Rule 75 Production of will, allowance of will, necessary BALANAY, JR. vs.

MARTINEZ 64 SCRA 452 FACTS: Leodegaria Julian died. She was survived by her husband, Felix Balanay, Sr., and six legitimate children. Felix Balanay, Jr. filed a petition for the probate of his mothers notarial will, which was written in English. In thatwill, Leodegaria declared that it was her desire her properties should not be divided among her heirs during her husband's lifetime and that their legitimes should be satisfied out of the fruits of her properties. She devised andpartitioned the conjugal lands as if they were all owned by her. She disposed of in the will her husband's one-half share of the conjugal assets. Felix Balanay, Sr. and Avelina B. Antonio opposed the probate of the will.There after, Felix Balanay, Sr. signed an instrument waiving and renouncing his right in Leodegarias estate in favor of their 6 children. ISSUE: Whether or not the probate court erred in passing upon the intrinsic validity of the will, before ruling on itsallowance or formal validity, and in declaring it void. RULING: The trial court acted correctly in passing upon the will's intrinsic validity even before its formalvalidity had been established. The probate of a will might become an idle ceremony if on its face it appears tobe intrinsically void .But the probate court erred in declaring that the will was void and in converting the testate proceeding into anintestate proceeding.The will is intrinsically valid and the partition therein may be given effect if it does not prejudice the creditors andimpair the legitimes. The distribution and partition would become effective upon the death of Felix Balanay, Sr. In themeantime, the net income should be equitably divided among the children and the surviving spouse.( Relate to Articles 779 and 780 : In this case, there is testamentary succession because it resulted from the designation of heirs by the testatrix, made in a will executed in the form prescribed by law. It can be considered as a mixed succession because there is partly by will (execution of the will and execution of the waiver) and by operation of law (as to the share of the husband of the conjugal party of which he eventually waived

G.R. No. L-39247 June 27, 1975 In the Matter of the Petition to Approve the Will of Leodegaria Julian. FELIX BALANAY, JR., petitioner, vs. HON. ANTONIO M. MARTINEZ, Judge of the Court of First Instance of Davao, Branch VI; AVELINA B. ANTONIO and DELIA B. LANABAN, respondents. Roberto M. Sarenas for petitioner. Jose B. Guyo for private respondents.

AQUINO, J.: Felix Balanay, Jr. appealed by certiorari from the order of the Court of First Instance of Davao dated February 28, 1974, declaring illegal and void the will of his mother, Leodegaria Julian, converting the testate proceeding into an intestate proceeding and ordering the issuance of the corresponding notice to creditors (Special Case No. 1808). The antecedents of the appeal are as follows: Leodegaria Julian, a native of Sta. Maria, Ilocos Sur, died on February 12, 1973 in Davao City at the age of sixty-seven. She was survived by her husband, Felix Balanay, Sr., and by their six legitimate children named Felix Balanay, Jr., Avelina B. Antonio, Beatriz B. Solamo, Carolina B. Manguiob, Delia B. Lanaban and Emilia B. Pabaonon. Felix J. Balanay, Jr. filed in the lower court a petition dated February 27, 1973 for the probate of his mother's notarial will dated September 5, 1970 which is written in English. In that will Leodegaria Julian declared (a) that she was the owner of the "southern half of nine conjugal lots (par. II); (b) that she was

the absolute owner of two parcels of land which she inherited from her father (par. III), and (c) that it was her desire that her properties should not be divided among her heirs during her husband's lifetime and that their legitimes should be satisfied out of the fruits of her properties (Par. IV). Then, in paragraph V of the will she stated that after her husband's death (he was eighty-two years old in 1973) her paraphernal lands and all the conjugal lands (which she described as "my properties") should be divided and distributed in the manner set forth in that part of her will. She devised and partitioned the conjugal lands as if they were all owned by her. She disposed of in the will her husband's one half share of the conjugal assets. * Felix Balanay, Sr. and Avelina B. Antonio opposed the probate of the will on the grounds of lack of testamentary capacity, undue influence, preterition of the husband and alleged improper partition of the conjugal estate. The oppositors claimed that Felix Balanay, Jr. should collate certain properties which he had received from the testatrix. Felix Balanay, Jr., in his reply to the opposition, attached thereto an affidavit of Felix Balanay, Sr. dated April 18, 1973 wherein he withdrew his opposition to the probate of the will and affirmed that he was interested in its probate. On the same date Felix Balanay, Sr. signed an instrument captioned "Conformation (sic) of Division and Renunciation of Hereditary Rights" wherein he manifested that out of respect for his wife's will he "waived and renounced' his hereditary rights in her estate in favor of their six children. In that same instrument he confirmed the agreement, which he and his wife had perfected before her death, that their conjugal properties would be partitioned in the manner indicated in her will. Avelina B. Antonio, an oppositor, in her rejoinder contended that the affidavit and "conformation" of Felix Balanay, Sr. were void. The lower court in its order of June 18, 1973 "denied" the opposition and reset for hearing the probate of the will. It gave effect to the affidavit and conformity of Felix Balanay, Sr. In an order dated August 28, 1973 it appointed its branch clerk of court as special administrator of the decedent's estate. Mrs. Antonio moved for the reconsideration of the lower court's order of June 18, 1973 on the grounds (a) that the testatrix illegally claimed that she was the owner of the southern half of the conjugal lots and (b) that she could not partition the conjugal estate by allocating portions of the nine lots to her children. Felix Balanay, Jr., through his counsel, Hermenegildo Cabreros, opposed that motion. The lower court denied it in its order of October 15, 1973. In the meanwhile, another lawyer appeared in the case. David O. Montaa, Sr., claiming to be the lawyer of petitioner Felix Balanay, Jr. (his counsel of record was Atty. Cabreros), filed a motion dated September 25, 1973 for "leave of court to withdraw probate of alleged will of Leodegaria Julian and requesting authority to proceed by intestate estate proceeding." In that motion Montaa claimed to be the lawyer not only of the petitioner but also of Felix Balanay, Sr., Beatriz B. Solamo, Carolina B. Manguiob and Emilia B. Pabaonon. Montaa in his motion assailed the provision of the will which partitioned the conjugal assets or allegedly effected a compromise of future legitimes. He prayed that the probate of the will be withdrawn and that the proceeding be converted into an intestate proceeding. In another motion of the same date he asked that the corresponding notice to creditors be issued. Avelina B. Antonio and Delia B. Lanaban, through Atty. Jose B. Guyo, in their comments dated October 15, 1973 manifested their conformity with the motion for the issuance of a notice to creditors. They prayed that the will be declared void for being contrary to law and that an intestacy be declared. The lower court, acting on the motions of Atty. Montaa, assumed that the issuance of a notice to creditors was in order since the parties had agreed on that point. It adopted the view of Attys. Montaa and Guyo that the will was void. So, in its order of February 28, 1974 it dismissed the petition for the probate, converted the testate proceeding into an intestate proceeding, ordered the issuance of a notice to creditors and set the intestate proceeding for hearing on April 1 and 2, 1974. The lower court did not abrogate its prior orders of June 18 and October 15, 1973. The notice to creditors was issued on April 1, 1974 and published on May 2, 9 and 16 in the Davao Star in spite of petitioner's motion of April 17, 1974 that its publication be held in abeyance. Felix Balanay, Jr., through a new counsel, Roberto M. Sarenas, in a verified motion dated April 15, 1974, asked for the reconsideration of the lower court's order of February 28, 1974 on the ground that Atty. Montaa had no authority to withdraw the petition for the allowance of the will. Attached to the motion was a copy of a letter dated March 27, 1974 addressed to Atty. Montaa and signed by Felix Balanay, Jr., Beatriz V. Solamo, Carolina B. Manguiob and Emilia B. Pabaonon, wherein they terminated Montaa's services and informed him that his withdrawal of the petition for the probate of the will was without their

consent and was contrary to their repeated reminder to him that their mother's will was "very sacred" to them. Avelina B. Antonio and Delia B. Lanaban opposed the motion for reconsideration. The lower court denied the motion in its order of June 29, 1974. It clarified that it declared the will void on the basis of its own independent assessment of its provisions and not because of Atty. Montaa's arguments. The basic issue is whether the probate court erred in passing upon the intrinsic validity of the will, before ruling on its allowance or formal validity, and in declaring it void. We are of the opinion that in view of certain unusual provisions of the will, which are of dubious legality, and because of the motion to withdraw the petition for probate (which the lower court assumed to have been filed with the petitioner's authorization), the trial court acted correctly in passing upon the will's intrinsic validity even before its formal validity had been established. The probate of a will might become an idle ceremony if on its face it appears to be intrinsically void. Where practical considerations demand that the intrinsic validity of the will be passed upon, even before it is probated, the court should meet the issue (Nuguid vs. Nuguid, 64 O.G. 1527, 17 SCRA 449. Compare with Sumilang vs. Ramagosa, L-23135, December 26, 1967, 21 SCRA 1369; Cacho vs. Udan, L-19996, April 30, 1965, 13 SCRA 693).1wph1.t But the probate court erred in declaring, in its order of February 28, 1974 that the will was void and in converting the testate proceeding into an intestate proceeding notwithstanding the fact that in its order of June 18, 1973 , it gave effect to the surviving husband's conformity to the will and to his renunciation of his hereditary rights which presumably included his one-half share of the conjugal estate. The rule is that "the invalidity of one of several dispositions contained in a will does not result in the invalidity of the other dispositions, unless it is to be presumed that the testator would not have made such other dispositions if the first invalid disposition had not been made" (Art. 792, Civil Code). "Where some of the provisions of a will are valid and others invalid, the valid parts will be upheld if they can be separated from the invalid without defeating the intention of the testator or interfering with the general testamentary scheme, or doing injustice to the beneficiaries" (95 C.J.S. 873). The statement of the testatrix that she owned the "southern half of the conjugal lands is contrary to law because, although she was a coowner thereof, her share was inchoate and proindiviso (Art. 143, Civil Code; Madrigal and Paterno vs. Rafferty and Concepcion, 38 Phil. 414). But That illegal declaration does not nullify the entire will. It may be disregarded. The provision of the will that the properties of the testatrix should not be divided among her heirs during her husband's lifetime but should be kept intact and that the legitimes should be paid in cash is contrary to article 1080 of the Civil Code which reads: ART. 1080. Should a person make a partition of his estate by an act inter vivos, or by will, such partition shall be respected, insofar as it does not prejudice the legitime of the compulsory heirs. A parent who, in the interest of his or her family, to keep any agricultural, industrial, or manufacturing enterprise intact, may avail himself of the right granted him in this article, by ordering that the legitime of the other children to whom the property is not assigned be paid in cash. (1056a) The testatrix in her will made a partition of the entire conjugal estate among her six children (her husband had renounced his hereditary rights and his one-half conjugal share). She did not assign the whole estate to one or more children as envisaged in article 1080. Hence, she had no right to require that the legitimes be paid in cash. On the other hand, her estate may remain undivided only for a period of twenty years. So, the provision that the estate should not be divided during her husband's lifetime would at most be effective only for twenty years from the date of her death unless there are compelling reasons for terminating the coownership (Art. 1083, Civil Code). Felix Balanay, Sr. could validly renounce his hereditary rights and his one-half share of the conjugal partnership (Arts. 179[1] and 1041, Civil Code) but insofar as said renunciation partakes of a donation of his hereditary rights and his one-half share in the conjugal estate (Art. 1060[1] Civil Code), it should be subject to the limitations prescribed in articles 750 and 752 of the Civil Code. A portion of the estate should be adjudicated to the widower for his support and maintenance. Or at least his legitime should be respected.

Subject to the foregoing observations and the rules on collation, the will is intrinsically valid and the partition therein may be given effect if it does not prejudice the creditors and impair the legitimes. The distribution and partition would become effective upon the death of Felix Balanay, Sr. In the meantime, the net income should be equitably divided among the children and the surviving spouse. It should be stressed that by reason of the surviving husband's conformity to his wife's will and his renunciation of his hereditary rights, his one-half conjugal share became a part of his deceased wife's estate. His conformity had the effect of validating the partition made in paragraph V of the will without prejudice, of course, to the rights of the creditors and the legitimes of the compulsory heirs. Article 793 of the Civil Code provides that "property acquired after the making of a will shall only pass thereby, as if the testator had it at the time of making the will, should it expressly appear by the will that such was his intention". Under article 930 of the Civil Code "the legacy or devise of a thing belonging to another person is void, if the testator erroneously believed that the thing pertained to him. But if the thing bequeathed, though not belonging to the testator when he made the will, afterwards becomes his, by whatever title, the disposition shall take effect." In the instant case there is no doubt that the testatrix and her husband intended to partition the conjugal estate in the manner set forth in paragraph V of her will. It is true that she could dispose of by will only her half of the conjugal estate (Art. 170, Civil Code) but since the husband, after the dissolution of the conjugal partnership, had assented to her testamentary partition of the conjugal estate, such partition has become valid, assuming that the will may be probated. The instant case is different from the Nuguid case, supra, where the testatrix instituted as heir her sister and preterited her parents. Her will was intrinsically void because it preterited her compulsory heirs in the direct line. Article 854 of the Civil Code provides that "the preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall annul the institution of heir; but the devises and legacies, shall be valid insofar as they are not inofficious." Since the preterition of the parents annulled the institution of the sister of the testatrix and there were no legacies and devises, total intestacy resulted (.Art. 960[2], Civil Code).1wph1.t In the instant case, the preterited heir was the surviving spouse. His preterition did not produce intestacy. Moreover, he signified his conformity to his wife's will and renounced his hereditary rights. . It results that the lower court erred in not proceeding with the probate of the will as contemplated in its uncancelled order of June 18, 1973. Save in an extreme case where the will on its face is intrinsically void, it is the probate court's duty to pass first upon the formal validity of the will. Generally, the probate of the will is mandatory (Art. 838, Civil Code; Guevara vs. Guevara, 74 Phil. 479 and 98 Phil. 249; Fernandez vs. Dimagiba, L-23638, October 12, 1967, 21 SCRA 428). As aptly stated by Mr. Justice Barredo, "the very existence of a purported testament is in itself prima facie proof that the supposed testator has willed that his estate should be distributed in the manner therein provided, and it is incumbent upon the state that, if legally tenable, such desire be given effect independent of the attitude of the parties affected thereby" (Resolution, Vda. de Precilla vs. Narciso, L27200, August 18, 1972, 46 SCRA 538, 565). To give effect to the intention and wishes of the testatrix is the first and principal law in the matter of testaments (Dizon-Rivera vs. Dizon, L-24561, June 30, 1970, 33 SCRA 554, 561). Testacy is preferable to intestacy. An interpretation that will render a testamentary disposition operative takes precedence over a construction that will nullify a provision of the will (Arts. 788 and 791, Civil Code). Testacy is favored. Doubts are resolved in favor of testacy especially where the will evinces an intention on the part of the testator to dispose of practically his whole estate. So compelling is the principle that intestacy should be avoided and that the wishes of the testator should prevail that sometimes the language of the will can be varied for the purpose of giving it effect (Austria vs. Reyes, L-23079, February 27, 1970, 31 SCRA 754, 762). As far as is legally possible, the expressed desire of the testator must be followed and the dispositions of the properties in his will should be upheld (Estorque vs. Estorque, L-19573, June 30, 1970, 33 SCRA 540, 546). The law has a tender regard for the wishes of the testator as expressed in his will because any disposition therein is better than that which the law can make (Castro vs. Bustos, L-25913, February 28, 1969, 27 SCRA 327, 341).

Two other errors of the lower court may be noticed. It erred in issuing a notice to creditors although no executor or regular administrator has been appointed. The record reveals that it appointed a special administrator. A notice to creditors is not in order if only a special administrator has been appointed. Section 1, Rule 86 of the Rules of Court, in providing that "immediately after granting letters of testamentary or of administration, the court shall issue a notice requiring all persons having money claims against the decedent to file them in the office of the clerk of said court" clearly contemplates the appointment of an executor or regular administrator and not that of a special administrator. It is the executor or regular administrator who is supposed to oppose the claims against the estate and to pay such claims when duly allowed (See. 10, Rule 86 and sec. 1, Rule 88, Rules of Court). We also take this occasion to point out that the probate court's appointment of its branch clerk of court as special administrator (p. 30, Rollo) is not a salutary practice because it might engender the suspicion that the probate Judge and his clerk of court are in cahoots in milking the decedent's estate. Should the branch clerk of court commit any abuse or devastavit in the course of his administration, the probate Judge might find it difficult to hold him to a strict accountability. A court employee should devote his official time to his official duties and should not have as a sideline the administration of a decedent's estate. WHEREFORE, the lower court's orders of February 28, and June 29, 1974 are set aside and its order of June 18, 1973, setting for hearing the petition for probate, is affirmed. The lower court is directed to conduct further proceedings in Special Case No. 1808 in consonance with this opinion. Costs, against the private respondents. SO ORDERED. G.R. No. L-42226 July 26, 1935

In re estate of the deceased Ines Basa de Mercado. JOAQUINA BASA, ET AL., petitioners-appellants, vs. ATILANO G. MERCADO, respondent-appellee. Briones and Martinez for appellants. Jose Gutierrez David for appellee. GODDARD, J.: By virtue of an order dated June 27, 1931, the Honorable Hermogenes Reyes, Judge of the Court of First Instance of Pampanga, allowed and probated the last will and testament of Ines Basa, deceased. On January 30, 1932, the same judge approved the account of the administrator of the estate, declared him the only heir of the deceased under the will and closed the administration proceedings. On April 11, 1934, the herein petitioners-appellants filed a motion in which they prayed that said proceedings be reopened and alleged that the court lacked jurisdiction to act in the matter because there was a failure to comply with requirements as to the publication of the notice of hearing prescribed in the following section of the Code of Civil Procedure: SEC. 630. Court to appoint hearing on will. When a will is delivered to a court having jurisdiction of the same, the court shall appoint a time and place when all concerned may appear to contest the allowance of the will, and shall cause public notice thereof to be given by publication in such newspaper or newspapers as the court directs of general circulation in the province, three weeks successively, previous to the time appointed, and no will shall be allowed until such notice has been given. At the hearing all testimony shall be taken under oath, reduced to writing and signed by the witnesses. In this motion the appellants claim that the provisions of section 630 of the Code of Civil Procedure have not been complied with in view of the fact that although the trial judge, on May 29, 1931, ordered the publication of the required notice for "three weeks successively" previous to the time appointed for the hearing on the will, the first publication was on June 6, 1931, the third on June 20, 1931, and the hearing took place on the 27th of that month, only twenty-one days after the date of the first publication instead of three full weeks before the day set for the hearing. Section 630 of our Code of Civil Procedure is taken from the Code of Civil Procedure of the State of Vermont. The Supreme Court of that State, commenting on the phrase "three weeks successively", held:

The date of examining and allowing P.A. Barlett's final account of administration, and for decreeing the residue of the estate to the lawful claimants of the same, was set by the probate court for December 19, 1919, at the probate office in Brighton, and an order was made to this effect on November 28, 1919. The order provided also that notice should be given by publication for three weeks successively in the Essex County Herald. In accordance with this order, the notice was published in the issues for December 4, 11 and 18, respectively. This was "public notice" to all persons interested of the time and place of examining and allowing said account and making decree of distribution, and was sufficient under the provisions of G.L. 3276. (Lenehen vs. Spaulding, 57 Vt., 115.) "The proceeding was according to law in all respects, and being in the nature of a proceeding in rem, it binds everybody by its legal effect." (Burbeck vs. Little, 50 Vt., 713.) At the time and place set for the hearing none of the petitioners or other legatees under the will of Nickerson Warner appeared. Thereupon the judge of probate then and there continued the hearing until April 6, 1920, at which time the final account of P.A .Barlett as administrator de bonis non with will annexed was filed and, no one appearing to object, the same was allowed, and the decree of distribution was entered. ( In reWarner's Estate [Supreme Court of Vermont] 1925; 127 Atl. Rep., 362, 364; 98 Vt., 254, 261.) It will be noted that in the above cited case the last of the three publications was on December 18, 1919, and the hearing on the administrators's final account was set for December 19 of that year, only fifteen days after the date of the first publication. In view of the foregoing, it is held that the language used in section 630 of the Code of Civil Procedure does not mean that the notice, referred to therein, should be published for three full weeks before the date set for the hearing on the will. In other words the first publication of the notice need not be made twenty-one days before the day appointed for the hearing. The appellants also contend that the trial court erred in ruling that the weekly newspaper, Ing Katipunan, in which the notice of hearing was published, was a newspaper of general circulation in the Province of Pampanga. The record shows that Ing Katipunan is a newspaper of general circulation in view of the fact that it is published for the dissemination of local news and general information; that it has a bona fide subscription list of paying subscribers; that it is published at regular intervals and that the trial court ordered the publication to be made inIng Katipunan precisely because it was a "newspaper of general circulation in the Province of Pampanga." Furthermore no attempt has been made to prove that it was a newspaper devoted to the interests or published for the entertainment of a particular class, profession, trade, calling, race or religious denomination. The fact that there is another paper published in Pampanga that has a few more subscribers (72 to be exact) and that certain Manila dailies also have a larger circulation in that province is unimportant. The law does not require that publication of the notice, referred to in the Code of Civil Procedure, should be made in the newspaper with the largest numbers is necessary to constitute a newspaper of general circulation. The assignments of error of the appellants are overruled and the appealed order of the trial court is affirmed with costs in this instance against the appellants. G.R. No. 122646 March 14, 1997 ADELIA C. MENDOZA, for herself and Administratix of the Intestate Estate of the late NORBERTO B. MENDOZA, petitioners, vs. HON. ANGELITO C. TEH, Presiding Judge, Branch 87, RTC, Rosario, Batangas, SPS. HERMINIO & CLARITA TAYAG @ SPS. GEORGE T. TIGLAO & CLARIZZA T. TIGLAO and/or @ TEOFILO M. ESGUERRA, LEONOR M. ESGUERRA. LETICIA M. ESGUERRA, JOEL M. ESGUERRA, RICARDO M. ESGUERRA, VOLTAIRE E. TAYAG, BENITO I. TAYAG, MERLIE MALIG, ALBERTO T. TAYAG, ROSEMARIE T. TAYAG, LETICIA E. LULU and the REGISTER OF DEED for the Province of Batangas, respondents.

