the legiti"ate full brothers of the herein appellee, was a witness to said wedding, thus indicating that the children of the deceased b$ his first "arriage, including said appellee, were represented on that occasion and would have ob3ected to said state"ent about his residence, if it were false. !onsequentl$, apart fro" appellee=s failure to prove satisfactor$ that the decedent had decided to establish his ho"e in Cue<on !it$, the acts of the latter, shortl$ and i""ediatel$ before his death, prove the contrar$. #t an$ rate, the presu"ption in favor of the retention of the old do"icile 1H which is particularl$ strong when the do"icile is one of the origin &as San *ernando, /a"panga, evidentl$ was, as regards said decedent H has not been offset b$ the evidence of record. The lower court, however, re3ected said E5hibits 1 and &, upon being offered in evidence, and refused to entertain the sa"e in the order appealed fro". The reason therefor are deducible fro" its resolution in re3ecting said docu"ents during the hearing of the incident at bar. The court then held> E5ihibits "1" and "&" are re3ecting but the sa"e "a$ be attached to the records for whatever action oppositors "a$ want to ta.e later on because until now the personalit$ of the oppositors has not been established whether or not the$ have a right to intervene in this case, and the !ourt cannot pass upon this question as the oppositors refuse to sub"it to the 3urisdiction of this !ourt and the$ "aintain that these proceedings should be dis"issed. ?/. 1B, t. s. n.@ +n short, the lower court believed that said docu"ents should not be ad"itted in evidence before appellants had established their "personalit$" to intervene in the case, referring see"ingl$ to their filiation. 9hen appellants, however, sought, during said hearing, to establish their relation with the deceased, as his alleged illegiti"ate children, 4is 4onor, the trial -udge sustained appellee=s ob3ection thereto stating> Mour stand until now is to question the 3urisdiction of this !ourt, and it see"s that $ou are now tr$ing to prove the status of $our client8 $ou are leading so that. The "ain point here is $our contention that the deceased was never a resident of Cue<on !it$ and that is wh$ + allowed $ou to cross1e5a"ine. +f $ou are tr$ing to establish the status of the oppositors, + will sustain the ob3ection, unless $ou want to sub"it to the 3urisdiction of the !ourt. This is not $et the ti"e to declare who are persons who should inherit. ?p. 1, t. s. n.@ Thus, the lower court refused to consider appellant=s evidence on the do"icile of the decedent, because of their alleged lac. of "personalit$", but, when tried to establish such "personalit$", the$ were barred fro" doing so on account of the question of venue raised b$ hi". 9e find ourselves unable to sanction either the foregoing procedure adopted b$ the lower court or the inference it drew fro" the circu"stances surrounding the case. To begin with, 4is 4onor, the trial -udge had ta.en inconsistent positions. 9hile, on the one hand, he declared that appellants could not be per"itted to introduce evidence on the residence of the decedent, for the$ %onte&te$the 8uri&$i%tion of %ourt, on the other hand, he held, in the order appealed fro", that, b$ cross1e5a"ining the appellee, said appellants had &ubmitte$ them&el(e& to the authority of the %ourt. 9hat is "ore, this conclusion is refuted b$ the record. #t the beginning of the hearing, in the lower court, appellants= counsel announced that he would ta.e part therein " only to +ue&tion the 8uri&$i%tion, for the purpose of dis"issing this proceeding," ?p. &, t.s.n.@. Auring the cross1

e5a"ination of petitioner herein, said counsel tried to elicit the relation between the decedent and the appellants. #s, the appellee ob3ected thereto, the court said, addressing appellants= counsel> "9our &tan$ until now i& to +ue&tion the 8uri&$i%tion of the %ourt. . . . +t $ou are tr$ing to establish the status of the oppositors, # will &u&tain the ob8e%tion, unle&& you want to &ubmit to the 8uri&$i%tion of the %ourt" ?p. 7, t.s.n.@. Thereupon, appellants= counsel refused to do so, stating> "+ will insist on "$ stand." Then, too, at the conclusion of the hearing, the court re3ected E5hibits 1 and &, for the reason that appellants "refu&e to &ubmit to the 8uri&$i%tion of thi& %ourt and the$ "aintain that these proceedings should be$i&mi&&e$." Thus, appellants speciall$ "ade of record that the$ were not sub"itting the"selves to the 3urisdiction of the court, e5cept for the purpose only of a&&ailing the sa"e, and the court felt that appellants were not gi(ing up their &tan$, which was, and is, a fact. #t an$ rate, appellants were entitled to establish facts tending to prove, not onl$ their right to ob3ect to appellee=s petition, but, also, that venue had been laid i"properl$. Such facts were> ?a@ their alleged relationship with the decedent, 3 which, if true, entitle the" to proceed hi" under the !ivil !ode of the /hilippines8 and ?b@ his alleged residence is /a"panga. +n other words, the lower court should have ad"itted E5hibits 1 and & in evidence and given thereto the proper effect, in connection with the issue under consideration. #ppellee, however, as.s> "9hat will happen if this case be dis"issed in the !ourt of *irst +nstance of Cue<on !it$ on the ground of lac. of 3urisdiction or i"proper venueG" +n this connection, it appears that on 0ove"ber 1;, 1'D3, the !ler. of the !ourt of *irst +nstance of /a"panga received a petition of appellants herein, dated 0ove"ber ;, 1'D3, for the settle"ent of the "+ntestate Estate of the late Aon #ndres Eusebio". #ttached to said petition was petition for the doc.eting thereof free charge, pursuant to Rule 3, section &&, of the Rules of !ourt. The latter petition was granted b$ an order dated 0ove"ber 12, 1'D3, which was received b$ the cashier of said court on 0ove"ber 17, 1'D3, on which date the case was doc.eted as Special /roceedings 0o. 'D7. n Aece"ber 1;, 1'D3, -esus, Eugenio, #"ando and #lfonso, all surna"ed Eusebio ?the children of the decedent b$ first "arriage, including petitioner herein@, "oved for the dis"issal of said proceedings, owing to the pendenc$ of the present case, before the !ourt of *irst +nstance of Ri<al, since 0ove"ber 12, 1'D3. This "otion was granted in an order dated Aece"ber &1, 1'D3, rel$ing upon the above Rule 7D, section 1, of the Rules of !ourt, pursuant to which "the court first ta.ing cogni<ance of the settle"ent of the estate of a decedent, shall e5ercise 3urisdiction to the e5clusion of all other courts." #lthough said order is now final, it cannot affect the outco"e of the case at bar. Said order did not pass upon the question of do"icile or residence of the decedent. %oreover, in granting the court first ta.ing cogni<ance of the case e5clusive 3urisdiction over the sa"e, said provision of the Rules of !ourt evidentl$ refers to cases triable before two or "ore courts with %on%urrent 3urisdiction. +t could not possibl$ have intended to deprive a co"petent court of the authorit$ vested therein b$ law, "erel$ because a si"ilar case had been previousl$ filed before a court to whi%h 8uri&$i%tion i& $enie$ by law, for the sa"e would then be defeated b$ the will of one of the parties. %ore speciall$, said provision refers "ainl$ to non1resident decedents who have properties in several provinces in the /hilippines, for the settle"ent of their respective estates "a$ underta.en before the court of first instance of either one of said provinces, not onl$ because said courts then have concurrent 3urisdiction H and, hence, the one first ta.ing cogni<ance of the case shall e5clude the other courts H but, also, because the state"ent to this effect in said section 1 of Rule 7D of the Rules of the !ourt i""ediatel$ follows the last part of the ne5t preceding sentence, which deals with non1resident decedents, whose estate "a$ settled the court of first instance of an$ province in which the$ have properties.lawphil.net +n view, however, of the last sentence of said section, providing that> . . . The 3urisdiction assu"ed b$ a court, so far as it depends on the place of residence of the decedent, or of the location of his estate, shall not be contested in a suit or proceedings, e5cept in an appeal fro" that court, in the original case, or when the want of 3urisdiction appears on the record. if proceedings for the settle"ent of the estate of a deceased resident are instituted in two or "ore courts, and the question of venue is raised before the sa"e, the court in which the first case was filed shall have e5clusive 3urisdiction to decide said issue, and we so held in the case of Taciana (da. Ae 6or3a (&. Tan, ,177'& ?-ul$ &7, 1'DD@. Should it be decided, in the proceedings before the said court, that venue had been i"properl$ laid, the case pending therein should be dis"issed and the corresponding proceedings "a$, thereafter, be initiated in the proper court. +n conclusion, we find that the decedent was, at the ti"e of his death, do"iciled in San *ernando, /a"panga8 that the !ourt of *irst +nstance of Ri<al had no authorit$, therefore, to

appoint an ad"inistrator of the estate of the deceased, the venue having been laid i"properl$8 and that it should, accordingl$, have sustained appellants= opposition and dis"issed appellee=s petition. 9herefore, the order appealed fro" is hereb$ reversed and appellee=s petition is dis"issed, with costs against the appellee. +t is so ordered.

G.R. No. L-275

%ar./ 29, 1947

CRE$ENCIA !ERNAN6E;, plaintiff1appellee, vs. ;ACARIA$ AN6AL, defendant1appellant.

<UIRIN" 6I%A$ACA1, %ARIA !ERNAN6E; an appellants.

A<UILINA !ERNAN6E;, intervenors1

The plaintiff, !resencia 4ernande<, the intervenors, %aria and #quilina 4ernande<, and /edro and 6asilia 4ernande< who are not parties here, are brother and sisters. The$ acquired in co""on b$ descent fro" their father a parcel of land of which he died sei<ed and .nown as lot 0o. 1&BB73 of the 6atangas cadastral surve$. n -anuar$ &3, 1';;, the intervenors sold 17BB square "eters of this parcel, a portion which is particularl$ described in the deed of conve$ance E5hibit #, to Iacarias #ndal, the defendant, and #ndal=s wife in consideration of /72B. This portion purports to be the co"bined shares of the intervenors in the larger parcel, allotted to the" in a verbal partition alleged to have been "ade ?ti"e not stated@ a"ong the five brother and sisters. #fter the sale, on a date as to which the evidence is in disagree"ent but which is not now i"portant, the plaintiff atte"pted to repurchase the land sold to #ndal. #ccording to her original co"plaint, dated *ebruar$ 3, 1';;, she offered the purchasers /1DB as price of repurchase, this being, according to that co"plaint, the a"ount #ndal had paid for %aria 4ernande<=s and #quilina 4ernande<=s shares, but #ndal, it is alleged, refused to part with the propert$. n #pril 7, the plaintiff filed a supple"ental co"plaint. She alleged that when the cause was called for trial on %arch 7, she announced in open court that she was willing to repurchase her sister=s share fro" #ndal for /72B and rei"burse #ndal for his e5pense8 that #ndal as.ed for continuance until the &'th stating that he had "ade other e5penses8 that on &'th she brought /72B to repurchase the land in question but the case was again postponed because the plaintiff=s sisters had intervened8 and that "eanwhile, on the &2th, #ndal resold the land fictitiousl$ to the vendors for /'7B. +t results that on the date last "entioned #ndal e5ecuted a deed of sale for /'7B in favor of the intervenors, an a"ount which included #ndal=s e5penses as well as the nor"al sale price. The docu"ent of repurchase gave as reason for the transaction the fact that it had been agreed that in the event trouble should arise the sellers should return to the bu$er what the$ had received and pa$ the latter his e5penses. n *ebruar$ 1;, 1';;, the defendant filed his answer alleging that %aria and #quilina 4ernande< had sold hi" their respective portions of the inherited land for /72B and that he had no ob3ection to disposing of those portions in favor of the plaintiff for /72B plus the e5penses he had incurred in the e5ecution of the deed of sale a"ounting to /DB, but that he was unwilling to accept /1DB, which was all the plaintiff offered hi" besides his e5penses. n #pril ;, 1';;, %aria and #quilina 4ernande<=s answer in intervention was filed. The intervenors alleged that there had been a partition a"ong the" and their brother and sisters "with the share of each delineated and "ar.ed, and after partition and delineation ever$one too. e5clusive, separate and independent possession of his portion in the partition." The$ charged the plaintiff with bad faith in that "it was upon her request for chance that the sale to the defendant, about to ta.e place last 0ove"ber, was dela$ed till -anuar$ of this $ear when she finall$ infor"ed the intervenors that the$ could sell to the defendant, or she could pa$ onl$ /1DB and could not raise the a"ount of /72B offered b$ the defendant." !resencia 4ernande<, the plaintiff, was the onl$ witness to testif$ on her own behalf. Substantiall$ she reiterated the allegations in her two co"plaints. Iacarias #ndal, the defendant, also testified. 4e said that he was in possession of the land in question until he returned it to the intervenors. 4e declared that the plaintiff offered to repurchase the land fro" hi" long after he had bought it, that is, when she was about to file her action. 4e stated that after he ca"e fro" !andelaria, Ta$abas, with the docu"ent of sale he showed it to the plaintiff> that was on the &3rd of -anuar$. 4e was able to do this because he lived near !resencia and passed b$ her house on his wa$ ho"e fro" !andelaria. 4e said that !resencia 4ernande< upon being shown the docu"ent "erel$ e5clai"ed, " h, so $ou alread$ have a docu"ent." 9hen as.ed whether the land "described in the co"plaint of the herein plaintiff has been the ob3ect of partition a"ong the co1owners /edro, 6asilia, !resencia, %aria and #quilina surna"ed 4ernande<," counsel for the plaintiff ob3ected on the ground that the best evidence was the docu"ent of partition, and the ob3ection was sustained. The sa"e ob3ection and the sa"e ruling were "ade on the sa"e ground when the witness was queried how it was that the land he had bought fro" %aria and #quilina 4ernande< had been specified in the deed of sale, E5hibit #.

+n consequence of this ruling, counsel for the defendant and intervenors did not call an$ "ore witnesses but onl$ announced that he had witnesses read$ to prove that a parol partition a"ong the five brother and sisters had been "ade, "entioning the na"es of si5 such witnesses. !ounsel for the plaintiff again ob3ected asserting that "under the Rules of !ourt agree"ent affecting real estate "a$ not be proved e5cept b$ "eans of writing subscribed b$ the person against who" the proof is offered. "Upon this ob3ection, the court ruled that under Rules 7; and 1&3 of the Rules of !ourt ?Statute of *rauds@ as well as under article 1&;7 of the !ivil !ode, parol evidence of partition was inad"issible, adding that to decide the case it had enough with the testi"on$ and evidence offered b$ the parties. Thereafter the court handed down its decision declaring that the resale of the land b$ Iacarias #ndal in favor of %aria and #quilina 4ernande< was illegal and in bad faith. +t, however, did not see" to have found as a fact the allegation that the resale was si"ulated. The court then "ade this 3udg"ent> ?a@ declarando $ sin valor alguno el docu"ento de reventaotorgado por el de"andado Iacarias #ndal en &2 de "ar<o de 1';;, a favor de %aria $ #quilina 4ernande< sobre el terrenocuestionado que se presento co"o E5hibito & de dichode"andado, $ consiguiente"ente se anulan ta"bien todas lastransacciones posteriores que las "encionadas %aria $ #quilina 4ernande< ha$an hecho sobre el terreno cuestionado despuesdel &2 de "ar<o de 1';;, asi co"o ta"bien cualquiera anotacionen la ficiana del Registrador de Titulos de 6atangas que ha$aanotado dicha reventa por el de"andado Iacarias #ndal a favorde las terceristas %aria $ #quilina 4ernande< en el citado dia &2 de "ar<o de 1';;8 $ ?b@ se ordena al aqui de"andado Iacarias #ndal, que otorgue unaescritura de reventa a favor de la aqui de"andante !resencia 4ernande<, de las participaciones de las terceristas en el terrenodescrito en la de"anda suple"entaria previo pago de /72B "as lacantidad de /DB co"o gastos de docu"entacion. Se absuelve al de"andado de los daFos $ per3uicios que recla"a la de"andante. Se absuelve ta"bien a la de"andante de la contra1de"anda de lasterceristas. Sin especial pronuncia"ento en cuanto a las costas. The defendant and the intervenors are appealing fro" the foregoing decision and in their 3oint brief "ade one assign"ent of error> The lower court erred in refusing to ad"it oral evidence for proving a contract of partition a"ong the heirs on the ground that it was not ad"issible. 6efore proceeding with a discussion of the questions raised we are te"pted to point up so"e see"ing incongruities in the above1quoted 3udg"ent. #lthough Iacarias #ndal is no longer interested in the case, as far as the land is concerned, and even though the intervenors have beco"e again the absolute owners and are now in full possession of the propert$, while #ndal has alread$ gotten his "one$ bac., the 3udg"ent would have #ndal e5ecute a deed of resale in favor of the plaintiff and received fro" her the price of repurchase. The 3udg"ent is silent as to the intervenors with reference to the e5ecution of the deed of sale or the receipt of the sale price. #nd the lower court "ade no finding and e5pressed no opinion as to whether the offer of /1DB instead of /72B, not to "ention #ndal=s e5penses, b$ the plaintiff as price of repurchase was sufficient co"pliance with article 1B27 of the !ivil !ode on which the court rested the plaintiff=s cause of action. 4owever, in this decision we are concerned "ainl$ with the application of section &1 of Rule 1&3 and section 1 of Rule 7; both of the Rules of !ourt. #rticle 1&;7 of the !ivil !ode has no bearing on the case. There is a conflict of authorit$ as to whether an agree"ent of partition is such a contract as is required to be in writing under the statute of frauds. ne line of authorities holds the affir"ative view8 other authorities sa$ no. The reason for the rule that e5cludes partition fro" the operation of the statute of frauds is that partition is not a conve$ance but si"pl$ a separation and designation of that part of the land which belongs to each tenant in co""on. ?&7 !.-., &B2.@ The differences in the conclusions reached are "due perhaps to varied phraseolog$ of the statutes" in the several states. ?;B #"er. -ur., 1D.@ 4owever the case "a$ be, as enacted in the /hilippines, first in section 33D of the for"er !ode of !ivil /rocedure, and now in Rule 1&3, section &1, of the Rules of !ourt, the law has been unifor"l$ interpreted in a long line of cases to be applicable to e5ecutor$ and not to co"pleted or e5ecuted contracts. ?&7 !.-., &B2.@ +n this 3urisdiction perfor"ance of the contract ta.es it out of the operation of the statute. ?)o"e< (&. Salcedo, &2 /hil., ;7D8 #l"irol and !ariFo (&. %onserrat, ;7 /hil., 27.@ The statute of frauds does not declare the contracts therein enu"erated void and of no legal

