RULE 79

1. OCTAVIO S. MALOLES II, petitioner, vs. PACITA DE LOS REYES PHILLIPS, respondent. [G.R. No. 133359. January 31, 2000] OCTAVIO S. MALOLES II, petitioner, vs. COURT OF APPEALS, HON. FERNANDO V. GOROSPE, JR., in his Official Capacity as Presiding Judge of RTC-Makati, Branch 61, and PACITA PHILLIPS as the alleged executrix of the alleged will of the late Dr. Arturo de Santos, respondents. DECISION MENDOZA, J.: These are petitions for review on certiorari of the decisions of the Thirteenth and the Special Eighth Divisions of the Court of Appeals which ruled that petitioner has no right to intervene in the settlement of the estate of Dr. Arturo de Santos. The cases were consolidated considering that they involve the same parties and some of the issues raised are the same. The facts which gave rise to these two petitions are as follows: On July 20, 1995, Dr. Arturo de Santos, Filipino and a resident of Makati City, filed a petition for probate of his will[1] in the Regional Trial Court, Branch 61, Makati, docketed as Sp. Proc. No. M-4223. In his petition, Dr. De Santos alleged that he had no compulsory heirs; that he had named in his will as sole legatee and devisee the Arturo de Santos Foundation, Inc.; that he disposed by his will his properties with an approximate value of not less than P2, 000,000.00; and that copies of said will were in the custody of the named executrix, private respondent Pacita de los Reyes Phillips. A copy of the will [2] was annexed to the petition for probate. On February 16, 1996, Judge Fernando V. Gorospe, Jr. of RTC-Makati, Branch 61 issued an order granting the petition and allowing the will. The order reads: On 03 August 1995, the Court issued an Order setting the hearing of the petition on 12 September 1995, at 8:30 oclock in the morning, copies of which were served to Arturo de Santos Foundation, Inc. and Ms. Pacita de los Reyes Phillips (Officers Return, dated 04 September 1995 attached to the records). When the case was called for hearing on the date set, no oppositor appeared nor any written opposition was ever filed and on motion of petitioner, he was allowed to adduce his evidence in support of the petition.

Petitioner personally appeared before this Court and was placed on the witness stand and was directly examined by the Court through "free wheeling" questions and answers to give this Court a basis to determine the state of mind of the petitioner when he executed the subject will. After the examination, the Court is convinced that petitioner is of sound and disposing mind and not acting on duress, menace and undue influence or fraud, and that petitioner signed his Last Will and Testament on his own free and voluntary will and that he was neither forced nor influenced by any other person in signing it. Mis sc Furthermore, it appears from the petition and the evidence adduced that petitioner in his lifetime, executed his Last Will and Testament (Exhs. "A", "A-1", "A-2", "A-4", "A-5") at his residence situated at 9 Bauhinia corner Intsia Streets, Forbes Park, Makati City; said Last Will and Testament was signed in the presence of his three (3) witnesses, namely, to wit: Dr. Elpidio Valencia (Exhs. "A-6", "A-7", "A-8", "A-16", "A-16-A"), Atty. Edward J. Berenguer (Exhs. "A-3", "A-3-A", "A-9", "A-10", & "A-11"), and Atty. Victoria C. delos Reyes (Exhs. "A12", "A-13", "A-14", "A-17", & "A-18"), who in turn, in the presence of the testator and in the presence of each and all of the witnesses signed the said Last Will and Testament and duly notarized before Notary Public Anna Melissa L. Rosario (Exh. "A-15"); on the actual execution of the Last Will and Testament, pictures were taken (Exhs. "B" to "B-3"). Petitioner has no compulsory heirs and Arturo de Santos Foundation, Inc., with address at No. 9 Bauhinia corner Intsia Streets, Forbes Park, Makati City has been named as sole legatee and devisee of petitioners properties, real and personal, approximately valued at not less than P2 million, Ms. Pacita de los Reyes Phillips was designated as executor and to serve as such without a bond. From the foregoing facts, the Court finds that the petitioner has substantially established the material allegations contained in his petition. The Last Will and Testament having been executed and attested as required by law; that testator at the time of the execution of the will was of sane mind and/or not mentally incapable to make a Will; nor was it executed under duress or under the influence of fear or threats; that it was in writing and executed in the language known and understood by the testator duly subscribed thereof and attested and subscribed by three (3) credible witnesses in the presence of the testator and of another; that the testator and all the attesting witnesses signed the Last Will and Testament freely and voluntarily and that the testator has intended that the instrument should be his Will at the time of affixing his signature thereto. WHEREFORE, as prayed for by the petitioner (testator himself) the petition for the allowance of the Last Will and Testament of Arturo de Santos is hereby APPROVED and ALLOWED. Shortly after the probate of his will, Dr. De Santos died on February 26, 1996.

On April 3, 1996, petitioner Octavio S. Maloles II filed a motion for intervention claiming that, as the only child of Alicia de Santos (testators sister) and Octavio L. Maloles, Sr., he was the sole full-blooded nephew and nearest of kin of Dr. De Santos. He likewise alleged that he was a creditor of the testator. Petitioner thus prayed for the reconsideration of the order allowing the will and the issuance of letters of administration in his name. Mis spped On the other hand, private respondent Pacita de los Reyes Phillips, the designated executrix of the will, filed a motion for the issuance of letters testamentary with Branch 61. Later, however, private respondent moved to withdraw her motion. This was granted, while petitioner was required to file a memorandum of authorities in support of his claim that said court (Branch 61) still had jurisdiction to allow his intervention.[3] Petitioner filed his memorandum of authorities on May 13, 1996. On the other hand, private respondent, who earlier withdrew her motion for the issuance of letters testamentary in Branch 61, refiled a petition for the same purpose with the Regional Trial Court, Makati, which was docketed as Sp. Proc. No. M-4343 and assigned to Branch 65. Upon private respondents motion, Judge Salvador Abad Santos of Branch 65 issued an order, dated June 28, 1996, appointing her as special administrator of Dr. De Santoss estate. On July 29, 1996, petitioner sought to intervene in Sp. Proc. No. M-4343 and to set aside the appointment of private respondent as special administrator. He reiterated that he was the sole and full blooded nephew and nearest of kin of the testator; that he came to know of the existence of Sp. Proc. No. M-4343 only by accident; that the probate proceedings in Sp. Proc. No. M-4223 before Branch 61 of the same court was still pending; that private respondent misdeclared the true worth of the testators estate; that private respondent was not fit to be the special administrator of the estate; and that petitioner should be given letters of administration for the estate of Dr. De Santos. On August 28, 1996, Judge Abad Santos ordered the transfer of Sp. Proc. No. M-4343 to Branch 61, on the ground that "[it] is related to the case before Judge Gorospe of RTC Branch 61 . . ." It appears, however, that in Sp. Proc. No. M-4223, Judge Gorospe had denied on August 26, 1996 petitioners motion for intervention. Petitioner brought this matter to the Court of Appeals which, in a decision[4] promulgated on February 13, 1998, upheld the denial of petitioners motion for intervention. Meanwhile, Judge Gorospe issued an order, dated September 4, 1996, returning the records of Sp. Proc. No. M-4343 to Branch 65 on the ground that there was a pending case involving

the Estate of Decedent Arturo de Santos pending before said court. The order reads: Spped Acting on the ORDER dated 28 August 1996 of Branch 65, this Court, transferring this case to this Branch 61 on the ground that this case is related with a case before this Court, let this case be returned to Branch 65 with the information that there is no related case involving the ESTATE OF DECEDENT ARTURO DE SANTOS pending before this Branch. There is, however, a case filed by ARTURO DE SANTOS, as petitioner under Rule 76 of the Rules of Court for the Allowance of his will during his lifetime docketed as SP. PROC. NO. M4223 which was already decided on 16 February 1996 and has become final. It is noted on records of Case No. M-4223 that after it became final, herein Petitioner Pacita de los Reyes Phillips filed a MOTION FOR THE ISSUANCE OF LETTERS TESTAMENTARY, which was subsequently withdrawn after this Court, during the hearing, already ruled that the motion could not be admitted as the subject matter involves a separate case under Rule 78 of the Rules of Court, and movant withdrew her motion and filed this case (No. 4343). Octavio de Santos Maloles [II] filed a MOTION FOR INTERVENTION before Case No. M-4223 and this motion was already DENIED in the order (Branch 61) of 26 August 1996 likewise for the same grounds that the matter is for a separate case to be filed under Rule 78 of the Rules of Court and cannot be included in this case filed under Rule 76 of the Rules of Court. It is further noted that it is a matter of policy that consolidation of cases must be approved by the Presiding Judges of the affected Branches. Initially, in his decision dated September 23, 1996,[5] Judge Abad Santos appeared firm in his position that " . . . it would be improper for (Branch 65) to hear and resolve the petition (Sp. Proc. No. M-4343)," considering that the probate proceedings were commenced with Branch 61. He thus ordered the transfer of the records back to the latter branch. However, he later recalled his decision and took cognizance of the case "to expedite the proceedings." Thus, in his Order, dated October 21, 1996, he stated: Considering the refusal of the Hon. Fernando V. Gorospe, Jr. of Branch 61 to continue hearing this case notwithstanding the fact that said branch began the probate proceedings of the estate of the deceased and must therefore continue to exercise its jurisdiction to the exclusion of all others, until the entire estate of the testator had been partitioned and distributed as per Order dated 23 September 1996, this branch (Regional Trial Court Branch 65) shall take cognizance of the petition if only to expedite the proceedings, and under the concept that the Regional Trial Court of Makati City is but one court.