FRANCISCO, J.: On October 28, 1994, petitioner "for herself and as administratrix of the intestate estate" of her deceased husband Norberto Mendoza filed before the Regional Trial Court (RTC) of Batangas a complaint for

"reconveyance of title (involving parcels of lot in Batangas) and damages with petition for preliminary 1 injunction" docketed as Civil Case No. R94-009. Paragraphs 2 and 3 of said complaint states: 2. That Adelia C. Mendoza likewise represents her co-plaintiff, the Intestate Estate of the late Norberto B. Mendoza in her capacity as the surviving wife of the deceased Norberto B. Mendoza who died on December 29, 1993; 3. That Adelia C. Mendoza should be appointed by this Honorable Court as the judicial 2 administratrix of her co-plaintiff for purposes of this case; Private respondents filed on January 21, 1995 their "answer with motion to dismiss" alleging among others that the complaint states no cause of action and that petitioner's demand had already been 5 paid. On February 17, 1995, private respondents filed another pleading entitled "motion to dismiss" invoking, this time, lack of jurisdiction, lack of cause of action, estoppel, laches and prescription. In support of their argument of lack of jurisdiction, private respondents contend that a special proceedings case for appointment of administratrix of an estate cannot be incorporated in the ordinary action for reconveyance. In her opposition to the motions, petitioner asserts among others, that the allegation seeking appointment as administratrix is only an incidental matter which is not even prayed for in the complaint. Replying to the opposition, private respondents argued that since petitioner's husband resided in Quezon City at the time of his death, the appointment of the estate administratrix should be filed in the RTC of that place in accordance with Section 1 Rule 73 of the Rules of Court. Accordingly, it is their argument that the RTC of Batangas has no jurisdiction over the case. In a Resolution dated June 14, 1995, the RTC of Batangas thru respondent Judge Teh "dismissed without prejudice" the complaint for lack of jurisdiction "on the ground that the rules governing an ordinary civil action and a special proceeding are different." Accordingly, the lower court found it unnecessary to 6 discuss the other grounds raised in the motion to dismiss. Upon denial of petitioner's motion for reconsideration, he filed this petition under Rule 45 on pure questions of law. The Court thereafter gave due course to the petition. The issue is whether or not in an action for reconveyance, an allegation seeking appointment as administratrix of an estate, would oust the RTC of its jurisdiction over the whole case? We rule in the negative. First, Section 19 of B.P. 129 as amended by RA 7691 provides: Jurisdiction in Civil Cases. Regional Trial Courts shall exercise exclusive original jurisdiction: (1) In all civil actions in which the subject of the litigation is incapable of pecuniary estimation; (2) In all civil actions which involve the title to, or possession of, real property, or any interest therein, where the assessed value of property involved exceeds Twenty thousand pesos (P20,000.00). . . xxx xxx xxx (4) In all matters of probate, both testate and intestat . . . . Likewise, Section 33 of the same law provides that: Metropolitan Trial Court shall exercise: (1) Exclusive original jurisdiction over civil actions and probate proceedings, testate and intestate . . . (emphasis ours). The above law is clear. An action for reconveyance, which involves title to property worth millions of pesos, such as the lots subject of this case, is cognizable by the RTC. Likewise falling within its jurisdiction are actions "incapable of pecuniary estimation," such as the appointment of an administratrix for an estate. Even the Rules on venue of estate proceedings (Section 1 of Rule 7 73 ) impliedly recognizes the jurisdiction of the RTC over petitions for granting of letters of administration. On the other hand, probate proceedings for the settlement of estate are within the ambit of either the RTC or MTC depending on the net worth of the estate. By arguing that the allegation seeking such appointment as administratrix ousted the RTC of its jurisdiction, both public and private respondents confuse jurisdiction with venue. Section 2 of Rule 4 as revised by
3 4

Circular 13-95 provides that actions involving title to property shall be tried in the province where the property is located, in this case, Batangas. The mere fact that petitioner's deceased husband resides in Quezon City at the time of his death affects only the venue but not the 9 jurisdiction of the Court. Second, the cases cited by private respondents are not at point as they involve settlement of estate where the probate court was asked to resolve questions of ownership of certain properties.In the present suit, no settlement of estate is involved, but merely an allegation seeking appointment as estate administratrix which does not necessarily involve settlement of estate that would have invited the exercise of the limited jurisdiction of a probate court. The above allegation is not even a jurisdictional fact which must be stated in an action for reconveyance. The Court therefore, should have at least, proceeded with the reconveyance suit rather than dismiss the entire case. Third, jurisprudential rulings that a probate court cannot generally decide questions of ownership or title to 11 property is not applicable in this case, because: there is no settlement of estate involved and the RTC of Batangas was not acting as a probate court. It should be clarified that whether a particular matter should be resolved by the RTC in the exercise of its general jurisdiction or its limited probate jurisdiction, 12 is not a jurisdictional issue but a mere question of procedure. Moreover, the instant action for 13 reconveyance does not even invoke the limited jurisdiction of a probate court. Considering that the RTC has jurisdiction, whether it be on the reconveyance suit or as to the appointment of an administratrix, it was improper for respondent judge to dismiss the whole complaint for alleged lack of jurisdiction. Finally, judges should not dismiss with precipitate haste, complaints or petitions filed before them, just so they can comply with their administrative duty to dispose cases within 90 days at the expense of their judicial responsibility. WHEREFORE, the Resolutions dated June 14, 1995 and November 14, 1995 of the RTC of Batangas are REVERSED and SET ASIDE. The trial court is ordered to immediately proceed with the disposition of the case in accordance with this Decision. SO ORDERED. CONSTANTINO C. ACAIN, petitioner, vs. HON. INTERMEDIATE APPELLATE COURT (Third Special Cases Division), VIRGINIA A. FERNANDEZ and ROSA DIONGSON, respondents.
10

PARAS, J.: This is a petition for review on certiorari of the decision * of respondent. Court of Appeals in AC-G.R. SP No. 05744 promulgated on August 30, 1985 (Rollo, p. 108) ordering the dismissal of the petition in Special Proceedings No, 591 ACEB and its Resolution issued on October 23, 1985 (Rollo, p. 72) denying respondents' (petitioners herein) motion for reconsideration. The dispositive portion of the questioned decision reads as follows: WHEREFORE, the petition is hereby granted and respondent Regional Trial Court of the Seventh Judicial Region, Branch XIII (Cebu City), is hereby ordered to dismiss the petition in Special Proceedings No. 591 ACEB No special pronouncement is made as to costs. The antecedents of the case, based on the summary of the Intermediate Appellate Court, now Court of Appeals, (Rollo, pp. 108-109) are as follows: On May 29, 1984 petitioner Constantino Acain filed on the Regional Trial Court of Cebu City Branch XIII, a petition for the probate of the will of the late Nemesio Acain and for the issuance to the same petitioner of letters testamentary, docketed as Special Proceedings No. 591 ACEB (Rollo, p. 29), on the premise that Nemesio Acain died leaving a will in which petitioner and his brothers Antonio, Flores and Jose and his sisters Anita, Concepcion, Quirina and Laura were instituted as heirs. The will allegedly executed by Nemesio Acain on February 17, 1960 was written in Bisaya (Rollo, p. 27) with a translation in English (Rollo, p. 31) submi'tted by petitioner without objection raised by private respondents. The will contained provisions on burial rites, payment of debts, and the appointment of a certain Atty. Ignacio G. Villagonzalo as the executor of the testament. On the disposition of the testator's property, the will provided:

THIRD: All my shares that I may receive from our properties. house, lands and money which I earned jointly with my wife Rosa Diongson shall all be given by me to my brother SEGUNDO ACAIN Filipino, widower, of legal age and presently residing at 357-C Sanciangko Street, Cebu City. In case my brother Segundo Acain pre-deceased me, all the money properties, lands, houses there in Bantayan and here in Cebu City which constitute my share shall be given to me to his children, namely: Anita, Constantino, Concepcion, Quirina, laura, Flores, Antonio and Jose, all surnamed Acain. Obviously, Segundo pre-deceased Nemesio. Thus it is the children of Segundo who are claiming to be heirs, with Constantino as the petitioner in Special Proceedings No. 591 ACEB After the petition was set for hearing in the lower court on June 25, 1984 the oppositors (respondents herein Virginia A. Fernandez, a legally adopted daughter of tile deceased and the latter's widow Rosa Diongson Vda. de Acain filed a motion to dismiss on the following grounds for the petitioner has no legal capacity to institute these proceedings; (2) he is merely a universal heir and (3) the widow and the adopted daughter have been pretirited. (Rollo, p. 158). Said motion was denied by the trial judge. After the denial of their subsequent motion for reconsideration in the lower court, respondents filed with the Supreme Court a petition for certiorari and prohibition with preliminary injunction which was subsequently referred to the Intermediate Appellate Court by Resolution of the Court dated March 11, 1985 (Memorandum for Petitioner, p. 3; Rollo, p. 159). Respondent Intermediate Appellate Court granted private respondents' petition and ordered the trial court to dismiss the petition for the probate of the will of Nemesio Acain in Special Proceedings No. 591 ACEB His motion for reconsideration having been denied, petitioner filed this present petition for the review of respondent Court's decision on December 18, 1985 (Rollo, p. 6). Respondents' Comment was filed on June 6, 1986 (Rollo, p. 146). On August 11, 1986 the Court resolved to give due course to the petition (Rollo, p. 153). Respondents' Memorandum was filed on September 22, 1986 (Rollo, p. 157); the Memorandum for petitioner was filed on September 29, 1986 (Rollo, p. 177). Petitioner raises the following issues (Memorandum for petitioner, p. 4): (A) The petition filed in AC-G.R. No. 05744 for certiorari and prohibition with preliminary injunction is not the proper remedy under the premises; (B) The authority of the probate courts is limited only to inquiring into the extrinsic validity of the will sought to be probated and it cannot pass upon the intrinsic validity thereof before it is admitted to probate; (C) The will of Nemesio Acain is valid and must therefore, be admitted to probate. The preterition mentioned in Article 854 of the New Civil Code refers to preterition of "compulsory heirs in the direct line," and does not apply to private respondents who are not compulsory heirs in the direct line; their omission shall not annul the institution of heirs; (D) DICAT TESTATOR ET MERIT LEX. What the testator says will be the law; (E) There may be nothing in Article 854 of the New Civil Code, that suggests that mere 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, explicitly expressed in his will. This is what matters and should be in violable. (F) As an instituted heir, petitioner has the legal interest and standing to file the petition in Sp. Proc. No. 591 ACEB for probate of the will of Nemesio Acain and (G) Article 854 of the New Civil Code is a bill of attainder. It is therefore unconstitutional and ineffectual. The pivotal issue in this case is whether or not private respondents have been pretirited. Article 854 of the Civil Code provides:

Art. 854. The preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall annul the institution of heir; but the devisees and legacies shall be valid insofar as they are not; inofficious. If the omitted compulsory heirs should die before the testator, the institution shall he effectual, without prejudice to the right of representation. Preterition consists in the omission in the testator's will of the forced heirs or anyone of them either because they are not mentioned therein, or, though mentioned, they are neither instituted as heirs nor are expressly disinherited (Nuguid v. Nuguid, 17 SCRA 450 [1966]; Maninang v. Court of Appeals, 114 SCRA 478 [1982]). Insofar as the widow is concerned, Article 854 of the Civil Code may not apply as she does not ascend or descend from the testator, although she is a compulsory heir. Stated otherwise, even if the surviving spouse is a compulsory heir, there is no preterition even if she is omitted from the inheritance, for she is not in the direct line. (Art. 854, Civil code) however, the same thing cannot be said of the other respondent Virginia A. Fernandez, whose legal adoption by the testator has not been questioned by petitioner (.Memorandum for the Petitioner, pp. 8-9). Under Article 39 of P.D. No. 603, known as the Child and Youth Welfare Code, adoption gives to the adopted person the same rights and duties as if he were a legitimate child of the adopter and makes the adopted person a legal heir of the adopter. It cannot be denied that she has totally omitted and preterited in the will of the testator and that both adopted child and the widow were deprived of at least their legitime. Neither can it be denied that they were not expressly disinherited. Hence, this is a clear case of preterition of the legally adopted child. Pretention annuls the institution of an heir and annulment throws open to intestate succession the entire inheritance including "la porcion libre (que) no hubiese dispuesto en virtual de legado mejora o donacion " Maniesa as cited in Nuguid v. Nuguid, supra; Maninang v. Court of Appeals, 114 SCRA [1982]). The only provisions which do not result in intestacy are the legacies and devises made in the will for they should stand valid and respected, except insofar as the legitimes are concerned. The universal institution of petitioner together with his brothers and sisters to the entire inheritance of the testator results in totally abrogating the will because the nullification of such institution of universal heirswithout any other testamentary disposition in the will-amounts to a declaration that nothing at all was written. Carefully worded and in clear terms, Article 854 of the Civil Code offers no leeway for inferential interpretation (Nuguid v. Nuguid), supra. No legacies nor devises having been provided in the will the whole property of the deceased has been left by universal title to petitioner and his brothers and sisters. The effect of annulling the "Institution of heirs will be, necessarily, the opening of a total intestacy (Neri v. Akutin, 74 Phil. 185 [1943]) except that proper legacies and devises must, as already stated above, be respected. We now deal with another matter. In order that a person may be allowed to intervene in a probate proceeding he must have an interest iii the estate, or in the will, or in the property to be affected by it either as executor or as a claimant of the estate and an interested party is one who would be benefited by the estate such as an heir or one who has a claim against the estate like a creditor (Sumilang v. Ramagosa, 21 SCRA 1369/1967). Petitioner is not the appointed executor, neither a devisee or a legatee there being no mention in the testamentary disposition of any gift of an individual item of personal or real property he is called upon to receive (Article 782, Civil Code). At the outset, he appears to have an interest in the will as an heir, defined under Article 782 of the Civil Code as a person called to the succession either by the provision of a will or by operation of law. However, intestacy having resulted from the preterition of respondent adopted child and the universal institution of heirs, petitioner is in effect not an heir of the testator. He has no legal standing to petition for the probate of the will left by the deceased and Special Proceedings No. 591 A-CEB must be dismissed. As a general rule certiorari cannot be a substitute for appeal, except when the questioned order is an oppressive exercise of j judicial authority (People v. Villanueva, 110 SCRA 465 [1981]; Vda. de Caldito v. Segundo, 117 SCRA 573 [1982]; Co Chuan Seng v. Court of Appeals, 128 SCRA 308 [1984]; and Bautista v. Sarmiento, 138 SCRA 587 [1985]). It is axiomatic that the remedies of certiorari and prohibition are not available where the petitioner has the remedy of appeal or some other plain, speedy and adequate remedy in the course of law (DD Comendador Construction Corporation v. Sayo (118 SCRA 590 [1982]). They are, however, proper remedies to correct a grave abuse of discretion of the trial court in not dismissing a case where the dismissal is founded on valid grounds (Vda. de Bacang v. Court of Appeals, 125 SCRA 137 [1983]). Special Proceedings No. 591 ACEB is for the probate of a will. As stated by respondent Court, the general rule is that the probate court's authority is limited only to the extrinsic validity of the will, the due execution thereof, the testator's testamentary capacity and the compliance with the requisites or solemnities prescribed by law. The intrinsic validity of the will normally comes only after the Court has declared that the will has been duly authenticated. Said court at this stage of the proceedings is not called

upon to rule on the intrinsic validity or efficacy of the provisions of the will (Nuguid v. Nuguid, 17 SCRA 449 [1966]; Sumilang v. Ramagosa, supra; Maninang v. Court of Appeals, 114 SCRA 478 [1982]; Cayetano v. Leonides, 129 SCRA 522 [1984]; and Nepomuceno v. Court of Appeals, 139 SCRA 206 [1985]). The rule, however, is not inflexible and absolute. Under exceptional circumstances, the probate court is not powerless to do what the situation constrains it to do and pass upon certain provisions of the will (Nepomuceno v. Court of Appeals, supra). In Nuguid v. Nuguid the oppositors to the probate moved to dismiss on the ground of absolute preteriton The probate court acting on the motion held that the will in question was a complete nullity and dismissed the petition without costs. On appeal the Supreme Court upheld the decision of the probate court, induced by practical considerations. The Court said: We pause to reflect. If the case were to be remanded for probate of the will, nothing will be gained. On the contrary, this litigation will be protracted. And for aught that appears in the record, in the event of probate or if the court rejects the will, probability exists that the case will come up once again before us on the same issue of the intrinsic validity or nullity of the will. Result: waste of time, effort, expense, plus added anxiety. These are the practical considerations that induce us to a belief that we might as well meet head-on the issue of the validity of the provisions of the will in question. After all there exists a justiciable controversy crying for solution. In Saguimsim v. Lindayag (6 SCRA 874 [1962]) the motion to dismiss the petition by the surviving spouse was grounded on petitioner's lack of legal capacity to institute the proceedings which was fully substantiated by the evidence during the hearing held in connection with said motion. The Court upheld the probate court's order of dismissal. In Cayetano v. Leonides, supra one of the issues raised in the motion to dismiss the petition deals with the validity of the provisions of the will. Respondent Judge allowed the probate of the will. The Court held that as on its face the will appeared to have preterited the petitioner the respondent judge should have denied its probate outright. Where circumstances demand that intrinsic validity of testamentary provisions be passed upon even before the extrinsic validity of the will is resolved, the probate court should meet the issue. (Nepomuceno v. Court of Appeals,supra; Nuguid v. Nuguid, supra). In the instant case private respondents filed a motion to dismiss the petition in Sp. Proceedings No. 591 ACEB of the Regional Trial Court of Cebu on the following grounds: (1) petitioner has no legal capacity to institute the proceedings; (2) he is merely a universal heir; and (3) the widow and the adopted daughter have been preterited (Rollo, p. 158). It was denied by the trial court in an order dated January 21, 1985 for the reason that "the grounds for the motion to dismiss are matters properly to be resolved after a hearing on the issues in the course of the trial on the merits of the case (Rollo, p. 32). A subsequent motion for reconsideration was denied by the trial court on February 15, 1985 (Rollo, p. 109). For 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 intrinsically 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 exercise in futility. It would have meant a waste of time, effort, expense, plus added futility. The trial court could have denied its probate outright or could have passed upon the intrinsic validity of the testamentary provisions before the extrinsic validity of the will was resolved (Cayetano v. Leonides, supra; Nuquid v. Nuguid, supra. The remedies of certiorari and prohibition were properly availed of by private respondents. Thus, this Court ruled that where the grounds for dismissal are indubitable, the defendants had the right to resort to the more speedy, and adequate remedies of certiorari and prohibition to correct a grave abuse of discretion, amounting to lack of jurisdiction, committed by the trial court in not dismissing the case, (Vda. de Bacang v. Court of Appeals, supra) and even assuming the existence of the remedy of appeal, the Court harkens to the rule that in the broader interests of justice, a petition for certiorari may be entertained, particularly where appeal would not afford speedy and adequate relief. (Maninang Court of Appeals, supra). PREMISES CONSIDERED, the petition is hereby DENIED for lack of merit and the questioned decision of respondent Court of Appeals promulgated on August 30, 1985 and its Resolution dated October 23, 1985 are hereby AFFIRMED. G.R. No. 121719 September 16, 1999 SPOUSES VICENTE and MA. ROSALIA MANINANG, SPOUSES CECILIO and MA. SOCORRO RUBIO, MA. THELMA P. MALLARI, ORLANDO F. PANDAY, JR., MA. VIVIAN P. GINGA, and H.J.