effect, but onl$ "a.es ineffective the action for specific perfor"ance. ?#l"irol and !ariFo (&. %onserrat, &upra.@ +n the United States, even in those states where the affir"ative view of the question has been followed, "the weight of authorit$ upholds the rule that an oral partition is effective when several possession is ta.en under it b$ the respective parties to the agree"ent." ?&7 !.-., &B2.@ n general principle, independent and in spite of the statute of frauds, courts of equit$ have enforced oral partition when it has been co"pletel$ or partl$ perfor"ed. Regardless of whether a parol partition or agree"ent to partition is valid and enforceable at law, equit$ will in proper cases, where the parol partition has actuall$ been consu""ated b$ the ta.ing of possession in severalt$ and the e5ercise of ownership b$ the parties of the respective portions set off to each, recogni<e and enforce such parol partition and the rights of the parties thereunder. Thus, it has been held or stated in a nu"ber of cases involving an oral partition under which the parties went into possession, e5ercised acts of ownership, or otherwise partl$ perfor"ed the partition agree"ent, that equit$ will confir" such partition and in a proper case decree title in accordance with the possession in severalt$. +n nu"erous cases it has been held or stated that parol partitions "a$ be sustained on the ground of estoppel of the parties to assert the rights of a tenant in co""on as to parts of the land divided b$ parol partition as to which possession in severalt$ was ta.en and acts of individual ownership were e5ercised. #nd a court of equit$ will recogni<e the agree"ent and decree it to be valid and effectual for the purpose of concluding the right of the parties as between each other to hold their respective parts in severalt$. # parol partition "a$ also be sustained on the ground that the parties thereto have acquiesced in and ratified the partition b$ ta.ing possession in severalt$, e5ercising acts of ownership with respect thereto, or otherwise recogni<ing the e5istence of the partition. # nu"ber of cases have specificall$ applied the doctrine of part perfor"ance, or have stated that a part perfor"ance is necessar$, to ta.e a parol partition out of the operation of the statute of frauds. +t has been held that where there was a partition in fact between tenants in co""on, and a part perfor"ance, a court of equit$ would have regard to and enforce such partition agreed to b$ the parties. ?;B #"er. -ur., 1D117.@ +t is on the effects of Rule 7;, section 1, of the Rules of !ourt on a parol partition that there are sharp divergences of opinion a"ong the "e"bers of this !ourt. This section reads> +f the decedent left no debts and the heirs and legatees are all of age, or the "inors are represented b$ their 3udicial guardians, the parties "a$, without securing letters of ad"inistration, divide the estate a"ong the"selves as the$ see fit b$ "eans of a public instru"ent file in the office of the register of deeds, and should the$ disagree, the$ "a$ do so in an ordinar$ action of partition. +f there is onl$ one heir or one legatee, he "a$ ad3udicate to hi"self the entire estate b$ "eans of an affidavit filed in the office of the register of deeds. +t shall be presu"ed that the decedent left no debts if no creditor files a petition for letters of ad"inistration within two $ears after the death of the decedent. +t is contended that under this rule a verbal partition is entirel$ void and cannot be validated b$ an$ acts of the parties short of the e5ecution of a public docu"ent and its registration. #s a general proposition, transactions, so far as the$ affect the parties, are required to be reduced to writing either as a condition of 3ural validit$ or as a "eans of providing evidence to prove the transactions. 9ritten for" e5acted b$ the statute of frauds, for e5a"ple, "is for evidential purposes onl$." ?Ao"alagan (&. 6olifer, 33 /hil., ;71.@ The decisions of this !ourt which we have noticed were predicated on this assu"ption. The !ivil !ode, too, requires the acco"plish"ent of acts or contracts in a public instru"ent, not in order to validate the act or contract but onl$ to insure its efficac$ so that after the e5istence of the acts or contracts has been ad"itted, the part$ bound "a$ be co"pelled to e5ecute the docu"ent. ?4awaiian /hilippine !o. (& .4ernae<, ;D /hil., 7;2.@ +s section 1 of Rule 7; %on&tituti(e and not "erel$ e(i$ential of partitionG +n other words, is writing the act that confers legal validit$ upon the agree"entG There are no indications in the phraseolog$ of this rule which 3ustif$ an affir"ative answer to these questions. +t "ust be noted that where the law intends a writing or other for"alit$ to be the essential requisite to the validit$ of the transactions it sa$s so in clear and unequivocal ter"s. Thus, the statute of frauds as originall$ enacted in England and as enacted in so"e of the states, uses the words "utterl$ void" with statute transactions required to be in writing are absolutel$ void and not "erel$ voidable if not "ade in the "anner indicated. #gain article 233 of the !ivil !ode sa$s

that donation "a$ be (ali$ onl$ when "ade in a public docu"ent. #rticle 1;2 of the %ortgage ,aw "a.es .nown its intention to have the e5ecution of a public instru"ent and its registration in the registr$ indispensable to the validit$ of the contract b$ using this phrase> "in order that voluntar$ "ortgages "a$ be legall$ created in a valid "anner." #rticle 172D of the !ivil !ode also e"plo$s for the sa"e purpose si"ilar e5pression with reference to the e5ecution of a public docu"ent> "in order that "ortgage "a$ be validl$ constituted." #nd with respect to the for"alities of last wills and testa"ents, section 217 of #ct 0o. 1'B "a.es this e"phatic state"ent> "0o will shall be valid to pass upon an$ estate real or personal nor change or affect the sa"e, unless it be written etc." ther e5a"ples "ight be "entioned. Section 1 of Rule 7; contains no such e5press or clear declaration that the required public instru"ents is to be constitutive of a contract of partition or an inherent ele"ent of its effectiveness as between the parties. #nd this !ourt had no apparent reason, in adopting this rule, to "a.e the efficac$ of a partition as between the parties dependent on the e5ecution of a public instru"ent and its registration. n the other hand, the opposite theor$ is not without reasonable support. 9e can thin. of possible factors against the proposition that a public docu"ent and its registration were conte"plated as necessar$ ingredients to give life to a contract of partition so that without the" no oral partition can bind the parties. 1. +n the first place, the Rules of !ourt of which the rule under consideration for"s a part were pro"ulgated b$ the -udicial Aepart"ent under authorit$ to deal with "atters of procedure e5clusivel$. *or this court to prescribe what is to be a binding agree"ent between co1heirs in the settle"ent of their private affairs which in no wa$ affect the rights of third parties would be to transcends its rule1"a.ing power. 9e bring out this li"itation upon the authorit$ of this court to "a.e rules, as an aid to interpretation, as a "ethod of arriving at the conclusion that section 1 of Rule 7; was "eant to be re"edial and not a rule of substantive law of far1reaching i"portance and serious 3uridical and practical i"plications. +t is to be presu"ed that the fra"ers of the Rules of !ourt reali<ed the bounds of this court=s functions and did not intend to trespass on purel$ substantive rights of the parties to the partition. To the e5tent the e5ecution and registration of a notari<ed instru"ent are "ade essential ele"ents to validit$ to protect innocent third parties, the rule is legiti"ate and necessar$8 legiti"ate because decedent=s estate are placed under the 3urisdiction of the courts to ad"inister and distribute. The interests of third parties eli"inated, the rule loses its character as one of procedure and practice and invades the real" of substantive law. Section D'2 of #ct 0o. 1'B, which is the precursor of section 1 Rule 7;, is enlightening and instructive. The for"er after stating that heirs "a$ apportion and divide the estate a"ong the"selves as the$ "a$ see fit b$ agree"ent dul$ e5ecuted in writing b$ all of the", adds the words "and not otherwise." These words, in our opinion, were e5pressive of an intention to "a.e the written for"alit$ inherent ele"ent of the validit$ of a parol partition. 6ut what is far "ore to the point is that b$ logical process of deduction the eli"ination fro" the new rule of the words "and not otherwise" i"ports the casting awa$ fro" the prescribed public docu"ent of its 3ural character which the docu"ent en3o$ed in the for"er code. #t the sa"e ti"e, the inclusion of the aforesaid words in the old provision serves to e"phasi<e the necessit$ of a positive and clear language if a given contractual for"alit$ is to be the e5clusive basis of the contract=s binding effect on the parties. +t is of course unnecessar$ to sa$ that the attaching of 3ural character to the prescribed public instru"ent in section D'2 of #ct 0o. 1'B is no argu"ent for contending that such docu"ent "ust be clothed with the sa"e rai"ent in the new Rules. #ct 0o. 1'B was a "i5ture of procedural and substantive provisions, having been enacted b$ the legislative bod$ itself which, unli.e this court, was unha"pered and untra""elled, e5cept b$ the funda"ental law, in the choice of its sub3ects of legislation. &. The civil law loo.s upon the role of public instru"ents in acts and contracts with greater liberalit$ with a view to better adaptation to hu"an frailties and idios$ncracies. +n their blind faith in friends and relatives, in their lac. of e5perience and foresight, and their ignorance, "en, in spite of laws, will "a.e and continue to "a.e verbal contracts. The advantages of an air1tight polic$ concerning such contracts fall far short of co"pensating for the resulting da"age, in3ustice, inconveniences and confusion. So even though articles 1&77, 1&7' and 1&7B of the !ivil !ode have "ade provisions for public instru"ent for all transactions and contracts whose ob3ect is the creation, "odification or e5tinction of real rights in i""ovables, it has been recogni<ed and held that verbal contracts "a$ be effective between the parties. # leading case on this sub3ect is Thunga !hui (&. Cue 6entec ?& /hil., D21@, %r. -ustice 9illiard writing the decision. +t was said in that case that when the essential requisites for the e5istence of a contract are present, the contract is binding upon the parties, and, although required to be in writing b$ article 1&7B of the !ivil !ode, the plaintiff can "aintain an action under article 1&7' to co"pel the e5ecution of a written instru"ent. +t sa$s that "article 1&7' does not i"pose an obligation, but confers a privilege upon both contracting parties, and the fact that the plaintiff has not "ade use of sa"e does not bar his action." +t further sa$s that article 1&7', far fro" "a.ing the enforceabilit$ of the contract dependent upon an$ special

intrinsic for", recogni<es its enforceabilit$ b$ the "ere act of granting the contracting parties an adequate re"ed$ whereb$ to co"pel the e5ecution of public writing or an$ other special for" whenever such for" is necessar$ in order that contract "a$ produce the effect which is desired according to whatever its ob3ect. This doctrine was iterated and reiterated in a series of decisions perhaps longer than that on an$ other legal topic. #nd it has been e5tended even to verbal contracts involving land registered under the Torrens #ct. Ao the Rules of !ourt adhere to this salutar$ principleG 9e can perceive no sufficient ground for the new Rules to depart fro" it. 0o considerations of public polic$ enter into a partition of hereditar$ estate a"ong co1heirs greater than those involved in a contract between strangers which operates to create, trans"it, "odif$ or e5tinguish propert$ rights in land. +f as between strangers the creation, trans"ission, "odification or e5tinction of real rights "a$ be lawfull$ effected b$ parol agree"ent notwithstanding the require"ent that it be put in writing, the new rule could not be "ore intransigent when the transaction is between co1heirs and there is no change of ownership but si"pl$ designation and segregation of that part which belongs to each heir. The require"ent that a partition be put in a public docu"ent and registered has, in our opinion, for its purpose the protection of creditors and at the sa"e ti"e the protection of the heirs the"selves against tard$ clai"s. 0ote that the last sentence of the section spea.s of debts and creditors. The ob3ect of registration is to serve as constructive notice, and this "eans notice to others. +t "ust follow that the intrinsic validit$ of partition not e5ecuted with the prescribed for"alities does not co"e into pla$ when, as in this case, there are no creditors or the rights of creditors are not affected. 0o rights of creditors being involved, it is co"petent for the heirs of an estate to enter into an agree"ent for distribution in a "anner and upon a plan different fro" those provided b$ law. +t is said that the findings, conclusions and 3udg"ent in the appealed decision are not assigned as errors and that for this reason the appeal should be dis"issed. 9e do not thin. that the pre"ise of this ob3ection is e5actl$ correct. The evidence on parol partition tendered b$ the defendant and intervenors was ruled out and the$ specificall$ co"plain of this e5clusion as error. +n this "anner the assign"ent of error squarel$ "eets and attac.s the opinion and 3udg"ent of the trial court. # superficial anal$sis of the case will show that on the validit$ of the alleged partition hangs the result of the entire litigation, and on that validit$ depends in turn the co"petence of the e5cluded evidence. These two interrelated points are the core of the whole case. #ll other points are incidental to and revolve around the". +f a co"pleted oral partition "a$ be enforced, as the defendant and the intervenors contend and as we opine, their evidence should be allowed, and if allowed and it establishes their allegation, the plaintiff=s cause of action vanishes. +f the appellant=s assign"ent of error be not considered a direct challenge to the decision of the court below, we still believe that the ob3ection ta.es a narrow view of practice and procedure contrar$ to the liberal spirit which pervades the Rules of !ourt. The first in3unction of the new Rules ?Rule 1, section &@ is that the$ "shall be liberall$ construed in order to pro"ote their ob3ect and to assist the parties in obtaining 3ust, speed$, and ine5pensive deter"ination of ever$ action and proceeding." +n line with the "odern trends of procedure, we are told that, "while an assign"ent of error which is required b$ law or rule of court has been held essential to appellate review, and onl$ those assigned will be considered, there are a nu"ber of cases which appear to accord to the appellate court a broad discretionar$ power to waive the lac. of proper assign"ent of errors and consider errors not assigned. #nd an unassigned error closel$ related to an error properl$ assigned, or upon which the deter"ination of the question raised b$ the error properl$ assigned is dependent, will be considered b$ the appellate court notwithstanding the failure to assign it as error." ?; !.-.S., 173;8 3 !.-., 13;1, footnote 77.@ #t the least, the assign"ent of error, viewed in this light, authori<es us to e5a"ine and pass upon the decision of the court below. The 3udg"ent is reversed and the case is re"anded to the court of origin for further proceeding and a new decision not inco"patible with this decision, with costs of this appeal against the appellee. G.R. No. L-14921 6e.ember 51, 1960

6"L"RE$ #. GUIC", E1 AL., plaintiffs1appellants, vs. &A#L" G. #AU1I$1A, E1. AL., defendants1appellees. This is an action for liquidation and partition of the estate left b$ the spouses %ariano 6autista and )ertrudes )arcia, filed on ctober &B, 1'D2 b$ plaintiffs Aolores 6. )uico, et al., against defendants /ablo ). 6autista, et al., legiti"ate grandchildren and children, respectivel$, of said deceased spouses.

The co"plaint alleged inter alia that %ariano ). 6autista died intestate on Aece"ber D, 1';7 and that his properties had alread$ been e5tra3udiciall$ partitioned a"ong his heirs8 that )ertrudes )arcia li.ewise died intestate on #ugust 31, 1'D2 leaving as her legiti"ate heirs plaintiffs and defendants8 that said )ertrudes )arcia, during her lifeti"e, "ade several deeds of donation of so"e of her properties in favor of all the defendants, but did not provide that the properties donated would not be sub3ect to collation, so that the donees are legall$ bound to bring into the "ass of the estate b$ wa$ of collation the value of the properties received b$ the" in order that the net hereditar$ estate "a$ be divided equall$ a"ong the heirs8 and that the deceased )ertrudes )arcia left outstanding obligations to the Rehabilitation *inance !orporation and the ).#. %achineries, +nc. n a "otion to dis"iss filed b$ defendants alleging, a"ong other things, that the action was pre"ature because it is ad"itted in the co"plaint that the deceased left certain debts, the lower court dis"issed the co"plaint on that ground without pre3udice and without costs. *ro" the order of dis"issal, plaintiffs appealed to this !ourt, urging that their action for partition and liquidation "a$ be "aintained, notwithstanding that there are pending obligations of the estate, sub3ect to the ta.ing of adequate "easures either for the pa$"ent or securit$ of its creditors. 9e are inclined to hold at the lower court that until all the debts of the estate in question are paid, appellants= action for partition and liquidation is pre"ature. There is no question that the law allows the partition of the estate of a deceased person b$ the heirs, e5tra3udiciall$ or through an ordinar$ action for petition, without the filing of a special proceeding and the appoint"ent of an ad"inistrator for the purpose of the settle"ent of said estate, but this the$ "a$ do onl$ "if the decedent left no debts and the heirs and legatees are all of age or the "inors are represented b$ their 3udicial guardians" ?sec. 1, Rule 7;@. The reason is that were the deceased dies without pending obligations, there is no necessit$ for the appoint"ent of an ad"inistrator to ad"inister the estate for the" and to deprive the real owners of their possession to which the$ are i""ediatel$ entitled ?6ondad (&. 6ondad, 3; /hil., &3&8 *ule (&. *ule, ;2 /hil., 3178 %acalinao (&. (alde<, et al., 'D /hil., 3178 DB ff. )a<., 3B;18 +ntestate Estate of Rufina %ercado (&. %agtiba$, et al., '2 /hil., 373@. The situation is different, however, where the deceased left pending obligations. +n such cases, such obligations "ust be first paid or co"pounded with the creditors before the estate can be divided a"ong the heirs8 and unless the$ reach an a"icable settle"ent as to how such obligations should be settled, the estate would inevitabl$ be sub"itted to ad"inistration for the pa$"ent of such debts. #s co"pared to ordinar$ partition, the regular estate proceeding offer the advantage of requiring all creditors of the deceased to disclose the"selves and sub"it their respective clai"s within a co"parativel$ short period ?1& "onths under Rule 77, unless clai"s are contingent@, otherwise, the$ are forever barred8 while in ordinar$ 3udicial partitions the creditors 1clai"s are onl$ e5tinguished b$ the e5piration of the period e5tinctive prescription. #n heir, therefore, "a$ have an interest in "a.ing sure that the share allocated to hi" will be freed fro" invisible clai"s, so that creditors "a$ not later appear and initiate the ver$ estate proceeding sought to be avoided, and he "a$ properl$ ob3ect to an action for partition this ground. Unless, therefore, all the heirs are agreeable to assu"ing personal liabilit$ for all the decedent=s obligations, those .nown as well as those undisclosed, regular estate proceedings can not be avoided. +t is no argu"ent that under regular ad"inistration, the estate will incur greater e5penses. #s a "atter of fact, plaintiffs1appellants include in their co"plaint a pra$er for the appoint"ent of an ad"inistrator during the pendenc$ of this case, in view of the e5istence of debts of the estate and the lac. of agree"ent a"ong the heirs as to how debts would be paid. lawphil.net #ppellants clai" that there is nothing that would prevent the trial court fro" directing and ordering that the pending obligations of the estate be paid first, or that the$ should constitute as liens on the respective shares to be received b$ the heirs. +n other words, appellants propose that the ad"inistration of the estate for the purpose of pa$ing off its debts be acco"plished right in this partition suit, with either the !ourt perfor"ing the duties of the ad"inistrator, or an ad"inistrator appointed to ta.e care of such debts, as pra$ed for in their co"plaint. bviousl$, an ordinar$ action for partition can not be converted into a proceeding for the settle"ent of the estate of a deceased, without co"pliance with the procedure outlined b$ Rules 7'1'B of the rules of !ourt, especiall$ the provisions on publication and notice to creditors. #s we see it, appellants= "a3or ob3ective in filing this action for partition is to have an earl$ deter"ination of the question whether or not the donation inter vivos received b$ the defendants fro" the deceased are sub3ect to collation. 6ut there is no reason wh$ this question can not be deter"ined 3ust as e5peditiousl$ in special proceeding, because even

before the .nown debts of the estate are settled and paid and pending the e5piration for the filing of other clai"s, the issue can, upon "otion of the heirs, be set for hearing, tried, and definitel$ settled. 9herefore, the order appealed fro" is affir"ed, with costs against appellants.

G.R. No. L-57905 %ar./ 50, 1977 GER1RU6E$ L. 6EL R"$ARI", petitioner, vs. 6"R"1EA ". C"NANAN an %ARIL"U 6EL R"$ARI", respondents. Review of the order of the !ourt of *irst +nstance of Ri<al dated -une &1, 1'73, dis"issing petitioner=s petition for settle"ent and partition of estate. n 0ove"ber 13, 1'7&, petitioner filed with the court below the above1said petition, sub3ect of which is the estate left b$ her late son, *eli5 ,. del Rosario, who died in a plane crash on

Septe"ber 1&, 1'2' at #ntipolo, Ri<al ?/artial -oint Stipulation of *acts, p. &, petition, p. 2, rec.@. n %arch 17, 1'73, respondents filed their opposition. n #pril &2, 1'73, the court a +uo, pursuant to a verbal agree"ent forged between the parties, issued an order requiring the" to co"e up with a 3oint stipulation of facts ?p. ', rec.@. n %a$ 1', 1'73, the parties sub"itted the following stipulation of facts> // S+T R ad"its that petitioner is the legiti"ate "other of the late *E,+N ,. AE, R S#R+ . /ET+T+ 0ER ad"its that oppositor A R TE# wife of the deceased *E,+N ,. AE, R S#R+ . TER# AE, R S#R+ is the. legiti"ate surviving

/ET+T+ 0ER ad"its that %#R+, U AE, R S#R+ , is the legall$ adopted child of the late *E,+N ,. AE, R S#R+ and A R TE# AE, R S#R+ ! 0#0#0 T4#T T4E /#RT+ES ad"it that the late *E,+N ,. AE, R S#R+ died last Septe"ber 1&, 1'2' at #ntipolo, Ri<al in a plane crash and within the 3urisdiction of the 4onorable !ourt. That the onl$ surviving nearest relatives of deceased *E,+N ,. AE, R S#R+ and oppositors A R TE . ! 0#0#0 and %#R+, U AE, R S#R+ . are the petitioner

/arties ad"it to pa$ their respective counsel in the a"ount to be deter"ined b$ the court. 94ERE* RE, it is respectfull$ pra$ed of this 4onorable !ourt that on the basis of the facts stipulated, the !ourt declare the heirs of the deceased ?pp. '11B, rec.@. n -une &1, 1'73, the lower court issued the challenged order, pertinent portions of which read> # perusal of the petition shows that the instant case was filed under the provisions of Section &, Rule 7; of the Revised Rules of !ourt, which reads as follows> 9henever the gross value of the estate8 of a deceased person, whether he died testate or intestate, does not e5ceed ten thousand pesos, and that fact is "ade to appear to the !ourt of *irst +nstance having 3urisdiction of the estate b$ the petition of an interested person and upon hearing, which shall be held not less than one ?1@ "onth nor "ore than three ?3@ "onths fro" the date of the last publication of a notice which shall be published once a wee. for three ?3@ consecutive wee.s in a newspaper of general circulation in the province, and after such other notice to interested persons as the court "a$ direct, the court "a$ proceed su""aril$, without the appoint"ent of an e5ecutor or ad"inistrator, and without dela$, to grant, if proper, allowance of the will, if an$ there is, to deter"ine who are the persons legall$ entitled to participate in the estate, and to apportion and divide it a"ong the" after the pa$"ent of such debts of the estate as the court shall then find to be due8 and such persons, in their own right, if the$ are of lawful age and legal capacit$, or b$ their guardians or trustees legall$ appointed and qualified, if otherwise, shall thereupon be entitled to receive and enter into the possession of the portions of the estate so awarded to the" respectivel$. The court shall "a.e such order as "a$ be 3ust respecting the costs of the proceedings, and all orders and 3udg"ent "ade or rendered in the course thereof shall be recorded in the office of the cler., and the order of partition or award, if it involves real estate, shall be recorded in the proper registrar=s office. 9hile it "a$ be true that a petition for su""ar$ settle"ent is allowed under the aforequoted provision of the rules, the sa"e rule specificall$ li"its the action to estates the gross value of which does not e5ceed /1B,BBB.BB, The instant petition, however, clearl$ alleges that the value of the real properties alone left b$ the deceased *eli5 del Rosario a"ounts to /33,BBB.BB which is obviousl$ over and above1the value of the estate allowed under the rules. The action ta.en b$ the petitioner ?cannot be@ construed as one filed under an intestate proceeding as the require"ents provided b$ law for the sa"e has not been co"plied with. 6ased on the foregoing observation alone, the petition "ust perforce be dis"issed. 6ut granting arguen$o that this !ourt "a$ consider the petition as an e5ercise ?of@ the powers of a probate !ourt in deter"ining and declaring the heirs of the deceased as pra$ed for in the, aforequoted partial 3oint stipulation of facts, the law on intestate succession is clear that an adopted child concurring with the surviving spouse of the adopter e5cludes the legiti"ate ascendants fro" succession, ...