Furnish a copy of this order to the Office of the Chief justice and the Office of the Court Administrator, of the Supreme Court; the Hon. Fernando V. Gorospe, Jr.; Pacita De Los Reyes Phillips, Petitioner; and Octavio de Santos Maloles, Intervenor. On November 4, 1996, Judge Abad Santos granted petitioners motion for intervention. Private respondent moved for a reconsideration but her motion was denied by the trial court. She then filed a petition for certiorari in the Court of Appeals which, on February 26, 1997, rendered a decision[6] setting aside the trial courts order on the ground that petitioner had not shown any right or interest to intervene in Sp. Proc. No. M-4343. Hence, these petitions which raise the following issues: 1. Whether or not the Honorable Regional Trial Court - Makati, Branch 61 has lost jurisdiction to proceed with the probate proceedings upon its issuance of an order allowing the will of Dr. Arturo de Santos 2. Whether or not the Honorable (Regional Trial Court - Makati, Branch 65) acquired jurisdiction over the petition for issuance of letters testamentary filed by (private) respondent. 3. Whether or not the petitioner, being a creditor of the late Dr. Arturo de Santos, has a right to intervene and oppose the petition for issuance of letters testamentary filed by the respondent. 4. Whether or not (private) respondent is guilty of forum shopping in filing her petition for issuance of letters testamentary with the Regional Trial Court - Makati, Branch 65 knowing fully well that the probate proceedings involving the same testate estate of the decedent is still pending with the Regional Trial Court - Makati, Branch 61. Spped jo First. Petitioner contends that the probate proceedings in Branch 61 of RTC-Makati did not terminate upon the issuance of the order allowing the will of Dr. De Santos. Citing the cases of Santiesteban v. Santiesteban[7] and Tagle v. Manalo,[8] he argues that the proceedings must continue until the estate is fully distributed to the lawful heirs, devisees, and legatees of the testator, pursuant to Rule 73, 1 of the Rules of Court. Consequently, petitioner contends that Branch 65 could not lawfully act upon private respondents petition for issuance of letters testamentary. The contention has no merit. In cases for the probate of wills, it is well-settled that the authority of the court is limited to ascertaining the extrinsic validity of the will, i.e., whether the testator, being of sound mind, freely executed the will in accordance with the formalities prescribed by law.[9]

Ordinarily, probate proceedings are instituted only after the death of the testator, so much so that, after approving and allowing the will, the court proceeds to issue letters testamentary and settle the estate of the testator. The cases cited by petitioner are of such nature. In fact, in most jurisdictions, courts cannot entertain a petition for probate of the will of a living testator under the principle of ambulatory nature of wills.[10] However, Art. 838 of the Civil Code authorizes the filing of a petition for probate of the will filed by the testator himself. It provides: Civil Code, Art. 838. No will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court. The testator himself may, during his lifetime, petition the court having jurisdiction for the allowance of his will. In such case, the pertinent provisions of the Rules of Court for the allowance of wills after the testators death shall govern. The Supreme Court shall formulate such additional Rules of Court as may be necessary for the allowance of wills on petition of the testator. Subject to the right of appeal, the allowance of the will, either during the lifetime of the testator or after his death, shall be conclusive as to its due execution. Rule 76, likewise provides: Sec. 1 Who may petition for the allowance of will. - Any executor, devisee, or legatee named in a will, or any other person interested in the estate, may, at any time after the death of the testator, petition the court having jurisdiction to have the will allowed, whether the same be in his possession or not, or is lost or destroyed. The testator himself may, during his lifetime, petition in the court for the allowance of his will. The rationale for allowing the probate of wills during the lifetime of testator has been explained by the Code Commission thus: Most of the cases that reach the courts involve either the testamentary capacity of the testator or the formalities adopted in the execution of wills. There are relatively few cases concerning the intrinsic validity of testamentary dispositions. It is far easier for the courts to determine the mental condition of a testator during his lifetime than after his death. Fraud, intimidation and undue influence are minimized. Furthermore, if a will does not comply with the requirements prescribed by law, the same may be corrected at once. The probate during the testators life, therefore, will lessen the number of contest upon wills. Once a will is probated during the lifetime of the testator, the only questions that may remain for the courts to decide after the testators death will refer to the intrinsic validity of

the testamentary dispositions. It is possible, of course, that even when the testator himself asks for the allowance of the will, he may be acting under duress or undue influence, but these are rare cases. After a will has been probated during the lifetime of the testator, it does not necessarily mean that he cannot alter or revoke the same before his death. Should he make a new will, it would also be allowable on his petition, and if he should die before he has had a chance to present such petition, the ordinary probate proceeding after the testators death would be in order.[11] Thus, after the allowance of the will of Dr. De Santos on February 16, 1996, there was nothing else for Branch 61 to do except to issue a certificate of allowance of the will pursuant to Rule 73, 12 of the Rules of Court. There is, therefore, no basis for the ruling of Judge Abad Santos of Branch 65 of RTC-Makati. Branch 61 of the Regional Trial Court of Makati having begun the probate proceedings of the estate of the deceased, it continues and shall continue to exercise said jurisdiction to the exclusion of all others. It should be noted that probate proceedings do not cease upon the allowance or disallowance of a will but continues up to such time that the entire estate of the testator had been partitioned and distributed. The fact that the will was allowed during the lifetime of the testator meant merely that the partition and distribution of the estate was to be suspended until the latters death. In other words, the petitioner, instead of filing a new petition for the issuance of letters testamentary, should have simply filed a manifestation for the same purpose in the probate court.[12] Petitioner, who defends the order of Branch 65 allowing him to intervene, cites Rule 73, 1 which states: Where estate of deceased persons settled. - If the decedent is an inhabitant of the Philippines at the time of his death, whether a citizen or an alien, his will shall be proved, or letters of administration granted, and his estate settled, in the Court of First Instance in the province in which he resides at the time of his death, and if he is an inhabitant of a foreign country, the Court of First Instance of any province in which he had estate. The court first taking cognizance of the settlement of the estate of a decedent, shall exercise jurisdiction to the exclusion of all other courts. The jurisdiction assumed by a court, so far as it depends on the place of residence of the decedent, or of the location of his estate, shall not be contested in a suit or proceeding, except in an appeal from that court, in the original case, or when the want of jurisdiction appears on the record.

The above rule, however, actually provides for the venue of actions for the settlement of the estate of deceased persons. In Garcia Fule v. Court of Appeals, it was held:[13] The aforequoted Section 1, Rule 73 (formerly Rule 75, Section 1), specifically the clause "so far as it depends on the place of residence of the decedent, or of the location of the state," is in reality a matter of venue, as the caption of the Rule indicates: "Settlement of Estate of Deceased Persons. Venue and Processes." It could not have been intended to define the jurisdiction over the subject matter, because such legal provision is contained in a law of procedure dealing merely with procedural matters. Procedure is one thing, jurisdiction over the subject matter is another. The power or authority of the court over the subject matter "existed was fixed before procedure in a given cause began." That power or authority is not altered or changed by procedure, which simply directs the manner in which the power or authority shall be fully and justly exercised. There are cases though that if the power is not exercised conformably with the provisions of the procedural law, purely, the court attempting to exercise it loses the power to exercise it legally. However, this does not amount to a loss of jurisdiction over the subject matter. Rather, it means that the court may thereby lose jurisdiction over the person or that the judgment may thereby be rendered defective for lack of something essential to sustain it. The appearance of this provision in the procedural law at once raises a strong presumption that it has nothing to do with the jurisdiction of the court over the subject matter. In plain words, it is just a matter of method, of convenience to the parties. Indeed, the jurisdiction over probate proceedings and settlement of estates with approximate value of over P100,000.00 (outside Metro Manila) or P200,000.00 (in Metro Manila) belongs to the regional trial courts under B.P. Blg. 129, as amended. The different branches comprising each court in one judicial region do not possess jurisdictions independent of and incompatible with each other.[14] It is noteworthy that, although Rule 73, 1 applies insofar as the venue of the petition for probate of the will of Dr. De Santos is concerned, it does not bar other branches of the same court from taking cognizance of the settlement of the estate of the testator after his death. As held in the leading case of Bacalso v. Ramolote:[15] The various branches of the Court of First Instance of Cebu under the Fourteenth Judicial District, are a coordinate and co-equal courts, and the totality of which is only one Court of First Instance. The jurisdiction is vested in the court, not in the judges. And when a case is filed in one branch, jurisdiction over the case does not attach to the branch or judge alone, to the exclusion of the other branches. Trial may be held or proceedings continue by and before another branch or judge. It is for this reason that Section 57 of the Judiciary Act expressly grants to the Secretary of Justice, the administrative right or power to apportion the cases among the different branches, both for the convenience of the parties and for the