RAMON F. PANDAY, petitioners, vs. COURT OF APPEALS, HON. GREGORIO E. MANIO, JR., and OSCAR J. MONTON, SR., respondents.

QUISUMBING, J.: Before us is an appeal from the decision of the Court of Appeals in C.A. G.R. SP No. 36948, which 2 affirmed the decision of the Regional Trial Court upholding the ruling of the Municipal Trial 3 Court declaring private respondent Oscar J. Monton, Sr. as the lawful possessor of the land covered by TCT No. 17957 and situated at Bgy. Bagong Bayan Grande, Naga City. The facts of the case are as follows: Private respondent Oscar J. Monton, Sr. filed a complaint for unlawful detainer against petitioners on 4 August 31, 1992. He alleged that he is the absolute and registered owner of a parcel of land situated at Bgy. Bagong Bayan Grande, Naga City and covered by TCT No. 17957. He claimed to have bought the land from Rosario Felipe Panday, mother of petitioners Rosalia, Socorro, Ma. Thelma, Orlando, Ma. Vivian, and Ramon. According to private respondent, he went to the disputed property sometime in August 1992 to construct a perimeter fence around it. However, he was prevented from doing so by petitioners. Private respondent demanded that petitioners vacate the property, to no avail. Hence, his complaint for unlawful detainer before the Municipal Trial Court. In their answer, petitioners assailed the validity of the deed of sale executed by Rosario in favor of private respondent, alleging that at the time of the sale, Rosario was suffering from schizophrenia and was incapacitated to enter into a contract. They claimed ownership of the property through succession. Petitioners, moreover, questioned the jurisdiction of the MTC over the case, since another case, for annulment of sale with damages involving the same parties, was filed by petitioners before the Regional Trial Court. The MTC ruled in favor of private respondent, declaring him to be the lawful possessor of the disputed lands and ordering petitioners to vacate the premises and to pay back rentals. The dispositive portion of the MTC decision read: WHEREFORE, by preponderance of evidence, plaintiff OSCAR J. MONTON, SR. is hereby declared the lawful possessor of the premises in question and defendants are hereby ordered to vacate the same immediately and to deliver possession thereof to the plaintiff, to pay the reasonable rental thereof in the amount of P350.00 per month from August 13, 1992 until the premises are fully vacated and to pay the costs. The compulsory counterclaim not having been substantiated by evidence, the same is 6 dismissed. Petitioners appealed to the RTC, which, however, affirmed in toto the decision of the MTC. On appeal to the Court of Appeals, the latter court likewise affirmed the decision of the RTC and the MTC. Hence, the instant petition for review on certiorari. Petitioners raise the following issues for our consideration: I MAY THERE BE UNLAWFUL DETAINER WHEN RESPONDENT HAS NEVER BEEN IN POSSESSION OF THE LAND IN QUESTION AND RESPONDENT HAS NEVER BEEN RECOGNIZED BY PETITIONERS AS TRUE AND LAWFUL OWNER OF THE LAND. II MAY THE CITY COURT TAKE JURISDICTION OVER AN UNLAWFUL DETAINER CASE AND RENDER JUDGMENT THEREON WHEN THE OWNERSHIP ISSUE AND
5 1

THE RIGHT OF POSSESSION OVER THE LAND SUBJECT OF THE DETAINER IS BEING LITIGATED IN A CASE EARLIER FILED BEFORE THE REGIONAL TRIAL 7 COURT. Anent the first issue, the following rule which lays down the requirements for filing a complaint for unlawful detainer is pertinent: Sec. 1. Who may institute proceedings, and when. Subject to the provisions of the next succeeding section, a person deprived of the possession of any land or building by force, intimidation, threat, strategy, or stealth, or a lessor, vendor, vendee, or other person against whom the possession of any land or building is unlawfully withheld after the expiration or termination of the right to hold possession, by virtue of any contract, express or implied, or the legal representatives or assigns of any such lessor, vendor, vendee, or other person, may, at any time within one (1) year after such unlawful deprivation or withholding of possession, bring an action in the proper Municipal Trial Court against the person or persons unlawfully withholding or depriving of possession, or any person or persons claiming under them, for the restitution of such possession, 8 together with damages and costs. As correctly pointed out by respondent Court of Appeals, nowhere does it appear in the abovecited rule that, in an action for unlawful detainer, the person filing the complaint in this case, private respondent as vendee be in prior physical possession of the property. As we held in one case: Prior physical possession in the plaintiff is not an indispensable requirement in an unlawful detainer case brought by a vendee or other person against whom the possession of any land is unlawfully withheld after the expiration or termination of a right 9 to hold possession. . . . . Neither is it required that he be first recognized as the true and lawful owner of the property by the person against whom he asserts his right to possession. An action for unlawful detainer may be filed by one who is not an owner of the property in dispute. Petitioners assert that Rule 70, Section 1, of the Rules of Court is not applicable since it refers only "to a sale where the right of the vendor is not questioned." We fail to see that portion of the rule where this distinction may be gleaned. As regards the second issue, we have repeatedly held that the only issue for resolution in an action for unlawful detainer is possession of the disputed 10 property. Thus, contrary to petitioners' belief, it was but proper for the courts below not to put into consideration the validity of private respondent's title. It simply is not an issue in this case. The question of ownership is immaterial in an action for unlawful detainer. It is, thus, of no moment if, at the same time that an action for unlawful detainer is being litigated, there is another action respecting the same property and the same parties involving the issue of ownership. The rights asserted and the reliefs prayed for are different in the two cases. An action for annulment of sale like the one filed by petitioners against private respondent is not 11 prejudicial to an action for unlawful detainer. The question is, may the pendency of such an action for consignation or specific performance, or annulment of a sale, as in this case, be successfully pleaded in abatement of an action for unlawful detainer? This Court has invariably given a negative 12 answer. ACCORDINGLY, the instant petition is DISMISSED and the decision of the Court of Appeals in C.A. G.R. SP No. 36948 is hereby AFFIRMED. Costs against petitioners. G.R. No. L-21993 June 21, 1966

ANGELA RODRIGUEZ, MARIA RODRIGUEZ, ET AL., petitioners, vs.

HON. JUAN DE BORJA, as Judge of the Court of First Instance of Bulacan, Branch III, ANATOLIA PANGILINAN and ADELAIDA JACALAN, respondents. Lorenzo Somulong for petitioners. Torres and Torres for respondents. REYES, J.B.L., J.: Petitioners Angela, Maria, Abelardo and Antonio, surnamed Rodriguez, petition this Court for a writ of certiorariand prohibition to the Court of First Instance of Bulacan, for its refusal to grant their motion to dismiss its Special Proceeding No. 1331, which said Court is alleged to have taken cognizance of without jurisdiction. The facts and issues are succinctly narrated in the order of the respondent court, dated June 13, 1963 (Petition, Annex 0), in this wise: It is alleged in the motion to dismiss filed by Angela, Maria, Abelardo and Antonio Rodriguez, through counsel, that this Court "has no jurisdiction to try the above-entitled case in view of the pendency of another action for the settlement of the estate of the deceased Rev. Fr. Celestino Rodriguez in the Court of First Instance of Rizal, namely, Sp. Proceedings No. 3907 entitled 'In the matter of the Intestate Estate of the deceased Rev. Fr. Celestino Rodriguez which was filed ahead of the instant case". The records show that Fr. Celestino Rodriguez died on February 12, 1963 in the City of Manila; that on March 4, 1963, Apolonia Pangilinan and Adelaida Jacalan delivered to the Clerk of Court of Bulacan a purported last will and testament of Fr. Rodriguez; that on March 8, 1963, Maria Rodriguez and Angela Rodriguez, through counsel filed a petition for leave of court to allow them to examine the alleged will; that on March 11, 1963 before the Court could act on the petition, the same was withdrawn; that on March 12, 1963, aforementioned petitioners filed before the Court of First Instance of Rizal a petition for the settlement of the intestate estate of Fr. Rodriguez alleging, among other things, that Fr. Rodriguez was a resident of Paraaque, Rizal, and died without leaving a will and praying that Maria Rodriguez be appointed as Special Administratrix of the estate; and that on March 12, 1963 Apolonia Pangilinan and Adelaida Jacalan filed a petition in this Court for the probation of the will delivered by them on March 4, 1963. It was stipulated by the parties that Fr. Rodriguez was born in Paraaque, Rizal; that he was Parish priest of the Catholic Church of Hagonoy, Bulacan, from the year 1930 up to the time of his death in 1963; that he was buried in Paraaque, and that he left real properties in Rizal, Cavite, Quezon City and Bulacan. The movants contend that since the intestate proceedings in the Court of First Instance of Rizal was filed at 8:00 A.M. on March 12, 1963 while the petition for probate was filed in the Court of First Instance of Bulacan at 11:00 A.M. on the same date, the latter Court has no jurisdiction to entertain the petition for probate, citing as authority in support thereof the case of Ongsingco Vda. de Borja vs. Tan and De Borja, G.R. No. 7792, July 27, 1955. The petitioners Pangilinan and Jacalan, on the other hand, take the stand that the Court of First Instance of Bulacan acquired jurisdiction over the case upon delivery by them of the will to the Clerk of Court on March 4, 1963, and that the case in this Court therefore has precedence over the case filed in Rizal on March 12, 1963. The Court of First Instance, as previously stated denied the motion to dismiss on the ground that a difference of a few hours did not entitle one proceeding to preference over the other; that, as early as March 7, movants were aware of the existence of the purported will of Father Rodriguez, deposited in the Court of Bulacan, since they filed a petition to examine the same, and that movants clearly filed the intestate proceedings in Rizal "for no other purpose than to prevent this Court (of Bulacan) from exercising jurisdiction over the probate proceedings". Reconsideration having been denied, movants, now petitioners, came to this Court, relying principally on Rule 73, section 1 of the Rules of Court, and invoking our ruling in Ongsingco vs. Tan and De Borja, L-7792, July 27, 1955. SECTION 1. Where estate of deceased persons settled. If the decedent is an inhabitant of the Philippines at the time of his death, whether a citizen or an alien, his will shall be proved, or letters of administration granted, and his estate settled, in the Court of First Instance 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 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, as 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. We find this recourse to be untenable. The jurisdiction of the Court of First Instance of Bulacan became vested upon the delivery thereto of the will of the late Father Rodriguez on March 4, 1963, even if no petition for its allowance was filed until later, because upon the will being deposited the court could, motu proprio, have taken steps to fix the time and place for proving the will, and issued the corresponding notices conformably to what is prescribed by section 3, Rule 76, of the Revised Rules of Court (Section 3, Rule 77, of the old Rules): SEC. 3. Court to appoint time for proving will. Notice thereof to be published. When a will is delivered to, or a petition for the allowance of a will is filed in, the Court having jurisdiction, such Court shall fix a time and place for proving the will when all concerned may appear to contest the allowance thereof, and shall cause notice of such time and place to be published three (3) weeks successively, previous to the time appointed, in a newspaper of general circulation in the province. But no newspaper publication shall be made where the petition for probate has been filed by the testator himself. The use of the disjunctive in the words "when a will is delivered to OR a petition for the allowance of a will is filed" plainly indicates that the court may act upon the mere deposit therein of a decedent's testament, even if no petition for its allowance is as yet filed. Where the petition for probate is made after the deposit of the will, the petition is deemed to relate back to the time when the will was delivered. Since the testament of Fr. Rodriguez was submitted and delivered to the Court of Bulacan on March 4, while petitioners initiated intestate proceedings in the Court of First Instance of Rizal only on March 12, eight days later, the precedence and exclusive jurisdiction of the Bulacan court is incontestable. 1wph1.t But, petitioners object, section 3 of revised Rule 76 (old Rule 77) speaks of a will being delivered to "the Court having jurisdiction," and in the case at bar the Bulacan court did not have it because the decedent was domiciled in Rizal province. We can not disregard Fr. Rodriguez's 33 years of residence as parish priest in Hagonoy, Bulacan (1930-1963); but even if we do so, and consider that he retained throughout some animus revertendi to the place of his birth in Paraaque, Rizal, that detail would not imply that the Bulacan court lacked jurisdiction. As ruled in previous decisions, the power to settle decedents' estates is conferred by law upon all courts of first instance, and the domicile of the testator only affects the venue but not the jurisdiction of the Court (In re Kaw Singco, 74 Phil. 239; Reyes vs. Diaz, 73 Phil. 484; Bernabe vs. Vergara, 73 Phil. 676). Neither party denies that the late Fr. Rodriguez is deceased, or that he left personal property in Hagonoy, province of Bulacan (t.s.n. p. 46, hearing of June 11, 1963, Annex "H", Petition, Rec., p. 48). That is sufficient in the case before us. In the Kaw Singco case (ante) this Court ruled that: "... If we consider such question of residence as one affecting the jurisdiction of the trial court over the subject-matter, the effect shall be that the whole proceedings including all decisions on the different incidents which have arisen in court will have to be annulled and the same case will have to be commenced anew before another court of the same rank in another province. That this is of mischievous effect in the prompt administration of justice is too obvious to require comment. (Cf. Tanunchuan vs. Dy Buncio & Co., G.R. No. 48206, December 31, 1942). Furthermore, section 600 of Act No. 190, providing that the estate of a deceased person shall be settled in the province where he had last resided, could not have been intended as defining the jurisdiction of the probate court over the subject matter, because such legal provision is contained in a law of procedure dealing merely with procedural matters, and, as we have said time and again, procedure is one thing and jurisdiction over the subject matter is another. (Attorney General vs. Manila Railroad Company, 20 Phil. 523.) The law of jurisdiction Act No. 136, Section 56, No. 5 confers upon Courts of First Instance jurisdiction over all probate cases 1 independently of the place of residence of the deceased. Since, however, there are many Courts of First Instance in the Philippines, the Law of Procedure, Act No. 190, section 600, fixes the venue or the place where each case shall be brought. Thus, the place of residence of the deceased is not an element of jurisdiction over the subject matter but merely of venue. And it is upon this ground that in the new Rules of Court the province where the estate of a deceased person shall be settled is properly called "venue" (Rule 75, section 1.) Motion for reconsideration is denied. The estate proceedings having been initiated in the Bulacan Court of First Instance ahead of any other, that court is entitled to assume jurisdiction to the exclusion of all other courts, even if it were a case of

wrong venue by express provisions of Rule 73 (old Rule 75) of the Rules of Court, since the same enjoins that: The Court first taking cognizance of the settlement of the estate of a decedent shall exercise jurisdiction to the exclusion of all other courts. (Sec. 1) This disposition presupposes that two or more courts have been asked to take cognizance of the settlement of the estate. Of them only one could be of proper venue, yet the rule grants precedence to that Court whose jurisdiction is first invoked, without taking venue into account. There are two other reasons that militate against the success of petitioners. One is that their commencing intestate proceedings in Rizal, after they learned of the delivery of the decedent's will to the Court of Bulacan, was in bad faith, patently done with a view to divesting the latter court of the precedence awarded it by the Rules. Certainly the order of priority established in Rule 73 (old Rule 75) was not designed to convert the settlement of decedent's estates into a race between applicants, with the administration of the properties as the price for the fleetest. The other reason is that, in our system of civil law, intestate succession is only subsidiary or subordinate to the testate, since intestacy only takes place in the absence of a valid operative will. Says Article 960 of the Civil Code of the Philippines: ART. 960. Legal or intestate succession takes place: (1) If a person dies without a will, or with a void will, or one which has subsequently lost its validity; (2) When the will does not institute an heir to, or dispose of all the property belonging to the testator. In such case, legal succession shall take place only with respect to the property in which the testator has not disposed; (3) If the suspensive condition attached to the institution of heir does not happen or is not fulfilled, or if the heir dies before the testator, or repudiates the inheritance, there being no substitution, and no right of accretion takes place; (4) When the heir instituted is incapable of succeeding, except in cases provided in this Code. Therefore, as ruled in Castro, et al. vs. Martinez, 10 Phil. 307, "only after final decision as to the nullity of testate succession could an intestate succession be instituted in the form of pre-established action". The institution of intestacy proceedings in Rizal may not thus proceed while the probate of the purported will of Father Rodriguez is pending. We rule that the Bulacan Court of First Instance was entitled to priority in the settlement of the estate in question, and that in refusing to dismiss the probate. proceedings, said court did not commit any abuse of discretion. It is the proceedings in the Rizal Court that should be discontinued. Wherefore, the writ of certiorari applied for is denied. Costs against petitioners Rodriguez. G.R. No. L-29184 January 30, 1989 BENEDICTO LEVISTE, petitioner, vs. THE COURT OF APPEALS, HON. JUDGE LUIS B. REYES, COURT OF FIRST INSTANCE OF MANILA, ROSA DEL ROSARIO, RITA BANU, CARMEN DE GUZMAN-MARQUEZ, JESUS R. DE GUZMAN, RAMON R. DE GUZMAN, JACINTO R. DE GUZMAN and ANTONIO R. DE GUZMAN, respondents. Benedicto Leviste for and in his own behalf. Gatchalian, Ignacio & Associates for respondents de Guzman.

GRIO-AQUINO, J.:

The issue in this case is whether or not an attorney who was engaged on a contingent fee basis may, in order to collect his fees, prosecute an appeal despite his client's refusal to appeal the decision of the trial court. On September 7, 1963, the petitioner, a practicing attorney, entered into a written agreement with the private respondent Rosa del Rosario to appear as her counsel in a petition for probate of the holographic will of the late Maxima C. Reselva. Under the will, a piece of real property at Sales Street, Quiapo, Manila, was bequeathed to Del Rosario. It was agreed that petitioner's contigent fee would be thirty-five per cent (35%) of the property that Rosa may receive upon the probate of the will (Annex "A", p. 59, Rollo). In accordance with their agreement, Leviste performed the following services as Del Rosario's counsel: (1) Thoroughly researched and studied the law on probate and succession; (2) Looked for and interviewed witnesses, and took their affidavits; (3) Filed the petition for. probate is Special Proceeding No. 58325; (4) Made the proper publications; (5) Presented at the trial the following witnesses: a) Eleuterio de Jesus b) Lucita de Jesus c) Purita L. Llanes d) Rita Banu e) Jesus Lulod. On August 20, 1965, Leviste received a letter from Ms. Del Rosario, informing him that she was terminating his services as her counsel due to "conflicting interest." This consisted, according to the letter, in petitioner's moral obligation to protect the interest of his brother-in-law, Gaudencio M. Llanes, whom Del Rosario and the other parties in the probate proceeding intended to eject as lessee of the property which was bequeathed to Del Rosario under the will (Annex "B", p. 60, Rollo). On September 20, 1965, petitioner filed a "Motion to Intervene to Protect His Rights to Fees for Professional Services." (Annex "B", p. 60, Rollo.) In an order dated November 12, 1965 the trial court denied his motion on the ground that he had "not filed a claim for attorney's fees nor recorded his attorney's lien." (p. 3, Rollo.) On November 23, 1965, petitioner filed a "Formal Statement of Claim for Attorney's Fees and Recording of Attorney's Lien,' which was noted in the court's order of December 20, 1965 (Annexes "D" and "E", pp. 63 & 64, Rollo). Although the order denying his motion to intervene had become final, petitioner continued to receive copies of the court's orders, as well the pleadings of the other parties in the case. He also continued to file pleadings. The case was submitted for decision without the respondents' evidence. On November 23, 1966, Del Rosario and Rita Banu, the special administratrix-legatee, filed a "Motion To Withdraw Petition for Probate" alleging that Del Rosario waived her rights to the devise in her favor and agreed that the De Guzman brothers and sisters who opposed her petition for probate, shall inherit all the properties left by the decedent. (Annex "F", p. 65, Rollo.) In an order of April 13, 1967 the trial court denied the motion to withdraw the petition for being contrary to public policy (Annex "G", pp. 66-67, Rollo). Nonetheless, on August 28, 1967, the court disallowed the will, holding that the legal requirements for its validity were not satisfied as only two witnesses testified that the will and the testatrix's signature were in the handwriting of Maxima Reselva.