The contention of the petitioner that #rticle 3;3 is applicable in the instant case finds no basis for =the said article is applicable in cases where there are no other concurring intestate heirs of the adopted child. ... 6ased on the foregoing, therefore, the petitioner not being included as intestate heir of the deceased cannot be considered as a co1owner of or have an$ right over the properties sought to be partitioned and under the provisions of Section 1, Rule e 2' in re action to Section &, Rule 3 of the Revised Rules of !ourt, such action "ust be co""enced or instituted b$ the part$ in interest. 94ERE* RE, in view of the foregoing findings, the !ourt hereb$ A+S%+SSES T4E /ET+T+ 0 9+T4 UT /R 0 U0!E%E0T #S T ! STS ?pp, 1B11&, rec.@. n -ul$ 1B, 1'73, petitioner filed a notice of appeal, record on appeal and appeal bond ?see respondents co""ents, p. 17, rec.@. +. 9E rule that on purel$ 3urisdictional consideration, the instant petition should be dis"issed.

+ndeed, in a litan$ of precedents dating as far bac. as the 1'37 case of 5tulo (&. 'a&iono *$a. $e Gar%ia ?22 /hil. 7B&@ and reaffir"ed in #suncion and !astro vs, Ae la !ru< ?0o. ,177DD, 0ove"ber &3, 1'DD, '7 /hil. '1B@ andGutierre: (&. Cru: ?).R. 0o. ,1&1B&7, -ul$ &B, 1'27, &; S!R# 2'@, 9E unifor"l$ held that for the court to acquire 3urisdiction in a petition for su""ar$ settle"ent of estate under the rules, the require"ent that the a"ount of the estate involved should not e5ceed /1B,BBB,BB ?/2,BBB.BB under the old rules@ is 3urisdictional. +n the instant case, both parties 3ointl$ affir"ed that the value of the realt$ left b$ the deceased *eli5 del Rosario is in the aggregate a"ount of /33,BBB.BB which, as the court a +uo correctl$ found, is obviousl$ "over and above the value allowed under the rules." ++. 4owever, b$ virtue of the transcendental i"plications of the holding of the court a +uo in the sense that once wholl$ sustained, said holding would preclude petitioner fro" re1filing the proper action H a consequence which, on the ground of equit$ and fair pla$, 9e cannot allow to befall on petitioner H 9e dee"ed it essential, for the guidance of the parties especiall$ herein, petitioner, to point out the de"erits of the appealed verdict. 1. 9hich of the following articles of the 0ew !ivil !ode will appl$, #rticle 3;3 on the one hand, or #rticles 3;1, '77 and '7' on the other8 and &. 9hether the "aterial data rule enuciated b$ Rule ;1, Section 2 the 0ew Rules of !ourt should be followed, ex %athe$ra, in the present case> #. The lower court found the following the new provisions of the 0ew !ivil !ode gerna"e to the instant case> #rt. 3;1. The adoption shall> ?1@ )ive to the adopted person the sa"e rights and duties as if he were a legiti"ate child of the adopted8 ?&@ Aissolve the authorit$ vested in the parents b$ nature8 ?3@ %a.e the adopted person a legal heir of the adopted8 ?;@ Entitle the adopted person to use the adopter=s surna"e." #rt. '77. Succession pertains, in the first place, to the decending direct line. #rt. '7'. ,egiti"ate children and their decendants suceed the parents and the other ascendants, without distinction as to se5 or age, and even if the$ should co"e fro" different "arriages. 9E opine that the governing provision is the hereinafter quoted article 3;3 of the 0ew !ivil !ode, in relation to #rticles 7'3 and 1BBB of said law, which directs that> #rt. 3;3. +f the adopter is survived b$ legiti"ate parents or ascendants and b$ an adopted person. the latter shall not have "ore successional rights than an ac.nowledged natural child.

#rticle 3;3 of the 0ew !ivil !ode is qualification to #rticle 3;1 which gives an adopted child the sa"e rights and duties as though he were a legiti"ate child. The reason for this is that> ?+@t is un3uest to e5clude the adopter=s parents fro" the inheritance in facor of an adopted person ?Report of the !ode !o""ission, p. '&@. +t is "ost unfair to accord "ore successional rights to the adopted, who is onl$ related artificiall$ b$ fiction of law to the deceased, than those who are naturall$ related to hi" b$ blood in the direct ascending line. The applicabilit$ of #rticle 3;3 does not e5clude the surviving parent of the deceased adopter, not onl$ because a contrar$ view would defeat the intent of the fra"ers of the law, but also because in intestate succession, where legiti"ate parents or ascendants concur with the surviving spouse of the deceased, the latter does not necessaril$ e5clude the for"er fro" the inheritance. This is affir"ed b$ #rticle 7'3 of the 0ew !ivil !ode which states> +f the testator leaves no legiti"ate descendants, but leaves legiti"ate ascendants, the surviving spouse shall have a right to onefourth ?onl$@ of the hereditar$ estate. This fourth shall be ta.en fro" the free portion. #rticle 3;3 does not require that the concurring heirs should be the aodpted child and the legiti"ate parents or ascendants onl$. The language of the law is clear, and a contrar$ view cannot be presu"ed. +t is, thus, UR view that #rticle 3;3 should be "ade to appl$, consonant with the cardinal rule in statutor$ construction that all the provisions of the 0ew !ivil !ode "ust be reconciled and given effect. Under #rticle 3;3, an adopted child surviving with legiti"ate parents of the deceased adopter, has the sa"e successional rights as an ac.nowledged natural child, which is co"prehended in the ter" "illegiti"ate children". !onsequentl$ , the respective shares of the surviving spouse, ascendant and adopted child should be deter"ined b$ #rticle 1BBB of the 0ew !ivil !ode, which reads> #rt. 1BBB. +f legiti"ate ascendants, the surviving spouse and illegiti"ate children are left, the ascendants shall be entitled to onehalf of the inheritance, and the other half shall be divided between the surviving spouse and the illegiti"ate children so that such widow or widower shall have one1fourth of the estate, the illegiti"ate children the other fourth. 6. #nent the other issue, respondents, in their co""ent of -une &', 1'73, e"phasi<e that the petitioner=s record on appeal violates the "aterial data rule in that +t does not state when the notice of appeal and appeal bond were filed with the lower court in disregard of the requir"ent of Section 2, Rule ;1 of the Rules of !ourt that the record on appeal "ust contain such data as will show that the appeal was perfected on ti"e. Recent 3urisprudence has construed liberall$ the "aterial data rule, whenever circu"stances and substantial 3ustice warrant. The cases of Ber;en;otter (&. Court of 2ppeal, 0o. ,13322&', Septe"ber &7, 1'73 ?D3 S!R# &&7@ and *illanue(a (&. Court of 2ppeal ?0o. ,1&'71', 0ove"ner &7, 1'7D, 27 S!R# &12, &&B@ are particularl$ in point. +n (illanueva, 9E held> The deviation fro" the rigid rule aopted in the case of Go(ernment of the 'hilippine& (&. 2ntonio, etal., ).R. 0o. ,1&3732, ctober 1', 1'2D, is due to our reali<ation that after all what is of vital i"portance in the require"ent fo Section 2, Rule ;1 of the Rules of court is that the Record on #ppeal shall show that the appeal was reall$ perfected within the regle"entar$ period. +f it could ascertained fro" the record of the case that the appeal was perfected within the regle"entar$ period, although such fact did not evidentl$ appear on the face of the record on appeal, the defect or deficienc$ is not fatal. #f the appellate %ourt i& %on(in%e$ that the appeal wa& perfe%te$ on time, it &houl$ not throw out but a&&ume 8uri&$i%tion o(er it. 2fter all, that pro%e$ural re+uirement i& only inten$e$ to

enable the appellate %ourt to $etermine if the appeal i& &till within it& 8uri&$i%tion an$ nothing more ?(illanueva vs. !ourt of #ppeals, 27 S!R# &&B, e"phasis supplied@. *ro" the doc.et and process slip of this case, it is shown that the date of notice of the !ourt of *irst +nstance decision is -ul$ 3, 1'73 and that the e5pir$ date to file petition for certiorari with the Supre"e !ourt is Aece"ber 1;, 1'73. /etitioner filed her notice of appeal, appeal bond and record on appeal on -ul$ 1B, 1'73 H or still ver$ "uch within the regle"entar$ period to perfect an appeal. #nd although this is not "entioned in the record on appeal. #nd although this is not "entioned in the record on appeal, it is, nevertheless, a fact of record, the veracit$ of which this ! URT does not doubt. /erforce, there being substantial co"pliance with the require"ent of the Rules of !ourt, 9E resolve this issue in favor of petitioner. The liberal interpretation of the "aterial data rule ai"ed at serving the ends of substantial 3ustice has found a"plification in the recent cases of 'imental, et al. (&. Court of 2ppeal&, et al., ,13';&3 and ,13'27;, -une &7, 1'7D, 2; S!R# ;7D8 Republi% of the 'hilippine& (&. Court of 2ppeal&, <oma& Carag, et al., ,1;B;'D, ctober &1, 1'7D, 27 S!R# 3&&, 3&7133&8 and =anuel R. Luna (&. Court of 2ppeal&, Capati, et al., ,1371&3, ctober 3B 1'7D, 27 S!R# DB3, DB2. 94ERE* RE, T4E +0ST#0T /ET+T+ 0 +S 4ERE6M A+S%+SSEA, 9+T4 UT /RE-UA+!E T /ET+T+ 0ER=S *+,+0) T4E #//R /R+#TE #!T+ 0 +S # ! %/ETE0T ! URT. 0 ! STS. S RAEREA.

G.R. No. L-10474

Febr+ar4 23, 1953

#ENN: $A%&IL" an !"N"RA1" $ALACU&, petitioners, vs. 1!E C"UR1 "F A&&EAL$ an FELI$A $IN"&ERA respondent. Certiorari against decision of the !ourt of #ppeals, Third Aivision, affir"ing with slight "odification a 3udg"ent of the !ourt of *irst +nstance of /angasinan, declaring plaintiffs owners of one1half portion of four parcels of land described in the co"plaint, with costs. The 3udg"ent was rendered in an action instituted b$ *elisa Sinopera, ad"inistrative of the estate of Teodoro Tolete, to recover fro" defendants one1half share of the aforesaid parcels of land, which, it is alleged belong to the deceased Teodoro Tolete.

#ccording, to the facts found b$ the !ourt of #ppeals, Teodoro Tolete died intestate in -anuar$, 1';D. 4e left for parcels of land, lots 0os. 1&BB2, 11''27, 1;3D& and 1&172 of the cadastral surve$ of San %anuel, /angasinan 4e left as heirs his widow, ,eoncia de ,eon, and several nephews and nieces, children of deceased brothers and sisters. n -ul$ &D, 1';2, without an$ 3udicial proceedings, his widow e5ecuted an affidavit stating that "the deceased Teodoro Tolete left no children or respondent neither ascendants or ac.nowledged natural children neither brother, sisters, nephews or nieces, but the, widow ,eoncia de ,eon, the legiti"ate wife of the deceased, the one and onl$ person to inherit the above properties" ?Record on #ppeal, p. '@. This affidavit was registered in the ffice of the Register of Aeeds of /angasinan. n the sa"e da$, she e5ecuted a deed of sale of all the above parcels of land in favor of 6enn$ Sa"pilo for the su" of /1B,BBB. This sale was also registered in the ffice of the Register of Aeeds of /angasinan. n -une 17, 1'DB, 6enn$ Sa"pilo, in turn, sold the said parcels of land to 4onorato Salacup for /DB,BBB and this sale was also registered in the ffice of the Register of Aeeds of /angasinan ?See #nne5es "#", "6", "!", attached to the co"plaint@. +n %arch, 1'DB, *elisa Sinopera instituted proceedings for the ad"inistration of the estate of Teodoro Tolete ?Special /roceeding 0o. 32';, /angasinan@, and having secured her appoint"ent as ad"inistratri5, brought the present action on -une &B, 1'DB. 0otice of li& pen$en& was filed in the ffice of the Register of Aeeds and said notice was recorded on certificates of title covering the said properties on -une &2, 1'DB. This notice, however, was subsequent to the registration of the deed of sale, in favor of 4onorato Salacup, which too. place on -une 17, 1'DB. The co"plaint alleges that the widow ,eoncia de ,eon, had no right to e5ecute the affidavit of ad3udication and that 4onorato Salacup acquired no rights to the lands sold to hi", and that neither had 6enn$ Sa"pilo acquired an$ right to the said properties. Sa"pilo and Salacup filed an a"ended answer alleging that the co"plaint states no cause of action8 that if such a cause e5ists the sa"e is barred b$ the statute of li"itations8 that defendants are innocent purchasers for value8 and that the co"plaint is "alicious, frivolous and spurious, intended to harass and inconvenience the defendants. #fter trial the !ourt of *irst +nstance rendered 3udg"ent for the plaintiff, *elisa Sinopera, declaring that the affidavit of ad3udication E5hibit "#", the deed of sale E5hibit "6", and the deed of sale E5hibit "!", are all null and void8 declaring plaintiff owner of one1half portion of the four parcels of land in question, and finall$ declaring that the usufructuar$ rights of ,eoncia de ,eon to said properties are ter"inated. The case was appealed to the !ourt of #ppeals. This court held that the annul"ent of the affidavit of ad3udication, E5hibit "#", b$ the trial court was correct but that the annul"ent of the deeds E5hibits "6" and "!", insofar as one1half of the properties, conve$ed is concerned, and in ad3udicating one1half of the sa"e to the heirs of the deceased, is pre"ature. 4ence, it "odified the 3udg"ent, declaring that E5hibits "6" and "!" are null and void onl$ insofar as the properties thereb$ conve$ed e5ceed the portion that the responds to ,eoncia de ,eon. Therefore, it ordered the defendants to deliver to the plaintiff, in her capacit$ as ad"inistratri5 of the estate of Teodoro Tolete, for disposition according to the law, one1half of the lands described in the co"plaint, but reserved to 4onorato Salacup the right to clai" and secure ad3udication in his favor of whatever portion of said properties "a$ correspond to ,eoncia de ,eon and also his right to bring an action for the da"ages that he "a$ have suffered against ,eoncia de ,eon and 6enn$ Sa"pilo. 6enn$ Sa"pilo and 4onorato Salacup have appealed to this !ourt b$ certiorari and have assigned the following errors in their brief> +. ++. The !ourt of #ppeals erred in affir"ing that respondent *elisa Sinopera=s right of action to recover her and her co1heirs= participation to the lands in question had not prescribed at the ti"e the action to recover was filed. The !ourt of #ppeals erred in not finding that the petitioners are innocent purchasers for value. +++. The !ourt of #ppeals erred in ai"ing the lower court=s denial of petitioner=s "otion for new trial.

+n support of the first assign"ent of error, it is argued that as the action was instituted al"ost four $ears after the affidavit of ad3udication, E5hibit "#", was registered in the ffice of the Register of Aeeds f /angasinan, the right of action of the ad"inistratri5 has prescribed and lapsed because the sa"e was not brought within the period of two $ears as /rescribed in Section ; of Rule 7; of the Rules of !ourt, and as decided in the cases of %c%ic.ing (&. S$ !onbieng, &1 /hil., &11 and Ra"ire< (&. )"ur, ;& /hil., 7DD 72'. Section ; of Rule 7; provides, in part, as follows>

SE!. ;. Liability of $i&tributee& an$ e&tate. H +f it shall appear at an$ ti"e within two $ears after the settle"ent and distribution of an estate in accordance with the provisions of either of the first two sections of this rule, that an heir or other has been undul$ deprived of his lawful participation of the such heir or such other person "a$ co"pel the settle"ent estate in the courts in the "anner hereinafter provided for the purpose of satisf$ing such lawful participation. . . . Section 1, which is "entioned in Section ;, reads as follows> SE!. 1. >xtra8u$%ial &ettlement by agreement between the heir&. H +f the decedent left no debts and the heirs and legatees are all of age, or the "inors are represented b$ their 3udicial guardians, the parties "a$, without securing letters of ad"inistration, divide the estate a"ong the"selves as the$ see fit b$ "eans of a public instru"ent filed in the office of the register of deeds, and should the$ disagree, the$ "a$ do so in an ordinar$ action of partition. +f there is onl$ one heir or one legatee, he "a$ ad3udicate to hi"self the entire estate b$ "eans of an affidavit filed in the office of the register of deeds. +t shall be presu"ed that the decedent left no debts if no creditor files a petition for letters of ad"inistration within two $ears after the death of the decedent. +t will be noted that the provision ne5t above1quoted contains two parts, the first referring to a case in which there are two or "ore heirs interested in the estate of a deceased person, and the second in which there is onl$ one heir. The section was ta.en fro" Section D'2 of the old !ode of !ivil /rocedure ?#ct 0o. 1'B, as a"ended b$ #ct 0o. &331@. Said Section D'2 as a"ended, was as follows> SE!. D'2. ,ettlement of Certain #nte&tate& 7ithout Legal 'ro%ee$ing&. H 9henever all the heirs of a person who died intestate are of lawful age and legal capacit$ and there are no debts due fro" the estate, or all the debts have been paid the heirs "a$, b$ agree"ent dul$ e5ecuted in writing b$ all of the", and not otherwise, apportion and divide the estate a"ong the"selves, as the$ "a$ see fit, without proceedings in court. 9e notice two significant provisions in Sections 1 and ; of Rule 7;. +n Section 1, it is required that if there are two or "ore heirs, both or all of the" should ta.e part in the e5tra3udicial settle"ent. This require"ent is "ade "ore i"perative in the old law ?Section D'2, #ct 0o. 1'B@ b$ the addition of the clause "and not otherwise." 6$ the title of Section ;, the "distributees and estate" are indicates the persons to answer for rights violated b$ the e5tra3udicial settle"ent. n the other hand, it is also significant that no "ention is "ade e5pressl$ of the effect of the e5tra3udicial settle"ent on persons who did not ta.e part therein or had no notice or .nowledge thereof. There cannot be an$ doubt that those who too. part or had .nowledge of the e5tra3udicial settle"ent are bound thereb$. #s to the" the law is clear that if the$ clai" to have been in an$ "anner deprived of their lawful right or share in the estate b$ the e5tra3udicial settle"ent, the$ "a$ de"and their rights or interest within the period of two $ears, and both the distributes and estate would be liable to the" for such rights or interest. Evidentl$, the$ are the persons in accordance with the provision, "a$ see. to re"ed$, the pre3udice to their rights within the two1$ear period. 6ut as to those who did not ta.e part in the settle"ent or had no notice of the death of the decedent or of the settle"ent, there is no direct or e5press provision is unreasonable and un3ust that the$ also be required to assert their clai"s within the period of two $ears. To e5tend the effects of the settle"ent to the", to those who did not ta.e part or had no .nowledge thereof, without any expre&& legal pro(i&ion to that effe%t, would be violative of the funda"ental right to due process of law. +n the case of Ra"ire< (&. )"ur, &upra, cited b$ the appellants in this case, we held> +t will be noted that while the law ?see. 7D;@ provides that the order of distribution "a$ be had upon the application of the e5ecutor or ad"inistrator, or of a person interested in the estate, no provision is "ade for notice, b$ publication or otherwise, of such application. The proceeding, therefore, is to all intents and purposes ex parte. #s will be seen our law is ver$ vague and inco"plete8 and certainl$ it cannot be held that a purel$ ex parte proceeding, had without notice b$ personal service or b$ publication, b$ which the court underta.es to distribute the propert$ of deceased persons, can be conclusive upon "inor heirs who are not represented therein. The procedure outlined in Section 1 of Rule 7; of e5tra3udicial settle"ent, or b$ affidavit, is an ex parteproceeding. +t cannot b$ an$ reason or logic be contended that such settle"ent or distribution would affect third persons who had no .nowledge either of the death of the decedent or of the e5tra3udicial settle"ent or affidavit, especiall$ as no "ention of such effect is "ade, either directl$ or b$ i"plication. 9e have e5a"ined the two cases cited b$ appellants and there is no si"ilarit$ at all between the circu"stances on which the ruling therein had been predicated and those of the case at bar.