coordination of the work by the different branches of the same court. The apportionment and distribution of cases does not involve a grant or limitation of jurisdiction, the jurisdiction attaches and continues to be vested in the Court of First Instance of the province, and the trials may be held by any branch or judge of the court. Necessarily, therefore, Branch 65 of the RTC of Makati City has jurisdiction over Sp. Proc. No. M-4343. Second. Petitioner claims the right to intervene in and oppose the petition for issuance of letters testamentary filed by private respondent. He argues that, as the nearest next of kin and creditor of the testator, his interest in the matter is material and direct. In ruling that petitioner has no right to intervene in the proceedings before Branch 65 of RTC-Makati City, the Court of Appeals held: The private respondent herein is not an heir or legatee under the will of the decedent Arturo de Santos. Neither is he a compulsory heir of the latter. As the only and nearest collateral relative of the decedent, he can inherit from the latter only in case of intestacy. Since the decedent has left a will which has already been probated and disposes of all his properties the private respondent can inherit only if the said will is annulled. His interest in the decedents estate is, therefore, not direct or immediate. Maniks His claim to being a creditor of the estate is a belated one, having been raised for the first time only in his reply to the opposition to his motion to intervene, and, as far as the records show, not supported by evidence. . . . . [T]he opposition must come from one with a direct interest in the estate or the will, and the private respondent has none. Moreover, the ground cited in the private respondents opposition, that the petitioner has deliberately misdeclared the truth worth and value of the estate, is not relevant to the question of her competency to act as executor. Section 2, Rule 76 of the Rules of Court requires only an allegation of the probable value and character of the property of the estate. The true value can be determined later on in the course of the settlement of the estate.[16] Rule 79, 1 provides: Opposition to issuance of letters testamentary. Simultaneous petition for administration. Any person interested in a will may state in writing the grounds why letters testamentary should not issue to the persons named therein as executors, or any of them, and the court, after hearing upon notice, shall pass upon the sufficiency of such grounds. A petition may, at the same time, be filed for letters of administration with the will annexed.

Under this provision, it has been held that an "interested person" is one who would be benefited by the estate, such as an heir, or one who has a claim against the estate, such as a creditor, and whose interest is material and direct, not merely incidental or contingent.[17] Even if petitioner is the nearest next of kin of Dr. De Santos, he cannot be considered an "heir" of the testator. It is a fundamental rule of testamentary succession that one who has no compulsory or forced heirs may dispose of his entire estate by will. Thus, Art. 842 of the Civil Code provides: One who has no compulsory heirs may dispose by will of all his estate or any part of it in favor of any person having capacity to succeed. Manikan One who has compulsory heirs may dispose of his estate provided he does not contravene the provisions of this Code with regard to the legitimate of said heirs. Compulsory heirs are limited to the testators (1) Legitimate children and descendants, with respect to their legitimate parents and ascendants; (2) In default of the foregoing, legitimate parents and ascendants, with respect to their legitimate children and descendants; (3) (4) The widow or widower; Acknowledged natural children, and natural children by legal fiction;

(5) Other illegitimate children referred to in Article 287 of the Civil Code.[18] Petitioner, as nephew of the testator, is not a compulsory heir who may have been preterited in the testators will. Nor does he have any right to intervene in the settlement proceedings based on his allegation that he is a creditor of the deceased. Since the testator instituted or named an executor in his will, it is incumbent upon the Court to respect the desires of the testator. As we stated in Ozaeta v. Pecson:[19] The choice of his executor is a precious prerogative of a testator, a necessary concomitant of his right to dispose of his property in the manner he wishes. It is natural that the testator should desire to appoint one of his confidence, one who can be trusted to carry out his wishes in the disposal of his estate. The curtailment of this right may be considered a curtailment of the right to dispose.

Only if the appointed executor is incompetent, refuses the trust, or fails to give bond may the court appoint other persons to administer the estate.[20] None of these circumstances is present in this case. Third. Petitioner contends that private respondent is guilty of forum shopping when she filed the petition for issuance of letters testamentary (Sp. Proc. No. M-4343) while the probate proceedings (Sp. Proc. No. M-4223) were still pending. According to petitioner, there is identity of parties, rights asserted, and reliefs prayed for in the two actions which are founded on the same facts, and a judgment in either will result in res judicata in the other. This contention has no merit. As stated earlier, the petition for probate was filed by Dr. De Santos, the testator, solely for the purpose of authenticating his will. Upon the allowance of his will, the proceedings were terminated. On the other hand, the petition for issuance of letters testamentary was filed by private respondent, as executor of the estate of Dr. De Santos, for the purpose of securing authority from the Court to administer the estate and put into effect the will of the testator. The estate settlement proceedings commenced by the filing of the petition terminates upon the distribution and delivery of the legacies and devises to the persons named in the will. Clearly, there is no identity between the two petitions, nor was the latter filed during the pendency of the former. There was, consequently, no forum shopping. WHEREFORE, the petition is DENIED and the decisions of the Court of Appeals are hereby AFFIRMED. SO ORDERED. 2. In the matter of the estate of the deceased Francisco Varela Calderon. ANTONIO GUTIERREZ DEL CAMPO, administrator-appellee, vs. MIGUEL VARELA CALDERON, ET AL., oppositors-appellants. Avelino, Yatco and Samaniego for appellants. Eduardo Gutierrez Repide for appellee. GODDARD, J.: The Court of First Instance of Manila issued, in this case, the following orders: Llamado a vista proyecto de particion y adjudicacion presentado por el administrador judicial, este, por medio de su abogado, se opuso a que se considere la oposicion interpuesta por Miguel Varela Calderon, Angel Varela Calderon, Jesus Varela Calderon, Trinidad Varela Calderon, Paula Varela Calderon, Pilar Varela

Calderon y Maria Varela Calderon, a la aprobacion de dicho proyecto y a que se admita o reciba cualquiera prueba que los mencionados opositores desearen presentar en apoyo de su opisicion, bajo el fundamento de que los mismos no son herederos forzosos del finado Dr. Francisco Varela Calderon y no tienen, por tal motivo, ningun interes o participacion en los bienes dejados por dicho finado y de los cuales este ha dispuesto por testamento que ha sido legalizado y aprobado por este Juzgado, cuya decision ha sido confirmada por el Tribunal Supremo en apelacion. Habiendo la representacion tanto del administrador juducial como de los opositores admitido como hechos indiscutibles el finado Dr. Francisco Varela Calderon fallecio soltero y sin dejar ningun ascendiente y que los opositores son hermanos legitimos del mismo, es manifesto que los mencionados opositores no tienen la condicion de herederos forzosos (art. 807, Codigo Civil) y, por tanto, no tienen derecho a intervenir en la consideracion del referido proyecto de particion y adjudicacion de bienes, ni impugnar la institucion de herederos hecha por el citado finado en su testamento, toda vez que este, por ser soltero y no tener herederos forzosos, podia disponser por testamento de todos sus bienes o de parte de ellos en favor de cualquiera persona que capacidad para adquirirlos (art. 763, Codigo Civil). Por tanto, SE DESESTIMA la oposicion interpuesta por los mencionados opositores y se declara que estos no tienen derecho a intervenir en la consideracion del proyecto de particion y adjudicacion de los bienes del finado Dr. Varela Calderon, la cual queda aplazada para el dia 29 de noviembre de 1932, a las 8:30 a. m. Asi se ordena. Asi se ordena. Manila, noviembre 17, 1932. E. P. REVILLA Juez Visto el proyecto de particion y adjudicacion de bienes relictos del finado Don Varela Calderon presentado por administrador de esta testamentaria el 10 de noviembre de 1932; examinado el mismo y apareciendo que se halla de acuerdo con las disposiciones contenidas en el testamento otorgado por el finado y debidamente legalizado por este Juzgado; y no existiendo motivos ni razones que se opongan a su aprobacion; Por la presente, se aprueba el referido proyecto de particion y adjudicacion de bienes, el cual se hace parte integrante de esta orden. Se requiere al administrador que, dentro del plazo de diez dias a partir de la fecha en que fuere notificado de esta orden, pague el correspondiente impuesto sobre herencia y proceda a la entrega de los bienes adjudicados a los herederos instituidos en el testamento conforme al proyecto de particion y adjudicacion de bienes aqui