The petitioner filed an appeal bond, notice of appeal, and record on appeal. The private respondents filed a motion to dismiss the appeal on the ground that petitioner was not a party in interest. The petitioner opposed the motion to dismiss his appeal, claiming that he has a direct and material interest in the decision sought to be reviewed. He also asked that he be substituted as party-petitioner, in lieu of his former client, Ms. Del Rosario. On March 28, 1968, the trial judge dismissed the appeal and denied petitioner's motion for substitution. The petitioner filed in the Court of Appeals a petition for mandamus (CA-G.R. No. 41248) praying that the trial court be ordered to give due course to his appeal and to grant his motion for substitution. On May 22, 1968, the Court of Appeals dismissed the petition for being insufficient in form and substance as the petitioner did not appear to be the proper party to appeal the decision in Special Proceeding No. 58325 (Annex 1, p. 77, Rollo). Upon the denial of his motion for reconsideration, petitioner appealed by certiorari to this Court, assigning the following errors against the Court of Appeals' resolution: 1. The Court of Appeals erred in finding that the petitioner appears not to be the proper party to appeal the decision in Sp. Proc. No. 58325 of the Court of First Instance of Manila. 2. Assuming the petitioner's right of appeal is doubtful, the Court of Appeals erred in dismissing his petition for mandamus; and 3. The Court of Appeals erred in not reversing the decision in Sp. Proc. No. 58325 denying the probate of the holographic will of the late Maxima C. Reselva, said decision being patently erroneous. Under his first assignment of error, petitioner argues that by virtue of his contract of services with Del Rosario, he is a creditor of the latter, and that under Article 1052 of the Civil Code which provides: ART. 1052. If the heir repudiates the inheritance to the prejudice of his own creditors, the latter may petition the court to authorize them to accept it in the name of the heir. The acceptance shall benefit the creditors only to an extent sufficient to cover the amount of their credits. The excess, should there be any, shall in no case pertain to the renouncer, but shall be adjudicated to the persons to whom, in accordance with the rules established in this Code, it may belong. he has a right to accept for his client Del Rosario to the extent of 35% thereof the devise in her favor (which she in effect repudiated) to protect his contigent attorney's fees. The argument is devoid of merit. Article 1052 of the Civil Code does not apply to this case. That legal provision protects the creditor of a repudiating heir. Petitioner is not a creditor of Rosa del Rosario. The payment of his fees is contingent and dependent upon the successful probate of the holographic will. Since the petition for probate was dismissed by the lower court, the contingency did not occur. Attorney Leviste is not entitled to his fee. Furthermore, Article 1052 presupposes that the obligor is an heir. Rosa del Rosario is not a legal heir of the late Maxima C. Reselva. Upon the dismissal of her petition for probate of the decedent's will, she lost her right to inherit any part of the latter's estate. There is nothing for the petitioner to accept in her name. This Court had ruled in the case of Recto vs. Harden, 100 Phil. 1427, that "the contract (for contingent attorney's fees) neither gives, nor purports to give, to the appellee (lawyer) any right whatsoever, personal or real, in and to her (Mrs. Harden's) aforesaid share in the conjugal partnership. The amount thereof is simply a basis for thecomputation of said fees." The Court of Appeals did not err in dismissing the petition for mandamus, for while it is true that, as contended by the petitioner, public policy favors the probate of a will, it does not necessarily follow that every will that is presented for probate, should be allowed. The law lays down procedures which should be observed and requisites that should be satisfied before a will may be probated. Those procedures and requirements were not followed in this case resulting in the disallowance of the will. There being no valid will, the motion to withdraw the probate petition was inconsequential.

Petitioner was not a party to the probate proceeding in the lower court. He had no direct interest in the probate of the will. His only interest in the estate is an indirect interest as former counsel for a prospective heir. In Paras vs. Narciso, 35 Phil. 244, We had occassion to rule that one who is only indirectly interested in a will may not interfere in its probate. Thus: ... the reason for the rule excluding strangers from contesting the will, is not that thereby the court maybe prevented from learning facts which would justify or necessitate a denial of probate, but rather that the courts and the litigants should not be molested by the intervention in the proceedings of persons with no interest in the estate which would entitle them to be heard with relation thereto. (Paras vs. Narciso, 35 Phil. 244, 246.) Similary, in Morente vs. Firmalino, 40 O.G. 21st Supp. 1, We held: We are of the opinion that the lower court did not err in holding that notice of an attorney's lien did not entitle the attorney-appellant to subrogate himself in lieu of his client. It only gives him the right to collect a certain amount for his services in case his client is awarded a certain sum by the court. WHEREFORE, the petition for certiorari is denied for lack of merit. Costs against the petitioner. Rule 76. Allowance or disallowance of will [G.R. No. L-5405. January 31, 1956.] ERNESTO M. GUEVARA, Petitioner, vs. ROSARIO GUEVARA and PEDRO C. QUINTO, Respondents.

DECISION CONCEPCION, J.: This is a petition for review by certiorari of a decision of the Court of Appeals. The pertinent facts are set forth in said decision, from which we quote:chanroblesvirtuallawlibrary This case being the sequel to, and aftermath of, a previous litigation between the parties that reached the Supreme Court, through the former Court of Appeals, it becomes necessary to restate the essential antecedent facts to view the issues in proper perspective. For this purpose, it is important to recall that on August 26, 1931, Victorino L. Guevara, a resident of Bayambang, Pangasinan, executed a will (Exhibit A), distributing assorted movables and a residential lot among his children, Rosario and Ernesto Guevara, and his stepchildren, Vivencio, Eduvigis, Dionista, Candida, and Pio Guevara. To his second wife Augustia Posadas, the testator bequeathed, in addition to various movables, a portion of 25 hectares to be taken out of a 259 odd hectare parcel outlined in Plan Psu-68618, plus another five (5) hectares in settlement of her widows usufruct. The balance of the 259 odd hectares he distributed as follows:chanroblesvirtuallawlibrary 100 hectares reserved for disposal during the testators lifetime and for payment of his debts and family expenses; 108.0854 hectares to his legitimate son Ernesto Guevara, including therein 43.2342 hectares by way of mejora; 21.6171 hectares to mi hija natural reconocida Rosario Guevara. Ernesto Guevara was appointed executor without bond. On July 12, 1933, the same testator executed a deed of sale in favor of Ernesto Guevara, conveying to the latter the southern half of the 259-hectare lot heretofore mentioned, and expressly recognized Ernesto Guevara as owner of the northern half. Prior to this sale, on November 1, 1932, Victorino and his son Ernesto had jointly applied for registration of the big parcel (case No. 15174), but in view of the sale from the former to the latter, the decree was issued in the name of Ernesto Guevara exclusively and for the whole tract, a certificate of title (No. 51691 of Pangasinan) being issued in his sole name on October 12, 1933. Fifteen days previously, i.e., on September 27, 1933, Victorino Guevara died, but his will was not filed for probate. About four years later, Rosario Guevara, claiming to be a recognized natural child of the deceased Victorino, and on the assumption that he had died intestate, brought suit against Ernesto Guevara to recover 423,492 square meters of the tract covered by certificate of title No. 51691 as the portion that should correspond to her (Rosario) by way of legitime. The case reached the former Court of Appeals in due course and was decided in Rosario Guevaras favor (Exhibit E); chan roblesvirtualawlibrarybut upon certiorari, the Supreme Court modified the judgment in December, 1943, as follows (Exhibit F);

Wherefore, that part of the decision of the Court of Appeals which declares in effect that notwithstanding exhibit 2 and the issuance of original certificate of title No. 51691 in the name of Ernesto M. Guevara, one-half of the land described in said certificate of title belongs to the estate of Victorino L. Guevara and the other half to Ernesto M. Guevara in consideration of the latters assumption of the obligation to pay all the debts of the deceased, is hereby affirmed; chan roblesvirtualawlibrarybut the judgment of said court insofar as it awarded any relief to the Respondent Rosario Guevara in this action is hereby reversed and set aside, and the parties are hereby ordered to present the document Exhibit A to the proper court for probate in accordance with law, without prejudice to such action as the provincial fiscal of Pangasinan may take against the responsible party or parties under section 4 of Rule 76. After the said document is approved and allowed by the court as the last will and testament of the deceased Victorino L. Guevara, the heirs and legatees herein named may take such action, judicial or extrajudicial, as may be necessary to partition the estate of the testator, taking into consideration the pronouncements made in part II of this opinion. No finding as to costs in any of the three instances. ( Appellants Brief, pp. 13-14.) Claiming to act pursuant to the foregoing decision, Rosario Guevara commenced on October 5, 1945, special proceedings No. 2646 in the Court of First Instance of Pangasinan for the probate of the will of Victorino Guevara. In paragraph 10 of the petition, it was alleged:chanroblesvirtuallawlibrary 10. Que dicho testamento, o sus disposiciones testamentarias, ha sido de jure revocado, o revocados, en cuanto a la parcela de terreno de 259 hectareas descrita en dicho testamento, por haber el testador enajenado o dispuesto intervivos de la misma en la forma mencionada en las tres decisiones supra-mencionadas; chan roblesvirtualawlibraryy que la solicitante pide la legalizacion de dicho testamento tan solo para los efectos del reconocimiento de hija natural hecha en dicho testamento a favor de la demandante y en obediencia al mandato de la Corte Suprema en su decision supra. (Record on Appeal, p. 5.) Notice of the petition having been duly published pursuant to Rule of Court 77, section 4, Ernesto Guevara appeared and opposed the probate. Pedro L. Quinto, counsel for Rosario in the former litigation, was allowed to intervene in view of his duly recorded attorneys lien. On January 31, 1946, Ernesto Guevara, through counsel, filed a motion to dismiss the petition on the grounds that (a) the petition itself alleged that the will was revoked; chan roblesvirtualawlibrary(b) that whatever right to probate the parties may have has already prescribed (Record on Appeal, p. 14); chan roblesvirtualawlibraryand (c) that the purpose of the probate was solely to have Petitioner Rosario declared an acknowledged natural child of the deceased. By order of December 9, 1946, Judge Sotero Rodas denied the motion to dismiss; chan roblesvirtualawlibrarybut upon motion of reconsideration, Judge Maalac of the same court, on June 23, 1937, reconsidered and set aside the previous resolution and ordered the petition dismissed on the ground that Rosario Guevaras petition did not ask for the probate in toto of the will, contrary to the order of the Supreme Court; chan roblesvirtualawlibrarythat her right to petition for the probate of the testament of Victorino L. Guevara had prescribed; chan roblesvirtualawlibraryand that her action for judicial declaration of acknowledgment had likewise prescribed. An amended petition for the probate of the will in toto and another petition to reconsider the previous order were subsequently denied; chan roblesvirtualawlibrarythe former on the ground that there was a radical change of theory from that embodied in the original petition, and the second for the same reasons stated in the order of June 23, 1947. Rosario L. Guevara and Pedro L. Quinto thereupon brought the case on appeal to this Court, assigning no less than twenty (20) alleged errors committed by the court below. (Guevara vs. Guevara, C.A. G. R. No. 5416-R, promulgated December 26, 1951; chan roblesvirtualawlibrarysee Appendix to brief for the Petitioner-Appellant, pp. 1-6.) The dispositive part of the decision of the Court of Appeals reads as follows:chanroblesvirtuallawlibrary The order of dismissal of the petition for probate is reversed and the court of origin ordered to reinstate the petition, and to hear and decide whether the will of Victorino Guevara, deceased, should be allowed to probate. Costs against Appellees in both instances. (Ibid.) In his appeal therefrom, Petitioner Ernesto M. Guevara raises the following questions, to wit:chanroblesvirtuallawlibrary (a) Did Respondents herein duly perfect their appeal from the decision of the Court of First Instance of Pangasinan? (b) Did the Court of Appeals have jurisdiction to entertain said appeal? (c) Is the petition for probate of the alleged will of the deceased Victorino L. Guevara barred by the statute of limitations? (1) With reference to the first question, Petitioner has submitted the following statement 1 of the steps taken since June 23, 1947, date of the resolution of Judge Maalac, dismissing the petition for probate of the last will and testament of Victoriano L. Guevara:chanroblesvirtuallawlibrary June 23, 1947 Date of Resolution appealed from. July 14, 1947 Date of Joint Petition for Reconsideration filed by Appellants.

July 25, 1947 Date of Amended petition for probate of will. July 25, 1947 Motion for admission of Amended Petition. August 2, 1947 Appellants motion to postpone hearing on petition for reconsideration and moti on for admission of Amended Petition. August 10, 1947 Appellants urgent motion for continuance of hearing on joint petition for Reconsideration as well as Motion to Admit Amended Petition. August 25, 1947 Motion for extension of time to file memorandum. September 1, 1947 Memorandum for Appellants submitted. October 7, 1947 Memorandum for Appellee submitted. October 14, 1947 Appellants petition for ten (10) days to file reply memorandum. November 1, 1947 Appellants petition to file reply memorandum on or before November 9, 1947. November 8, 1947 Appellants petition for extension to file reply memorandum. November 18, 1947 Verified reply of Appellant Rosario Guevara. November 24, 1947 Reply memorandum of Pedro C. Quinto filed. January 12, 1948 Court denies both petitions of July 14 and 25, 1947. January 24, 1948 Notice of appeal to Supreme Court and petition for thirty (30) days extension by AppellantRosario Guevara. January 29, 1948 Order granting petition for extension. February 1, 1948 Another notice of appeal to Supreme Court and motion for thirty (30) days extension by Appellant Rosario Guevara. February 28, 1948 Appellants ex-parte petition for further extension. March 6, 1948 Original joint Record on Appeal filed. (This was so defective and incomplete it consisted of mere disjointed sheets of paper intercalated with one another and was a mere token record on appeal.) March 8, 1948 Another joint petition for reconsideration of Appellants. March 11, 1948 Appellees objection to record on appeal. March 17, 1948

Verified reply of Appellants to objection. March 18, 1948 Appellees objection to joint petition for reconsideration. June 19, 1948 Appellants memorandum in support of the joint petition for r econsideration. July 23, 1948 Order of denial of Joint Petition and disapproving original record on appeal as incomplete and giving Appellants within 10 days from notice. July 26, 1948 Amended Notice of Appeal to the Court of Appeals instead of to the Supreme Court. July 28 and 29, 1948 Appellants received copy of order of July 23, 1948. August 1, 1948 Petition for five (5) days extension to file amended Record on Appeal filed by Appellant Pedro C. Quinto. August 10, 1948 Appellants Joint Petition for last extension of two (2) days. August 10, 1948 Filing of amended joint record on appeal. (This is also again so defective and incomplete as to constitute another mere token record on appeal as required by the Rules.) August 24, 1948 Appellants petition for ten (10) days period to reply to objection, if any was to be filed. August 27, 1948 Appellees objection to amended record on appeal. September 8, 1948 Appellants reply to objection. October 20, 1948 Court order sustaining objection and gives Appellants fifteen (15) days from notice to redraft record on appeal. November 3, 1948 Appellants joint petition to reconsider order of disapproval of Amended Record on Appeal. November 3, 1948 Appellants file re-amended joint record on appeal. (This again disregarded the orders of the court regarding the contents of the record on appeal.). November 22, 1948 Appellee objected to approval of re-amended joint record on appeal and prayed that order appealed from be declared final. March 22, 1949 Court sustains Appellees objection to record on appeal denying petition for reconsideration and Appellants given fifteen (15) days from notice to satisfy requirements of courts previous order. April 8, 1949 Appellants file in Supreme Court petition for certiorari and mandamus attacking order of June 23, 1947. April 11, 1949 Appellant Quintos petition for fifteen (15) days extension to file Re -amended Record on Appeal. April 12, 1949 Supreme Court denies petition off-hand. April 16, 1949

Appellant Rosario Guevaras motion for fifteen (15) days extension for the same purpose. April 21, 1949 Court granted extension prayed for to expire May 1, 1948. April 21, 1949 Second Re-Amended Record on Appeal filed. June 11, 1949 Appellees opposition to Second Re-Amended Record on Appeal. June 29, 1949 Appellants joint notice of hearing on Second Re-Amended Record on Appeal for July 12, 1949. July 10, 1949 Appellants joint reply to opposition. July 12, 1949 Action on record on appeal deferred on petition of Atty. Quinto. September 3, 1949 Appellant Quintos notice of hearing on Second Re-Amended Record on Appeal for September 28, 1949. September 28, 1949 Order of court approving same. December 8, 1949 Clerk of lower court sends records to appellate court. December 10, 1949 Appellant Quintos motion ex-parte to have records sent up to appellate court. (Petitioner-Appellants Brief, pp. 41-47.) Based upon the foregoing, Oppositor and Appellee Ernesto M. Guevara filed, with the Court of Appeals, a motion praying that the appeal be dismissed:chanroblesvirtuallawlibrary (a) Because due to the Appellants many and repeated dilatory tactics, the prosecution of their appeal has been unduly and unreasonably delayed for a period which should strike anyone as totally without justification. The resolution appealed from was dictated by the lower court on June 23, 1947, so that a period of over two (2) years and nine (9) months until the date of this writing has elapsed, thus establishing a record-holding delay which should not be sanctioned by the Courts as prejudicial to the administration of justice. (b) Because Appellants, in violation of Rule 48, section 3, did not diligently prosecute their appeal by failing to have the record sent up to this Honorable Court within thirty (30) days from the time their Second Re-amended Record on Appeal was approved on September 28, 1949; chan roblesvirtualawlibraryand it was only so transmitted on December 8, 1949, that is after the lapse of two (2) months and ten (10) days. (c) Because, at any rate, the first Amended Joint Record on Appeal was filed beyond the extension granted by the Court and, consequently, the Appellants right to appeal has lapsed. (Exhibit A, pp. 1-2). The Court of Appeals denied said motion to dismiss for the following reasons:chanroblesvirtuallawlibrary A preliminary question was posed by the Appellee who prayed for the dismissal of the appeal on the ground that Petitioners-Appellants had unreasonably delayed the perfection of the appeal, as the Second Re-amended Joint Record on Appeal was not certified to this Court until December, 1949. After considering the voluminous record, and the arguments of both parties, we are of the opinion that both parties have contributed to the delay with lengthy memoranda, and repeated motions and objections. Moreover, the points in question are important enough to deserve adequate consideration upon the merits. Wherefore, the motion to dismiss the appeal should be and is hereby, overruled and denied. (Appendix to Brief for the Petitioner-Appellant, pp. 6- 7.) It is urged by Petitioner herein that Respondents appeal from the decision of the Court of First Instance of Pangasinan had not been duly perfected because:chanroblesvirtuallawlibrary (a) the original of the record on appeal did not comply with the Rules of Court; chan roblesvirtualawlibrary(b) the record on appeal was filed after the lapse of the reglementary period; chan roblesvirtualawlibrary(c) there has been an unprecedented delay in the filing of a satisfactory record on appeal; chan roblesvirtualawlibraryand (d) the appeal should be deemed abandoned for violation of Rule 48, section 3, of the Rules of Court.