*ollowing the above1quoted decision of this !ourt in the case of Ra"ire< (&. )"ur, supra, we are of the opinion and so hold that the provisions of Section ; of Rule 7;, barring distributees or heirs fro" ob3ecting to an e5tra3udicial partition after the e5piration of two $ears fro" such e5tra3udicial partition, is applicable onl$ ?1@ to persons who have participated or ta.en part or had notice of the e5tra3udicial partition, and, in addition, ?&@ when the provisions of Section 1 of Rule 7; have been strictl$ co"plied with, i.e., that all the persons or heirs of the decedent have ta.en part in the e5tra3udicial settle"ent or are represented b$ the"selves or through guardians. The case at bar fails to co"pl$ with both require"ents because not all the heirs interested have participated in the e5tra3udicial settle"ent, the !ourt of #ppeals having found that the decedent left aside fro" his widow, nephews and nieces living at the ti"e of his death. The ne5t contention of appellants is that plaintiff=s action is barred b$ the statute of li"itations. The origin of the /rovision ?Section ;, Rule 7;@, upon which this contention is predicated, which is Section D'2 of #ct 0o. 1'B, fails to support the contention. +n the first /lace, there is nothing therein, or in its source which shows clearl$ a statute of li"itations and a bar of action against third person=s. +t is onl$ a bar against the parties who had ta.en part in the e5tra3udicial proceedings but not against third persons not /arties thereto. +n the second place, the statute of li"itations is contained in a different chapter of #ct 0o. 1'B, !hapter N,, and if Section D'2 of the #ct had been "eant to be a statute of li"itations, it would naturall$ have been included in the chapter which defines the statute. 6ut even if Section ; of Rule 7; is a statute of li"itations, it is still unavailing to the defendants. The action is one based on fraud, as the widow of the deceased owner of the lands had declared in her affidavit of partition that the deceased left no nephews or niece, or other heirs e5cept herself. /laintiff=s right which is based on fraud and which has a period of four $ears ?Section ;3, par. 3, #ct no. 1'B8 #rticle 11;2, !ivil !ode@, does not appear to have lapsed the action was instituted. -udicial proceedings where instituted in %arch, 1'DB and these proceedings "ust have been instituted soon after the discover$ of fraud. +n an$ case, the defendants have the burden of proof as to their clai" of the statute of li"itations, which is their defense, and the$ have not proved that when the action was instituted, four $ears had alread$ elapsed fro" the date that the interested parties had actual .nowledge of the fraud. The second assign"ent of error, i.e., that the defendants1appellants are innocent purchasers for value was re3ected as unfounded b$ the court of #ppeals. Said court said. The clai" that defendants1appellants did not have sufficient .nowledge or notice of the clai" of the heirs of Teodoro Tolete, deceased, over the land in question does not find support in the evidence of record. #s regards defendant 6enn$ Sa"pilo, it is an ad"itted fact that he is a nephew of ,eoncia de ,eon and he had been living with the latter. 6oth 6enn$ Sa"pilo and the heirs of the deceased who are clai"ing the propert$ are residents of San %anuel, /angasinan. +t is hard, therefore, to believe that 6enn$ Sa"pilo did not .now the e5istence of said heirs, and that he was not aware that the$ were nephews and nieces, children of the deceased brothers, of the deceased Teodoro Tolete. The fact further"ore that 6enn$ Sa"pilo acco"panied his aunt ,eoncia de ,eon to Sison, /angasinan, when the later saw 0otar$ /ublic ,adislao (illa"il, who was the for"er=s uncle, to have hi" prepare the affidavit of ad3udication E5hibit "#", and the deed of conve$ance E5hibit "6" b$ which on the sa"e date she conve$ed to Sa"pilo all the propert$ which she had ad3udicated to herself, both of which she ac.nowledged before said notar$ public, coupled with the fact that there is no sufficient showing that the consideration for the conve$ance of /1B,BBB had in fact been paid, strengthens our belief that said 6enn$ Sa"pilo .new that the deceased Teodoro Tolete had other heirs who "a$ clai" the propert$, and that the i""ediate conve$ance thereof to hi" was a stratege" concocted to defeat the for"er=s rights. #nd as regards 4onorato Salacup, while the clai" that no notice ofli& pen$en& appeared annotated in the certificates of title issued to 6enn$ Sa"pilo when he acquired the propert$ "ight be true, for he purchased the propert$ on -une 17, 1'DB, and the notice of li& pen$en& was noted on said certificates of title on -une &2, 1'DB, nevertheless, he cannot clai" that he was a purchaser in good faith for value of the propert$. +t is well1settled rule in this 3urisdiction that a purchaser of registered lands who has .nowledge of facts which should put hi" upon inquir$ and investigate as to the possible defects of the title of the vendor and fails to "a.e such inquir$ and investigation cannot clai" that he as a purchaser in good faith for value and he had acquired a valid title thereto. ,eung Mee (&. Strong %achiner$ !o., 37 /hil., 2;;8 Aa$ao (&. Aia<, ).R. ,1;1B2, %a$ &', 1'D&. *inding no error in the decision of the !ourt of #ppeals, we hereb$ affir" it in toto, with costs against the petitioners. So ordered.

G.R. No. L-1573

$eA,ember 50, 1947

&EREGRINA RE#"NG, petitioner, vs. FI6EL I#ABE;, *+ )e o- F(r', In',an.e o- La)+na, respondent. This is a petition for %ertiorari against the respondent 3udge of the !ourt of *irst +nstance of ,aguna on the ground that the latter acted in e5cess of 3urisdiction or with grave abuse of discretion in den$ing the petition for cancellation of the lien or annotation on the certificate of title issued to the petitioner, of a land e5tra3udiciall$ inherited b$ hi" as the onl$ heir of her predecessors in interest to the effect that the propert$ described in the title is sub3ect to the clai"s of the creditors and other heirs of the deceased -ose Rebong and %aria Rebong within two $ears fro" -ul$ ', 1';7, in accordance with sections 1 and ;, Rule 7; of the Rules of !ourt. The petitioner based on her petition on section 11& of #ct 0o. ;'2 and offered to file a bond of /D,BBB, the esti"ated value of the above "entioned propert$ to answer for such contingent clai"s. The pertinent part of said section 11& of #ct 0o. ;'2 provides>

SE!. 11&. ... #n$ registered owner or other person in interest "a$ at an$ ti"e appl$ petition to the court, upon the ground that the registered interests of an$ description, whether vested, contingent, e5pectant, or inchoate, have ter"inated and ceased8 or that new interests have arisen or been created which do not appear upon the certificate8 ... and the court shall have 3urisdiction to hear and deter"ine the petition after notice to all parties in interest, and "a$ order the entr$ of a new certificate, the entr$ or cancellation of a "e"orandu" upon a certificate or grant an$ other relief upon such ter"s and conditions, requiring securit$ if necessar$, as it "a$ dee" proper8 . . . . #ccording to the above quoted provisions, the court ""a$ order the entr$ of a new certificate, the entr$ or cancellation of a "e"orandu" upon a certificate or grant an$ other relief upon such ter"s and conditions, requiring securit$ if necessar$," upon application of a registered owner on "the ground that regi&tere$ intere&t& of any $e&%ription, whether vested, contingent, e5pectant, or inchoate, ha(e terminate$ an$ %ea&e$, or that new intere&t& ha(e ari&en or been %reate$ whi%h $o not appear upon the %ertifi%ate." #ppl$ing these provisions to the present case, it is evident that, since the registered or annotated contingent interest of the creditors or other heirs of the petitioner=s predecessors in interest, established b$ section ; of Rule 7; has not $et ter"inated or ceased, for the period of two fro" -ul$ ', 1';7, have not $et elapsed, the respondent 3udge had no 3urisdiction or power to order the cancellation of said lien or annotation as pra$ed b$ the petitioner. 0either section ;, Rule 7;, of the Rules of !ourt, nor section 11& of #ct 0o. ;'2 authori<es interest of substitution of a bond for a lien or registered interest of an$ description, whether vested, e5pedient, inchoate or contingent, which have not $et ter"inated or ceased. +n view of the foregoing it is plan that the respondent 3udge has not acted in e5cess of 3urisdiction nor with grave abuse of discretion, but in confor"it$ with the law, in den$ing the petitioner=s petition, and the petition for %ertiorariis therefore denied.

G.R. No. L-27421 $eA,ember 12, 1936 ANI1A %ANG-":, a''(',e b4 /er /+'ban , C(00(am %an)-o48 LE"N"RA %IGUEL, a''(',e b4 /er /+'ban , %()+e0 "0(0a8 !ELENA 1A:NAN, an *"$E 1U%&A", petitioners, vs. 1!E C"UR1 "F A&&EAL$, #AN6" 1U%&A", LA%#IA 1U%&A", marr(e ,o $a0m(n) &(ra>o, an A#I1" 1U%&A", respondents. 9e are bac. to the earl$ 1'BB=s in the cool regions of the %ountain /rovince, setting of "an$ legends of adventure and ro"ance a"ong the highlanders of the 0orth. ur stor$ is not as fanciful, involving as it does not a rivalr$ for the hand of a beautiful +gorot "aiden but a prosaic dispute over a piece of land. Even so, as in those tales of old, the issue shall be decided in favor of the 3ust and deserving albeit according to the dictates not of the heart but of the law. The hero of this stor$ we shall call ld %an Tu"pao although at the ti"e it all began he was still a $oung and vigorous "an. 4e had a first wife b$ who" he begot three children, who are the private respondents in this case. 1 Upon her death, he too. to hi"self a second wife, b$

who" he had no issue but who had two children she had "adopted" according to the practice of the +gorots then. 2 +t is their children who, with so"e others, are the petitioners in this case. The facts are as si"ple as the ancient hills. n Septe"ber ;, 1'37, ld %an Tu"pao e5ecuted what he called a "last will and testa"ent" the dispositive portion of which declared> ,astl$, + appoint "$ son 6#0A TU%/# , who" + na"ed, that after departing fro" this life, he shall be the one to carr$ or fulfill "$ Testa"ent, and that he shall have the power to see and dispose all what + have stated, he shall not change what + have alread$ stated in "$ Testa"ent so that there is truth in "$ will. + will affi5 "$ right thu"b"ar. at the end of "$ written na"e because + do not .now how to read and write, after it has been read to "e and affir" all what is "$ 9in this &>BB o=cloc. in the afternoon this ;th da$ of Septe"ber 1'37, before those who are present and have heard what + have stated, /ico ,a Trinidad, 6enguet, ;th Septe"ber, 1'37. 5 The contents of this docu"ent were read to the beneficiaries na"ed therein who at the ti"e were alread$ occup$ing the portions respectivel$ allotted to the". +n i"ple"entation of this docu"ent, the$ then, on Septe"ber 7, 1'37, e5ecuted an agree"ent providing as follows> 9e who are na"ed children and who will inherit fro" our father TU%/# > 6#0A TU%/# , ,#%6+# #6+T , - SE and ,#6ET, and we also whose lands are included, SU!A#A 6UT+ ), TU,+0)#0 /U,1 T and #0T4 0M %E0E!+ all of legal age and residing in the town of ,a Trinidad, Sub1/rovince of 6enguet we sa$ in truth after swearing under oath in accordance to law that the testa"ent of our father TU%/# who is presentl$ ill b$ virtue of our right to inherit and also ac.nowledge or recogni<e the lands as included in the area of said land as appearing in Title 0o. ;12 in the na"e of our father TU%/# here in ,a Trinidad, 6arrio /ico, have heard and understood the 9ill as told b$ hi" concerning our right to the land which we will inherit and also to those whose lands which were included in the said Title 0o. ;12 because we were all called be present and hear his wilt 9e heard and agreed to his will as appearing in his testa"ent regarding the land which we will inherit. 9e also recogni<ed and agree to the appoint"ent of our brother 6#0A to who" the parcels of land is to be delivered and he will also be the one, to deliver to us our shares as soon as we will de"and the partition in accordance with the will of our father TU%/# as soon in the Testa"ent which we saw and have heard b$ all. +t is also agreed upon a"ong us in this confir"ation that when our brother 6#0A who is appointed to distribute to us our shares we affir" in this instru"ent that will answer for all the e5penses when it shag be surve$ed so the share of each will be segregated so also with the approval of the title, which shall appear the na"e of each of us and that we do not dispute the land which we are actuall$ wor.ing shall pertain to us as e"bodied in the said win of our father TU%/# . 9e e5ecute this deed of confir"ation in the presence of the 0otar$ /ublic here in 6aguio so that this 9ill, be used as our agree"ent so also with the wig of our father so that the$ be one to be followed as regard upon b$ all and we affi5 our right thu"b"ar. at the end of our written na"e because we do not .now how to read and write this 7th da$ of Septe"ber, 1'37 in the !it$ of 6aguio. 4 Two da$s later, ld %an Tu"pao died.

The parties re"ained in possession of the lots assigned to the", apparentl$ in obedience to the wish of ld %an Tu"pao as e5pressed in his last "will" and affir"ed b$ the other abovequoted instru"ent. 6ut things changed une5pectedl$ in 1'2B, twent$ three $ears later, that brought this "atter to the courts. n 0ove"ber ;, 1'2B, the respondents e5ecuted an e5tra3udicial partition in which the$ divided the propert$ of ld %an Tu"pao a"ong the three of the" onl$, to the e5clusion of the other persons "entioned in the above1quoted docu"ents. 5 6$ virtue of this partition, ld %an Tu"pao=s title was cancelled and another one was issued in favor of the three respondents. 6 +t is this title that is now being questioned b$ the petitioners, who are suing for reconve$ance. The$ had been sustained b$ the trial court, 7 which, however, was reversed b$ the !ourt of #ppeals. The$ are before this !ourt to challenge that reversal. +n deciding against the", the !ourt of #ppeals held that the "will" e5ecuted b$ ld %an Tu"pao was null and void because it had not been probated The agree"ent of partition

a"ong the supposed beneficiaries of the will was nullified because it was a partition inter (i(o& and had not been approved b$ the Airector of the 6ureau of 0on1!hristian Tribes. +t was li.ewise held that the land in dispute was acquired during ld %an Tu"pao=s first "arriage although it was registered during his second "arriage and so the petitioners were liable in rentals for the lots occupied b$ the", as well as attorne$=s fees. 3 #fter e5a"ining the "ust$ records, we sustain the ruling1"ade both b$ the trial court and the !ourt of #ppeals1that the will, not having been probated as required b$ law, was inoperative as such. The settled principle, as announced in a long line of decisions in accordance with the Rules of !ourt, is that no will shall pass either real or personal propert$ unless it is proved or allowed in court. 9 9e find, however, that the docu"ent "a$ be sustained on the basis of #rticle 1BD2 of the !ivil !ode of 17'', which was in force at the ti"e the said docu"ent was e5ecuted b$ ld %an Tu"pao in 1'37. The said article reads as follows> #rt. 1BD2. +f the testator should "a.e a partition of his properties b$ an act inter (i(o&, or b$ win, such partition shall stand in so far as it does not pre3udice the legiti"e of the forced heirs. n this score, we agree with the trial court. The applicable decision is 2lbela (&. 2lbela, decided b$ the !ourt of #ppeals, with -ustice -.6.,. Re$es as the ponente.
10

also

+n this case, #gustin #lbela e5ecuted on -anuar$ 1', 1'3D, a deed of partition dividing two parcels of land between hisdaughters, Eduarda and Restituta, who indicated their confor"it$ b$ signing the instru"ent. The too. possession of their respective shares upon his death, but fourteen $ears later, Restituta e3ected Eduarda fro" her lot, alleging title b$ purchase fro" a third part$ and den$ing the e5istence of the partition. Eduarda sued for recover$ and was upheld b$ the trial court on the basis of the deed of partition. ,et -ustice -.6.,. Re$es, who later beca"e a distinguished "e"ber of this !ourt, ta.e over at this point> +n their argu"ent, appellants do not question the authenticit$ of the above docu"ent, but argue against its validit$, on the grounds su""ari<ed in their brief ?p. 7@, as follows> Therefore the allegations of the plaintiff1appellee, Eduarda #lbela, rest on a docu"ent which defies classification. +f it is a deed of partition, it is null and void because it is not e"bodied in a public docu"ent8 if it is a si"ple donation of realt$, it is also null and void, because it is not in a public docu"ent and there is no acceptance8 if it is a donation %ortis !ausa, certainl$ it is null and void because it does not follow the rules governing testa"entar$ succession8 and if ever it is to be classified as a will, "ore so, it is still null and void because it does not confor" to the require"ents of Section 217, #ct 1'B as a"ended b$ #ct &2;D. 0one of these ob3ections is valid in law. The appellants evidentl$ fail to reali<e that #rticle 1BD2 of the !ivil !ode of 177' authori<es a testator to partition inter (i(o& his propert$, and distribute the" a"ong his heirs, and that this partition is not necessaril$ either a donation nor a testa"ent, but an instru"ent of a special character, &ui generi&, which is revocable at an$ ti"e b$ the %au&ante during his lifeti"e, and does not operate as a conve$ance of title until his death. +t derives its binding force on the heirs fro" the respect due to the will of the owner of the propert$, li"ited onl$ b$ his creditors and the intangibilit$ of the legiti"e of the forced heirs. =El testador es libre $ sus herederos han de pasar por lo que haga en cuanto no per3udique la legiti"e de los forso<os. +nutil es sonar en otras li"itaciones que no e5isten.= ?7 %anresa !o""entaries, 2th Ed., p. 23'. That such partition is not governed b$ the rules of wills or donations inter (i(o& is a consequence of its special nature. Sa$s the learned %anresa on this point> !on estas palabras ?en acto entre vivos@ la le$ en el #rticulo 1BD2, co"o en el 1BD7, que despues e5a"inare"os, alude a las for"alidades con que puede practicarse la particion, no a los efectos de esta, significando que para ella no e& pre%i&o +ue inter(engan la& forma& &olemne& +ue to$o te&tamento o acto de ulti"a voluntad en general re+uiere. Ni aun &era pre%i&o guar$ar la& formali$a$e& e&pe%iale& $e la& $ona%ione&, porque no se trata de disponer a titulo gratuito, sino de divider aquellos bienes de que $a anterior"ente sedispuso en for"a legal ?E"phasis supplied. p. !it., p. 23D@ +t was sufficient, therefore, that the partition E5hibit #, should be in writing. +t does not have to be in a public docu"ent e5cept to affect third persons ?#rt. 1&7B@, being valid between the parties who signed it in its present for".