aprobado, dando cuenta dentro del mismo plazo cumplimiento de los terminos de esta orden, a fin de que pueda ordenarse el cierre y archivo definitivo de este expediente. Asi se ordena. Manila, I. F., 29 de noviembre de 1932. E. P. REVILLA Juez The appellants duly excepted to both of these orders and upon appeal to this court make the following assignments of error: I. The trial court erred in refusing to admit and to consider the opposition filed by the oppositors-appellants to the approval of the project of partition, not being the forced heirs of the late Francisco Varela Calderon, and refused them to present their proofs in support of their contention. II. The trial court erred in approving the partition and adjudication of the properties of the late Francisco Varela Calderon in favor of the supposed heirs mentioned in the probated will Exhibit B, disregarding completely the rights of the oppositorsappellants to inherit all the said properties. The judicial administrator of the estate of Francisco Varela Calderon, deceased, submitted a project of partition for the approval of the lower court. The appellants filed an opposition to the approval of said project. The administrator objected to the intervention of the appellants in this case. Quaere: Did the trial court erred in refusing to allow the appellants to intervene? If this question is answered in the affirmative there will be no necessity for considering the second assignment of error. It is admitted that Francisco Varela Calderon was a bachelor, a citizen of the Philippine Islands, and at the time he made his will was residing temporarily in France and that at the time of his death he left no ascendants. The appellants are brothers and sisters of full blood of the deceased and therefore they are not his forced heirs. Article 763 of the Civil Code reads: "Any person who has no forced heirs may dispose by will of all his property or any part of it in favor of any person qualified to acquire it. . . . The appellants contend that the beneficiaries under the will of Francisco Varela Calderon are illegitimate children and that they are not qualified to inherit from the deceased. This court has held in Barrios vs. Enriquez (52 Phil., 509), that "while it is true that article 845 of the Civil Code provides that `illegitimate children who have not the status of natural children shall be entitled to support only,' and therefore cannot demand anything more of those bound by law to support them, it does not prohibit said illegitimate children from receiving, nor their parents from giving them, something more than support, so long as the legitimate children are not prejudiced. If the law permits a testator to dispose of the free

third of his hereditary estate in favor of a stranger (art. 808 of the Civil Code), there is no legal, moral or social reason to prevent him from making over that third to his illegitimate son who has not the status of a natural son. On the contrary, by reason of blood, the son, although illegitimate, has a preferential right over a stranger unless by his behavior he has become unworthy of such consideration."1vvphi1.ne+ Manresa commenting on article 763 of the civil Code says: Como expusimos al comentar los articulos 752 al 754, discuten los autores si los hijos naturales no reconocidos pueden ser instituidos herederos por sus padres en el todo o parte de la herencia de libre disposicion, por entender algunos que no tienen capacidad para adquirir por testamento, y el articulo 763 exige expresamente esa capacidad. No creemos que exista fundamento alguno serio que pueda motivar esa duda: los hijos naturales no reconocidos, aun los adulterinos y sacrilegos, no tienen incapacidad alguna para adquirir, ni puede sealarse articulo alguno que la establezca; no tienen derecho a legitima, segun el articulo 845, esto es todo. En cuanto a su capacidad para adquirir en general o por testamento la parte en su caso, de libre disposicion, los hijos naturales no reconocidos, no son ante la ley de peor condicion que las personas extraas. (Commentarios al Codigo Espaol, por Manresa, Tomo 6, pag. 94, edicion, 5.) From the above citations it is apparent that the beneficiaries under the will of Francisco Varela Calderon, granting that they are illegitimate children, are not incapacitated to take property under the will of their father. In a decision of the Supreme Court of Spain of December 24, 1913, it was held: Que la facultad de impugnar la legitimacion y el reconomiento otorgados a favor de hijos que no tengan la condicion legal de naturales, consignada en los articulos 128 y 138 del Codigo Civil, de modo claro y preciso se establece y confiere a los que se crean perjudicados o realmente lo hayan sido en sus derechos: Que no asiste derecho para oponerse al reconocimiento al que no tenga el caracter de heredero forzoso de la persona que hizo aquel. (Jurisprudencia Civil, Tomo 128, pags. 1087 y 1088.) In that case the court commented as follows: Considerando que la facultad de impugnar la legitimacion y el reconocimiento otorgados a favor de hijos que no tengan la condicion legal de naturales, consignada en los articulos 128 y 138 del Codigo Civil, de modo claro y preciso se establece y confiere a los que se crean perjudicados o realmente lo hayan sido en sus derechos, y atendido que la actora asienta la accion ejercitada y funda su demanda en el hecho de ser sobrina carnal del difunto D. Anastasio Martin, basta tomar en cuenta este parentesco, base primordial de la presente litis, para deducir como indudable consecuencia, que no siendo Doa Manuela de Pablo Martin heredera forzosa de su

citado tio el testador fallecido, no la asiste derecho a oponerse a lo por aquel dispuesto. (Jurisprudencia Civil, Tomo 128, pags. 1094, 1095.) Article 806 of the Civil Code reads: "The legitime is that part of his property of which the testator can not dispose because the law has reserved it for certain heirs, called, on that ground, forced heirs." As stated above the appellants in this case are not forced heirs of the deceased and therefore have no right to any part of the property left by the testator, once he had disposed of the same by will. If any of them were forced heirs they would be entitled to intervene in this case and protect their interest in so far as they may have been prejudiced by the will. It is evident therefore that they have not been injured or prejudiced in any manner whatsoever. Only forced heirs whose rights have been prejudiced have a right to intervene in a case of this character. For the foregoing reasons no error was committed by the lower court in the orders appealed from. Both orders are affirmed with costs against the appellants. Malcolm, Villa-Real, Hull, and Imperial, JJ., concur. 3. TESTATE ESTATE OF THE DECEASED DAMASA CRISOSTOMO. NAZARIO TRILLANA, administrator-appellee, vs. CONSORCIA P. CRISOSTOMO, ET ALS, petitioners-appellants. Francisco R. Capistrano and Jesus T. Quiambao for petitioners and appellants. Jose G. Generoso and Jose B. Bautista for administrator and appellee. FERIA, J.: This is an appeal from an order of the Court of First Instance of Bulacan denying the appellants' petition for relief from the judgment of the said court allowing the will of October 19, 1948, executed by the deceased Damasa Crisostomo. The appellants, in support of their sole assignment that the lower court erred in denying their petition for relief from the judgment of January 5, 1949, admitting to probate the will of October 19, 1948, submits to this Court three propositions, to wit: (a) "The judgment of January 5 was obtained through fraud," (b) "The lower court failed to perform its legal duty to set date for proving the will of August 16, 1948;" and (c) "The failure to set aside a date for proving the will of August 16 with the will of October 19 was entirely due to the lower court's fault or negligence." In support of their proposition (a), attorneys for the appellant allege that the fraud in obtaining the judgment of January 5 consisted in that the proponents of the will of October 19 did not cause personal notice of the hearing to be made upon the legal heirs of the decedent, contrary to the requirement of Rule 77, sec. 4 of the Rules of Court. We can not

consider now for the first time in this appeal the question whether the lower court (not the proponents) complied with the requirement of said sec. 4 of Rule 77 of the Rules of Court, for that question has not been raised by the appellants in the court below, either in their original petition for relief of May 12, 1949 (pp. 2-8, Record on Appeal), or in their motion for reconsideration dated August 27, 1949, of the order denying their petition for relief (pp. 67-71). And there being no evidence to the contrary, the legal presumption is that the court which probated the will of October, 19, 1948., complied with its duty and acted in lawful exercise of its jurisdiction in probating said will (Sec. 69 (m) (n), Rule 123 of the Rules of Court). Besides, appellee's attorney, in the statement of facts in to the appellants' petition for relief, stated that "This Honorable Court set its hearing [of the petition for allowance of the will of October 19, 1948] on December 2, 1948. Copy of this order was published in "The Star Reporter", newspaper of general circulation in Bulacan on November 5, 12 and 19 respectively, and the corresponding notices served by the office of the Clerk of Court, in accordance with law" (pp. 25 26, Record on Appeal). And the attorneys for the petitionersappellant had not denied said statement. The petitioners-appellants having failed to show that the judgment of the lower court of January 5, 1948, probating the will of testatrix of October 19, was obtained through fraud, the lower court did not commit any error in denying the appellant's petition for relief under sec. 2, Rule 38 of the Rules of Court, and therefore it is not necessary for us to discuss and pass upon the other propositions of the appellant. Where a will is duly probated after publication pursuant to 630 of the Code of Civil Procedure, the order admitting the will is, in the absence of fraud, effective against an persons. The fact that an heir or other interested party lives so far away as to make it impossible for such party to be present at the date appointed for the, probate of the will does not render the order of probate void for lack of due process. (In re Estate of Johnson, 39 Phil. 156) Besides, even assuming without deciding, that under sec. 3 of Rule 77, the court shall set aside a date for proving a will even without petition when it is delivered to the, court having jurisdiction, as contended by the appellants, the lower court was right in not setting a date for proving the will of August 16, 1948, because this will was expressly and absolutely revoked by the will of October 19, 1948, executed by the same executrix or deceased, which was filed for allowance on November 1, 1948, with the same Court of First Instance of Bulacan. According to the attorneys for the appellant, the will dated August 16, 1948, was sent together with a writing called "Manifestation" by registered mail on October 30, 1948, from Manila to the Court of First Instance of Bulacan, by Attorney Mr. Tomas V. Barnes, and said will must have been received by the Clerk of Said Court on or after November 1, 1948, the date when the subsequent will of October 19, was filed for probate. It stands to reason that if two wills are presented for allowance but one of them revoked will cannot be included in the probate of the latter subsequent will, because it would be a waste of time to allow the revoked will if the subsequent revoking will is allowed. The revoked will may be probated and allowed only if the subsequent revoking will is disallowed. (11. McAra vs .MacCay, L. R. 23 Ir., 138; Pepper vs. Pepper, Ir. R. 5 Eq., 85;