The first ground is predicated upon the fact that, instead of transcribing the motions, petitions, orders and resolutions incorporated in the original record on appeal, Respondents herein merely attached to the original copy of said record on appeal, filed with the Court of First Instance of Pangasinan, their own copies of said motions, petitions, orders and resolutions. Accordingly, the copy of said record on appeal furnished to Petitioner herein did not contain or enclose the aforementioned parts of the record. It appears, however, that the Respondentswere given several extensions of time within which to comply with the pertinent provisions of the Rules of Court and that Respondents eventually did so. There being no question about the authority of the court of first instance to grant said extensions of time, it is clear that the first ground, relied upon by Petitioner herein, is untenable. In support of the second ground, it is alleged:chanroblesvirtuallawlibrary (a) that the original record on appeal was filed by Pedro C. Quinto only, and does not inure to the benefit of Rosario Guevara; chan roblesvirtualawlibraryand (b) thatRespondents had lost their right to appeal by the lapse of the reglementary period. As regards the first proposition, Petitioner asserts that Respondent Pedro C. Quinto had withdrawn his appearance as counsel for Respondent Rosario Guevara; chan roblesvirtualawlibrarythat Quinto had, thereafter, intervened in the case in his own behalf, in order to enforce his attorneys lien, as former counsel for Rosario Guevara; chan roblesvirtualawlibrarythat, consequently, the original record on appeal and the petitions for extension of time to file an amended record on appeal, filed by Pedro C. Quinto, were good only insofar as he is concerned, and cannot profit Rosario Guevara, she having ceased to be his client long before the filing of said original record on appeal and petitions for extension of time; chan roblesvirtualawlibrarythat this interest in the case arises from his rights as former attorney forRespondent Rosario Guevara, and, as such, is subordinate to, and dependent upon, the interest therein of said Rosario Guevara and the success of her claim therein; chan roblesvirtualawlibraryand that, her appeal not having been duly perfected, his appeal must be deemed to have no legal effect. There is no merit in this pretense, for it appears, at the foot of said record on appeal, that Pedro C. Quinto had filed the same, for himself as Appellant and in behalf of Rosario Guevara, who authorized him to perfect the appeal for both Appellants, and that similar statements were made in the body and at the foot of said petitions for extension of time. It is clear, therefore, that the aforementioned record on appeal and motions should be deemed submitted, also, byRespondent Rosario Guevara. The position then held by Pedro C. Quinto, as special prosecutor in the office of the Solicitor General, did not nullify his aforesaid acts on behalf of Rosario Guevara. Besides, said acts would seem to have been performed by him, more as attorney-in- fact than as counsel for Rosario Guevara, and this merely in connection with the perfection of her appeal. We do not find therein anything objectionable, either legally or morally, in the light of the circumstances surrounding the case. The second proposition is based upon the following reasons:chanroblesvirtuallawlibrary (a) The aforementioned record on appeal and motions for extension of time filed by Quinto on behalf of Rosario Guevara did not inure to her benefit, for which reason the reglementary period to appeal had expired before the perfection of her appeal. For the reasons already adverted to, this argument is clearly untenable. (b) The petition for reconsideration filed by Respondents on July 14, 1947, did not suspend the running of the period to perfect the record on appeal, because said petition did not comply with the provisions of Rule 37, section 1, of the Rules of Court, reading as follows:chanroblesvirtuallawlibrary Within thirty days after notice of the judgment in an action, the aggrieved party may move the trial court to set aside the judgment end grant a new trial for one or more of the following causes materially affecting the substantial rights of said party:chanroblesvirtuallawlibrary (a) Fraud, accident, mistake or excusable negligence which ordinary prudence could not have guarded against and by reason of which such aggrieved party has probably been impaired in his rights; (b) Newly discovered evidence, which he could not, with reasonable diligence, have discovered, and produced at the trial, and which if presented would probably alter the result; (c) Because excessive damages have been awarded, or the evidence was insufficient to justify the decision, or it is against the law. Said petition for reconsideration appears, however, to be predicated, in effect, upon the ground that the evidence is insufficient to justify the decision of the court of first instance, and that said decision is contrary to law. It partakes, therefore, of the nature of a motion for new trial, stating specifically the reasons in support thereof, and, hence, it suspended the period to appeal until the determination of said motion. Relative to the alleged unprecedented delay in the filing of a satisfactory record on appeal, we agree with the finding of the Court of Appeals to the effect that the delay was due to the acts of the Respondents, as well as of the Petitioner herein, for both had asked several postponements and extensions of time, filed memoranda and reply memoranda, and raised or provoked a number of other issues or incidents which necessarily delayed the perfection of the appeal. Obviously, Petitioner should not be allowed to profit by said delay, to which he had actively contributed. 1 Lastly, Petitioner maintains that, although the record on appeal had been approved on September 28, 1949, it was not forwarded to the Court of Appeals until December 8, 1949. Section 3 of Rule 48 of the Rules of Court provides:chanroblesvirtuallawlibrary

If the record on appeal is not received by the Court of Appeals within thirty days after the approval thereof, the Appellee may, upon notice to the Appellant, move the court to grant an order directing the clerk of the lower court forthwith to transmit such record on appeal or to declare the same abandoned for failure to prosecute. Considering that Respondents herein were not notified of the approval of the record on appeal until December 8, 1949, on which date the record on appeal was forwarded to the Court of Appeals, and that the aforementioned provision of the Rules of Court does impose upon said court the mandatory duty to declare the appeal abandoned for failure to prosecute, we believe that no error was committed in giving due course to the appeal and that the same has been duly perfected. (2) Did the Court of Appeals have jurisdiction to try the case, on appeal from the decision of the court of first instance? Petitioner maintains the negative, upon the ground that the appeal involved only questions of law. This is not correct, for the very motion for reconsideration adverted to above, indicated that the appeal raised some issues of fact, such as, for instance, whether or not the will in question was in the possession of Respondent Rosario Guevara and whether Respondent Quinto had been authorized by her to perfect the appeal on her behalf. At any rate, the case is now before us and, upon examination of the record and consideration of all the issues therein raised, we are of the opinion that, had the appeal been forwarded directly to this Court, we would have disposed of it in the manner set forth in the decision of the Court of Appeals, the review of which is sought by herein Appellant. (3) The last question for determination in this case is whether or not the petition for probate of the will of Victorino L. Guevara is barred by the statute of limitations, considering that the testator died on September 27, 1933, and that the petition for probate of said will was filed twelve (12) years later, or, to be exact, on October 5, 1945. The Court of Appeals resolved the question in the negative, upon the following grounds:chanroblesvirtuallawlibrary We are of the opinion that the Court below was in error when it declared that the petition for probate of the will of Victorino Guevara was barred by prescription. The provision of Article 756 of the old Civil Code (1042 of the New) and of Rule 76 of the Rules of Court, reiterating those of the old Code of Civil Procedure (Act 190), point out that the presentation of a decedents will to the competent court has always been deemed by our law as more of a duty than a right, and the neglect of such obligation carries with it the corresponding penalty and it is inconsistent with that policy that the court should refuse to admit wills to probate, without inquiry into their validity. The authority given to testators to dispose freely of a portion of their estate would be imperfectly safeguarded, unless adequate measures were provided by the state to assure that the wishes of the deceased would be carried out. Because the decedent may no longer act to have his testamentary dispositions duly executed, the state authority must take over the opposite vigilance and supervision, so that free testamentary disposition does not remain a delusion and a dream. This was expressly recognized by the Supreme Court in its previous decision, G. R. No. 48840 (Exhibit E) when it said:chanroblesvirtuallawlibrary cralaw We hold that under section 1 of Rule 74, in relation to Rule 76, if the decedent left a will and no debts and the heirs and legatees desire to make an extrajudicial partition of the estate, they must first present that will to the court for probate and divide the estate in accordance with the will. They may not disregard the provisions of the will unless those provisions are contrary to law. Neither may they do away with the presentation of the will to the court for probate, because such suppression of the will is contrary to law and public policy. The law enjoins the probate of the will and public policy requires it, because unless the will is probated and notice thereof given to the whole world, the right of a person to dispose of his property by will may be rendered nugatory, as is attempted to be done in the instant case. Absent legatees and devisees, or such of them as may have no knowledge of the will, could be cheated of their inheritance thru the collusion of some of the heirs who might agree to the partition of the estate among themselves to the exclusion of others. (Italics supplied) In holding the statute of limitations applicable to the probate of wills, the court below fa iled to notice that its doctrine was destructive of the right of testamentary disposition and violative of the owners right to control his property within the legal limits. The appealed order in fact leaves wills at the mercy and whim of custodians and heirs interested in their suppression. The lower court would in effect abdicate the tutelary power that passed to the Republic from the former sovereigns, that potestad suprema que en mi reside para velar por el puntual cumplimiento de las ultimas voluntades, asserted as one of the royal prerogatives in the Real Cedula of March 18, 1776. It is not without purpose that Rule of Court 77 prescribes that any 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. Taken from the Code of Procedure of California, this provision has been interpreted as meaning that the statute of limitations has no application to probate of wills. In the case of In re Humes Estate, 179 C alif. 338, 176 Pac. 681, the California Supreme Court ruled that:chanroblesvirtuallawlibrary The chapter of the Code relating to the probate of wills does not provide for opposition to such probate on the ground of the bar of the statute of limitations, but, in effect, excludes it from the category of grounds allowed as a basis for such opposition. Section 1299 declares that any person interested in the estate may at any time after the

death of the testator, petition the court having jurisdiction to have the will proved. This implies that there is no arbitrary time limit. As additional reasons, the same Court stated:chanroblesvirtuallawlibrary cralaw Section 1317 declares:chanroblesvirtuallawlibrary If the court is satisfied, upon the proof taken or from the facts found by the jury that the will was duly executed and that the will testator at the time of its execution was of sound and disposing mind and not acting under duress menace fraud, or undue influence, a certificate of the proof and the facts found, signed by the judge and attested by the seal of the court, must be attached to the will. This excludes the bar of the statute of limitation from consideration as one of the matters which may be shown in opposition to the probate. This is further emphasized by section 1341, which, in substance, declares that, if upon the verdict of the jury the facts mentioned in section 1317 as aforesaid appear to be established, the court must admit the will to probate. Section 1314 thus makes it imperative that the court shall admit the will to probate if the execution is proven and the grounds of opposition authorized by section 1312 are not established. This clearly implies that no grounds of opposition other than those enumerated in section 1312 may be set up, and it leaves no place for the application of the statute of limitations. It is further to be observed that, notwithstanding the positive and comprehensive language of sections 343 and 369, if taken literally, there can be no doubt that they cannot apply to all special proceedings of a civil nature. Proceedings for a change of name, or in arbitration, or for voluntary dissolution of a corporation, or for guardianship, or for a married woman to become a sole trader, are all within the definition of the phrase, and each is enumerated, classed, and defined as such proceeding by the Code. If the statute of limitations applied, it would begin to run against such proceedings as soon as the right to institute them accrued. Yet from the very nature of these proceedings it is obvious that neither of them could be subject to such limitation. This construction of these Code provisions is confirmed by the long -continued and uniform practice and the universal understanding of the bench and bar of the state on the subjec t. xxx xxx xxx

Action to quiet title frequently involve wills of persons who have died many years before the action was begun. The section contemplates that such a will, although not yet probated, may be construed in the action and may be afterwards probated, and it clearly shows that the Legislature did not understand that the right to probate such will would be barred if the testator had died more than four years before the petition for probate was filed. This uniform practice and understanding of the bench and bar, and of the legislative department of the state also, is a strong argument to the effect that the statute of limitations does not apply to such proceedings. The authorities on the effect of such long acquiescence are numerous. The Statute of Limitations upon which the court below has relied, sections 38 to 50 of the old Code of Civil Procedure, Act 190, undertakes to fix limits for the filing of civil actions, but none for special proceedings o f which probate is admittedly one. The distinction is not purely verbal, but based on differences that make the limitation to actions inapplicable to special proceedings. In this regard, the Supreme Court of New York has adequately remarked (In re Canfields Will, 300 NYS 502):chanroblesvirtuallawlibrary A Respondent in a private proceeding owes no legal duty or obligation to the proponent as such, wherefore it is impossible for him to violate such non-existent obligation. Furthermore such a proceeding is not instituted for the vindication of any personal right to the proponent. The subject-matter is therefore wholly absent which could give rise to any cause of action against any Respondent therein. The primary purpose of the proceeding is not to est ablish the existence of the right of any living person, but to determine whether or not the decedent has performed the acts specified by the pertinent statutes which are the essential prerequisites to personal direction of the mode of devolution of his property on death. There is no legal but merely a moral duty resting upon a proponent to attempt to validate the wishes of the departed, and he may and frequently does receive no personal benefit from the performance of the act. One of the most fundamental conceptions of probate law, is that it is the duty of the court to effectuate, in so far as may be compatible with the public interest, the devolutionary wishes of a deceased person (Matter of Watsons Will, 262 N.Y. 284, 294, 186 N.E. 787; chan roblesvirtualawlibraryMatter of Marrimans Estate, 124 Misc. 320, 325, 208 N.Y.S. 672; chan roblesvirtualawlibraryFoley, S. affirmed 217 App. Div. 733, 216 N.Y.S. 842; chan roblesvirtualawlibraryMatter of Lensmans Estate, 137 Misc. 77, 78, 243 N.Y.S. 126, Henderson, S., Matter of Drakes Estate, 160 Misc. 587, 598, 290 N.Y.S. 581). To that end, the court is, in effect, an additional party to every litigation affecting the disposal of the assets of the deceased. Matter of Van Valkenburghs Estate, 164 Misc. 295, 296, 298 N.Y.S. 219. A determination, therefore, that the mere non-action of a person upon whom no legal duty rested in this regard, could have the effect of subverting the wishes of one who was no longer able to protect his own unquestionable rights, would strike at the very foundation of all conceptions of justice as administered in probate courts.

These decisions are of high persuasive value (Cu vs. Republic, G. R. L -3018, July 18, 1951); chan roblesvirtualawlibrarythey represent the trend of authority (57 Am. Jur. 585), and enable us to conclude that reason and precedent reject the applicability of the Statute of Limitations to probate proceedings, because these are not exclusively established in the interest of the surviving heirs, but primarily for the protection of the testators expressed wishes, that are entitled to respect as an effect of his ownership and right of disposition. If the probate of validly executed wills is required by public policy, as declared by the Supreme Court in the previous case, G.R. 48840 (Exhibit E), the state could not have intended the statute of limitations to defeat that policy. It is true, as ruled by the trial court, that the rights of parties should not be left hanging in uncertainty for periods of time far in excess of the maximum period of ten years allowed by law; chan roblesvirtualawlibrarybut the obvious remedy is for the other interested persons to petition for the production of the will and for its probate, or to inflict upon the guilty party the penalties prescribed by Rule 76 or declare the unworthiness of the heir under the Civil Code for concealing or suppressing the testament; chan roblesvirtualawlibrarybut not to dismiss the petition for probate, however belatedly submitted, and thereby refuse sanction to testamentary dispositions executed with all the formalities prescribed by law, incidentally prejudicing also those testamentary heirs who do not happen to be successors ab intestato. That in this particular case the appealed rule may not work injustice would not excuse its adoption as a general norm applicable to all cases. It is likewise reasonable to assume that if the Supreme Court had considered the ten -year limitation applicable to probate proceedings, it would not have ordered the parties on December 2 9, 1943 to present the document Exhibit A to the proper court for probate in accordance with law, because the ten years from the death of the testator expired in September of that same year, two months before the decision. It is safe to assume that the high Court would not order a useless step. The reasoning that the phrase in accordance with law was a qualification signifying if still legally possible, appears to be far-fetched and unjustified. The plain import of the words employed by the high Court is that the probate should follow the procedure provided for the purpose. xxx xxx xxx

The other reasons advanced by the court a quo in support of its order dismissing the petition are also untenable. The allegation contained in paragraph 10 of the original petition, that the will, or its testamentary dispositions, had been de jure revoked in so far as the parcel of 259 hectares described in said will is concerned, does not justify the finding that the probate would be pointless. What is alleged is a partial revocation, only as to the parcel of land affected; chan roblesvirtualawlibrarybut as previously shown, the will disposed of other property besides that one. And even granting that the next allegation to the effect that Plaintiff sought to probate only for the purposes of her acknowledgment as natural child in said will, constitutes an averment that the will had been fully revoked, the same would at the most constitute a conclusion or inference that the lower court was not bound to admit. Because the Appellant claimed or believed that the revocation of the will as to the large parcel of land, constituted a total revocation of the testament is no reason why the court should concur in the same belief or conclusion, especially when the will itself, appended to the petition, showed that there were other properties and other heirs or legatees, and the trial court had before it the decision of the Supreme Court ordering the filing of the will for its probate because, as stated in its decision, such a step was enjoined by law and public policy. Moreover, the defect, if any, incurred in failing to ask for the probate in toto of the will, was subsequently cured and corrected in the amended petition, where not only the objectionable statements were eliminated, but others added indicating the existence of a partible estate. Assuming that the original petition violated the order of the Supreme Court in so far as it did not ask for the allowance of the entire will, the court below erred in dismissing the petition, for it thereby sanctioned further disobedience to the order of the superior court. Once again, it must be repeated that the order of dismissal failed to take into account that the case involved not only the interests of Rosario Guevara, and those of the Appellee Ernesto Guevara and the other legatees, but specially the express desires of the testator; chan roblesvirtualawlibraryand that the protection and defense of the latter developed upon the court itself, since no one else made any move to enforce them. Even if the other heirs had failed to show interest in the case (a fact not properly inferable from their non intervention in the case, because the order of publication of the petition only called for those i nterested to appear to contest the allowance and not to support it) (Rec. on App., p. 7), and even if the other heirs had already received their shares, the order refusing the probate remains indefensible. If the other heirs were not interested, there remained the wishes of the testator to be supported and protected, if validly expressed. If the heirs had distributed the estate, the distribution was illegal and improper unless the will be first probated. The Supreme Court so ruled in its previous decision (G. R. 48840) heretofore quoted. Even if the decedent left no debts and nobody raises any question as to the authenticity and due execution of the will, none of the heirs may sue for the partition of the estate in accordance with that will without first securing its allowance or probate by the court:chanroblesvirtuallawlibrary first, because the law expressly provides that no will shall pass either real or personal estate unless it is proved and allowed in the proper court; chan roblesvirtualawlibraryand, second, because the probate of a will, which is a proceeding in rem, cannot be dispensed with and substituted by any other proceeding, judicial or extrajudicial, without offending against public policy designed to effectuate the testators right to dispo se of his property by will in accordance with law and to

protect the rights of the heirs and legatees under the will thru the means provided by law, among which are the publication and the personal notices to each and all of said heirs and legatees. Nor may the court approve and allow the will presented in evidence in such an action for partition, which is one in personam, any more than it could decree the registration under the Torrens system of the land involved in an ordinary action for revindicacion or partition. From whatever angle the case is viewed, a hearing on the allowance of the will is unavoidable. The persistent, albeit obnoxious, attempts of Rosario Guevara to sidetrack the will are not remedied by dismissing the petition for probate of will, and allowing Ernesto to retain a greater interest than that intended by the testator. (Appendix to brief for thePetitioner-Appellant, pp. 7-15, 17-20.) We are fully in accord with these findings which we adopt as ours. In view of the foregoing, the decision appealed from is hereby affirmed, with the costs of this instance against the Petitioner. Estate of Miguel Mamuyac, deceased. FRANCISCO GAGO, petitioner-appellant, vs. CORNELIO MAMUYAC, AMBROSIO LARIOSA, FELICIANA BAUZON, and CATALINA MAMUYAC, opponents-appellees. Nicanor Tavora for appellant. Jose Rivera for appellees. JOHNSON, J.: The purpose of this action was to obtain the probation of a last will and testament of Miguel Mamuyac, who died on the 2d day of January, 1922, in the municipality of Agoo of the Province of La Union. It appears from the record that on or about the 27th day of July, 1918, the said Miguel Mamuyac executed a last will and testament (Exhibit A). In the month of January, 1922, the said Francisco Gago presented a petition in the Court of First Instance of the Province of La Union for the probation of that will. The probation of the same was opposed by Cornelio Mamuyac, Ambrosio Lariosa, Feliciana Bauzon, and Catalina Mamuyac (civil cause No. 1144, Province of La Union). After hearing all of the parties the petition for the probation of said will was denied by the Honorable C. M. Villareal on the 2d day of November, 1923, upon the ground that the deceased had on the 16th day of April, 1919, executed a new will and testament. On the 21st day of February, 1925, the present action was commenced. Its purpose was to secure the probation of the said will of the 16th day of April, 1919 (Exhibit 1). To said petition Cornelio Mamuyac, Ambrosio Lariosa, Feliciana Bauzon, and Catalina Mamuyac presented their oppositions, alleging (a) that the said will is a copy of the second will and testament executed by the said Miguel Mamuyac; ( b) that the same had been cancelled and revoked during the lifetime of Miguel Mamuyac and ( c) that the said will was not the last will and testament of the deceased Miguel Mamuyac. Upon the issue thus presented, the Honorable Anastacio R. Teodoro, judge, after hearing the respective parties, denied the probation of said will of April 16, 1919, upon the ground that the same had been cancelled and revoked in the year 1920. Judge Teodoro, after examining the evidence adduced, found that the following facts had been satisfactorily proved: That Exhibit A is a mere carbon of its original which remained in the possession of the deceased testator Miguel Mamuyac, who revoked it before his death as per testimony of witness Jose Fenoy, who typed the will of the testator on April 16, 1919, and Carlos Bejar, who saw on December 30, 1920, the original Exhibit A (will of 1919) actually cancelled by the testator Miguel Mamuyac, who assured Carlos Bejar that inasmuch as he had sold him a house and the land where the house was built, he had to cancel it (the will of 1919), executing thereby a new testament. Narcisa Gago in a way corroborates the testimony of Jose Fenoy, admitting that the will executed by the deceased (Miguel Mamuyac) in 1919 was found in the possession of father Miguel Mamuyac. The opponents have successfully established the fact that father Miguel Mamuyac had executed in 1920 another will. The same Narcisa Gago, the sister of the deceased, who was living in the house with him, when cross-examined by attorney for the opponents, testified that the original Exhibit A could not be found. For the foregoing consideration and for the reason that the original of Exhibit A has been cancelled by the deceased father Miguel Mamuyac, the court disallows the probate of Exhibit A for the applicant." From that order the petitioner appealed.