+f an$ invalidit$ could be alleged against the partition, it would lie in the absence of a previous testa"ent preceding it ?,egasto v. (er<osa, D; /hil. 722@. #nd even this "a$ not be indispensable in the present case, for the testator=s partition did not depart fro" the shares allotted to his heirs b$ the law of intestac$. 0or is a prior win necessar$ under #rticle 1B7B of the new !ivil !ode, which replaced the word =testator= in #rticle 1BD2 of the !ode of 177' with the broader ter" =person.= 6e that as it "a$, the nullit$ of the partition E5hibit # would not alter the result. There being onl$ two daughters surviving the deceased #gustin, each one of the" would necessaril$ be entitled to one1half of each of the two parcels he owned at his death, and #gustin=s for"er ownership is no longer disputed b$ the appellants in this instance. +n addition, since both daughters signed the partition E5hibit #, its ter"s would bind both, and estop the" fro" asserting a different interest. #ppellants= act8 in appropriating the whole inheritance and its fruits can find no support in law or 3ustice. There is no difference in legal effect between #gustin #lbela=s deed of partition and ld %an Tu"pao=s "last will and testa"ent." 6oth are sustainable under #rticle 1BD2 of the !ivil !ode, which was in force at the ti"e the$ were e5ecuted Even as #gustin #lbela=s partition was signed b$ the two daughters the"selves, so was ld %an Tu"pao=s "will" affir"ed b$ the beneficiaries in their agree"ent of Septe"ber 7, 1'37, which reiterated and recogni<ed the ter"s of such "will." 9hile not valid as a partition inter (i(o& under #rticles 712 and 1&71 of the old !ivil !ode, it was nevertheless binding on the parties as proof of their confor"it$ to the dispositions "ade b$ ld %an Tu"pao in his "last will and testa"ent." #s the trial court put it> The will alone, =E5h. 6=, would be inoperative for the si"ple reason that it was not probated, 4owever, when the persons who were na"ed therein as heirs and beneficiaries voluntaril$ agreed in writing to abide b$ its ter"s probabl$ to save the e5penses of probate. and further"ore, carried out its ter"s after the death of the testator until now, then it "ust be held to be binding between the". Said agree"ent was not a disposal of inheritance b$ a prospective heir before the death of the testator, but an agree"ent to carr$ out the will. +t was not contested b$ the defendants and after the lapse of &D $ears their right, if an$, to assail it has prescribed under #rt. 11;; of the !ivil !ode. #rt. 11;;1The following actions "ust be brought ten $ears fro" the ti"e the right of action accrues> 1@ upon a written contract8 &@ Upon an obligation created b$ law8 3@ Upon a 3udg"ent. #n$ for"al defect of the deed, =E5h. =!=, was cured b$ the lapse of ti"e. 9hat the plaintiffs received had an aggregate area of less than 1:3 of the land of ld Tu"pao. +t covers about 11,BBB square "eters while the total area was "ore than 3D,BBB square "eters, Under the old !ivil !ode, it was within the free disposable portion of ones= estate despite the e5istence of an$ forced heirs. ?See old !ivil !ode, #rt. 7B7@ +n view of the foregoing considerations, the defendants are ordered to e5ecute a deed of conve$ance in favor of the plaintiffs of the areas respectivel$ owned and occupied b$ the" and to pa$ the costs. Sucdad 6utiog is ordered to pa$ the defendants /12B.BB "ore as a reasonable a"ount of his additional share in the e5penses of segregating his lot but the ?defendants@ are ordered to e5ecute a deed of conve$ance in his favor of the said lot owned b$ hi". The e5penses of Surve$ and segregation "ust be borne b$ the plaintiffs. 9e "a$ add that the agree"ent entered into b$ the parties in i"ple"entation of ld %an Tu"pao=s "will" did not have to be approved b$ the Airector of the 6ureau of 0on1!hristian Tribes because the #d"inistrative !ode of %indanao and Sulu was not e5tended to the

%ountain /rovince. right. 12

11

%oreover, the docu"ent was not a conve$ance of properties or propert$

+t re"ains to state that the propert$ in dispute having been registered in 1'17, the presu"ption is that it was acquired during the second "arriage and so cannot be clai"ed b$ the respondents as the con3ugal propert$ of their "other and ld %an Tu"pao. 4ence, the$ are not entitled to retain the entire land as their e5clusive inheritance or to collect rentals for the lots occupied b$ the petitioners. The trial 3udge, the 4on. *eliciano 6el"onte, was correct in ordering the reconve$ance to the petitioners of their respective shares. 9e affir" his decision in toto. 4ow "uch si"pler was life a"ong the natives in the 0orth during the earl$ da$s, when right and wrong were weighed according to the pri"al code of the ancient hills. Even so, though that past is gone forever, 3ustice now, as it was then, is still for the deserving. 94ERE* RE, the decision of the !ourt of #ppeals is RE(ERSEA and that of the trial court reinstated, with costs against the respondents. S RAEREA.

G.R. No. L-25653

".,ober 12, 1967 LUI$A RE:E$, petitioners, vs.

6I"NI$I" FERNAN6E;, EU$E#I" RE:E$ an I$%AELA 6I%AGI#A, respondent. G.R. No. L-25662 ".,ober 12, 1967

%ARIAN" RE:E$, CE$AR RE:E$, LE"N"R RE:E$ an I$%AELA 6I%AGI#A, respondent.

&ACIENCIA RE:E$, petitioners, vs.

The heirs intestate of the late 6enedicta de los Re$es have petitioned for a review of the decision of the !ourt of #ppeals ?in !#1). R. 0o. 31&&11R@ affir"ing that of the !ourt of *irst +nstance of 6ulacan, in Special /roceeding 0o. 731 of said !ourt, ad"itting to probate the alleged last will and testa"ent of the deceased, and overruling the opposition to the probate. +t appears fro" the record that on -anuar$ 1', 1'DD, +s"aela Ai"agiba, now respondent, sub"itted to the !ourt of *irst +nstance a petition for the probate of the purported will of the late 6enedicta de los Re$es, e5ecuted on ctober &&, 1'3B, and anne5ed to the petition. The will instituted the petitioner as the sole heir of the estate of the deceased. The petition was set

for hearing, and in due ti"e, Aionisio *ernande<, Eusebio Re$es and ,uisa Re$es and one "onth later, %ariano, !esar, ,eonor and /aciencia, all surna"ed Re$es, all clai"ing to be heirs intestate of the decedent, filed oppositions to the probate as.ed. )rounds advanced for the opposition were forger$, vices of consent of the testatri5, estoppel b$ laches of the proponent and revocation of the will b$ two deeds of conve$ance of the "a3or portion of the estate "ade b$ the testatri5 in favor of the proponent in 1';3 and 1';;, but which conve$ances were finall$ set aside b$ this Supre"e !ourt in a decision pro"ulgated on #ugust 3, 1'D;, in cases ).R. 0os. ,1D217 and ,1D2&B ?unpublished@. #fter trial on the for"ulated issues, the !ourt of *irst +nstance, b$ decision of -une &B, 1'D7, found that the will was genuine and properl$ e5ecuted8 but deferred resolution on the questions of estoppel and revocation "until such ti"e when we shall pass upon the intrinsic validit$ of the provisions of the will or when the question of ad3udication of the properties is opportunel$ presented." ppositors *ernande< and Re$es petitioned for reconsideration, and:or new trial, insisting that the issues of estoppel and revocation be considered and resolved8 whereupon, on -ul$ &7, 1'D', the !ourt overruled the clai" that proponent was in estoppel to as. for the probate of the will, but "reserving unto the parties the right to raise the issue of i"plied revocation at the opportune ti"e." n -anuar$ 11, 1'2B, the !ourt of *irst +nstance appointed Ricardo !ru< as ad"inistrator for the sole purpose of sub"itting an inventor$ of the estate, and this was done on *ebruar$ ', 1'2B. n *ebruar$ &7, 1'2&, after receiving further evidence on the issue whether the e5ecution b$ the testatri5 of deeds of sale of the larger portion of her estate in favor of the testa"entar$ heir, "ade in 1';3 and 1';;, subsequent to the e5ecution of her 1'3B testa"ent, had revo.ed the latter under #rticle 'D7?&@ of the 1'DB !ivil !ode ?#rt. 72' of the !ivil !ode of 177'@, the trial !ourt resolved against the oppositors and held the will of the late 6enedicta de los Re$es "unaffected and unrevo.ed b$ the deeds of sale." 9hereupon, the oppositors elevated the case to the !ourt of #ppeals. The appellate !ourt held that the decree of -une &B, 1'D7, ad"itting the will to probate, had beco"e final for lac. of opportune appeal8 that the sa"e was appealable independentl$ of the issue of i"plied revocation8 that contrar$ to the clai" of oppositors1appellants, there had been no legal revocation b$ the e5ecution of the 1';3 and 1';; deeds of sale, because the latter had been "ade in favor of the legatee herself, and affir"ed the decision of the !ourt of *irst +nstance. ppositors then appealed to this !ourt. +n this instance, both sets of oppositors1appellants pose three "ain issues> ?a@ whether or not the decree of the !ourt of *irst +nstance allowing the will to probate had beco"e final for lac. of appeal8 ?b@ whether or not the order of the !ourt of origin dated -ul$ &7, 1'D', overruling the estoppel invo.ed b$ oppositors1appellants had li.ewise beco"e final8 and ?c@ whether or not the 1'3B will of 6enedicta de los Re$es had been i"pliedl$ revo.ed b$ her e5ecution of deeds of conve$ance in favor of the proponent on %arch &2, 1';3 and #pril 3, 1';;. #s to the first point, oppositors1appellants contend that the order allowing the will to probate should be considered interlocutor$, because it fails to resolve the issues of estoppel and revocation propounded in their opposition. 9e agree with the !ourt of #ppeals that the appellant=s stand is untenable. +t is ele"entar$ that a probate decree finall$ and definitivel$ settles all questions concerning capacit$ of the testator and the proper e5ecution and witnessing of his last will and testa"ent, irrespective of whether its provisions are valid and enforceable or otherwise. ?%ontaFano vs. Suesa, 1; /hil. 2728 %ercado vs. Santos, 22 /hil. &1D8 Trillana vs. !risosto"o, 7' /hil. 71B@. #s such, the probate order is final and appealable8 and it is so recogni<ed b$ e5press provisions of Section 1 of Rule 1B', that specificall$ prescribes that "an$ interested person "a$ appeal in special proceedings fro" an order or 3udg"ent . . . where such order or 3udg"ent> ?a@ allows or disallows a will." #ppellants argue that the$ were entitled to await the trial !ourt=s resolution on the other grounds of their opposition before ta.ing an appeal, as otherwise there would be a "ultiplicit$ of recourses to the higher !ourts. This contention is without weight, since Rule 1B', section 1, e5pressl$ enu"erates si5 different instances when appeal "a$ be ta.en in special proceedings.

There being no controvers$ that the probate decree of the !ourt below was not appealed on ti"e, the sa"e had beco"e final and conclusive. 4ence, the appellate courts "a$ no longer revo.e said decree nor review the evidence upon which it is "ade to rest. Thus, the appeal belatedl$ lodged against the decree was correctl$ dis"issed. The alleged revocation i"plied fro" the e5ecution of the deeds of conve$ance in favor of the testa"entar$ heir is plainl$ irrelevant to and separate fro" the question of whether the testa"ent was dul$ e5ecuted. *or one, if the will is not entitled to probate, or its probate is denied, all questions of revocation beco"e superfluous in law, there is no such will and hence there would be nothing to revo.e. Then, again, the revocation invo.ed b$ the oppositors1 appellants is not an e5press one, but "erel$ i"plied fro" subsequent acts of the testatri5 allegedl$ evidencing an abandon"ent of the original intention to bequeath or devise the properties concerned. #s such, the revocation would not affect the will itself, but "erel$ the particular devise or legac$. nl$ the total and ab&olute revocation can preclude probate of the revo.ed testa"ent ?Trillana vs. !risosto"o, &upra.@. #s to the issue of estoppel, we have alread$ ruled in )uevara vs. )uevara, '7 /hil. &;', that the presentation and probate of a will are require"ents of public polic$, being pri"aril$ designed to protect the testator=s, e5pressed wishes, which are entitled to respect as a consequence of the decedent=s ownership and right of disposition within legal li"its. Evidence of it is the $uty i"posed on a custodian of a will to deliver the sa"e to the !ourt, and the fine and i"prison"ent prescribed for its violation ?Revised Rule 7D@. +t would be a non &e+uitur to allow public polic$ to be evaded on the prete5t of estoppel. 9hether or not the order overruling the allegation of estoppel is still appealable or not, the defense is patentl$ un"eritorious and the !ourt of #ppeals correctl$ so ruled. The last issue, that of revocation, is predicated on paragraph & of #rticle 'D7 of the !ivil !ode of 1'DB ?#rt. 72' of the !ode of 177'@, which recites> #rt. 'D7. The legac$ or devise shall be without effect> ?1@ . . . . ?&@ +f the testator b$ an$ title or for an$ cause alienates the thing bequeathed or an$ part thereof, it being understood that in the latter case the legac$ or devise shall be without effect onl$ with respect to the part thus alienated. +f after the alienation the thing should again belong to the testator, even if it be b$ reason of nullit$ of the contract, the legac$ or devise shall not thereafter be valid, unless the reacquisition shall have been effected b$ virtue of the e5ercise of the right of repurchase8 555 555 555

+t is well to note that, unli.e in the *rench and +talian !odes, the basis of the quoted provision is a presu"ed change of intention on the part of the testator. #s pointed out b$ %anresa in his !o""entaries on #rticle 72' of the !ivil !ode ?(ol. 2, 7th Ed., p. 7;3@ H Este caso se funda en la presunta voluntad del testador. Si este, despues de legar, se desprende de la cosa por titulo lucrativo u oneroso, hace desaparecer su derecho sobra ella, dando lugar a la presuncion de que ha ca"biado de voluntad, $ no quiere que el legado se cu"pla. %as para que pueda presu"irse esa voluntad, es necesario que "edien actos del testador que la indiquen. Si la perdida del derecho sobre la cosa ha sido independiente de la voluntad del testador, el legado podraquedar sin efecto, "as no en virtud del nu"ero & del articulo 72', que e5ige sie"pre actos voluntarios de ena3enacion por parte del "is"o testador. #s observed b$ the !ourt of #ppeals, the e5istence of an$ such change or departure fro" the original intent of the testatri5, e5pressed in her 1'3B testa"ent, is rendered doubtful b$ the circu"stance that the subsequent alienations in 1';3 and 1';; were e5ecuted in favor of the legatee herself, appellee Ai"agiba. +n fact, as found b$ the !ourt of #ppeals in its decision annulling these conve$ances ?affir"ed in that point b$ this Supre"e !ourt in Reye& (&. Court of 2ppeal& an$ ?imagiba, ,1D217 and ,1D2&B, pro"ulgated on -ul$ 31, 1'D;@, "no consideration whatever was paid b$ respondent Ai"agiba" on account of the transfers, thereb$ rendering it even "ore doubtful whether in conve$ing the propert$ to her legatee, the testatri5 "erel$ intended to co"pl$ in advance with what she had ordained in her testa"ent, rather than an alteration or departure therefro".1 Revocation being an e5ception, we believe, with the !ourts below, that in the circu"stances of the particular case, #rticle 'D7 of the !ivil !ode of the /hilippines, does not appl$ to the case at bar.

0ot onl$ that, but even if it were applicable, the annul"ent of the conve$ances would not necessaril$ result in the revocation of the legacies, if we bear in "ind that the findings "ade in the decision decreeing the annul"ent of the subsequent 1';3 and 1';; deeds of sale were also that it was the "oral influence, originating fro" their confidential relationship, which was the onl$ cause for the e5ecution of E5hs. # and 6 ?the 1';3 and 1';; conve$ances@. ?Aecision, ,1D217 and ,1D2&B@. +f the annul"ent was due to undue influence, as the quoted passage i"plies, then the transferor was not e5pressing her own free will and intent in "a.ing the conve$ances. 4ence, it can not be concluded, either, that such conve$ances established a decision on her part to abandon the original legac$. True it is that the legal provision quoted prescribes that the recover$ of the alienated propert$ "even if it be b$ reason of the nullit$ of the contract" does not revive the legac$8 but as pointed out b$ Scaevola ?!odigo !ivil, (ol. N(, ;th Ed., pp. 3&;13&D@ the "nullit$ of the contract" can not be ta.en in an absolute sense.& !ertainl$, it could not be "aintained, for e5a"ple, that if a testator=s subsequent alienation were avoided because the testator was "entall$ deranged at the ti"e, the revocator$ effect ordained b$ the article should still ensue. #nd the sa"e thing could be said if the alienation ?posterior to the will@ were avoided on account of ph$sical or "ental duress. Met, an alienation through undue influence in no wa$ differs fro" one "ade through violence or inti"idation. +n either case, the transferor is not e5pressing his real intent,3 and it can not be held that there was in fact an alienation that could produce a revocation of the anterior bequest. +n view of the foregoing considerations, the appealed decision of the !ourt of #ppeals is hereb$ affir"ed. !osts against appellants Re$es and *ernande<. So ordered.

G.R. No. 72706 ".,ober 27, 1937 C"N$1AN1IN" C. ACAIN, petitioner, vs. !"N. IN1ER%E6IA1E A&&ELLA1E C"UR1 ?1/(r $Ae.(a0 Ca'e' 6(v('(on@, VIRGINIA A. FERNAN6E; an R"$A 6I"NG$"N, respondents. This is a petition for review on certiorari of the decision 2 of respondent. !ourt of #ppeals in #!1).R. S/ 0o. BD7;; pro"ulgated on #ugust 3B, 1'7D ?Rollo, p. 1B7@ ordering the dis"issal of the petition in Special /roceedings 0o, D'1 #!E6 and its Resolution issued on ctober &3, 1'7D ?Rollo, p. 7&@ den$ing respondents= ?petitioners herein@ "otion for reconsideration. The dispositive portion of the questioned decision reads as follows> 94ERE* RE, the petition is hereb$ granted and respondent Regional Trial !ourt of the Seventh -udicial Region, 6ranch N+++ ?!ebu !it$@, is hereb$ ordered to dis"iss the petition in Special /roceedings 0o. D'1 #!E6 0o special pronounce"ent is "ade as to costs. The antecedents of the case, based on the su""ar$ of the +nter"ediate #ppellate !ourt, now !ourt of #ppeals, ?Rollo, pp. 1B711B'@ are as follows>

n %a$ &', 1'7; petitioner !onstantino #cain filed on the Regional Trial !ourt of !ebu !it$ 6ranch N+++, a petition for the probate of the will of the late 0e"esio #cain and for the issuance to the sa"e petitioner of letters testa"entar$, doc.eted as Special /roceedings 0o. D'1 #!E6 ?Rollo, p. &'@, on the pre"ise that 0e"esio #cain died leaving a will in which petitioner and his brothers #ntonio, *lores and -ose and his sisters #nita, !oncepcion, Cuirina and ,aura were instituted as heirs. The will allegedl$ e5ecuted b$ 0e"esio #cain on *ebruar$ 17, 1'2B was written in 6isa$a ?Rollo, p. &7@ with a translation in English ?Rollo, p. 31@ sub"i=tted b$ petitioner without ob3ection raised b$ private respondents. The will contained provisions on burial rites, pa$"ent of debts, and the appoint"ent of a certain #tt$. +gnacio ). (illagon<alo as the e5ecutor of the testa"ent. n the disposition of the testator=s propert$, the will provided> T4+RA> #ll "$ shares that + "a$ receive fro" our properties. house, lands and "one$ which + earned 3ointl$ with "$ wife Rosa Aiongson shall all be given b$ "e to "$ brother SE)U0A #!#+0 *ilipino, widower, of legal age and presentl$ residing at 3D71! Sanciang.o Street, !ebu !it$. +n case "$ brother Segundo #cain pre1deceased "e, all the "one$ properties, lands, houses there in 6anta$an and here in !ebu !it$ which constitute "$ share shall be given to "e to his children, na"el$> #nita, !onstantino, !oncepcion, Cuirina, laura, *lores, #ntonio and -ose, all surna"ed #cain. bviousl$, Segundo pre1deceased 0e"esio. Thus it is the children of Segundo who are clai"ing to be heirs, with !onstantino as the petitioner in Special /roceedings 0o. D'1 #!E6 #fter the petition was set for hearing in the lower court on -une &D, 1'7; the oppositors ?respondents herein (irginia #. *ernande<, a legall$ adopted daughter of tile deceased and the latter=s widow Rosa Aiongson (da. de #cain filed a "otion to dis"iss on the following grounds for the petitioner has no legal capacit$ to institute these proceedings8 ?&@ he is "erel$ a universal heir and ?3@ the widow and the adopted daughter have been pretirited. ?Rollo, p. 1D7@. Said "otion was denied b$ the trial 3udge. #fter the denial of their subsequent "otion for reconsideration in the lower court, respondents filed with the Supre"e !ourt a petition for certiorari and prohibition with preli"inar$ in3unction which was subsequentl$ referred to the +nter"ediate #ppellate !ourt b$ Resolution of the !ourt dated %arch 11, 1'7D ?%e"orandu" for /etitioner, p. 38 Rollo, p. 1D'@. Respondent +nter"ediate #ppellate !ourt granted private respondents= petition and ordered the trial court to dis"iss the petition for the probate of the will of 0e"esio #cain in Special /roceedings 0o. D'1 #!E6 4is "otion for reconsideration having been denied, petitioner filed this present petition for the review of respondent !ourt=s decision on Aece"ber 17, 1'7D ?Rollo, p. 2@. Respondents= !o""ent was filed on -une 2, 1'72 ?Rollo, p. 1;2@. n #ugust 11, 1'72 the !ourt resolved to give due course to the petition ?Rollo, p. 1D3@. Respondents= %e"orandu" was filed on Septe"ber &&, 1'72 ?Rollo, p. 1D7@8 the %e"orandu" for petitioner was filed on Septe"ber &', 1'72 ?Rollo, p. 177@. /etitioner raises the following issues ?%e"orandu" for petitioner, p. ;@> ?#@ The petition filed in #!1).R. 0o. BD7;; for certiorari and prohibition with preli"inar$ in3unction is not the proper re"ed$ under the pre"ises8 ?6@ The authorit$ of the probate courts is li"ited onl$ to inquiring into the e5trinsic validit$ of the will sought to be probated and it cannot pass upon the intrinsic validit$ thereof before it is ad"itted to probate8 ?!@ The will of 0e"esio #cain is valid and "ust therefore, be ad"itted to probate. The preterition "entioned in #rticle 7D; of the 0ew !ivil !ode refers to preterition of "co"pulsor$ heirs in the direct line," and does not appl$ to private respondents who are not co"pulsor$ heirs in the direct line8 their o"ission shall not annul the institution of heirs8 ?A@ A+!#T TEST#T R ET %ER+T ,EN. 9hat the testator sa$s will be the law8 ?E@ There "a$ be nothing in #rticle 7D; of the 0ew !ivil !ode, that suggests that "ere institution of a universal heir in the will would give the heir so instituted a share in the inheritance but there is a definite distinct intention of the testator in the case at bar, e5plicitl$ e5pressed in his will. This is what "atters and should be in violable.