Matter of Palmer, 58 L.J. P.D. and Adm., 44; Matter of Stephens, 22 L.T. Rep., N.S. 727.) [68 C.J. 886] Besides, the appellants in the present case, who merely allege in their petition for relief that they are "nephews and nieces and therefore legal heirs of the deceased Damasa Crisostomo," without specifying the degree of relationship they had the latter, do not pretend that it if the will October 19, 1949, be disallowed, they will inherit the estate left by the testatrix. They contend that said will should be probated jointly or together with the will of August 16, 1948, and the latter be allowed instead of the former. As in her will of October 19, 1949, as well in that of August 16, 1948, the testatrix is leaving all her properties as legacies to other persons, the appellants have no interest in the probate of said wills, and they can not appeal from the judgment which allowed one of them instead of the other. Appellants argue that they are in interested parties and therefore may appeal in the present case, because in the event the will of October 19 is disallowed and in its that of August 16 is allowed, and the legacies in the latter are declared invalid or the legatees incapable to inherit, the legacies will go to appellants. This argument has no merit. In civil actions and special proceedings, unless otherwise provided by law, the interest in order that a person may be a party on appeal must be material and direct, so that he will be materially and directly benefited or injured by the court's order, decree or judgment: and not indirect or contingent (Espinosa vs. Barrios, 40 Off. Gaz., [8 Supp. No. 12]. p. 145). The interest claimed by the appellants is purely contingent or dependent upon several uncertain and future events to (1) The disallowance of the will of October 19, 1948 (2)The allowance of the will of August 16, 1948, and (3) invalidation of certain legacies left in said will of August 16, 1948. In view of all the foregoing, the order appealed from is affirmed with costs against the appellants. So ordered. Paras, C.J., Pablo, Bengzon, Padilla, Tuason, Reyes, Jugo and Bautista Angelo, JJ., concur. 4. IN THE MATTER OF THE INTESTATE ESTATE OF THE DECEASED IRENE SANTOS. JOSE D. VILLEGAS, Administrator, ADELA SANTOS GUTIERREZ, movant-appellee, vs. JOSE D. VILLEGAS, and RIZALINA SANTOS RIVERA, oppositors-appellants. Perkins and Ponce Enrile for movant-appellee. Delgado, Flores and Macapagal for oppositors-appellants. PAREDES, J.: On November 11, 1954, Irene Santos died intestate, leaving as her only heirs her surviving spouse Jose D. Villegas and two nieces daughters of a deceased brother, Rizalina Santos Rivera and Adela Santos Gutierrez. Thereafter, the surviving spouse filed with the Rizal CFI, Pasay City Branch, a petition for Letters of Administration (Sp. Proc. No. 2100), and was

appointed administrator of the estate. In the petition, he named as intestate heirs, besides himself, Rizalina Santos Rivera and Adela Santos Gutierrez. Under date of January 15, 1955, in the above-mentioned Special Proceedings, an unverified manifestation signed by Adela Gutierrez, accompanied by a public instrument entitled "Kasulatan ng Bilihan at Salinan", dated January 12, 1955, was presented to the Probate Court, stating among others, the following The undersigned hereby solemnly manifests . . . that all her rights, interests and participation in the estate subject of this proceeding now belong to her sister, Rizalina Santos Rivera, and that hereafter she will not take part in the above-entitled proceedings and is not entitled to the service of any pleadings, motion, order or decision filed or promulgated therein. In a verified manifestation presented before the probate Court on January 25, 1955, Adela averred that the deed of assignment of her rights, participation and interest in the estate of Irene Santos and the first manifestation were obtained thru fraud practiced by the administrator upon her and were vitiated by mistake or undue influence. Therein, she narrated that sometime in December, 1954, due to stringent financial conditions, she (Adela) requested the administrator for an advance of P2,000.00 from the estate. The administrator refused on the ground that it is against the law, but suggested that she might obtain a loan from her sister Rizalina, offering to help. After Christmas of 1954, the administrator informed Adela that he was able to secure the conformity of Rizalina to give her a loan of P10,000.00 instead of only P2,000.00. When Adela expressed surprise over the amount, the administrator replied that he only wanted to help her get started in business. On January 12, 1955, Adela was brought by Villegas and Rizalina to the office of their lawyer, where she was made to sign a document she could not read. On January 13, 1955, the lawyer asked Adela to sign another document, which he said was to be presented in Court and explained the contents of the document signed the day before. It was only then that Adela came to know that said document was a deed of sale.1 When Adela protested, Villegas told her that the matter could be discussed better in his house in Malabon. On arriving at Malabon, Villegas informed Adela that the amount of P50,000.00 which Rizalina was paying for her share in the inheritance, was probably more than what she would get in the estate, because the estate is not valuable and had plenty of debts. Villegas handed to Adela P6,800.00 in cash and a check drawn, by Rizalina on the Prudential Bank for P3,200.00. Although Adela did not want to accept the money, Villegas refused to take them back. When she was made to sign the deed of assignment, Adela did not know the true value of the estate, which she now estimates to be no less than P1,000.000.00. In the same manifestation, Adela stated that a complaint for annulment of the Deed of Assignment was being prepared; that she was tendering the full amount of P10,000.00 to Villegas or Rizalina; that she was placing the above facts within the knowledge of the Court so that no action be taken giving value to the alleged deed of assignment and in order that she (Adela) might be notified of each and all pleadings or orders connected with the proceedings. The administrator Villegas and Rizalina filed exceptions and/or objections to the Manifestation, denying the allegations of fraud, undue influence and the like.

In a motion dated September 7, 1955, filed with the CFI of Pasay, Adela asked the Court to transfer Special Proceedings No. 2100, to Branch I (Pasig), alleging that the complaint for the nullity of the Deed of Assignment filed with the Rizal CFI had been assigned to said Branch I; and that the transfer would save time and effort on the part of all concerned. The motion was strongly opposed by the administrator who stated, among others That in the final distribution of the estate to the heirs, the share corresponding to the movant Adela Santos Gutierrez may be ordered withheld by this Court (if due motion therefor shall have been presented to this Court) until the validity of the deed of assignment shall have been resolved by Branch I of the Court of First Instance of Rizal. On September 16, 1955, the motion to transfer was denied. On February 9, 1956, Adela presented with the Probate Court, a motion praying that the administrator and/or his attorneys be required to furnish her all copies of pleadings filed or to be filed in the intestate proceedings, it appearing that the administrator presented pleadings in Court without serving her copies thereof. An opposition was interposed by the administrator, who alleged that the movant, although originally a party to the probate proceeding, has voluntarily and expressly desisted from being so, and that having assigned by sale, all her rights, interests and participations in the estate, she has no longer any legal standing in the case. On March 12, 1956, the Court (Judge Emilio Rilloraza, presiding) promulgated the following order . . ., the Court is of the opinion that the said motion should be, as it is hereby, granted and the said administrator and/or his attorneys are hereby directed to furnish Adela Santos Gutierrez, through counsel, all copies of the pleadings filed and to be filed in this case, except those mentioned in said motion within a reasonable time upon notice hereof. The Clerk of Court should see to it that before receiving for filing by the administrator or the other legal heir, Rizalina Santos Rivera, and/or their respective counsel, any pleadings, motion, etc., that copies thereof have been furnished Adela Santos Gutierrez through counsel. A series of long pleadings were presented by the parties, following a motion of reconsideration, containing arguments and authorities sustaining their respective theories. On June 2, 1956, vacation Judge Jesus Y. Perez, handed down an Order, the material portions of which follow xxx xxx xxx

The only question for determination in this incident is whether or not Adela Santos Gutierrez has a right to intervene in this probate proceeding. The Administrator

contends that she has no such right because she had already assigned all her rights to her sister, Rizalina Santos Rivera. Although at the outset, Adela Santos Gutierrez bad the right to intervene herein as one of the legal heirs of the deceased Irene Santos, yet, when she filed her manifestation, accompanied by the Deed of Sale and Assignment, informing this Court that she had assigned all her rights and interest as such heir to her sister, Rizalina Santos Rivera, said Adela Santos Gutierrez had ceased to have any interest in this estate and without such interest, she could no longer intervene in this proceeding. The assignment, it copy of which is attached to the record, is in the form of a public deed which is entitled to be accorded the presumption of validity so that until the same is annulled in the corresponding action filed by Adela Santos Gutierrez in the Pasig Branch of this Court, her interest would merely be a contingent one, that is, depending upon the contingency of a decision declaring such annulment of the deed of assignment. This contingent interest of Adela Santos Gutierrez is not sufficient to make her an interested party in this proceedings, unless otherwise provided by law, the interest required in order that a person may be a party, must be material and direct, and not indirect or contingent (II Moran's Rules of Court, 1952 Ed., pp. 391-92). We quote the following from Moran's Rules of Court: xxx xxx xxx