The appellant contends that the lower court committed an error in not finding from the evidence that the will in question had been executed with all the formalities required by the law; that the same had been revoked and cancelled in 1920 before his death; that the said will was a mere carbon copy and that the oppositors were not estopped from alleging that fact. With reference to the said cancellation, it may be stated that there is positive proof, not denied, which was accepted by the lower court, that will in question had been cancelled in 1920. The law does not require any evidence of the revocation or cancellation of a will to be preserved. It therefore becomes difficult at times to prove the revocation or cancellation of wills. The fact that such cancellation or revocation has taken place must either remain unproved of be inferred from evidence showing that after due search the original will cannot be found. Where a will which cannot be found is shown to have been in the possession of the testator, when last seen, the presumption is, in the absence of other competent evidence, that the same was cancelled or destroyed. The same presumption arises where it is shown that the testator had ready access to the will and it cannot be found after his death. It will not be presumed that such will has been destroyed by any other person without the knowledge or authority of the testator. The force of the presumption of cancellation or revocation by the testator, while varying greatly, being weak or strong according to the circumstances, is never conclusive, but may be overcome by proof that the will was not destroyed by the testator with intent to revoke it. In view of the fat that the original will of 1919 could not be found after the death of the testator Miguel Mamuyac and in view of the positive proof that the same had been cancelled, we are forced to the conclusion that the conclusions of the lower court are in accordance with the weight of the evidence. In a proceeding to probate a will the burden of proofs is upon the proponent clearly to establish not only its execution but its existence. Having proved its execution by the proponents, the burden is on the contestant to show that it has been revoked. In a great majority of instances in which wills are destroyed for the purpose of revoking them there is no witness to the act of cancellation or destruction and all evidence of its cancellation perishes with the testator. Copies of wills should be admitted by the courts with great caution. When it is proven, however, by proper testimony that a will was executed in duplicate and each copy was executed with all the formalities and requirements of the law, then the duplicate may be admitted in evidence when it is made to appear that the original has been lost and was not cancelled or destroyed by the testator. (Borromeo vs. Casquijo, G.R. No. L-26063.)1 After a careful examination of the entire record, we are fully persuaded that the will presented for probate had been cancelled by the testator in 1920. Therefore the judgment appealed from is hereby affirmed. And without any finding as to costs, it is so ordered. G.R. No. L-58509 December 7, 1982 IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF RICARDO B. BONILLA deceased, MARCELA RODELAS, petitioner-appellant, vs. AMPARO ARANZA, ET AL., oppositors-appellees, ATTY. LORENZO SUMULONG, intervenor. Luciano A. Joson for petitioner-appellant. Cesar Paralejo for oppositor-appellee.

RELOVA, J.: This case was certified to this Tribunal by the Court of Appeals for final determination pursuant to Section 3, Rule 50 of the Rules of Court. As found by the Court of Appeals: ... On January 11, 1977, appellant filed a petition with the Court of First Instance of Rizal for the probate of the holographic will of Ricardo B. Bonilla and the issuance of letters testamentary in her favor. The petition, docketed as Sp. Proc. No. 8432, was opposed by the appellees Amparo Aranza Bonilla, Wilferine Bonilla Treyes Expedita Bonilla Frias and Ephraim Bonilla on the following grounds: (1) Appellant was estopped from claiming that the deceased left a will by failing to produce the will within twenty days of the death of the testator as required by Rule 75, section 2 of the Rules of Court;

(2) The alleged copy of the alleged holographic will did not contain a disposition of property after death and was not intended to take effect after death, and therefore it was not a will (3) The alleged hollographic will itself,and not an alleged copy thereof, must be produced, otherwise it would produce no effect, as held in Gam v. Yap, 104 Phil. 509; and (4 ) The deceased did not leave any will, holographic or otherwise, executed and attested as required by law. The appellees likewise moved for the consolidation of the case with another case Sp. Proc. No, 8275). Their motion was granted by the court in an order dated April 4, 1977. On November 13, 1978, following the consolidation of the cases, the appellees moved again to dismiss the petition for the probate of the will. They argued that: (1) The alleged holographic was not a last will but merely an instruction as to the management and improvement of the schools and colleges founded by decedent Ricardo B. Bonilla; and (2) Lost or destroyed holographic wills cannot be proved by secondary evidence unlike ordinary wills. Upon opposition of the appellant, the motion to dismiss was denied by the court in its order of February 23, 1979. The appellees then filed a motion for reconsideration on the ground that the order was contrary to law and settled pronouncements and rulings of the Supreme Court, to which the appellant in turn filed an opposition. On July 23, 1979, the court set aside its order of February 23, 1979 and dismissed the petition for the probate of the will of Ricardo B. Bonilla. The court said: ... It is our considered opinion that once the original copy of the holographic will is lost, a copy thereof cannot stand in lieu of the original. In the case of Gam vs. Yap, 104 Phil. 509, 522, the Supreme Court held that 'in the matter of holographic wills the law, it is reasonable to suppose, regards the document itself as the material proof of authenticity of said wills. MOREOVER, this Court notes that the alleged holographic will was executed on January 25, 1962 while Ricardo B. Bonilla died on May 13, 1976. In view of the lapse of more than 14 years from the time of the execution of the will to the death of the decedent, the fact that the original of the will could not be located shows to our mind that the decedent had discarded before his death his allegedly missing Holographic Will. Appellant's motion for reconsideration was denied. Hence, an appeal to the Court of Appeals in which it is contended that the dismissal of appellant's petition is contrary to law and well-settled jurisprudence. On July 7, 1980, appellees moved to forward the case to this Court on the ground that the appeal does not involve question of fact and alleged that the trial court committed the following assigned errors: I. THE LOWER COURT ERRED IN HOLDING THAT A LOST HOLOGRAPHIC WILL MAY NOT BE PROVED BY A COPY THEREOF; II. THE LOWER COURT ERRED IN HOLDING THAT THE DECEDENT HAS DISCARDED BEFORE HIS DEATH THE MISSING HOLOGRAPHIC WILL; III. THE LOWER COURT ERRED IN DISMISSING APPELLANT'S WILL. The only question here is whether a holographic will which was lost or cannot be found can be proved by means of a photostatic copy. Pursuant to Article 811 of the Civil Code, probate of holographic wills is the allowance of the will by the court after its due execution has been proved. The probate may be uncontested or not. If uncontested, at least one Identifying witness is required and, if no witness is available, experts may be resorted to. If contested, at least three Identifying witnesses are required. However, if the holographic will has been lost or destroyed and no other copy is available, the will can not

be probated because the best and only evidence is the handwriting of the testator in said will. It is necessary that there be a comparison between sample handwritten statements of the testator and the handwritten will. But, a photostatic copy or xerox copy of the holographic will may be allowed because comparison can be made with the standard writings of the testator. In the case of Gam vs. Yap, 104 PHIL. 509, the Court ruled that "the execution and the contents of a lost or destroyed holographic will may not be proved by the bare testimony of witnesses who have seen and/or read such will. The will itself must be presented; otherwise, it shall produce no effect. The law regards the document itself as material proof of authenticity." But, in Footnote 8 of said decision, it says that "Perhaps it may be proved by a photographic or photostatic copy. Even a mimeographed or carbon copy; or by other similar means, if any, whereby the authenticity of the handwriting of the deceased may be exhibited and tested before the probate court," Evidently, the photostatic or xerox copy of the lost or destroyed holographic will may be admitted because then the authenticity of the handwriting of the deceased can be determined by the probate court. WHEREFORE, the order of the lower court dated October 3, 1979, denying appellant's motion for reconsideration dated August 9, 1979, of the Order dated July 23, 1979, dismissing her petition to approve the will of the late Ricardo B. Bonilla, is hereby SET ASIDE. Rodelas v. Aranza Digest Rodelas v. Aranza G.R. No. L-58509 December 7, 1982 Relova, J. (Ponente) Facts: 1. The appellant filed a petition for the probate of the holographic will of Ricardo Bonilla in 1977. The petition was opposed by the appellees on the ground that the deceased did not leave any will, holographic or otherwise. 2. The lower court dismissed the petition for probate and held that since the original will was lost, a photostatic copy cannot stand in the place of the original. Issue: Whether or not a holographic will can be proved by means of a photocopy RULING: Yes. A photocopy of the lost or destroyed holographic will may be admitted because the authenticity of the handwriting of the deceased can be determined by the probate court with the standard writings of the testator.

Rule 77. Allowance of will proved outside of Philippines and Administration of Estate thereunder Fleumer vs. Hix5 4 Phil 610Fact s: The petitioner is a special administrator of the estate of Edward Hix. He alleged that the latters will wasexecuted in Elkins, West Virginia on November 3, 1925 by Hix who had his residence in that jurisdiction,and that the law s of that state gov ern. T o t his end, the pet it ioner submitted a cop y of Section 3868 of Acts 1882, c.84 as found in West Virginia Code, annotated by Hogg, Charles E., vol.2 1914, p. 1690 andas certified to by t he Di r ect or of National Librar y. The Judge of the First Instance however denied the probate of the will on the grounds that Sec 300 and3 01 of the C ode of Civ il Procedure w ere not complied w ith. Hence, this appeal.Issue:Is i t necessa r y to prov e in this jurisdict ion t he existence of such law in W est Virginia as a prerequis it eto the allowance and recording of said will.Held: Yes. The laws of the foreign jurisdiction do not prove themselves in our courts. The courts of thePhilippine Islands are not authorized to take judicial notice of the laws of the various states of theAme rican Union. Such law s must be prov ed as f act s. He re the req uirements of the law w ere not met. There was no showing that the book from which an extract was taken was printed or published under the authority of the state of West Virginia, as provided in Sec 30 of the Code of Civil Procedure. Nor wasthe extract from the law attested by the certificate of the officer having charge of the original, under theseal of t he State of W est Virginia as prov ided in Sec 301. No ev idence w as int roduced show ing that theextr act from the law s of W est Virginia w as in force at t he t ime alleged w ill w as executed. The court therefore did not err in denying the probate of the will. The existence of such law in WestVirginia must be prov ed.

G.R. No. 76714 June 2, 1994 SALUD TEODORO VDA. DE PEREZ, petitioner, vs.

HON. ZOTICO A. TOLETE in his capacity as Presiding Judge, Branch 18, RTC, Bulacan, respondent. Natividad T. Perez for petitioner. Benedicto T. Librojo for private respondents.

QUIASON, J.: This is a petition for certiorari under Rule 65 of the Revised Rules of Court to set aside the Order dated November 19, 1986 of the Regional Trial Court, Branch 18, Bulacan presided by respondent Judge Zotico A. Tolete, in Special Proceedings No. 1793-M. We grant the petition. II Dr. Jose F. Cunanan and his wife, Dr. Evelyn Perez-Cunanan, who became American citizens, established a successful medical practice in New York, U.S.A. The Cunanans lived at No. 2896 Citation Drive, Pompey, Syracuse, New York, with their children, Jocelyn, 18; Jacqueline, 16; and Josephine, 14. On August 23, 1979, Dr. Cunanan executed a last will and testament, bequeathing to his wife "all the remainder" of his real and personal property at the time of his death "wheresoever situated" ( Rollo, p. 35). In the event he would survive his wife, he bequeathed all his property to his children and grandchildren with Dr. Rafael G. Cunanan, Jr. as trustee. He appointed his wife as executrix of his last will and testament and Dr. Rafael G. Cunanan, Jr. as substitute executor. Article VIII of his will states: If my wife, EVELYN PEREZ-CUNANAN, and I shall die under such circumstances that there is not sufficient evidence to determine the order of our deaths, then it shall be presumed that I predeceased her, and my estate shall be administered and distributed, in all respects, in accordance with such presumption (Rollo, p. 41). Four days later, on August 27, Dr. Evelyn P. Cunanan executed her own last will and testament containing the same provisions as that of the will of her husband. Article VIII of her will states: If my husband, JOSE F. CUNANAN, and I shall die under such circumstances that there is not sufficient evidence to determine the order of our deaths, then it shall be presumed that he predeceased me, and my estate shall be administered and distributed in all respects, in accordance with such presumption. (Rollo, p. 31). On January 9, 1982, Dr. Cunanan and his entire family perished when they were trapped by fire that gutted their home. Thereafter, Dr. Rafael G. Cunanan, Jr. as trustee and substitute executor of the two wills, filed separate proceedings for the probate thereof with the Surrogate Court of the County of Onondaga, New York. On April 7, these two wills were admitted to probate and letters testamentary were issued in his favor. On February 21, 1983, Salud Teodoro Perez, the mother of Dr. Evelyn P. Cunanan, and petitioner herein, filed with the Regional P. Cunanan, and petitioner herein, filed with the Regional Trial Court, Malolos, Bulacan a petition for the reprobate of the two bills ancillary to the probate proceedings in New York. She also asked that she be appointed the special administratrix of the estate of the deceased couple consisting primarily of a farm land in San Miguel, Bulacan. On March 9, the Regional Trial Court, Branch 16, Malolos, Bulacan, presided by Judge Gualberto J. de la Llana, issued an order, directing the issuance of letters of special administration in favor of petitioner upon her filing of a P10,000.00 bond. The following day, petitioner posted the bond and took her oath as special administration. As her first act of administration, petitioner filed a motion, praying that the Philippine Life Insurance Company be directed to deliver the proceeds in the amount of P50,000.00 of the life insurance policy taken by Dr. Jose F. Cunanan with Dr. Evelyn Perez-Cunanan and their daughter Jocelyn as beneficiaries. The trial court granted the motion.

Counsel for the Philippine American Life Insurance Company then filed a manifestation, stating that said company then filed a manifestation, stating that said company had delivered to petitioner the amount of P49,765.85, representing the proceeds of the life insurance policy of Dr. Jose F. Cunanan. In a motion dated May 19, 1983, petitioner asked that Dr. Rafael Cunanan, Sr. be ordered to deliver to her a Philippine Trust Company passbook with P25,594.00 in savings deposit, and the Family Savings Bank time deposit certificates in the total amount of P12,412.52. On May 31, Atty. Federico Alday filed a notice of appearance as counsel for the heirs of Dr. Jose F. Cunanan, namely, Dr. Rafael Cunanan, Sr., Priscilla Cunanan Bautista, Lydia Cunanan Ignacio, Felipe F. Cunanan and Loreto Cunanan Concepcion (Cunanan heirs). He also manifested that before receiving petitioner's motion of May 19, 1983, his clients were unaware of the filing of the testate estate case and therefore, "in the interest of simple fair play," they should be notified of the proceedings (Records, p. 110). He prayed for deferment of the hearing on the motions of May 19, 1983. Petitioner then filed a counter manifestation dated June 13, 1983, asserting: (1) that the "Cunanan collaterals are neither heirs nor creditors of the late Dr. Jose F. Cunanan" and therefore, they had "no legal or proprietary interests to protect" and "no right to intervene"; (2) that the wills of Dr. Jose F. Cunanan and Dr. Evelyn Perez-Cunanan, being American citizens, were executed in accordance with the solemnities and formalities of New York laws, and produced "effects in this jurisdiction in accordance with Art. 16 in relation to Art. 816 of the Civil Code"; (3) that under Article VIII of the two wills, it was presumed that the husband predeceased the wife; and (4) that "the Cunanan collaterals are neither distributees, legatees or beneficiaries, much less, heirs as heirship is only by institution" under a will or by operation of the law of New York (Records, pp. 112-113). On June 23, the probate court granted petitioner's motion of May 19, 1983. However, on July 21, the Cunanan heirs filed a motion to nullify the proceedings and to set aside the appointment of, or to disqualify, petitioner as special administratrix of the estates of Dr. Jose F. Cunanan and Dr. Evelyn PerezCunanan. The motion stated: (1) that being the "brothers and sisters and the legal and surviving heirs" of Dr. Jose F. Cunanan, they had been "deliberately excluded" in the petition for the probate of the separate wills of the Cunanan spouses thereby misleading the Bulacan court to believe that petitioner was the sole heir of the spouses; that such "misrepresentation" deprived them of their right to "due process in violation of Section 4, Rule 76 of the Revised Rules of Court; (2) that Dr. Rafael G. Cunanan, Jr., the executor of the estate of the Cunanan spouses, was likewise not notified of the hearings in the Bulacan court; (3) that the "misrepresentation and concealment committed by" petitioner rendered her unfit to be a special administratrix; (4) that Dr. Rafael G. Cunanan, Jr. had, by virtue of a verified power of attorney, authorized his father, Dr. Rafael Cunanan, Sr., to be his attorney-in-fact; and (5) that Dr. Rafael Cunanan, Sr. is qualified to be a regular administrator "as practically all of the subject estate in the Philippines belongs to their brother, Dr. Jose F. Cunanan" (Records, pp. 118-122). Hence, they prayed: (1) that the proceedings in the case be declared null and void; (2) that the appointment of petitioner as special administratrix be set aside; and (3) that Dr. Rafael Cunanan, Sr. be appointed the regular administrator of the estate of the deceased spouses. Thereafter, the Cunanan heirs filed a motion requiring petitioner to submit an inventory or accounting of all monies received by her in trust for the estate. In her opposition, petitioner asserted: (1) that she was the "sole and only heir" of her daughter, Dr. Evelyn Perez-Cunanan to the exclusion of the "Cunanan collaterals"; hence they were complete strangers to the proceedings and were not entitled to notice; (2) that she could not have "concealed" the name and address of Dr. Rafael G. Cunanan, Jr. because his name was prominently mentioned not only in the two wills but also in the decrees of the American surrogate court; (3) that the rule applicable to the case is Rule 77, not Rule 76, because it involved the allowance of wills proved outside of the Philippines and that nowhere in Section 2 of Rule 77 is there a mention of notice being given to the executor who, by the same provision, should himself file the necessary ancillary proceedings in this country; (4) that even if the Bulacan estate came from the "capital" of Dr. Jose F. Cunanan, he had willed all his worldly goods to his wife and nothing to his brothers and sisters; and (5) that Dr. Rafael G. Cunanan, Jr. had unlawfully disbursed $215,000.00 to the Cunanan heirs, misappropriated $15,000.00 for himself and irregularly assigned assets of the estates to his American lawyer (Records, pp. 151-160). In their reply, the Cunanan heirs stressed that on November 24, 1982, petitioner and the Cunanan heirs had entered into an agreement in the United States "to settle and divide equally the estates," and that under Section 2 of Rule 77 the "court shall fix a time and place for the hearing and cause notice thereof to be given as in case of an original will presented for allowance" (Records, pp. 184-185). Petitioner asked that Dr. Rafael G. Cunanan, Jr. be cited for contempt of court for failure to comply with the Order of June 23, 1983 and for appropriating money of the estate for his own benefit. She also

alleged that she had impugned the agreement of November 24, 1982 before the Surrogate Court of Onondaga, New York which rendered a decision on April 13, 1983, finding that "all assets are payable to Dr. Evelyn P. Cunanans executor to be then distributed pursuant to EPTL4-1.1 subd [a] par [4]" (Rollo, p. 52). On their part, the Cunanan heirs replied that petitioner was estopped from claiming that they were heirs by the agreement to divide equally the estates. They asserted that by virtue of Section 2 of Rule 77 of the Rules of Court, the provisions of Sections 3, 4 and 5 of Rule 76 on the requirement of notice to all heirs, executors, devisees and legatees must be complied with. They reiterated their prayer: (1) that the proceedings in the case be nullified; (2) that petitioner be disqualified as special administratrix; (3) that she be ordered to submit an inventory of all goods, chattels and monies which she had received and to surrender the same to the court; and (4) that Dr. Rafael Cunanan, Sr. be appointed the regular administrator. Petitioner filed a rejoinder, stating that in violation of the April 13, 1983 decision of the American court Dr. Rafael G. Cunanan, Jr. made "unauthorized disbursements from the estates as early as July 7, 1982" (Records, p. 231). Thereafter, petitioner moved for the suspension of the proceedings as she had "to attend to the settlement proceedings" of the estate of the Cunanan spouses in New York (Records, p. 242). The Cunanans heirs opposed this motion and filed a manifestation, stating that petitioner had received $215,000.00 "from the Surrogates Court as part of legacy" based on the aforesaid agreement of November 24, 1982 (Records, p. 248). On February 21, 1984, Judge de la Llana issued an order, disallowing the reprobate of the two wills, recalling the appointment of petitioner as special administratrix, requiring the submission of petitioner of an inventory of the property received by her as special administratrix and declaring all pending incidents moot and academic. Judge de la Llana reasoned out that petitioner failed to prove the law of New York on procedure and allowance of wills and the court had no way of telling whether the wills were executed in accordance with the law of New York. In the absence of such evidence, the presumption is that the law of succession of the foreign country is the same as the law of the Philippines. However, he noted, that there were only two witnesses to the wills of the Cunanan spouses and the Philippine law requires three witnesses and that the wills were not signed on each and every page, a requirement of the Philippine law. On August 27, 1985, petitioner filed a motion for reconsideration of the Order dated February 21, 1984, where she had sufficiently proven the applicable laws of New York governing the execution of last wills and testaments. On the same day, Judge de la Llana issued another order, denying the motion of petitioner for the suspension of the proceedings but gave her 15 days upon arrival in the country within which to act on the other order issued that same day. Contending that the second portion of the second order left its finality to the discretion of counsel for petitioner, the Cunanans filed a motion for the reconsideration of the objectionable portion of the said order so that it would conform with the pertinent provisions of the Judiciary Reorganization Act of 1980 and the Interim Rules of Court. On April 30, 1985, the respondent Judge of Branch 18 of the Regional Trial Court, Malolos, to which the reprobate case was reassigned, issued an order stating that "(W)hen the last will and testament . . . was denied probate," the case was terminated and therefore all orders theretofore issued should be given finality. The same Order amended the February 21, 1984 Order by requiring petitioner to turn over to the estate the inventoried property. It considered the proceedings for all intents and purposes, closed (Records, p. 302). On August 12, petitioner filed a motion to resume proceedings on account of the final settlement and termination of the probate cases in New York. Three days later, petitioner filed a motion praying for the reconsideration of the Order of April 30, 1985 on the strength of the February 21, 1984 Order granting her a period of 15 days upon arrival in the country within which to act on the denial of probate of the wills of the Cunanan spouses. On August 19, respondent Judge granted the motion and reconsidered the Order of April 30, 1985. On August 29, counsel for petitioner, who happens to be her daughter, Natividad, filed a motion praying that since petitioner was ailing in Fort Lee, New Jersey, U.S.A. and therefore incapacitated to act as special administratrix, she (the counsel) should be named substitute special administratrix. She also filed a motion for the reconsideration of the Order of February 21, 1984, denying probate to the wills of the Cunanan spouses, alleging that respondent Judge "failed to appreciate the significant probative value of the exhibits . . . which all refer to the offer and admission to probate of the last wills of the Cunanan spouses including all procedures undertaken and decrees issued in connection with the said probate" (Records, pp. 313-323).