?*@ #s an instituted heir, petitioner has the legal interest and standing to file the petition in Sp. /roc. 0o. D'1 #!E6 for probate of the will of 0e"esio #cain and ?)@ #rticle 7D; of the 0ew !ivil !ode is a bill of attainder. +t is therefore unconstitutional and ineffectual. The pivotal issue in this case is whether or not private respondents have been pretirited. #rticle 7D; of the !ivil !ode provides> #rt. 7D;. The preterition or o"ission of one, so"e, or all of the co"pulsor$ heirs in the direct line, whether living at the ti"e of the e5ecution of the will or born after the death of the testator, shall annul the institution of heir8 but the devisees and legacies shall be valid insofar as the$ are not8 inofficious. +f the o"itted co"pulsor$ heirs should die before the testator, the institution shall he effectual, without pre3udice to the right of representation. /reterition consists in the o"ission in the testator=s will of the forced heirs or an$one of the" either because the$ are not "entioned therein, or, though "entioned, the$ are neither instituted as heirs nor are e5pressl$ disinherited ?0uguid v. 0uguid, 17 S!R# ;DB K1'22L8 %aninang v. !ourt of #ppeals, 11; S!R# ;77 K1'7&L@. +nsofar as the widow is concerned, #rticle 7D; of the !ivil !ode "a$ not appl$ as she does not ascend or descend fro" the testator, although she is a co"pulsor$ heir. Stated otherwise, even if the surviving spouse is a co"pulsor$ heir, there is no preterition even if she is o"itted fro" the inheritance, for she is not in the $ire%t line. ?#rt. 7D;, !ivil code@ however, the sa"e thing cannot be said of the other respondent (irginia #. *ernande<, whose legal adoption b$ the testator has not been questioned b$ petitioner ?.%e"orandu" for the /etitioner, pp. 71'@. Under #rticle 3' of /.A. 0o. 2B3, .nown as the !hild and Mouth 9elfare !ode, adoption gives to the adopted person the sa"e rights and duties as if he were a legiti"ate child of the adopter and "a.es the adopted person a legal heir of the adopter. +t cannot be denied that she has totall$ o"itted and preterited in the will of the testator and that both adopted child and the widow were deprived of at least their legiti"e. 0either can it be denied that the$ were not e5pressl$ disinherited. 4ence, this is a clear case of preterition of the legall$ adopted child. /retention annuls the institution of an heir and annul"ent throws open to intestate succession the entire inheritance including "la por%ion libre 3+ue4 no hubie&e $i&pue&to en (irtual $e lega$o me8ora o $ona%ion" %aniesa as cited in 0uguid v. 0uguid, &upra8 %aninang v. !ourt of #ppeals, 11; S!R# K1'7&L@. The onl$ provisions which do not result in intestac$ are the legacies and devises "ade in the will for the$ should stand valid and respected, e5cept insofar as the legiti"es are concerned. The universal institution of petitioner together with his brothers and sisters to the entire inheritance of the testator results in totall$ abrogating the will because the nullification of such institution of universal heirs1without an$ other testa"entar$ disposition in the will1a"ounts to a declaration that nothing at all was written. !arefull$ worded and in clear ter"s, #rticle 7D; of the !ivil !ode offers no leewa$ for inferential interpretation ?0uguid v. 0uguid@, supra. 0o legacies nor devises having been provided in the will the whole propert$ of the deceased has been left b$ universal title to petitioner and his brothers and sisters. The effect of annulling the "+nstitution of heirs will be, necessaril$, the opening of a total intestac$ ?0eri v. #.utin, 7; /hil. 17D K1';3L@ e5cept that proper legacies and devises "ust, as alread$ stated above, be respected. 9e now deal with another "atter. +n order that a person "a$ be allowed to intervene in a probate proceeding he "ust have an interest iii the estate, or in the will, or in the propert$ to be affected b$ it either as e5ecutor or as a clai"ant of the estate and an interested part$ is one who would be benefited b$ the estate such as an heir or one who has a clai" against the estate li.e a creditor ?Su"ilang v. Ra"agosa, &1 S!R# 132':1'27@. /etitioner is not the appointed e5ecutor, neither a devisee or a legatee there being no "ention in the testa"entar$ disposition of an$ gift of an individual ite" of personal or real propert$ he is called upon to receive ?#rticle 77&, !ivil !ode@. #t the outset, he appears to have an interest in the will as an heir, defined under #rticle 77& of the !ivil !ode as a person called to the succession either b$ the provision of a will or b$ operation of law. 4owever, intestac$ having resulted fro" the preterition of respondent adopted child and the universal institution of heirs, petitioner is in effect not an heir of the testator. 4e has no legal standing to petition for the probate of the will left b$ the deceased and Special /roceedings 0o. D'1 #1!E6 "ust be dis"issed.

#s a general rule certiorari cannot be a substitute for appeal, e5cept when the questioned order is an oppressive e5ercise of 3 3udicial authorit$ ?/eople v. (illanueva, 11B S!R# ;2D K1'71L8 (da. de !aldito v. Segundo, 117 S!R# D73 K1'7&L8 !o !huan Seng v. !ourt of #ppeals, 1&7 S!R# 3B7 K1'7;L8 and 6autista v. Sar"iento, 137 S!R# D77 K1'7DL@. +t is a5io"atic that the re"edies of certiorari and prohibition are not available where the petitioner has the re"ed$ of appeal or so"e other plain, speed$ and adequate re"ed$ in the course of law ?AA !o"endador !onstruction !orporation v. Sa$o ?117 S!R# D'B K1'7&L@. The$ are, however, proper re"edies to correct a grave abuse of discretion of the trial court in not dis"issing a case where the dis"issal is founded on valid grounds ?(da. de 6acang v. !ourt of #ppeals, 1&D S!R# 137 K1'73L@. Special /roceedings 0o. D'1 #!E6 is for the probate of a will. #s stated b$ respondent !ourt, the general rule is that the probate court=s authorit$ is li"ited onl$ to the e5trinsic validit$ of the will, the due e5ecution thereof, the testator=s testa"entar$ capacit$ and the co"pliance with the requisites or sole"nities prescribed b$ law. The intrinsic validit$ of the will nor"all$ co"es onl$ after the !ourt has declared that the will has been dul$ authenticated. Said court at this stage of the proceedings is not called upon to rule on the intrinsic validit$ or efficac$ of the provisions of the will ?0uguid v. 0uguid, 17 S!R# ;;' K1'22L8 Su"ilang v. Ra"agosa, &upra8 %aninang v. !ourt of #ppeals, 11; S!R# ;77 K1'7&L8 !a$etano v. ,eonides, 1&' S!R# D&& K1'7;L8 and 0epo"uceno v. !ourt of #ppeals, 13' S!R# &B2 K1'7DL@. The rule, however, is not infle5ible and absolute. Under e5ceptional circu"stances, the probate court is not powerless to do what the situation constrains it to do and pass upon certain provisions of the will ?0epo"uceno v. !ourt of #ppeals, &upra@. +n 0uguid v. 0uguid the oppositors to the probate "oved to dis"iss on the ground of absolute preteriton The probate court acting on the "otion held that the will in question was a co"plete nullit$ and dis"issed the petition without costs. n appeal the Supre"e !ourt upheld the decision of the probate court, induced b$ practical considerations. The !ourt said> 9e pause to reflect. +f the case were to be re"anded for probate of the will, nothing will be gained. n the contrar$, this litigation will be protracted. #nd for aught that appears in the record, in the event of probate or if the court re3ects the will, probabilit$ e5ists that the case will co"e up once again before us on the sa"e issue of the intrinsic validit$ or nullit$ of the will. Result> waste of ti"e, effort, e5pense, plus added an5iet$. These are the practical considerations that induce us to a belief that we "ight as well "eet head1on the issue of the validit$ of the provisions of the will in question. #fter all there e5ists a 3usticiable controvers$ cr$ing for solution. +n ,aguim&im (. Lin$ayag ?2 S!R# 77; K1'2&L@ the "otion to dis"iss the petition b$ the surviving spouse was grounded on petitioner=s lac. of legal capacit$ to institute the proceedings which was full$ substantiated b$ the evidence during the hearing held in connection with said "otion. The !ourt upheld the probate court=s order of dis"issal. +n Cayetano (. Leoni$e&, &upra one of the issues raised in the "otion to dis"iss the petition deals with the validit$ of the provisions of the will. Respondent -udge allowed the probate of the will. The !ourt held that as on its face the will appeared to have preterited the petitioner the respondent 3udge should have denied its probate outright. 9here circu"stances de"and that intrinsic validit$ of testa"entar$ provisions be passed upon even before the e5trinsic validit$ of the will is resolved, the probate court should "eet the issue. ?0epo"uceno v. !ourt of #ppeals,&upra8 0uguid v. 0uguid, &upra@. +n the instant case private respondents filed a "otion to dis"iss the petition in Sp. /roceedings 0o. D'1 #!E6 of the Regional Trial !ourt of !ebu on the following grounds> ?1@ petitioner has no legal capacit$ to institute the proceedings8 ?&@ he is "erel$ a universal heir8 and ?3@ the widow and the adopted daughter have been preterited ?Rollo, p. 1D7@. +t was denied b$ the trial court in an order dated -anuar$ &1, 1'7D for the reason that "the grounds for the "otion to dis"iss are "atters properl$ to be resolved after a hearing on the issues in the course of the trial on the "erits of the case ?Rollo, p. 3&@. # subsequent "otion for reconsideration was denied b$ the trial court on *ebruar$ 1D, 1'7D ?Rollo, p. 1B'@. *or private respondents to have tolerated the probate of the will and allowed the case to progress when on its face the will appears to be intrinsicall$ void as petitioner and his brothers and sisters were instituted as universal heirs coupled with the obvious fact that one of the private respondents had been preterited would have been an e5ercise in futilit$. +t would have "eant a waste of ti"e, effort, e5pense, plus added futilit$. The trial court could have denied its probate outright or could have passed upon the intrinsic validit$ of the testa"entar$ provisions before the e5trinsic validit$ of the will was resolved ?!a$etano v. ,eonides, &upra8 0uquid v. 0uguid, &upra. The re"edies of certiorari and prohibition were properl$ availed of b$ private respondents.

Thus, this !ourt ruled that where the grounds for dis"issal are indubitable, the defendants had the right to resort to the "ore speed$, and adequate re"edies of certiorari and prohibition to correct a grave abuse of discretion, a"ounting to lac. of 3urisdiction, co""itted b$ the trial court in not dis"issing the case, ?(da. de 6acang v. !ourt of #ppeals, &upra@ and even assu"ing the e5istence of the re"ed$ of appeal, the !ourt har.ens to the rule that in the broader interests of 3ustice, a petition for certiorari "a$ be entertained, particularl$ where appeal would not afford speed$ and adequate relief. ?%aninang !ourt of #ppeals, &upra@. /RE%+SES ! 0S+AEREA, the petition is hereb$ AE0+EA for lac. of "erit and the questioned decision of respondent !ourt of #ppeals pro"ulgated on #ugust 3B, 1'7D and its Resolution dated ctober &3, 1'7D are hereb$ #**+R%EA. S RAEREA.

G.R. No. L-62952 ".,ober 9, 1935 $"FIA *. NE&"%UCEN", petitioner, vs. 1!E !"N"RA#LE C"UR1 "F A&&EAL$, RUFINA G"%E;, "$CAR *UG" ANG, CAR%ELI1A *UG",respondents. This is a petition for certiorari to set aside that portion of the decision of the respondent !ourt of #ppeals ?now inter"ediate #ppellate !ourt@ dated -une 3, 1'7&, as a"ended b$ the resolution dated #ugust 1B, 1'7&, declaring as null and void the devise in favor of the petitioner and the resolution dated Aece"ber &7, 1'7& den$ing petitioner=s "otion for reconsideration. %artin -ugo died on -ul$ 12, 1'7; in %alabon, Ri<al. 4e left a last 9ill and Testa"ent dul$ signed b$ hi" at the end of the 9ill on page three and on the left "argin of pages 1, & and ; thereof in the presence of !elestina #le3andro, %$rna !. !orte<, and ,eandro ,eano, who in turn, affi5ed their signatures below the attestation clause and on the left "argin of pages 1, & and ; of the 9ill in the presence of the testator and of each other and the 0otar$ /ublic. The 9ill was ac.nowledged before the 0otar$ /ublic Ro"eo Escareal b$ the testator and his three attesting witnesses. +n the said 9ill, the testator na"ed and appointed herein petitioner Sofia -. 0epo"uceno as his sole and onl$ e5ecutor of his estate. +t is clearl$ stated in the 9ill that the testator was legall$ "arried to a certain Rufina )o"e< b$ who" he had two legiti"ate children, scar and !ar"elita, but since 1'D&, he had been estranged fro" his lawfull$ wedded wife and had been

living with petitioner as husband and wife. +n fact, on Aece"ber D, 1'D&, the testator %artin -ugo and the petitioner herein, Sofia -. 0epo"uceno were "arried in (ictoria, Tarlac before the -ustice of the /eace. The testator devised to his forced heirs, na"el$, his legal wife Rufina )o"e< and his children scar and !ar"elita his entire estate and the free portion thereof to herein petitioner. The 9ill reads in part> #rt. +++. That + have the following legal heirs, na"el$> "$ afore"entioned legal wife, Rufina )o"e<, and our son, scar, and daughter !ar"elita, both surna"ed -ugo, who" + declare and ad"it to be legall$ and properl$ entitled to inherit fro" "e8 that while + have been estranged fro" "$ above1na"ed wife for so "an$ $ears, + cannot den$ that + was legall$ "arried to her or that we have been separated up to the present for reasons and 3ustifications .nown full$ well b$ the"> #rt. +(. That since 1'D&, 1 have been living, as man an$ wife with one Sofia -. 0epo"uceno, who" + declare and avow to be entitled to "$ love and affection, for all the things which she has done for "e, now and in the past8 that while Sofia -. 0epo"uceno has with "$ full .nowledge and consent, did co"port and represent "$self as her own husband, in truth and in fact, as well as in the e$es of the law, + could not bind her to "e in the hol$ bonds of "atri"on$ because of "$ afore"entioned previous "arriage8 n #ugust &1, 1'7;, the petitioner filed a petition for the probate of the last 9ill and Testa"ent of the deceased %artin -ugo in the !ourt of *irst +nstance of Ri<al, 6ranch NNN+(, !aloocan !it$ and as.ed for the issuance to her of letters testa"entar$. n %a$ 13, 1'7D, the legal wife of the testator, Rufina )o"e< and her children filed an opposition alleging inter alia that the e5ecution of the 9ill was procured b$ undue and i"proper influence on the part of the petitioner8 that at the ti"e of the e5ecution of the 9ill, the testator was alread$ ver$ sic. and that petitioner having ad"itted her living in concubinage with the testator, she is wanting in integrit$ and thus, letters testa"entar$ should not be issued to her. n -anuar$ 2, 1'72, the lower court denied the probate of the 9ill on the ground that as the testator ad"itted in his 9ill to cohabiting with the petitioner fro" Aece"ber 1'D& until his death on -ul$ 12, 1'7;, the 9ill=s ad"ission to probate will be an +dle e5ercise because on the face of the 9ill, the invalidit$ of its intrinsic provisions is evident. The petitioner appealed to the respondent1appellate court. n -une &, 1'7&, the respondent court set aside the decision of the !ourt of *irst +nstance of Ri<al den$ing the probate of the will. The respondent court declared the 9ill to be valid e5cept that the devise in favor of the petitioner is null and void pursuant to #rticle 73' in relation with #rticle 1B&7 of the !ivil !ode of the /hilippines. The dispositive portion of the decision reads> 94ERE* RE, the decision a +uo is hereb$ set aside, the will in question declared valid e5cept the devise in favor of the appellant which is declared null and void. The properties so devised are instead passed on in intestac$ to the appellant in equal shares, without pronounce"ent as to cost. n -une 1D, 1'7&, oppositors Rufina )o"e< and her children filed a "%otion for !orrection of !lerical Error" pra$ing that the word "appellant" in the last sentence of the dispositive portion of the decision be changed to "appellees" so as to read> "The properties so devised are instead passed on intestac$ to the appellee& in equal shares, without pronounce"ent as to costs." The "otion was granted b$ the respondent court on #ugust 1B, 1'7&. n #ugust &3, 1'7&, the petitioner filed a "otion for reconsideration. This was denied b$ the respondent court in a resolution dated Aece"ber &7, 1'7&. The "ain issue raised b$ the petitioner is whether or not the respondent court acted in e5cess of its 3urisdiction when after declaring the last 9ill and Testa"ent of the deceased %artin -ugo validl$ drawn, it went on to pass upon the intrinsic validit$ of the testa"entar$ provision in favor of herein petitioner. The petitioner sub"its that the validit$ of the testa"entar$ provision in her favor cannot be passed upon and decided in the probate proceedings but in so"e other proceedings because the onl$ purpose of the probate of a 9ill is to establish conclusivel$ as against ever$one that a 9ill was e5ecuted with the for"alities required b$ law and that the testator has the "ental capacit$ to e5ecute the sa"e. The petitioner further contends that even if the provisions of paragraph 1 of #rticle 73' of the !ivil !ode of the /hilippines were applicable, the declaration

of its nullit$ could onl$ be "ade b$ the proper court in a separate action brought b$ the legal wife for the specific purpose of obtaining a declaration of the nullit$ of the testa"entar$ provision in the 9ill in favor of the person with who" the testator was allegedl$ guilt$ of adulter$ or concubinage. The respondents on the other hand contend that the fact that the last 9ill and Testa"ent itself e5pressl$ ad"its indubitabl$ on its face the "eretricious relationship between the testator and the petitioner and the fact that petitioner herself initiated the presentation of evidence on her alleged ignorance of the true civil status of the testator, which led private respondents to present contrar$ evidence, "erits the application of the doctrine enunciated in Nugui$ (. )elix Nugui$, et al. ?17 S!R# ;;'@ and )elix Balanay, @r. (. Aon. 2ntonio =artine:, et al.?).R. 0o. ,1 3'&;7, -une &7, 1'7D@. Respondents also sub"it that the ad"ission of the testator of the illicit relationship between hi" and the petitioner put in issue the legalit$ of the devise. 9e agree with the respondents. The respondent court acted within its 3urisdiction when after declaring the 9ill to be validl$ drawn, it went on to pass upon the intrinsic validit$ of the 9ill and declared the devise in favor of the petitioner null and void. The general rule is that in probate proceedings, the court=s area of inquir$ is li"ited to an e5a"ination and resolution of the e5trinsic validit$ of the 9ill. The rule is e5pressed thus> 555 555 555 ... +t is ele"entar$ that a probate decree finall$ and definitivel$ settles all questions concerning capacit$ of the testator and the proper e5ecution and witnessing of his last 9ill and testa"ent, irrespective of whether its provisions are valid and enforceable or otherwise. 3)ernan$e: (. ?imagiba,&1 S!R# ;&7@ The petition below being for the probate of a 9ill, the court=s area of inquir$ is li"ited to the e5trinsic validit$ thereof. The testators testa"entar$ capacit$ and the co"pliance with the for"al requisites or sole"nities prescribed b$ law are the onl$ questions presented for the resolution of the court. #n$ inquir$ into the intrin&i% validit$ or efficac$ of the provisions of the will or the legalit$ of an$ devise or legac$ is pre"ature. 555 555 555 True or not, the alleged sale is no ground for the dis"issal of the petition for probate. /robate is one thing8 the validit$ of the testa"entar$ provisions is another. The first decides the e5ecution of the docu"ent and the testa"entar$ capacit$ of the testator8 the second relates to descent and distribution ?,umilang (. Ramago&a, &1 S!R# 132'@ 555 555 555 To establish conclusivel$ as against ever$one, and once for all, the facts that a will was e5ecuted with the for"alities required b$ law and that the testator was in a condition to "a.e a will, is the onl$ purpose of the proceedings under the new code for the probate of a will. ?Sec. 2&D@. The 3udg"ent in such proceedings deter"ines and can deter"ine nothing "ore. +n the" the court has no power to pass upon the validit$ of an$ provisions "ade in the will. +t can not decide, for e5a"ple, that a certain legac$ is void and another one valid. ... ? Ca&tane$a (. 2lemany, 3 /hil. ;&2@ The rule, however, is not infle5ible and absolute. )iven e5ceptional circu"stances, the probate court is not powerless to do what the situation constrains it to do and pass upon certain provisions of the 9ill. +n Nugui$ (. Nugui$ ?17 S!R# ;;'@ cited b$ the trial court, the testator instituted the petitioner as universal heir and co"pletel$ preterited her surviving forced heirs. # will of this nature, no "atter how valid it "a$ appear e5trinsicall$, would be null and void. Separate or latter proceedings to deter"ine the intrinsic validit$ of the testa"entar$ provisions would be superfluous. Even before establishing the for"al validit$ of the will, the !ourt in Balanay .@r. (. =artine: ?2; S!R# ;D&@ passed upon the validit$ of its intrinsic provisions. +nvo.ing "practical considerations", we stated>