In the same way, since the interest of Adela Santos Gutierrez to be considered as heir is dependent upon the contingency that she would succeed in her case for annulment of the Deed of Assignment in the Court of First Instance of Rizal, her contingent interest is not sufficient to make her an interested party in this proceeding. WHEREFORE, the Court hereby sustains the motion for reconsideration filed by the administrator and hereby sets aside the order of March 12, 1956.1wph1.t Adela Santos Gutierrez, on June 26, 1956, moved for the reconsideration of the above Order, contending that her motion on February 8, 1956, was not a leave for intervention (Rule 13). At most, the rule on transfer of interest pendente lite (Sec. 20, Rule 3), should be applicable, not that of intervention. On August 10, 1956, Judge Rilloraza, who had already returned from vacation, set aside the order of Judge Perez, stating ..., this Court is of the opinion that the order of this Court dated June 2, 1956 should be, as it is hereby set aside. Let the administrator and/or his attorney furnish henceforth Adela Santos Gutierrez, through counsel, copies of all pleadings, motions, etc., to be filed in this case. The above Order is now the subject of the instant appeal, the administrator and Rizalina Santos Rivera assigning three (3) errors allegedly committed by the court a quo, all of

which pose a singular issue, viz., whether Adela Santos Gutierrez is still entitled to be furnished with pleadings filed by the administrator in the probate proceedings and orders therein issue by the lower court. The order appealed from being interlocutory, cannot be the subject of an appeal. Even on this plane alone, the appeal should be dismissed. Of course, appellants cited the case of Tengco v. San Jose, G.R. No. L-8162, Aug. 30, 1955, wherein We considered the appeal as petition for certiorari. That case, however, has no parallel to the one now under consideration. It was one for mandamus for the purpose of compelling the Judge to give due course to an appeal. Considering that in order for certiorari and mandamus to prosper, allegations to the effect that the court has no jurisdiction, or it acted in excess thereof or with grave abuse of discretion, must appear, which is not obtaining in the instant case (because it is an ordinary appeal), it becomes peremptory that the present appeal is not in order. Moreover, it cannot be successfully denied that Adela Santos Gutierrez is an indispensable party to the proceedings in question. Her interest in the estate is not inchoate, it was established at the time of death of Irene Santos on November 11, 1954. While it is true that she executed a deed of assignment, it is also a fact that she asked the same to be annulled, which action is now pending before the Rizal CFI, Pasig Branch. Although Adela had filed a manifestation dropping herself from the proceedings and presenting therewith the supposed Deed of Assignment, the record, nevertheless fails to show that action thereon had been taken by the probate Court. Every act intended to put an end to indivision among co-heirs and legatees or devisees is deemed to be a partition, although it should purport to be a sale, an exchange, a compromise, or any other transaction (Art. 1082, NCC). No serious argument can be offered to deny the co-heirship of appellee in the estate under probate. It appearing (if We assume the due execution of the Deed of Assignment), that the transaction is in the nature of extrajudicial partition, court approval is imperative, and the heirs cannot just divest the court of its jurisdiction over the estate and over their persons, by the mere act of assignment and desistance. Thus, in the case of Sandoval v. Santiago, G.R. No. L-1723, May 30, 1949, this Court said: ". . . and the heirs of the deceased Marquez could not divest the Court of First Instance of its already acquired jurisdiction by the mere fact of dividing and distributing extrajudicially the estate of the deceased among themselves". But even if the partition had been judicially approved on the basis of the alleged deed of assignment, an aggrieved heir does not lose her standing in the probate court. In our opinion, the court that approved the partition and the agreement in ratification thereof may annul both whenever, as it is here alleged, the approval was obtained by deceit or fraud, and the petition must be filed in the courts of the intestate proceedings, for it is generally admitted that probate courts are authorized to vacate any decree or judgment procured by fraud, not only while the proceedings in the course of which it was issued are pending, but even, as in this case, within a reasonable time thereafter. (Trillana v. Crisostomo, G.R. No. L-3378, Aug. 22, 1951; Espinosa v. Barrios. 70 Phil. 311).

We agree with appellee that the motion in question is not one of intervention, but solely a plea to enforce a right and that is to receive pleadings and orders related to the case. Evidently, the use of the word "intervention" in the manifestation and pleadings presented by Adela was resorted to for want of another appropriate word. In effect, all she wanted to convey was that she should participate or continue taking part in the case for being an original party therein. It was her belief that in filing the manifestation dropping herself from the proceedings (but which she later informed the court to have been secured thru fraud), her standing might have been affected. Intervention as contemplated by the Rules is a proceeding in a suit or action by which a third person is permitted by the court to make himself a party, either joining plaintiff in claiming what is sought by the complaint, or uniting with defendant in resisting the claims of plaintiff, or demanding something adversely to both of them; the act or proceeding by which a third person becomes a party in a suit pending between others; the admission, by leave of court, of a person not an original party to pending legal proceedings, which such person becomes a party thereto for the protection of some right or interest alleged by him to be affected by such proceedings (Judge of Camarines Sur, et al. vs. David, et al., G.R. No. 45454, April 12, 1939, cited in Francisco's Rules of Court, Vol. I, Part I, p. 639, emphasis supplied). The circumstances stated above do not fit the status of Adela in the probate proceedings; she was not a third person; she was an original party therein. We see no prejudice to be suffered by the administrator and Rizalina, if they are required to furnish copies of their pleadings to appellee. On the contrary, doing so, will give appellee her day in court and provide protection to the administrator himself. IN VIEW OF THE FOREGOING, We find the Order appealed from to be in conformity with the law and jurisprudence. The same should be, as it is hereby affirmed, in all respects, with costs against the appellants Jose D. Villegas and Rizalina Santos Rivera, in both instances. Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Barrera and Dizon, JJ., concur. Bengzon, C.J., is on leave. 5. IN RE: INTESTATE ESTATE OF THE LATE PIO DURAN. CIPRIANO DURAN and MIGUEL DURAN, petitioners-appellants, vs. JOSEFINA B. DURAN, movant-oppositor and appellee. A. C. Aguilar, N. J. Quisumbing and E. Quisumbing-Fernando for petitioners-appellants. Bausa, Ampil and Suarez for movant-oppositor-appellee. BENGZON J.P, J.: Pio Duran died without testament on February 28, 1961 in Guinobatan Albay. Among his alleged heirs are Josefina Duran, as surviving spouse; several brothers and sisters; nephews and nieces.

Subsequent to his death, on June 2, 1962, Cipriano Duran, one of the surviving brothers, executed a public instrument assigning and renouncing his hereditary rights to the decedent's estate in favor of Josefina Duran, for the consideration of P2,500.00. A year later, on June 8, 1963, Cipriano Duran filed in the Court of First Instance of Albay a petition for intestate proceedings to settle Pio Duran's estate, further asking that he be named the administrator. An ex parte motion to be appointed special administrator was also filed by him. Against said petition, Josefina Duran filed on August 9, 1963 an opposition, praying for its dismissal upon the ground that the petitioner is not an "interested person" in the estate, in view of the deed of transfer and renunciation the estate, in view of afore-stated, attaching a copy of the same; in the alternative, she asked to be appointed administratrix. Replying to this, Cipriano alleged, on September 11, 1963, alleged in his opposition to the motion to dismiss, that Josefina Duran was not the decedent's wife. Anent the deed of assignment, he contended that the same was procured thru fraud, with gross inadequacy of price and vitiated by lesion. Still later, another brother of the decedent, Miguel Duran, filed on September 14, 1963, a petition to be joined as co-petitioner of Cipriano. Josefina Duran moved to strike out said petition as an improper attempt to intervene in the case. She also filed a reply to Cipriano's opposition to her motion to dismiss. In turn, Miguel filed an opposition to Josefina's motion to strike out. Acting on said motions, on June 3, 1964, the Court of First Instance issued an order dismissing the petition of Cipriano for his lack of interest in the estate. Said lack of interest was premised on the deed of transfer executed by Cipriano, regarding which the court declared itself without power to examine in said proceedings, collaterally, the alleged fraud, inadequacy of price and lesion that would render it rescissible or voidable. And with the petition's dismissal, Miguel's petition to be joined as co-petitioner was deemed without leg to stand on. Appeal to Us directly, on questions of law, was taken by Cipriano and Miguel Duran. The Rules of Court provides that a petition for administration and settlement of an estate must be filed by an "interested person" (See. 2, Rule 79). Appellants contend that the deed of assignment executed by Cipriano did not operate to render him a person without interest in the estate. Relying on In re Irene Santos, L-11848, May 31, 1962, they argue that an assignment by one heir of his share in the estate to a co-heir amounts to a partition needing approval by the settlement court to be effective; and that the assigning heir does not lose his status as a person interested in the estate, even after said assignment is approved by the court. The situation in the Santos case involves an assignment between co-heirs pendente lite, during the course of settlement proceedings, properly and validly commenced. At the time