Thereafter, the Cunanans heirs filed a motion for reconsideration of the Order of August 19, 1985, alleging lack of notice to their counsel. On March 31, 1986, respondent Judge to which the case was reassigned denied the motion for reconsideration holding that the documents submitted by petitioner proved "that the wills of the testator domiciled abroad were properly executed, genuine and sufficient to possess real and personal property; that letters testamentary were issued; and that proceedings were held on a foreign tribunal and proofs taken by a competent judge who inquired into all the facts and circumstances and being satisfied with his findings issued a decree admitting to probate the wills in question." However, respondent Judge said that the documents did not establish the law of New York on the procedure and allowance of wills (Records, p. 381). On April 9, 1986, petitioner filed a motion to allow her to present further evidence on the foreign law. After the hearing of the motion on April 25, 1986, respondent Judge issued an order wherein he conceded that insufficiency of evidence to prove the foreign law was not a fatal defect and was curable by adducing additional evidence. He granted petitioner 45 days to submit the evidence to that effect. However, without waiting for petitioner to adduce the additional evidence, respondent Judge ruled in his order dated June 20, 1986 that he found "no compelling reason to disturb its ruling of March 31, 1986" but allowed petitioner to "file anew the appropriate probate proceedings for each of the testator" (Records, p. 391). The Order dated June 20, 1986 prompted petitioner to file a second motion for reconsideration stating that she was "ready to submit further evidence on the law obtaining in the State of New York" and praying that she be granted "the opportunity to present evidence on what the law of the State of New York has on the probate and allowance of wills" (Records, p. 393). On July 18, respondent Judge denied the motion holding that to allow the probate of two wills in a single proceeding "would be a departure from the typical and established mode of probate where one petition takes care of one will." He pointed out that even in New York "where the wills in question were first submitted for probate, they were dealt with in separate proceedings" (Records, p. 395). On August 13, 1986, petitioner filed a motion for the reconsideration of the Order of July 18, 1986, citing Section 3, Rule 2 of the Rules of Court, which provides that no party may institute more than one suit for a single cause of action. She pointed out that separate proceedings for the wills of the spouses which contain basically the same provisions as they even named each other as a beneficiary in their respective wills, would go against "the grain of inexpensive, just and speedy determination of the proceedings" (Records, pp. 405-407). On September 11, 1986, petitioner filed a supplement to the motion for reconsideration, citing Benigno v. De La Pea, 57 Phil. 305 (1932) (Records, p. 411), but respondent Judge found that this pleading had been filed out of time and that the adverse party had not been furnished with a copy thereof. In her compliance, petitioner stated that she had furnished a copy of the motion to the counsel of the Cunanan heirs and reiterated her motion for a "final ruling on her supplemental motion" (Records, p. 421). On November 19, respondent Judge issued an order, denying the motion for reconsideration filed by petitioner on the grounds that "the probate of separate wills of two or more different persons even if they are husband and wife cannot be undertaken in a single petition" (Records, pp. 376-378). Hence, petitioner instituted the instant petition, arguing that the evidence offered at the hearing of April 11, 1983 sufficiently proved the laws of the State of New York on the allowance of wills, and that the separate wills of the Cunanan spouses need not be probated in separate proceedings. II Petitioner contends that the following pieces of evidence she had submitted before respondent Judge are sufficient to warrant the allowance of the wills: (a) two certificates of authentication of the respective wills of Evelyn and Jose by the Consulate General of the Philippines (Exhs. "F" and "G"); (b) two certifications from the Secretary of State of New York and Custodian of the Great Seal on the facts that Judge Bernard L. Reagan is the Surrogate of the Country of Onondaga which is a court of record, that his signature and seal of office are genuine, and that the Surrogate is duly authorized to grant copy of the respective wills of Evelyn

and Jose (Exhs. "F-1" and "G-1"); (c) two certificates of Judge Reagan and Chief Clerk Donald E. Moore stating that they have in their records and files the said wills which were recorded on April 7, 1982 (Exhs. "F-2" and "G-2"); (d) the respective wills of Evelyn and Jose (Exhs. "F-3", "F-6" and Exh. "G-3" "G-6"); (e) certificates of Judge Reagan and the Chief Clerk certifying to the genuineness and authenticity of the exemplified copies of the two wills (Exhs. "F-7" and "F-7"); (f) two certificates of authentication from the Consulate General of the Philippines in New York (Exh. "H" and "F"). (g) certifications from the Secretary of State that Judge Reagan is duly authorized to grant exemplified copies of the decree of probate, letters testamentary and all proceedings had and proofs duly taken (Exhs. "H-1" and "I-1"); (h) certificates of Judge Reagan and the Chief Clerk that letters testamentary were issued to Rafael G. Cunanan (Exhs. "H-2" and "I-2"); (i) certification to the effect that it was during the term of Judge Reagan that a decree admitting the wills to probate had been issued and appointing Rafael G. Cunanan as alternate executor (Exhs. "H-3" and "I-10"); (j) the decrees on probate of the two wills specifying that proceedings were held and proofs duly taken (Exhs. "H-4" and "I-5"); (k) decrees on probate of the two wills stating that they were properly executed, genuine and valid and that the said instruments were admitted to probate and established as wills valid to pass real and personal property (Exhs. "H-5" and "I-5"); and (l) certificates of Judge Reagan and the Chief Clerk on the genuineness and authenticity of each others signatures in the exemplified copies of the decrees of probate, letters testamentary and proceedings held in their court (Exhs. "H-6" and "I-6") (Rollo, pp. 1316). Petitioner adds that the wills had been admitted to probate in the Surrogate Courts Decision of April 13, 1983 and that the proceedings were terminated on November 29, 1984. The respective wills of the Cunanan spouses, who were American citizens, will only be effective in this country upon compliance with the following provision of the Civil Code of the Philippines: Art. 816. The will of an alien who is abroad produces effect in the Philippines if made with the formalities prescribed by the law of the place in which he resides, or according to the formalities observed in his country, or in conformity with those which this Code prescribes. Thus, proof that both wills conform with the formalities prescribed by New York laws or by Philippine laws is imperative. The evidence necessary for the reprobate or allowance of wills which have been probated outside of the Philippines are as follows: (1) the due execution of the will in accordance with the foreign laws; (2) the testator has his domicile in the foreign country and not in the Philippines; (3) the will has been admitted to probate in such country; (4) the fact that the foreign tribunal is a probate court, and (5) the laws of a foreign country on procedure and allowance of wills (III Moran Commentaries on the Rules of Court, 1970 ed., pp. 419-429; Suntay v. Suntay, 95 Phil. 500 [1954]; Fluemer v. Hix, 54 Phil. 610 [1930]). Except for the first and last requirements, the petitioner submitted all the needed evidence. The necessity of presenting evidence on the foreign laws upon which the probate in the foreign country is based is impelled by the fact that our courts cannot take judicial notice of them (Philippine Commercial and Industrial Bank v. Escolin, 56 SCRA 266 [1974]).

Petitioner must have perceived this omission as in fact she moved for more time to submit the pertinent procedural and substantive New York laws but which request respondent Judge just glossed over. While the probate of a will is a special proceeding wherein courts should relax the rules on evidence, the goal is to receive the best evidence of which the matter is susceptible before a purported will is probated or denied probate (Vda. de Ramos v. Court of Appeals, 81 SCRA 393 [1978]). There is merit in petitioners insistence that the separate wills of the Cunanan spouses should be probated jointly. Respondent Judges view that the Rules on allowance of wills is couched in singular terms and therefore should be interpreted to mean that there should be separate probate proceedings for the wills of the Cunanan spouses is too literal and simplistic an approach. Such view overlooks the provisions of Section 2, Rule 1 of the Revised Rules of Court, which advise that the rules shall be "liberally construed in order to promote their object and to assist the parties in obtaining just, speedy, and inexpensive determination of every action and proceeding." A literal application of the Rules should be avoided if they would only result in the delay in the administration of justice (Acain v. Intermediate Appellate Court, 155 SCRA 100 [1987]; Roberts v. Leonidas, 129 SCRA 33 [1984]). What the law expressly prohibits is the making of joint wills either for the testators reciprocal benefit or for the benefit of a third person (Civil Code of the Philippines, Article 818). In the case at bench, the Cunanan spouses executed separate wills. Since the two wills contain essentially the same provisions and pertain to property which in all probability are conjugal in nature, practical considerations dictate their joint probate. As this Court has held a number of times, it will always strive to settle the entire controversy in a single proceeding leaving no root or branch to bear the seeds of future litigation (Motoomull v. Dela Paz, 187 SCRA 743 [1990]). This petition cannot be completely resolved without touching on a very glaring fact petitioner has always considered herself the sole heir of Dr. Evelyn Perez Cunanan and because she does not consider herself an heir of Dr. Jose F. Cunanan, she noticeably failed to notify his heirs of the filing of the proceedings. Thus, even in the instant petition, she only impleaded respondent Judge, forgetting that a judge whose order is being assailed is merely a nominal or formal party (Calderon v. Solicitor General, 215 SCRA 876 [1992]). The rule that the court having jurisdiction over the reprobate of a will shall "cause notice thereof to be given as in case of an original will presented for allowance" (Revised Rules of Court, Rule 27, Section 2) means that with regard to notices, the will probated abroad should be treated as if it were an "original will" or a will that is presented for probate for the first time. Accordingly, compliance with Sections 3 and 4 of Rule 76, which require publication and notice by mail or personally to the "known heirs, legatees, and devisees of the testator resident in the Philippines" and to the executor, if he is not the petitioner, are required. The brothers and sisters of Dr. Jose F. Cunanan, contrary to petitioner's claim, are entitled to notices of the time and place for proving the wills. Under Section 4 of Rule 76 of the Revised Rules of Court, the "court shall also cause copies of the notice of the time and place fixed for proving the will to be addressed to the designated or other known heirs, legatees, and devisees of the testator, . . . " WHEREFORE, the questioned Order is SET ASIDE. Respondent Judge shall allow petitioner reasonable time within which to submit evidence needed for the joint probate of the wills of the Cunanan spouses and see to it that the brothers and sisters of Dr. Jose F. Cunanan are given all notices and copies of all pleadings pertinent to the probate proceedings. G.R. No. L-3677 November 29, 1951

In the Matter of the Testate Estate of BASIL GORDON BUTLER; MERCEDES LEON, petitionerappellant, and ADA LOGGEY GHEZZI, administratrix-appellant, vs. MANUFACTURERS LIFE INSURANCE CO., thru Philippine Branch, oppositor-appellee. Juan S. Rustia for petitioner and appellant. Peralta & Agrava for oppositor and appellee. TUASON, J.: This is an appeal from the Court of First Instance of Manila which denied a motion of the administratrix in the matter of the testate estate of Basil Gordon Butler (Special Proceedings No. 6218). The motion prayed for the citation of the Manager of the Manila Branch of the Manufacturers Life Insurance Co. of

Toronto, Canada, to appear and under a complete accounting of certain funds the said Branch allegedly has in its possession and claimed to belong to the estate. His Honor, Judge Rafael Amparo of the court below, held that these funds "came into the possession of the Manufacturers Life Insurance Co., Inc., regularly and in due course and, therefore, sees no justifiable ground to require said company to render an accounting thereon." The essential facts are that Basil Gordon Butler, formerly a resident of the Philippines, died in Brooklyn, New York City, in 1945, leaving a will which was duly probated in the Surrogate's Court of New York County on August 3 of the same year, and of which James Ross, Sr., James Madison Ross, Jr. and Ewald E. Selph were named executors. The estate having been settled, the proceedings were closed on July 17, 1947. The will contained this residuary clause: After payment of these legacies and my just debts, including funeral expenses, I devise, give and bequeath all of my remaining estate and personal effects of which I may die possessed to Mercedes de Leon, of Maypajo, Caloocan, Rizal, to wit: the personal effects to be delivered to her for her use and profit; the moneys, securities and other valuable property, not personal effects, to be held in trust for her benefit by my executors, at their absolute discretion, to be administered for her permanent benefit in whatever way they may consider most advantageous in the circumstances existing. Since the said Mercedes de Leon is not of sound judgment, and discretion in the handling of money, it is not my wish that she be given any sums of money other than for her current needs, except as my executors in their judgment deem advantageous to her. In case the amount available for this bequest be sufficient to purchase an adequate annuity, the executors in their discretion may do so. And I attest and direct that I do not wish to intend that the action of my executors upon their discretion in this matter be questioned by anyone whatsoever. For the purpose of carrying out that testamentary provision, James Madison Ross was appointed trustee by the New York County Surrogate's Court on February 4, 1948. Once appointed, and with the beneficiary signing the application with him, Ross bought an annuity from the Manufacturer's life Insurance Co. at its head office in Toronto, Canada, paying in advance $17,091.03 as the combined premiums. The contract stipulates for a monthly payment of $57.60 to Mercedes Benz during her lifetime, with the proviso that in the event of her death, the residue, if any, of the capital sum shall be paid in one sum to James Madison Ross or his successor as trustee. And beginning May 27, 1948, Mercedes de Leon has been receiving the stipulated monthly allowance through the Insurance Company's Manila Office. With the object, so it would seem, of getting hold at once of the entire amount invested in the annuity, Mercedes de Leon on September 4, 1948, presented Butler's will for probate in the Court of First Instance of Manila, and secured the appointment of Ada Loggey Ghezzi as administratrix with the will annexed early in 1949. (James Madison Ross and Ewald E. Selph had expressly declined appointment as executors "on the ground that the probate proceedings of the above estate were terminated by the Surrogate's Court of the County of New York, New York City, U. S. A., and that there are no properties of the estate left to be administered.") After having qualified, the administratrix filed the motion which Judge Amparo has denied; and as the party most if not solely interested in that motion, Mercedes de Leon has joined Ghezzi in this appeal. The administration of Butler's estate granted in New York was the principal or domiciliary administration (Johannesvs. Harvey, 43 Phil., 175), while the administration taken out in the Philippines is ancillary. However, the distinction serves only to distinguish one administration from the other, for the two proceedings are separate and independent. (34 C.J.S. 1232,1233). The important thing to inquire into is the Manila court's authority with respect to the assets herein involved. The general rule universally recognized is that administration extends only to the assets of a decedent found within the state or country where it was granted, so that an administrator appointed in one state or country has no power over property in another state or country. (Keenan vs. Toury, 132 A.L.R. 1362; Nash vs. Benari, 3 A.L.R. 61; Michigan Trust Co. vs. Chaffee, 149 A.L.R. 1078).This principle is specifically embodied in section 4 of Rule 78 of the Rules of Court: Estate, how administered.When a will is thus allowed, the court shall grant letters testamentary, or letters of administration with the will annexed, and such letters testamentary or of administration, shall extend to all the estate of the testator in the Philippines. Such estate, after the payment of just debts and expenses of administration, shall be disposed of according to such will, so far as such will may operate upon it; and the residue, if any, shall be disposed of as is provided by law in cases of estates in the Philippines belonging to persons who are inhabitants of another state or country.

It is manifest from the facts before set out that the funds in question are outside the jurisdiction of the probate court of Manila. Having been invested in an annuity in Canada under a contract executed in the country, Canada is the suits of the money. The party whose appearance the appellant seeks is only a branch or agency of the company which holds the funds in its possession, the agency's intervention being limited to delivering to the annuitant the checks made out and issued from the home office. There is no showing or allegation that the funds have been transferred or removed to the Manila Branch. Even if the money were in the hands of the Manila Branch, yet it no longer forms part of butler's estate and is beyond the control of the court. It has passed completely into the hands of the company in virtue of a contract duly authorized and validly executed. Whether considered as a trust or as simple consideration for the company's assumed obligation, which it has been religiously performing, of paying periodical allowances to the annuitant, the proceeds of the sale can not be withdrawn without the consent of the company, except, upon the death of the annuitant, the residuary legatee may claim the remainder, if there be any. Neither the domiciliary or ancillary executor of Butler's will, nor the trustee, nor the annuitant has disposition of any of these funds beyond the amounts and except upon the conditions agreed upon in the contract for annuity. In the third place, the power of the court to cite a person for the purpose stated in the administratrix's motion is defined in section 7 of Rule 88, which provides. Person entrusted with estate compelled to render account.The court, on complaint of an executor or administrator, with any part the estate of the deceased to appear before it, and may require such person to render a full account, on oath, of the money, goods, chattels, bonds, accounts, or other papers belonging to such estate as came to his possession in trust for such executor or administrator, and for his proceedings thereon; and if the person so cited refuses to appear to render such account, the court may punish him for contempt as having disobeyed a lawful order of the court. The appellant administratrix did not entrust to the appellee the money she wants the latter to account for, nor did the said money come to the appellee's possession in trust for the administratrix. In other words, the administratrix is a complete stranger to the subject of the motion and to the appellee. There being no creditors, the only subject of the motion, we incline to believe, is to enable Mercedes de Leon to get the legacy in a lump sum in complete disregard of the wishes of the testator, who showed deep concern for her welfare, and of the annuity contract which the annuitant herself applied for in conjunction with the trustee. All in all, from every standpoint, including that of the annuitant's financial well-being, the motion and the appeal are utterly groundless and ill-advised. The appealed order therefore is affirmed with costs against the appellants. Rule 78. Letters testamentary and of administration, whne and to whom issued G.R. No. L-20080 March 27, 1923

Intestate estate of the deceased GERONIMA UY COQUE. JUAN NAVAS L. SIOCA, petitioner-appellant, vs. JOSE GARCIA, administrator-appellee. Romualdez Bros. and Pedro C. Mendiola for appellant. Ruperto Kapunan for appellee. OSTRAND, J.: This is an appeal from an order of the Court of First Instance of Samar, dated November 11, 1922, and appointing Jose Garcia, administrator of the estate of the deceased Geronima Uy Coque. The appellant is the surviving spouse of the deceased and maintains that the court erred in not appointing him administrator instead of Jose Garcia. As the refusal to appoint the appellant appears in an order of the court below dated September 30, 1922, from which no appeal has been taken, we might well consider the question raised upon this appeal res adjudicata. For the satisfaction of counsel, we shall, however, briefly state another reason why the appeal must fail.