The basic issue is whether the probate court erred in passing upon the intrinsic validit$ of the will, before ruling on its allowance or for"al validit$, and in declaring it void. 9e are of the opinion that in view of certain unusual provisions of the will, which are of dubious legalit$, and because of the "otion to withdraw the petition for probate ?which the lower court assu"ed to have been filed with the petitioner=s authori<ation@ the trial court acted correctl$ in passing upon the will=s intrinsic validit$ even before its for"al validit$ had been established. The probate of a will "ight beco"e an +dle cere"on$ if on its face it appears to be intrinsicall$ void. 9here practical considerations de"and that the intrinsic validit$ of the will be passed upon, even before it is probated, the court should "eet the issue ?0uguid v. 0uguid, 2; .). 1D&7, 17 S!R# ;;'. !o"pare with Su"ilang vs. Ra"agosa ,1&313D, Aece"ber &2, 1'27, &1 S!R# 132'8 !acho v. Udan ,11'''2, #pril 3B, 1'2D, 13 S!R# 2'3@. There appears to be no "ore dispute at this ti"e over the e5trinsic validit$ of the 9ill. 6oth parties are agreed that the 9ill of %artin -ugo was e5ecuted with all the for"alities required b$ law and that the testator had the "ental capacit$ to e5ecute his 9ill. The petitioner states that she co"pletel$ agrees with the respondent court when in resolving the question of whether or not the probate court correctl$ denied the probate of %artin -ugo=s last 9ill and Testa"ent, it ruled> This being so, the will is declared validl$ drawn. ?/age ;, Aecision, #nne5 # of /etition.@ n the other hand the respondents pra$ for the affir"ance of the !ourt of #ppeals= decision in toto. The onl$ issue, therefore, is the 3urisdiction of the respondent court to declare the testa"entar$ provision in favor of the petitioner as null and void. 9e sustain the respondent court=s 3urisdiction. #s stated in Nugui$ (. Nugui$, 3&upra4B 9e pause to reflect. +f the case were to be re"anded for probate of the will, nothing will be gained. n the contrar$, this litigation will be protracted. #nd for aught that appears in the record, in the record, in the event of probate or if the court re3ects the will, probabilit$ e5ists that the case will co"e up once again before us on the sa"e issue of the intrinsic validit$ or nullit$ of the will. Result, waste of ti"e, effort, e5pense, plus added an5iet$. These are the practical considerations that induce us to a belief that we "ight as well "eet head1on the issue of the validit$ of the provisions of the will in question. ?Section &, Rule 1, Rules of !ourt. !ase, et al. v. -ugo, et al., 77 /hil. D17, D&&@. #fter all, there e5ists a 3usticiable controvers$ cr$ing for solution. 9e see no useful purpose that would be served if we re"and the nullified provision to the proper court in a separate action for that purpose si"pl$ because, in the probate of a will, the court does not ordinaril$ loo. into the intrinsic validit$ of its provisions. #rticle 73' of the !ivil !ode provides> The following donations shall be void> ?1@ Those "ade between persons who were guilt$ of adulter$ or concubinage at the ti"e of the donation8 ?&@ Those "ade between persons found guilt$ of the sa"e cri"inal offense, in consideration thereof ?3@ Those "ade to a public officer or his wife, descendants and ascendants, b$ reason of his office. +n the case referred to in 0o. 1, the action for declaration of nullit$ "a$ be brought b$ the spouse of the donor or donee8 and the guilt of the donor and donee "a$ be proved b$ preponderance of evidence in the sa"e action. #rticle 1B&7 of the !ivil !ode provides> The prohibitions "entioned in #rticle 73', concerning donations inter (i(o& shall appl$ to testa"entar$ provisions.

+n #rticle +++ of the disputed 9ill, e5ecuted on #ugust 1D, 1'27, or al"ost si5 $ears before the testator=s death on -ul$ 12, 1'7;, %artin -ugo stated that respondent Rufina )o"e< was his legal wife fro" who" he had been estranged "for so "an$ $ears." 4e also declared that respondents !ar"elita -ugo and scar -ugo were his legiti"ate children. +n #rticle +(, he stated that he had been living as "an and wife with the petitioner since 1'D&. Testator -ugo declared that the petitioner was entitled to his love and affection. 4e stated that 0epo"uceno represented -ugo as her own husband but "in truth and in fact, as well as in the e$es of the law, + could not bind her to "e in the hol$ bonds of "atri"on$ because of "$ afore"entioned previous "arriage. There is no question fro" the records about the fact of a prior e5isting "arriage when %artin -ugo e5ecuted his 9ill. There is also no dispute that the petitioner and %r. -ugo lived together in an ostensible "arital relationship for && $ears until his death. +t is also a fact that on Aece"ber &, 1'D&, %artin -ugo and Sofia -. 0epo"uceno contracted a "arriage before the -ustice of the /eace of (ictoria, Tarlac. The "an was then D1 $ears old while the wo"an was ;7. 0epo"uceno now contends that she acted in good faith for && $ears in the belief that she was legall$ "arried to the testator. The records do not sustain a finding of innocence or good faith. #s argued b$ the private respondents> *irst. The last will and testa"ent itself e5pressl$ ad"its indubitabl$ on its face the "eretricious relationship between the testator and petitioner, the devisee. Second. /etitioner herself initiated the presentation of evidence on her alleged ignorance of the true civil status of the testator, which led private respondents to present contrar$ evidence. +n short, the parties the"selves dueled on the intrinsic validit$ of the legac$ given in the will to petitioner b$ the deceased testator at the start of the proceedings. 9hether or not petitioner .new that testator %artin -ugo, the "an he had lived with as "an and wife, as alread$ "arried, was an i"portant and specific issue brought b$ the parties before the trial court, and passed upon b$ the !ourt of #ppeals. +nstead of li"iting herself to proving the e5trinsic validit$ of the will, it was petitioner who opted to present evidence on her alleged good faith in "arr$ing the testator. ?Testi"on$ of /etitioner, TS0 of #ugust 1, 1'7&, pp. D21D7 and pp. 2&12;@. /rivate respondents, naturall$, presented evidence that would refute the testi"on$ of petitioner on the point. Sebastian -ugo, $ounger brother of the deceased testator, testified at length on the "eretricious relationship of his brother and petitioner. ?TS0 of #ugust 17,1'7D@. !learl$, the good faith of petitioner was b$ option of the parties "ade a decisive issue right at the inception of the case. !onfronted b$ the situation, the trial court had to "a.e a ruling on the question. 9hen the court a +uo held that the testator %artin -ugo and petitioner =were dee"ed guilt$ of adulter$ or concubinage=, it was a finding that petitioner was not the innocent wo"an she pretended to be. 555 555 555 3. +f a review of the evidence "ust be "ade nonetheless, then private respondents respectfull$ offer the following anal$sis> *+RST> The secrec$ of the "arriage of petitioner with the deceased testator in a town in Tarlac where neither she nor the testator ever resided. +f there was nothing to hide fro", wh$ the conceal"ent= G f course, it "a$be argued that the "arriage of the deceased with private respondent Rufina )o"e< was li.ewise done in secrec$. 6ut it should be re"e"bered that Rufina )o"e< was alread$ in the fa"il$ wa$ at that ti"e and it would see" that the parents of %artin -ugo were not in favor of the "arriage so "uch so that an action in court was brought concerning the "arriage. ?Testi"on$ of Sebastian -ugo, TS0 of #ugust 17, 1'7D, pp. &'13B@

SE! 0A> /etitioner was a sweetheart of the deceased testator when the$ were still both single. That would be in 1'&& as %artin -ugo "arried respondent Rufina )o"e< on 0ove"ber &', 1'&3 ?E5h. 3@. /etitioner "arried the testator onl$ on Aece"ber D, 1'D&. There was a space of about 3B $ears in between. Auring those 3B $ears, could it be believed that she did not even wonder wh$ %artin -ugo did not "arr$ her nor contact her an$"ore after 0ove"ber, 1'&3 1 facts that should i"pel her to as. her groo" before she "arried hi" in secrec$, especiall$ so when she was alread$ about DB $ears old at the ti"e of "arriage. T4+RA> The fact that petitioner bro.e off fro" %artin -ugo in 1'&3 is b$ itself conclusive de"onstration that she new that the "an she had openl$ lived for && $ears as "an and wife was a "arried "an with alread$ two children. * URT4> 4aving ad"itted that she .new the children of respondent Rufina )o"e<, is it possible that she would not have as.ed %artin -ugo whether or not the$ were his illegiti"ate or legiti"ate children and b$ who"G That is un1*ilipino. *+*T4> 4aving often gone to /asig to the residence of the parents of the deceased testator, is it possible that she would not have .nown that the "other of private respondent scar -ugo and !ar"elita -ugo was respondent Rufina )o"e<, considering that the houses of the parents of %artin -ugo ?where he had lived for "an$ $ears@ and that of respondent Rufina )o"e< were 3ust a few "eters awa$G Such pretentions of petitioner Sofia 0epo"uceno are unbelievable. The$ are, to sa$ the least, inherentl$ i"probable, for the$ are against the e5perience in co""on life and the ordinar$ instincts and pro"ptings of hu"an nature that a wo"an would not bother at all to as. the "an she was going to "arr$ whether or not he was alread$ "arried to another, .nowing that her groo" had children. +t would be a stor$ that would strain hu"an credulit$ to the li"it if petitioner did not .now that %artin -ugo was alread$ a "arried "an in view of the irrefutable fact that it was precisel$ his "arriage to respondent Rufina )o"e< that led petitioner to brea. off with the deceased during their $ounger $ears. %oreover, the prohibition in #rticle 73' of the !ivil !ode is against the "a.ing of a donation between persons who are living in adulter$ or concubinage. +t is the $onation which beco"es void. The giver cannot give even assu"ing that the recipient "a$ receive. The ver$ wordings of the 9ill invalidate the legac$ because the testator ad"itted he was disposing the properties to a person with who" he had been living in concubinage. 94ERE* RE, the petition is A+S%+SSEA for lac. of "erit. The decision of the !ourt of #ppeals, now +nter"ediate #ppellate !ourt, is #**+R%EA. 0o costs. S RAEREA.

DG.R. No. 125436. A+)+', 12, 1999E

EUGENIA RA%"NAL C"6":, an %ANUEL RA%"NAL, petitioners, vs. EVANGELINE R. CALUGA:, *"$E&!INE $ALCE6", an EUFE%IA &A1IGA$,respondents. 6efore us is a petition for review on %ertiorari of the decision of the !ourt of #ppealsK1L and its resolution den$ing reconsideration, ruling> OUpon the unrebutted testi"on$ of appellant Evangeline !aluga$ and witness %atilde Ra"onal 6inana$, the authenticit$ of testators holographic will has been established and the handwriting and signature therein ?e5hibit S@ are hers, enough to probate said will. Reversal of the 3udg"ent appealed fro" and the probate of the holographic will in question be called for. The rule is that after plaintiff has co"pleted presentation of his evidence and the defendant files a "otion for 3udg"ent on de"urrer to evidence on the ground that upon the facts and the law plaintiff has shown no right to relief, if the "otion is granted and the order to dis"issal is reversed on appeal, the "ovant loses his right to present evidence in his behalf ?Sec. 1 Rule 3D Revised Rules of !ourt@. -udg"ent "a$, therefore, be rendered for appellant in the instant case. O9herefore, the order appealed fro" is RE(ERSEA and 3udg"ent rendered allowing the probate of the holographic will of the testator %atilde SeFo (da. de Ra"onal.P K&L

The facts are as follows> n #pril 2, 1''B, Evangeline !aluga$, -osephine Salcedo and Eufe"ia /atigas, devisees and legatees of the holographic will of the deceased %atilde SeFo (da. de Ra"onal, filed with the Regional Trial !ourt, %isa"is riental, 6ranch 17, a petition K3L for probate of the holographic will of the deceased, who died on -anuar$ 12, 1''B. +n the petition, respondents clai"ed that the deceased %atilde SeFo (da. de Ra"onal, was of sound and disposing "ind when she e5ecuted the will on #ugust 3B, 1'77, that there was no fraud, undue influence, and duress e"plo$ed in the person of the testator, and the will was written voluntaril$. The assessed value of the decedentQs propert$, including all real and personal propert$ was about /;BB,BBB.BB, at the ti"e of her death.K;L n -une &7, 1''B, Eugenia Ra"onal !odo$ and %anuel Ra"onal filed an opposition KDL to the petition for probate, alleging that the holographic will was a forger$ and that the sa"e is even illegible. This gives an i"pression that a Othird handP of an interested part$ other than the Otrue handP of %atilde SeFo (da. de Ra"onal e5ecuted the holographic will. /etitioners argued that the repeated dates incorporated or appearing on the will after ever$ disposition is out of the ordinar$. +f the deceased was the one who e5ecuted the will, and was not forced, the dates and the signature should appear at the botto" after the dispositions, as regularl$ done and not after ever$ disposition. #nd assu"ing that the holographic will is in the handwriting of the deceased, it was procured b$ undue and i"proper pressure and influence on the part of the beneficiaries, or through fraud and tric.er$. Respondents presented si5 ?2@ witnesses and various docu"entar$ evidence. /etitioners instead of presenting their evidence, filed a de"urrer K2L to evidence, clai"ing that respondents failed to establish sufficient factual and legal basis for the probate of the holographic will of the deceased %atilde SeFo (da. de Ra"onal. n 0ove"ber &2, 1''B, the lower !ourt issued an order, the dispositive portion of which reads> O94ERE* RE, in view of the foregoing consideration, the Ae"urrer to Evidence having being well ta.en, sa"e is granted, and the petition for probate of the docu"ent ?E5hibit OSP@ on the purported 4olographic 9ill of the late %atilde SeFo (da. de Ra"onal, is denied for insufficienc$ of evidence and lac. of "erits.PK7L n Aece"ber 1&, 1''B, respondents filed a notice of appeal, K7L and in support of their appeal, the respondents once again reiterated the testi"on$ of the following witnesses, na"el$> ?1@ #ugusto 0eri8 ?&@ )enerosa Senon8 ?3@ %atilde Ra"onal 6inana$8 ?;@ Teresita (edad8 ?D@ *iscal Rodolfo 9aga8 and ?2@ Evangeline !aluga$. To have a clear understanding of the testi"onies of the witnesses, we recite an account of their testi"onies. A+)+',o Ner(, !ler. of !ourt, !ourt of *irst +nstance of %isa"is riental, where the special proceedings for the probate of the holographic will of the deceased was filed. 4e produced and identified the. records of the case. The docu"ents presented bear the signature of the deceased, %atilde SeFo (da. de Ra"onal, for the purpose of la$ing the basis for co"parison of the handwriting of the testatri5, with the writing treated or ad"itted as genuine b$ the part$ against who" the evidence is offered. Genero'a $enon, election registrar of !aga$an de ro, was presented to produce and identif$ the voterQs affidavit of the decedent. 4owever, the votersQ affidavit was not produced for the sa"e was alread$ destro$ed and no longer available. %a,(0 e Ramona0 #(nana4, testified that the deceased %atilde SeFo (da. de Ra"onal was her aunt, and that after the death of %atildeQs husband, the latter lived with her in her parentQs house for eleven ?11@ $ears, fro" 1'D7 to 1'2'. Auring those eleven ?11@ $ears of close association with the deceased, she acquired fa"iliarit$ with her signature and handwriting as she used to acco"pan$ her ?deceased %atilde SeFo (da. de Ra"onal@ in collecting rentals fro" her various tenants of co""ercial buildings, and the deceased alwa$s issued receipts. +n addition to this, she ?witness %atilde 6inana$@ assisted the deceased in posting the records of the accounts, and carried personal letters of the deceased to her creditors. %a,(0 e Ramona0 #(nana4 further testified that at the ti"e of the death of %atilde (da. de Ra"onal, she left a holographic will dated #ugust 3B, 1'77, which was personall$ and entirel$ written, dated and signed, b$ the deceased and that all the dispositions therein, the dates, and the signatures in said will, were that of the deceased.