of said assignment, therefore, the settlement court had already acquired jurisdiction over the properties of estate. As a result, any assignment regarding the same had to be approved by said court. And since the approval the court is not deemed final until the estate is closed the assigning heir remains an interested person in proceedings even after said approval, which can be vacated is given. In the present case, however, the assignment took place when no settlement proceedings was pending. The properties subject matter of the assignment were not under the jurisdiction of a settlement court. Allowing that the assignment must be deemed a partition as between the assignor and assignee, the same does not need court approval to be effective as between the parties. An extrajudicial partition is valid as between the participants even if the requisites of Sec. 1, Rule 74 for extrajudicial partition are not followed, since said requisites are for purposes of binding creditors and non-participating heirs only (Hernandez v. Andal, 78 Phil. 196). Should it be contended that said partition was attended with fraud, lesion or inadequacy of price, the remedy is to rescind or to annul the same in an action for that purpose. And in the meanwhile, assigning heir cannot initiate a settlement proceedings, for until the deed of assignment is annulled or rescinded, it is deemed valid and effective against him, so that he is left without that "interest" in the estate required to petite for settlement proceedings. Anent appellant Miguel Duran, he sought in his petition below to "join petitioner Cipriano Duran as co-petitioner in the latter's petition . . . and incorporates herein by adoption all the allegations made in said petition." (Record on Appeal, pp. 45-46). The same, therefore, amounted to a petition to intervene in the settlement proceedings. As aptly ruled by the court a quo, since there was really no settlement proceedings in the first place, the petition to intervene must be denied. Finally, although Josefina Duran prayed to be appointed administratrix, her doing so did not amount to ratification of the petition for settlement under the ruling in Eusebio v. Valmores, 97 Phil. 163, since she did so merely by way of an alternative prayer, should her motion to dismiss fail. And said motion to dismiss was properly sustained. Wherefore, the dismissal order appealed from is hereby affirmed, with costs against appellants. So ordered. Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez and Castro, JJ., concur. 6. PEDRO DE GUZMAN, petitioner, vs. THE HONORABLE JUDGE ZOSIMO Z. ANGELES, RTC BRANCH 58, MAKATI, METRO, MANILA; DEPUTY SHERIFFS JOSE B. FLORA and HONORIO SANTOS and ELAINE G. DE GUZMAN, respondents. Bautista, Picazo, Cruz, Buyco and Tan for private respondent.

Ponce Enrile, Cayetano, Bautista, Picaso and Reyes, collaborating counsel for private respondent.

GUTIERREZ, JR., J.: May a probate court act on and/or grant motions for the appointment of a special administrator, for the issuance of a writ of possession of alleged properties of the deceased person, and for assistance to preserve the estate in a petition for the settlement of the intestate estate even before the court has caused notice to be served upon all interested parties pursuant to section 3, Rule 79 of the Revised Rules of Court? On May 5, 1987, private respondent Elaine G. de Guzman filed a petition for the settlement of the intestate estate of Manolito de Guzman, before the Regional Trial Court of Makati, Metro Manila. The case was docketed as Special Proceedings .No. M-1436. The petition alleges that: (1) on March 22,1987, Manolito de Guzman died in Makati, Metro Manila; (2) at the time of his death, the decedent was a resident of Makati, Metro Manila; (3) decedent left personal and real properties as part of his estate, listed in Annexes "A," "B," "C" and "D;" (4) the properties were acquired after the marriage of the petitioner to the decedent and therefore are included in their conjugal partnership; (5) the estate of -the decedent has a probable net value which may be provisionally assessed at P4,000,000.00 more or less; (6) the possible creditors of the estate, who have accounts payable. and existing claims against the firm C. SANTOS Construction are listed in Annex "E;" (7) the compulsory heirs of the decedent are the as the surviving spouse and their two (2) minor children namely: Charmane Rose de Guzman 11 years and Peter Brian de Guzman, 9 years old; (8) after diligent search and inquiry to ascertain whether the decedent left a last will and testament, none has been found and according to the best knowledge information and belief of the petitioner, Manolito de Guzman died intestate; and (9) the petitioner as the survey surviving spouse of the decedent, is most qualified and entitled to the grant of letters of administration. On May 22, 1987, the private respondent filed a motion for writ of possession over five (5) vehicles registered under the name of Manolito de Guzman, alleged to be conjugal properties of the de Guzman's but which are at present in the possession of the private respondent's father-in- law, herein petitioner Pedro de Guzman. The motion stated that as co-owner and heir, the private respondent must have the possession of said vehicles in order to preserve the assets of her late husband. On the same day, the lower court issued an order setting for hearing the motion on May 27, 1987 directing the deputy sheriff to notify petitioner Pedro de Guzman at the expense of the private respondent. The scheduled May 27, 1987 hearing was postponed on motion of petitioner's counsel, Atty. Ricardo Fojas. The petitioner was also given three (3) days from May 27, 1987 to give his comment on the motion for a writ of possession. The hearing was reset to June 5, 1987 at 3:00 p.m.

On May 29, 1987, the petitioner's counsel filed a notice of appearance and an "Urgent Motion For Extension of Time to File an Opposition and for Resetting of the Hearing." The motion was granted and the petitioner was given five (5) days from receipt of the order within which to file his opposition to the motion for a writ of possession. The hearing was reset to June 15, 1987 at 2:00 in the afternoon. In the meantime, on May 28, 1987, the private respondent filed her "Ex-Parte Motion to Appoint Petitioner as Special Administratrix of the Estate of Manolito de Guzman." In an order dated May 28,1987, the aforesaid motion was set for hearing on June 5, 1987. In this same order, the lower court directed that all parties in the case be notified. However, no notice of the order was given to the petitioner. In an order dated June 5, 1987, the lower court granted the private respondent's motion to be appointed as special administratrix, to wit: Finding the motion for appointment of special administratrix, on the ground alleged therein to be well-founded, and finding further that it is to be the best interest of the Estate of Manolito de Guzman that petitioner-movant Elaine G. de Guzman, be appointed as Special Administratrix in this case, said motion is granted. WHEREFORE, Elaine G. de Guzman, petitioner-movant, is hereby appointed as Special Administratrix of the Estate of the deceased Manolito de Guzman, pending appointment of a regular administrator. The bond for the said special administratrix is hereby fixed in the amount of P200,000.00. (Rollo, p. 40) On June 8, 1987, the lower court issued another order, to wit: Acting on the Urgent Ex-Parte Motion for Assistance" filed by PetitionerSpecial Administratrix Elaine de Guzman for appointment of Deputy Sheriffs Honorio Santos and Jose B. Flora together with some military men and/or policemen to assist her in preserving the estate of Manolito de Guzman, the motion is granted and the Deputy Sheriffs Honorio Santos and Jose B. Flora are hereby appointed for that purpose, provided that the subject matter of the motion for writ of possession pending before this Court shall not be affected. (Rollo, p. 41) Trouble ensued when the respondents tried to enforce the above order. The petitioner resisted when Deputy Sheriffs Jose B. Flora and Honorio Santos tried to take the subject vehicles on the ground that they were his personal properties. According to the petitioner, this resulted in a "near shoot-out between members of the Makati Police, who were to maintain peace and order, and the CAPCOM soldiers who were ostensibly aiding respondent sheriffs and Elaine G. de Guzman" and that "the timely arrival of Mayor Jejomar

Binay of Makati defused the very volatile situation which resulted in an agreement between the parties that the bulldozer, sought to be taken, be temporarily placed in the custody of Mayor Binay, while the parties seek clarification of the order from respondent Judge Zosimo Angeles the next day, June 9, 1981 at 10:30 a.m." In the conference held before the respondent court attended by the counsels for both parties, the June 8, 1987 order was clarified to the effect that the order "must be merely to take and preserve assets admittedly belonging to the estate, but not properties, the ownership of which is claimed by third persons." The petitioner then filed a manifestation listing properties which he claimed to be his own. Thereafter, the instant petition was filed to annul the lower court's orders dated June 5, 1987 and June 8, 1987. In a resolution dated June 10, 1987, we issued a temporary restraining order enjoining the respondent court from enforcing the two questioned orders. In another resolution dated October 28, 1987, we gave due course to the petition. The petitioner contends that the June 5, 1987 order is a patent nullity, the respondent court not having acquired jurisdiction to appoint a special administratrix because the petition for the settlement of the estate of Manolito de Guzman was not yet set for hearing and published for three consecutive weeks, as mandated by the Rules of Court. The petitioner also stresses that the appointment of a special administratrix constitutes an abuse of discretion for having been made without giving petitioner and other parties an opportunity to oppose said appointment. Anent the June 8, 1987 order, the petitioner alleges that the immediate grant of the motion praying for the court's assistance in the preservation of the estate of the deceased, "without notice to the petitioner Pedro de Guzman, and its immediate implementation on the very same day by respondent Elaine G. de Guzman with the assistance of respondents deputy sheriffs, at no other place but at the home of the petitioner Pedro de Guzman, are eloquent proofs that all the antecedent events were intended solely to deprive petitioner de Guzman of his property without due process of law." He also prays that the respondent Judge be disqualified from further continuing the case. As stated earlier, the pivotal issue in the instant petition hinges on whether or not a probate court may appoint a special administratrix and issue a writ of possession of alleged properties of a decedent for the preservation of the estate in a petition for the settlement of the intestate estate of the said deceased person even before the probate court causes notice to be served upon all interested parties pursuant to section 3, Rule 79 of the Revised Rules of Court. As early as March 18, 1937, in the case of Santos v. Castillo (64 Phil. 211) we ruled that before a court may acquire jurisdiction over the case for the probate of a will and the administration of the properties left by a deceased person, the application must allege the

residence of the deceased and other indispensable facts or circumstances and that the applicant is the executor named in the will or is the person who had custody of the will to be probated. In the instant case, there is no doubt that the respondent court acquired jurisdiction over the proceedings upon the filing of a petition for the settlement of an intestate estate by the private respondent since the petition had alleged all the jurisdictional facts, the residence of the deceased person, the possible heirs and creditors and the probable value of the estate of the deceased Manolito de Guzman pursuant to Section 2, Rule 79 of the Revised Rules of Court. We must, however, differentiate between the jurisdiction of the probate court over the proceedings for the administration of an estate and its jurisdiction over the persons who are interested in the settlement of the estate of the deceased person. The court may also have jurisdiction over the "estate" of the deceased person but the determination of the properties comprising that estate must follow established rules. Section 3, Rule 79 of the Revised Rules of Court provides: Court to set time for hearing. Notice thereof. When a petition for letters of administration is filed in the court having jurisdiction, such court shall fix a time and place for hearing the petition, and shall cause notice thereof to be given to the known heirs and creditors of the decedent, and to any other persons believed to have an interest in the estate, in the manner provided in sections 3 and 4 of Rule 76. It is very clear from this provision that the probate court must cause notice through publication of the petition after it receives the same. The purpose of this notice is to bring all the interested persons within the court's jurisdiction so that the judgment therein becomes binding on all the world. (Manalo v. Paredes, 47 Phil. 938; Moran, Comment on the Rules of Court Volume 3,1980 Edition) Where no notice as required by Section 3, Rule 79 of the Rules of Court has been given to persons believed to have an interest in the estate of the deceased person; the proceeding for the settlement of the estate is void and should be annulled. The requirement as to notice is essential to the validity of the proceeding in that no person may be deprived of his right to property without due process of law. (Eusebio v. Valmores, 96 Phil. 163). Verily, notice through publication of the petition for the settlement of the estate of a deceased person is jurisdictional, the absence of which makes court orders affecting other persons, subsequent to the petition void and subject to annulment. (See Eusebio v. Valmores, supra) In the instant case, no notice as mandated by section 3, Rule 79 of the Revised Rules of Court was caused to be given by the probate court before it acted on the motions of the private respondent to be appointed as special administratrix, to issue a writ of possession

of alleged properties of the deceased person in the widow's favor, and to grant her motion for assistance to preserve the estate of Manolito de Guzman. The "explanation" which we required of the respondent Judge for his apparent haste in issuing the questioned orders, states: xxx xxx xxx 10. In issuing the subject Orders, undersigned acted in the honest conviction that it would be to the best interest of the estate without unduly prejudicing any interested party or third person. Any delay in issuing the said Orders might have prejudiced the estate for the properties may be lost, wasted or dissipated in the meantime. (Rollo, p. 86) xxx xxx xxx This explanation while seemingly plausible does not sufficiently explain the disregard of the Rule. If indeed, the respondent court had the welfare of both the estate and the person who have interest in the estate, then it could have caused notice to be given immediately as mandated by the Revised Rules of Court. All interested persons including herein petitioner who is the biggest creditor of the estate listed in the Petition (P850,240.80) could have participated in the proceedings especially so, because the respondent immediately filed a motion to have herself appointed as administratrix. A special administrator has been defined as the "representative of decedent appointed by the probate court to care for and preserve his estate until an executor or general administrator is appointed." (Jones v. Minnesota Transfer R. Co. 1965 ed., at 106 cited in Fule v. Court of Appeals, 74 SCRA 189). The petitioner as creditor of the estate has a similar interest in the preservation of the estate as the private respondent who happens to be the widow of deceased Manolito de Guzman. Hence, the necessity of notice as mandated by the Rules of Court. It is not clear from the records exactly what emergency would have ensued if the appointment of an administrator was deferred at least until the most interested parties were given notice of the proposed action. No unavoidable delay in the appointment of a regular administrator is apparent from the records. As argued by the petitioner: The position of special administrator, by the very nature of the powers granted thereby, is one of trust and confidence. It is a fiduciary position and, therefore, requires a comprehensive determination of the suitability of the applicant to such position. Hence, under Philippine jurisprudence, it has been settled that the same fundamental and legal principles governing the choice of a regular administrator should be taken in choosing the special administrator (Francisco, Vol. VB, page 46 citing the cases of Ozaeta v. Pecson, Ibid. and Roxas v. Pecson, Ibid.)

In order to fully and correctly ascertain the suitability of the applicant to the trust, a hearing is obviously necessary wherein the applicant can prove his qualifications and at the same time affording oppositors, given notice of such hearing and application, the opportunity to oppose or contest such application. The requirement of a hearing and the notification to all the known heirs and other interested parties as to the date thereof is essential to the validity of the proceeding for the appointment of an administrator "in order that no person may be deprived of his right or property without due process of law" (Eusebio v. Valmores, 97 Phil. 163). Moreover, a hearing is necessary in order to fully determine the suitability of the applicant to the trust, by giving him the opportunity to prove his qualifications and affording oppositors, if any, to contest the said application. (Matute v. Court of Appeals, 26 SCRA 770; emphasis supplied). Since the position of special administrator is a very sensitive one which requires trust and confidence, it is essential that the suitability of the applicant be ascertained in a hearing with due notice to all oppositors who may object precisely to the applicant's suitability to the trust. (Rollo, pp. 103104) If emergency situations threatening the dissipation of the assets of an estate justify a court's immediately taking some kind of temporary action even without the required notice, no such emergency is shown in this case. The need for the proper notice even for the appointment of a special administrator is apparent from the circumstances of this case. The respondent Judge himself explains that the order for the preservation of the estate was limited to properties not claimed by third parties. If certain properties are already in the possession of the applicant for special administratrix and are not claimed by other persons, we see no need to hurry up and take special action to preserve those properties. As it is, the sheriffs took advantage of the questioned order to seize by force, properties found in the residence of the petitioner which he vehemently claims are owned by him and not by the estate of the deceased person. The petitioner also asks that the respondent Judge be disqualified from continuing with the proceedings of the case on the ground that he is partial to the private respondent. In view of the fact that the respondent Judge in his "Explanation" requests that he be inhibited from further active on the case, this issue has now become academic. We accept Judge Angeles" voluntary inhibition in line with our ruling in Pimentel v. Salanga (21 SCRA 160). As we stated in Query of Executive Judge Estrella T. Estrada, Regional Trial Court of Malolos, Bulacan on the conflicting views of Regional Trial CourtJudges Manalo and Elisaga

Re: Criminal Case No. 4954 M Administrative Matter No. 87-9-3918-RTC, October 26, 1987: xxx xxx xxx ... A judge may not be legally prohibited from sitting in a litigation. But when suggestion is made of record that he might be induced to act in favor of one party or with bias or prejudice against a litigant arising out of circumstances reasonably capable of inciting such a state of mind, he should conduct a careful self-examination. He should exercise his discretion in a way that the people's faith in the courts of justice is not impaired. A salutary norm is that he reflect on the probability that a losing party might nurture at the back of his mind the thought that the judge had unmeritoriously tilted the scales of justice against him. That passion on the part of a judge may be generated because of serious charges of misconduct against him by a suitor or his counsel, is not altogether remote. He is a man, subject to the frailties of other men. He should, therefore, exercise great care and caution before making up his mind to act or withdraw from a suit Where that party or counsel is involved. He could in good grace inhibit himself where that case could be heard by another judge and where no appreciable prejudice would be occasioned to others involved thereon. On the result of his decisions to sit or not sit may depend to a great extent that all-important confidence in the impartiality of the judiciary. If after reflection he should resolve to voluntarily desist from sitting in a case where his motives or fairness might be seriously impugned, his action is to be interpreted as giving meaning and substance to the second paragraph of Section 1, Rule 137. He serves the cause of the law who forestalls miscarriage of justice. Considering the foregoing, we find no need to discuss the other issues raised in the petition. WHEREFORE, the instant petition is GRANTED. The questioned orders of the Regional Trial Court, Branch 58 of Makati are hereby set aside. The case is ordered remanded to the lower court for the hearing of the petition with previous notice to all interested parties as required by law. In view of the voluntary inhibition of the respondent Judge, the Executive Judge of the Regional Trial Court, Makati is directed to re-raffle the case to another branch of the court. The Temporary Restraining Order dated June 10, 1987 is made permanent. No costs. SO ORDERED. Fernan (Chairman), Feliciano, Bidin and Cortes, JJ., concur.