F('.a0 Ro o0-o Ca)a testified that before he was appointed !it$ *iscal of !aga$an de ro, he was a practicing law$er, and handled all the pleadings and docu"ents signed b$ the deceased in connection with the intestate proceedings of her late husband, as a result of which he is fa"iliar with the handwriting of the latter. 4e testified that the signature appearing in the holographic will was si"ilar to that of the deceased, %atilde SeFo (da. de Ra"onal, but he can not be sure. The fifth witness presented was %r'. 1ere'(,a Ve a , an e"plo$ee of the Aepart"ent of Environ"ent and 0atural Resources, Region 1B. She testified that she processed the application of the deceased for pasture per"it and was fa"iliar with the signature of the deceased, since the deceased signed docu"ents in her presence, when the latter was appl$ing for pasture per"it. *inall$, Evan)e0(ne Ca0+)a4, one of the respondents, testified that she had lived with the deceased since birth, and was in fact adopted b$ the latter. That after a long period of ti"e she beca"e fa"iliar with the signature of the deceased. She testified that the signature appearing in the holographic will is the true and genuine signature of %atilde SeFo (da. de Ra"onal. The holographic will which was written in (isa$an, is translated in English as follows> O+nstruction O#ugust 3B, 1'77 O1. %$ share at !ogon, Ra"inal Street, for Evangeline !aluga$. O?Sgd@ %atilde (da de Ra"onal O#ugust 3B, 1'77 O&. -osefina Salcedo "ust be given 1,DBB square "eters at /ini.itan Street. O?Sgd@ %atilde (da de Ra"onal O#ugust 3B, 1'77 O3. %$ 3ewelr$Qs shall be divided a"ong> O1. Eufe"ia /atigas O&. -osefina Salcedo O3. Evangeline !aluga$ O?Sgd@%atilde (da de Ra"onal O#ugust 3B, 1'77 O;. + bequeath "$ one ?1@ hectare land at %andu"ol, +ndahag to Evangeline R. !aluga$ O?Sgd@ %atilde (da de Ra"onal "#ugust 3B, 1'77 OD. )ive the &,DBB Square %eters at Sta. !ru< Ra"onal (illage in favor of Evangeline R. !aluga$, 4elen "ust continue with the Sta. !ru<, once + a" no longer around. O?Sgd@ %atilde (da de Ra"onal O#ugust 3B, 1'77 O2. 6ur$ "e where "$ husband -usto is ever buried. O?Sgd@ %atilde (da de Ra"onal "#ugust 3B,1'77

O)ene and %anuel> "*ollow "$ instruction in order that + will rest peacefull$. O%a"a O%atilde (da de Ra"onal n ctober ', 1''D, the !ourt of #ppeals, rendered decision K'L ruling that the appeal was "eritorious. !iting the decision in the case of #<aola vs. Singson, 1B' /hil. 1B&, penned b$ %r. -ustice -. 6. ,. Re$es, a recogni<ed authorit$ in civil law, the !ourt of #ppeals held> O5 5 5 even (- ,/e )en+(nene'' o- ,/e /o0o)raA/(. F(00 Fere .on,e',e , we are of the opinion that #rticle 711 of our present civil code can not be interpreted as to require the co"pulsor$ presentation of three witnesses to identif$ the handwriting of the testator, under penalt$ of having the probate denied. Since no witness "a$ have been present at the e5ecution of the holographic will, none being required b$ law ?art. 71B, new civil code@, it beco"es obvious that the e5istence of witnesses possessing the requisite qualifications is a "atter be$ond the control of the proponent. *or it is not "erel$ a question of finding and producing an$ three witnesses8 the$ "ust be witnesses Owho .now the handwriting and signature of the testatorP and who can declare ?truthfull$, of course, even if the law does not e5press@ Othat the will and the signature are in the handwriting of the testator.P There "a$ be no available witness acquainted with the testatorQs hand8 or even if so fa"iliari<ed, the witness "a$ be unwilling to give a positive opinion. !o"pliance with the rule of paragraph 1 of article 711 "a$ thus beco"e an i"possibilit$. That is evidentl$ the reason wh$ the second paragraph of article 711 prescribes thatH Oin the absence of an$ co"petent witness referred to in the preceding paragraph, and if the court dee"s it necessar$, e5pert testi"on$ "a$ be resorted to.P O#s can be seen, the law foresees the possibilit$ that no qualified witness "a$ be found ?or what a"ounts to the sa"e thing, that no co"petent witness "a$ be willing to testif$ to the authenticit$ of the will@, and provides for resort to e5pert evidence to suppl$ the deficienc$. O+t "a$ be true that the rule of this article ?requiring that three witnesses be presented if the will is contested and onl$ one if no contest is had@ was derived fro" the rule established for ordinar$ testa"ents ?!* !abang vs. Aelfinado, ;D /4+, &'18 Tolentino v. *rancisco, D7 /4+, 7;&@. 6ut it can not be ignored that the require"ent can be considered "andator$ onl$ in case of ordinar$ testa"ents, precisel$ because the presence of at least three witnesses at the e5ecution of ordinar$ wills is "ade b$ law essential to their validit$ ?#rt. 7BD@. Where the will is holographic, no witness need be present (art.10), and the rule requiring production of three witnesses must be deemed merely permissive if absurd results are to be avoided. O#gain, under #rt.711, the resort to e5pert evidence is conditioned b$ the words Oif the court dee" it necessar$P, which reveal that what the law dee"s essential is that the court should be convinced of the willQs authenticit$. 9here the prescribed nu"ber of witnesses is produced and the court is convinced b$ their testi"on$ that the will is genuine, it "a$ consider it unnecessar$ to call for e5pert evidence. n the other hand, if no co"petent witness is available, or none of those produced is convincing, the court "a$ still, and in fact it should resort to handwriting e5perts. The dut$ of the court, in fine, is to e5haust all available lines of inquir$, for the state is as "uch interested as the proponent that the true intention of the testator be carried into effect. O/araphrasing #<aola vs. Singson, even if the genuineness of the holographic will were contested, #rticle 711 of the civil code cannot be interpreted as to require the co"pulsor$ presentation of three witnesses to identif$ the handwriting of the testator, under penalt$ of the having the probate denied. 0o witness need be present in the e5ecution of the holographic will. And the rule requiring the production of three witnesses is merely permissive. 9hat the law dee"s essential is that the court is convinced of the authenticit$ of the will. +ts dut$ is to e5haust all available lines of inquir$, for the state is as "uch interested in the proponent that the true intention of the testator be carried into effect. #nd because the law leaves it to the trial court to decide if e5perts are still needed, no unfavorable inference can be drawn fro" a part$Qs failure to offer e5pert evidence, until and unless the court e5presses dissatisfaction with the testi"on$ of the la$ witnesses. K1BL

#ccording to the !ourt of #ppeals, Evangeline !aluga$, %atilde Ra"onal 6inana$ and other witnesses definitel$ and in no uncertain ter"s testified that the handwriting and signature in the holographic will were those of the testator herself. Thus, upon the unrebutted testi"on$ of appellant Evangeline !aluga$ and witness %atilde Ra"onal 6inana$, the !ourt of #ppeals sustained the authenticit$ of the holographic will and the handwriting and signature therein, and allowed the will to probate. 4ence, this petition. The petitioners raise the following issues> ?1@ 9hether or not the ruling of the case of #<aola vs. Singson, 1B' /hil. 1B&, relied upon b$ the respondent !ourt of #ppeals, was applicable to the case. ?&@ 9hether or not the !ourt of #ppeals erred in holding that private respondents had been able to present credible evidence to prove that the date, te5t, and signature on the holographic will were written entirel$ in the hand of the testatri5. ?3@ 9hether or not the !ourt of #ppeals erred in not anal$<ing the signatures in the holographic will of %atilde SeFo (da. de Ra"onal. +n this petition, the petitioners as. whether the provisions of #rticle 711 of the !ivil !ode are per"issive or "andator$. The article provides, as a require"ent for the probate of a contested holographic will, that at least three witnesses e5plicitl$ declare that the signature in the will is the genuine signature of the testator. 9e are convinced, based on the language used, that #rticle 711 of the !ivil !ode is "andator$. The word OshallP connotes a "andator$ order. 9e have ruled that OshallP in a statute co""onl$ denotes an i"perative obligation and is inconsistent with the idea of discretion and that the presu"ption is that the word Oshall,P when used in a statute is "andator$.PK11L ,aws are enacted to achieve a goal intended and to guide against an evil or "ischief that ai"s to prevent. +n the case at bar, the goal to achieve is to give effect to the wishes of the deceased and the evil to be prevented is the possibilit$ that unscrupulous individuals who for their benefit will e"plo$ "eans to defeat the wishes of the testator. So, we believe that the para"ount consideration in the present petition is to deter"ine the true intent of the deceased. #n e5haustive and ob3ective consideration of the evidence is i"perative to establish the true intent of the testator. +t will be noted that not all the witnesses presented b$ the respondents testified e5plicitl$ that the$ were fa"iliar with the handwriting of the testator. +n the case of #ugusto 0eri, cler. of court, !ourt of *irst +nstance, %isa"is riental, he "erel$ identified the record of Special /roceedings 0o. ;&7 before said court. 4e was not presented to declare e5plicitl$ that the signature appearing in the holographic was that of the deceased. Genero'a E. $enon, the election registrar of !aga$an de ro !it$, was presented to identif$ the signature of the deceased in the votersQ affidavit, which was not even produced as it was no longer available. %a,(0 e Ramona0 #(nana4, on the other hand, testified that> C. #nd $ou said for eleven ?11@ $ears %atilde (da de Ra"onal resided with $our parents at /ini.itan, !aga$an de ro !it$. 9ould $ou tell the court what was $our occupation or how did %atilde (da de Ra"onal .eep herself bus$ that ti"eG #. !ollecting rentals. C. *ro" whereG #. *ro" the land rentals and co""ercial buildings at /aba$o1)o"e< streets. K1&L 555 C. 9ho so"eti"e acco"pan$ herG #. + so"eti"es acco"pan$ her C. +n collecting rentals does she issue receiptsG #. Mes, sir.K13L 555 C. Showing to $ou the receipt dated &3 ctober 1'7', is this the one $ou are referring to as one of the receipts which she issued to the"G #. Mes, sir.

<. A. <. A.

NoF ,/ere (' ,/a, '()na,+re o- %a,(0 e v a. 6e Ramona0, F/o'e '()na,+re (' ,/a, %r'. #(nana4G %a,(0 e v a. 6e Ramona0. C/4 o 4o+ 'a4 ,/a, ,/a, (' a '()na,+re o- %a,(0 e v a. 6e Ramona0G

I am -am(0(ar F(,/ /er '()na,+re.

C. 0ow, $ou tell the court %rs. 6inana$, whether $ou .now %atilde vda de Ra"onal .ept records of the accounts of her tenantsG #. Mes, sir. C. 9h$ do $ou sa$ soG #. 6ecause we so"eti"es post a record of accounts in behalf of %atilde (da. Ae Ra"onal. C. 4ow is this record of accounts "adeG 4ow is this reflectedG #. +n handwritten.K1;L 555 C. +n addition to collection of rentals, posting records of accounts of tenants and deed of sale which $ou said what else did $ou do to acquire fa"iliarit$ of the signature of %atilde (da Ae Ra"onalG #. /osting records. C. #side fro" thatG #. !arr$ing letters. C. ,etters of who"G #. %atilde C. To who"G #. To her creditors.K1DL 555 C. Mou testified that at the ti"e of her death she left a will. + a" showing to $ou a docu"ent with its title OtugonP is this the docu"ent $ou are referring toG #. Mes, sir. <. A. <. A. $/oF(n) ,o 4o+ ,/(' e7/(b(, H$I, ,/ere (' ,/a, /an Fr(,,en H,+)onI, F/o'e /an Fr(,(n) (' ,/('G %4 a+n,. C/4 o 4o+ 'a4 ,/(' (' ,/e /an Fr(,(n) o- 4o+r a+n,G

#e.a+'e I am -am(0(ar F(,/ /er '()na,+re. K12L

9hat %s. 6inana$ saw were pre1prepared receipts and letters of the deceased, which she either "ailed or gave to her tenants. She did not declare that she saw the deceased sign a docu"ent or write a note. *urther, during the cross1e5a"ination, the counsel for petitioners elicited the fact that the will was not found in the personal belongings of the deceased but was in the possession of %s. 6inana$. She testified that> C. %rs. 6inana$, when $ou were as.ed b$ counsel for the petitioners if the late %atilde Seno vda de Ra"onal left a will $ou said, $esG #. Mes, sir. C. 9ho was in possession of that willG #. +. C. Since when did $ou have the possession of the willG #. +t was in "$ "otherQs possession. C. So, it was not in $our possessionG #. Sorr$, $es.

C. #nd when did $ou co"e into possession since as $ou said this was originall$ in the possession of $our "otherG #. 1'7D.K17L 555 C. 0ow, %rs. 6inana$ was there an$ particular reason wh$ $our "other left that will to $ou and therefore $ou have that in $our possessionG #. +t was not given to "e b$ "$ "other, + too. that in the aparador when she died. C. #fter ta.ing that docu"ent $ou .ept it with $ouG #. + presented it to the fiscal. C. *or what purposeG #. -ust to see. advice. C. #dvice of whatG #. #bout the will.K17L +n her testi"on$ it was also evident that %s. 6inana$ .ept the fact about the will fro" petitioners, the legall$ adopted children of the deceased. Such actions put in issue her "otive of .eeping the will a secret to petitioners and revealing it onl$ after the death of %atilde SeFo (da. de Ra"onal. +n the testi"on$ of %s. 6inana$, the following were established> C. 0ow, in 1'77 %atilde Seno (da de Ra"onal was not $et a sic.l$ person is that correctG #. Mes, sir. C. She was up and about and was still uprightl$ and she could wal. agilel$ and she could go to her building to collect rentals, is that correctG #. Mes, sir.K1'L 555 C. 0ow, let us go to the third signature of %atilde Ra"onal. Ao $ou .now that there are retracings in the word (da.G #. Mes, a little. The letter , is continuous. C. #nd also in %atilde the letter , is continued to letter AG #. Mes, sir. C. #gain the third signature of %atilde (da de Ra"onal the letter , in %atilde is continued towards letter A. #. Mes, sir. C. #nd there is a retracing in the word (da.G #. Mes, sir.K&BL 555 C. 0ow, that was 1'7', re"e"ber one $ear after the alleged holographic will. 0ow, $ou identified a docu"ent "ar.ed as E5hibit R. This is dated -anuar$ 7,1'77 which is onl$ about eight "onths fro" #ugust 3B,1'77. Ao $ou notice that the signature %atilde (da de Ra"onal is beautifull$ written and legibleG #. Mes, sir the handwriting shows that she was ver$ e5hausted. C. Mou 3ust sa$ that she was ver$ e5hausted while that in 1'77 she was health$ was not sic.l$ and she was agile. 0ow, $ou said she was e5haustedG #. +n writing. C. 4ow did $ou .now that she was e5hausted when $ou were not present and $ou 3ust tried to e5plain $ourself out because of the apparent inconsistenciesG #. That was + thin.. ?sic@ C. 0ow, $ou alread$ observed this signature dated 1'77, the sa"e $ear as the alleged holographic will. +n e5hibit +, $ou will notice that there is no retracing8 there is no hesitanc$ and the signature was written on a fluid "ove"ent. 5 5 5 #nd in fact , the na"e Eufe"ia R. /atigas here refers to one of the petitionersG

#. Mes, sir. C. Mou will also notice %rs. 6inana$ that it is not onl$ with the questioned signature appearing in the alleged holographic will "ar.ed as E5hibit N but in the handwriting the"selves, here $ou will notice the hesitanc$ and tre"ors, do $ou notice thatG #. Mes, sir.K&1L Evangeline !aluga$ declared that the holographic will was written, dated and signed in the handwriting of the testator. She testified that> C. Mou testified that $ou sta$ed with the house of the spouses %atilde and -usto Ra"onal for the period of && $ears. !ould $ou tell the court the services if an$ which $ou rendered to %atilde Ra"onalG #. Auring "$ sta$ + used to go with her to the church, to the "ar.et and then to her transactions. C. 9hat elseG 9hat services that $ou renderedG #. #fter "$ college da$s + assisted her in going to the ban., pa$ing ta5es and to her law$er. C. 9hat was $our purpose of going to her law$erG #. + used to be her personal driver. C. +n the course of $our sta$ for && $ears did $ou acquire fa"iliarit$ of the handwriting of %atilde (da de Ra"onalG #. Mes, sir. C. 4ow co"e that $ou acquired fa"iliarit$G #. 6ecause + lived with her since birth.K&&L 555 C. 0ow, + a" showing to $ou E5hibit S which is captioned OtugonP dated #gosto 3B, 1'77 there is a signature here below ite" 0o. 1, will $ou tell this court whose signature is thisG #. Mes, sir, that is her signature. C. 9h$ do $ou sa$ that is her signatureG #. + a" fa"iliar with her signature.K&3L So, the onl$ reason that Evangeline can give as to wh$ she was fa"iliar with the handwriting of the deceased was because she lived with her since birth. She never declared that she saw the deceased write a note or sign a docu"ent. The for"er law$er of the deceased, *iscal 9aga, testified that> C. Ao $ou .now %atilde (da de Ra"onalG #. Mes, sir + .now her because she is "$ god"other the husband is "$ godfather. #ctuall$ + a" related to the husband b$ consanguinit$. C. !an $ou tell the na"e of the husbandG #. The late husband is -usto Ra"onal.K&;L 555 C. !an $ou tell this court whether the spouses -usto Ra"onal and %atilde Ra"onal have legiti"ate childrenG #. #s far as + .now the$ have no legiti"ate children.K&DL 555 C. Mou said after beco"ing a law$er $ou practice $our professionG 9hereG #. 4ere in !aga$an de ro !it$.

C. Ao $ou have services rendered with the deceased %atilde vda de Ra"onalG #. + assisted her in ter"inating the partition, of properties. C. 9hen $ou said assisted, $ou acted as her counselG #n$ sort of counsel as in what case is that, *iscalG

#. +t is about the pro3ect partition to ter"inate the propert$, which was under the court before.K&2L 555 C. #ppearing in special proceeding no. ;&7 is the a"ended inventor$ which is "ar.ed as e5hibit 0 of the estate of -usto Ra"onal and there appears a signature over the t$pe written word %atilde vda de Ra"onal, whose signature is thisG #. That is the signature of %atilde (da de Ra"onal. C. #lso in e5hibit n13, whose signature is thisG #. This one here that is the signature of %rs. %atilde vda de Ra"onal. K&7L 555 C. #side fro" attending as counsel in that Special /roceeding !ase 0o. ;&7 what were the other assistance wherein $ou were rendering professional service to the deceased %atilde (da de Ra"onalG #. + can not re"e"ber if + have assisted her in other "atters but if there are docu"ents to show that + have assisted then + can recall.K&7L 555 C. 0ow, + a" showing to $ou e5hibit S which is titled OtugonP, .indl$ go over this docu"ent, *iscal 9aga and tell the court whether $ou are fa"iliar with the handwriting contained in that docu"ent "ar.ed as e5hibit OSPG #. + a" not fa"iliar with the handwriting. C. This one, %atilde (da de Ra"onal, whose signature is thisG #. + thin. this signature here it see"s to be the signature of %rs. %atilde vda de Ra"onal. C. 0ow, in ite" 0o. & there is that signature here of %atilde (da de Ra"onal, can $ou tell the court whose signature is thisG #. 9ell, that is si"ilar to that signature appearing in the pro3ect of partition. C. #lso in ite" no. 3 there is that signature %atilde (da de Ra"onal, can $ou tell the court whose signature is thatG #. #s + said, this signature also see"s to be the signature of %atilde vda de Ra"onal. C. 9h$ do $ou sa$ thatG #. 6ecause there is a si"ilarit$ in the wa$ it is being written. C. 4ow about this signature in ite" no. ;, can $ou tell the court whose signature is thisG #. The sa"e is true with the signature in ite" no. ;. +t see"s that the$ are si"ilar.K&'L 555 C. %r. /rosecutor, + heard $ou when $ou said that the signature of %atilde (da de Ra"onal #ppearing in e5hibit S see"s to be the signature of %atilde vda de Ra"onalG #. Mes, it is si"ilar to the pro3ect of partition. <. $o 4o+ are no, e-(n(,e ,/a, ,/(' (' ,/e '()na,+re o- %a,(0 e v a e Ramona0. :o+ are mere04 '+AAo'(n) ,/a, (, 'eem' ,o be /er '()na,+re be.a+'e (, (' '(m(0ar ,o ,/e '()na,+re o- ,/e Aro=e., o- Aar,(,(on F/(./ 4o+ /ave ma eG 1/a, (' ,r+e.K3BL

A.

*ro" the testi"onies of these witnesses, the !ourt of #ppeals allowed the will to probate and disregard the require"ent of three witnesses in case of contested holographic will, citing the decision in #<aola vs. Singson,K31L ruling that the require"ent is "erel$ director$ and not "andator$. +n the case of #3ero vs. !ourt of #ppeals,K3&L we said that Othe ob3ect of the sole"nities surrounding the e5ecution of wills is to close the door against bad faith and fraud, to avoid substitution of wills and testa"ents and to guarant$ their truth and authenticit$. Therefore, the laws on this sub3ect should be interpreted in such a wa$ as to attain these pri"ordial ends. 6ut, on the other hand, also one "ust not lose sight of the fact that it is not the ob3ect of the law to restrain and curtail the e5ercise of the right to "a.e a will.P

4owever, we cannot eli"inate the possibilit$ of a false docu"ent being ad3udged as the will of the testator, which is wh$ if the holographic will is contested, that law requires three witnesses to declare that the will was in the handwriting of the deceased. The will was found not in the personal belongings of the deceased but with one of the respondents, who .ept it even before the death of the deceased. +n the testi"on$ of %s. 6inana$, she revealed that the will was in her possession as earl$ as 1'7D, or five $ears before the death of the deceased. There was no opportunit$ for an e5pert to co"pare the signature and the handwriting of the deceased with other docu"ents signed and e5ecuted b$ her during her lifeti"e. The onl$ chance at co"parison was during the cross1e5a"ination of %s. 6inana$ when the law$er of petitioners as.ed %s. 6inana$ to co"pare the docu"ents which contained the signature of the deceased with that of the holographic will and she is not a handwriting e5pert. Even the for"er law$er of the deceased e5pressed doubts as to the authenticit$ of the signature in the holographic will. # visual e5a"ination of the holographic will convince us that the stro.es are different when co"pared with other docu"ents written b$ the testator. The signature of the testator in so"e of the disposition is not readable. There were uneven stro.es, retracing and erasures on the will. !o"paring the signature in the holographic will dated #ugust 3B, 1'77, K33L and the signatures in several docu"ents such as the application letter for pasture per"it dated Aece"ber 3B, 1'7B,K3;L and a letter dated -une 12, 1'77,K3DL the stro.es are different. +n the letters, there are continuous flows of the stro.es, evidencing that there is no hesitation in writing unli.e that of the holographic will. 9e, therefore, cannot be certain that the holographic will was in the handwriting b$ the deceased. IN VIEC C!ERE"F, the decision appealed fro" is SET #S+AE. The records are ordered re"anded to the court of origin with instructions to allow petitioners to adduce evidence in support of their opposition to the probate of the holographic will of the deceased %atilde SeFo (da. de Ra"onal. 0o costs. $" "R6ERE6.