It is well settled that a probate court cannot arbitrarily and without sufficient reason disregard the preferential rights of the surviving spouse to the administration of the estate of the deceased spouse. But, if the person enjoying such preferential rights is unsuitable, the court may appoint another person. (Paragraph 2 of sec. 642 of the Code of Civil Procedure.) The determination of a person's suitability for the office of administrator rests, to a great extent, in the sound judgment of the court exercising the power of appointment and such judgment will not be interfered with on appeal unless it appears affirmatively that the court below was in error. In the present case the court based its ruling on the fact that it appeared from the record in Civil Case No. 1041 of the same court, that the appellant had adverse interest in the estate of such a character as to render him unsuitable as administrator. Unsuitableness may consist in adverse interest of some kind or hostility to those immediately interested in the estate. (18 Cyc., 93, 94.) The court below therefore stated facts which may constitute sufficient grounds for setting aside the appellant's preferential rights and which, in the absence of proof to the contrary, must be presumed sufficient. Whether they are in fact sufficient, we are not in position to determine as we have not before us the record in the aforesaid case No. 1041; it being a record of the court below, that court could properly take judicial notice thereof, but we cannot. The order appealed from is affirmed, with the costs against the appellant. So ordered. G.R. No. L-17633 October 19, 1966

CIRILO LIM, petitioner-appellant, vs. BASILISA DIAZ-MILLAREZ, oppositor-appellee. Januario L. Jison, Sr. for petitioner-appellant. Amado B. Parreo, Sr. for oppositor-appellee. REGALA, J.: On February 26, 1954, Cirilo Lim, claiming to be a nephew of the late Jose Millarez who died intestate on October 22, 1953, filed with the Court of First Instance of Negros Occidental a petition for his appointment as judicial administrator of the estate of the deceased. The petition alleged that the deceased left no relatives such as descendants, ascendants or surviving spouse, except collaterals. To the said petition, Basilisa Diaz-Millarez, claiming to be a widow of the late Jose Millarez, filed an opposition on two grounds: that the petitioner has an adverse interest in the estate; and that the properties of the estate are the subject matter of a litigation between her as plaintiff and Cirilo Lim as defendant in Civil Case No. 2986. Trial of the case was postponed several times. When the case was called for hearing on March 17, 1959, both parties manifested the existence of a litigation between them over the properties of the estate. Hence, the trial court issued the following order: When this expediente was called for hearing today, Atty. Enrique Mario for the petitioner and Atty. Amado B. Parreo, Sr. for the oppositor appeared. Both manifested that there is an ordinary civil case between the parties herein, that is Basilisa Diaz-Millarez, as plaintiff and Cirilo Lim, as defendant, litigating between them on the ownership of the properties belonging to the deceased Jose Millarez, in the sense that while plaintiff Basilisa Diaz-Millarez in said civil case, now oppositor in the special proceeding alleged that she is the legitimate widow of the deceased Jose Millarez, yet defendant Cirilo Lim in said civil case, now petitioner herein, alleged that he is contesting said allegation because she is not the legitimate spouse of the deceased; that the said civil case was already decided in favor of the defendant therein and against the plaintiff by the Second Sala of this Court and now pending appeal in the Court of Appeals. Under the above considerations, the present expediente is of no consequence. However, upon the final termination of said civil case, the parties concerned without prejudice can file another application for the judicial administration of the property involved in this administration. It is to be noted that this expediente was filed way back on February 26, 1954 that is more than 5 years and neither a special nor a regular administrator has been appointed so that the dismissal of the expediente would not be prejudicial to any of the parties interested in the same. PREMISES CONSIDERED, this expediente is ordered dismissed.

Failing in his motion for the reconsideration of this order, the petitioner, Cirilo Lim, brought the case to the Court of Appeals but that court has certified the appeal to Us for the reason that there is no question of fact involved. Meanwhile, the civil case between the parties which was also elevated to the Court of Appeals (CA-G.R. 24561-R) was decided on February 18, 1965. From the body of the decision, it appears that Basilisa Diaz-Millarez sought to recover from Cirilo Lim one-half of the total amount of P22,000 allegedly delivered to him by her and the deceased Jose Millarez on various occasions and to declare her as the owner of of the profits and gains derived therefrom, on the ground that Jose Millarez and she used to live as husband and wife for about 23 years and as such she is entitled to of the property held in common by them. She asserted further that since she contributed capital and labor to the tobacco business in which she and the deceased were engaged and from which they gave P22,000 in cash to Cirilo Lim, she would be entitled to of the capital and of the proceeds and profits derived from such capital. In answer, Cirilo Lim alleged that the money he received from Jose Millarez on various occasions was handed to one Tan Suaco for investment in the tobacco business. While the trial court, after hearing, ordered Lim to make an accounting of the P22,000 invested in the tobacco business to be submitted to court, the Court of Appeals, on the other hand, made the following conclusion: We agree with the court a quo, that the plaintiff Basilisa is entitled to of the estate of the late Jose because she contributed labor and capital in the form of cash to a common fund with Jose during the period from 1930 up to the date of the death of Jose in 1953. Accordingly, the judgment a quo is set aside and the records of this case are hereby remanded to the courta quo with instructions (1) that it appoints a qualified certified public accountant to examine with painstaking care the documentary evidence presented and to determine how much over and above the amount of P12,500 was invested by the late Jose Millarez and the plaintiff in the tobacco business together with the defendant Lim, and to assess the extent of the profits and gains derived from such investment; (2) to admit such other evidence as the court may consider material and relevant; and (3) to render judgment anew on the basis of the examination to be conducted by the qualified certified public accountant and such further evidence, if any, as shall be presented, adjudicating in favor of the plaintiff Basilisa Diaz-Millarez of the capital and of the profits and gains derived therefrom that properly pertain to the late Jose Millarez after the accounting shall have been accomplished. No pronouncement as to costs. From what appears above, the claim which Basilisa has against Cirilo in the civil case supposed to be now again pending in the trial court, is based on her declared right to one-half of the estate of the deceased. It cannot, therefore, be denied that Cirilo Lim, as a relative of the deceased, has some interest adverse to that of Basilisa. Shown to have some liabilities to Basilisa and to the estate as a whole, Cirilo can not compatibly perform the duties of an administrator. In this jurisdiction, one is considered to be unsuitable for appointment as administrator when he has adverse interest of some kind or hostility to those immediately interested in the estate. (Sioca v. Garcia, 44 Phil. 711; Arevalo v. Bustamante, 69 Phil. 656). The determination of a person's suitability for the office of judicial administrator rests, to a great extent, in the sound judgment of the court exercising the power of appointment and said judgment is not to be interfered with on appeal unless the said court is clearly in error. (Sioca v. Garcia, supra). IN VIEW HEREOF, the order appealed from is hereby affirmed, with costs against the petitionerappellant. G.R. No. 74769 September 28, 1990 BEATRIZ F. GONZALES, petitioner, vs. HON. ZOILO AGUINALDO, Judge of Regional Trial Court, Branch 143, Makati, Metro Manila and TERESA F. OLBES, respondents. Andres V. Maglipon for petitioner. Sycip, Salazar, Hernandez & Gatmaitan for private respondent.

PADILLA, J.:

This is a petition for certiorari which seeks to annul, on the ground of grave abuse of discretion, the Order of the respondent Judge, dated 15 January 1985, cancelling the appointment of the petitioner Beatriz F. Gonzales as a co-administratrix in Special Proceedings No. 021 entitled "In the Matter of the Intestate Estate of RamonaGonzales Vda. de Favis," Branch 143, RTC, Makati, Metro Manila; and the Order of 15 May 1985 denying reconsideration of the same. The facts are: Special Proceedings No. 021, pending before the court a quo, is an intestate proceeding involving the estate of the deceased Doa Ramona Gonzales Vda. de Favis. Doa Ramona is survived by her four (4) children who are her only heirs, namely, Asterio Favis, Beatriz F. Gonzales, Teresa F. Olbes, and Cecilia Favis-Gomez. On 25 October 1983, the court a quo appointed petitioner Beatriz F. Gonzales and private respondent Teresa Olbes as co-administratices of the estate. On 11 November 1984, while petitioner Beatriz F. Gonzales was in the United States accompanying her ailing husband who was receiving medical treatment in that country, private respondent Teresa Olbes filed a motion, dated 26 November 1984, to remove Beatriz F. Gonzales as co-administratrix, on the ground that she is incapable or unsuitable to discharge the trust and had committed acts and omissions detrimental to the interest of the estate and the heirs. Copy of said motion was served upon petitioner's then counsel of record, Atty. Manuel Castro who, since 2 June 1984, had been suspended by the 1 Supreme Court from the practice of law throughout the Philippines. After the filing of private respondent's aforesaid motion, respondent Judge Zoilo Aguinaldo issued an Order dated 4 December 1984 which required Beatriz F. Gonzales and the other parties to file their opposition, if any, thereto. Only Asterio Favis opposed the removal of Beatriz F. Gonzales as coadministratrix, as the latter was still in the United States attending to her ailing husband. In an Order dated 15 January 1985, respondent Judge cancelled the letters of administration granted to Beatriz F.Gonzales and retained Teresa Olbes as the administratrix of the estate of the late Ramona Gonzales. The Court, in explaining its action, stated: . . . In appointing them, the court was of the opinion that it would be to the best interest of the estate if two administrators who are the children of the deceased would jointly administer the same. Unfortunately, as events have shown, the two administrators have not seen eye to eye with each other and most of the time they have been at loggerheads with each other to the prejudice of the estate. Beatriz F. Gonzales has been absent from the country since October, 1984 as she is in the United States as stated in the motion and opposition of Asterio Favis dated December 11, 1984, and she has not returned even up to this date so that Teresa F. Olbes has been left alone to administer the estate. Under these circumstances, and in order that the estate will be administered in an orderly and efficient manner, the court believes that there should be now only one administrator 2 of the estate. Petitioner moved to reconsider the Order of 15 January 1985. Her motion was opposed separately by private respondent Teresa Olbes and another co-heir Cecilia Gomez. In her manifestation and opposition to petitioner's motion for reconsideration, Cecilia Gomez stated that it would be pointless to re-appoint Beatriz F. Gonzales as co-administratrix of Teresa Olbes, as the former would be leaving soon for the United States to attend to unfinished business. Moreover, she expressed satisfaction with the manner respondent Teresa Olbes had been managing and administering the estate. In his Order dated 7 May 1986, a part of which is hereunder quoted, respondent Judge denied petitioner's motion for reconsideration for lack of merit. He said: xxx xxx xxx After a consideration of the motion for reconsideration and the oppositions thereto, the court believes and so holds that it should be denied. The court in its discretion has issued its order dated January 15, 1985 cancelling the appointment and the letters of administration issued to Beatriz F. Gonzales and it reiterates the same for the best interest of the estate of the deceased. It is noteworthy that of the four heirs of the deceased, one of them being the movant Beatriz F. Gonzales, two of them, namely, Cecilia F. Gomez and Teresa F. Olbes, opposed the motion. The other heir Asterio Favis, did not file or make any comment to the motion. As can be gathered from the oppositions of Cecilia F. Gomez and Teresa F. Olbes, the reappointment of Beatriz F. Gonzales as a

co-administratrix would not be conducive to the efficient and orderly administration of the 3 estate of the deceased Ramona Gonzales vda. de Favis. Petitioner contends before this Court that respondent Judge's Order dated 15 January 1985 should be nullified on the ground of grave abuse of discretion, as her removal was not shown by respondents to be anchored on any of the grounds provided under Section 2, Rule 82, Rules of Court, which states: Sec. 2. Court may remove or accept resignation of executor or administrator. Proceedings upon death, resignation or removal If an executor or administrator neglects to render his account and settle the estate according to law, or to perform an order or judgment of the court, or a duty expressly provided by these rules, or absconds, or becomes insane, or otherwise incapable or unsuitable to discharge the trust, the court may remove him, or in its discretion, may permit him to resign. . . . While appellate courts are generally disinclined to interfere with the action taken by the probate court in 4 the matter of removal of an administrator, we find, in the case at bar, sufficient cause to reverse the order of the probate court removing petitioner as co-administratrix of the estate. The rule is that if no executor is named in the will, or the named executor or executors are incompetent, refuse the trust, or fail to give bond, or a person dies intestate, the court must appoint an administrator of 5 the estate of the deceased who shall act as representative not only of the court appointing him but also 6 of the heirs and the creditors of the estate. In the exercise of its discretion, the probate court may appoint one, two or more co-administrators to have the benefit of their judgment and perhaps at all times 7 to have different interests represented. In the appointment of the administrator of the estate of a deceased person, the principal consideration 8 reckoned with is the interest in said estate of the one to be appointed as administrator. This is the same consideration which Section 6 of Rule 78 takes into account in establishing the order of preference in the appointment of administrators for the estate. The underlying assumption behind this rule is that those who will reap the benefit of a wise, speedy, economical administration of the estate, or, on the other hand, suffer the consequences of waste, improvidence or mismanagement, have the highest interest and most 9 influential motive to administer the estate correctly. Administrators have such an interest in the execution of their trust as entitle them to protection from 10 removal without just cause. Hence, Section 2 of Rule 82 of the Rules of Court provides the legal and 11 specific causes authorizing the court to remove an administrator. While it is conceded that the court is invested with ample discretion in the removal of an administrator, it however must have some fact legally before it in order to justify a removal. There must be evidence of an act or omission on the part of the administrator not conformable to or in disregard of the rules or the orders of the court, which it deems sufficient or substantial to warrant the removal of the administrator. In making such a determination, the court must exercise good judgment, guided by law and precedents. In the present case, the court a quo did not base the removal of the petitioner as co-administratrix on any of the causes specified in respondent's motion for relief of the petitioner. Neither did it dwell on, nor determine the validity of the charges brought against petitioner by respondent Olbes. The court based the removal of the petitioner on the fact that in the administration of the estate, conflicts and misunderstandings have existed between petitioner and respondent Teresa Olbes which allegedly have prejudiced the estate, and the added circumstance that petitioner had been absent from the country since October 1984, and up to 15 January 1985, the date of the questioned order. Certainly, it is desirable that the administration of the deceased's estate be marked with harmonious relations between co-administrators. But for mere disagreements between such joint fiduciaries, without 12 misconduct, one's removal is not favored. Conflicts of opinion and judgment naturally, and, perhaps inevitably, occur between persons with different interests in the same estate. Such conflicts, if unresolved by the co-administrators, can be resolved by the probate court to the best interest of the estate and its heirs. We, like petitioner, find of material importance the fact that the court a quo failed to find hard facts showing that the conflict and disharmony between the two (2) co-administratrices were unjustly caused by petitioner, or that petitioner was guilty of incompetence in the fulfillment of her duties, or prevented the management of the estate according to the dictates of prudence, or any other act or omission showing that her continuance as co-administratrix of the estate materially endangers the interests of the estate. Petitioner Beatriz F. Gonzales is as interested as respondent Olbes and the other heirs in that the properties of the estate be duly administered and conserved for the benefit of the heirs; and there is as

yet no ground to believe that she has prejudiced or is out to prejudice said estate to warrant the probate court into removing petitioner as co-administratrix. Respondent Judge removed petitioner Beatriz F. Gonzales as co-administratrix of the estate also on the ground that she had been absent from the country since October 1984 and had not returned as of 15 January 1985, the date of the questioned order, leaving respondent Olbes alone to administer the estate. In her motion for reconsideration of the Order dated 15 January 1985, petitioner explained to the court a quo that her absence from the country was due to the fact that she had to accompany her ailing husband 13 to the United States for medical treatment. It appears too that petitioner's absence from the country was known to respondent Olbes, and that the latter and petitioner Gonzales had continually maintained correspondence with each other with respect to the administration of the estate during the petitioner's 14 absence from the country. As a matter of fact, petitioner, while in the United States, sent respondent Olbes a letter addressed to the Land Bank of the Philippines dated 14 November 1984, and duly authenticated by the Philippine Consulate in San Francisco, authorizing her (Olbes) to receive, and collect the interests accruing from the Land Bank bonds belonging to the estate, and to use them for the 15 payment of accounts necessary for the operation of the administration. The above facts, we note, show that petitioner had never abandoned her role as co-administratrix of the estate nor had she been remiss in the fullfilment of her duties. Suffice it to state, temporary absence in the state does not disqualify one to be an administrator of the estate. Thus, as held in re Mc Knight's Will, a temporary residence outside of the state, maintained for the benefit of the health of the executors' family, is not such a removal from the state as to necessitate his removal as executor. . . . It seems quite clear that a temporary absence from the state on account of ill health, or on account of business or for purposes of travel or pleasure, would not necessarily establish the fact that an executor "has removed" from the estate, within the intent of the statute. The learned surrogate was evidently satisfied that the sojourn of these executors in New Jersey was nothing more than a departure from the state for the benefit of relatives, not designed to constitute a permanent change of abode, and contemplating a return to New York as soon as the purpose of their absence should be accomplished. In this view, I am inclined to think that he was right in refusing to hold that he was constrained to revoke the letters by the provisions of the Code to which I have referred. I 16 therefore advise an affirmance of the order. Finally, it seems that the court a quo seeks refuge in the fact that two (2) of the other three (3) heirs of the estate of the deceased (Teresa Olbes and Cecilia Favis Gomez) have opposed the retention or reappointment of petitioner as co-administratrix of the estate. Suffice it to state that the removal of an administrator does not lie on the whims, caprices and dictates of the heirs or beneficiaries of the estate, nor on the belief of the court that it would result in orderly and efficient administration. In re William's Adm'r., the court held: A county court having appointed a stranger administrator as expressly authorized by Ky. St. 3897, after the relatives of decedent had lost their right of precedence, could not remove the appointee merely because of the request of relatives and the belief upon the part of the court that the best interest of deceased would be thereby subserved, since the administrator had such an interest as entitled him to protection from removal without 17 cause. As the appointment of petitioner Beatriz F. Gonzales was valid, and no satisfactory cause for her removal was shown, the court a quo gravely abused its discretion in removing her. Stated differently, petitioner Beatriz F.Gonzales was removed without just cause. Her removal was therefore improper. WHEREFORE, the petition is GRANTED. The Order of the court a quo dated 15 January 1985 removing petitioner Beatriz F. Gonzales as co-administratrix in Special Proceedings No. 021, entitled "In the Matter of the Intestate Estate of Ramona Gonzales Vda. de Favis" and the Order of the same Court dated 15 May 1985 denying reconsideration of said Order, are hereby REVERSED and SET ASIDE. Petitioner is ordered reinstated as co-administratrix of said estate. SO ORDERED. G.R. No. 101512 August 7, 1992 NILDA GABRIEL, EVA GABRIEL, EDGAR GABRIEL, GEORGE GABRIEL, ROSEMARIE GABRIEL, MARIBEL GABRIEL, CYNTHIA GABRIEL, RENATO GABRIEL, GERARDO GABRIEL, JOJI ZORAYDA GABRIEL, DANIEL GABRIEL and FELICITAS JOSE-GABRIEL, petitioners,

vs. HON COURT OF APPEALS, HON. MANUEL E. YUZON, Judge, Regional Trial Court of Manila, Branch XI, and ROBERTO DINDO GABRIEL, respondents.

REGALADO, J.: In its decision in CA-G.R. SP No. 19797 promulgated on August 23, 1991, respondent Court of Appeals dismissed the petition for certiorari filed by herein petitioners assailing the orders of the lower court in Special Proceeding No. 88-44589 thereof which effectively sustained the appointment of private respondent Roberto Dindo Gabriel as administrator of the estate of the late Domingo Gabriel. Petitioners' present appeal by certiorari would have this Court set aside that decision of respondent court, hence the need to examine the chronology of antecedent facts, as found by respondent court and detailed hereunder, pertinent to and which culminated in their recourse now before us. On May 12, 1988, or nine (9) months after Domingo Gabriel died on August 6, 1987, private respondent filed with the Regional Trial Court of Manila, Branch XI, a petition for letters of administration alleging, among others, that he is the son of the decedent, a college graduate, engaged in business, and is fully capable of administering the estate of the late Domingo Gabriel. Private respondent mentioned eight (8) 2 of herein petitioners as the other next of kin and heirs of the decedent. On May 17, 1988, the court below issued an order setting the hearing of the petition on June 29, 1988, on which date all persons interested may show cause, if any, why the petition should not be granted. The court further directed the publication of the order in "Mabuhay," a newspaper of general circulation, once a week for three (3) consecutive weeks. No opposition having been filed despite such publication of the notice of hearing, private respondent was allowed to present his evidence ex parte. Thereafter, the probate court issued an order, dated July 8, 1988, appointing private respondent as administrator of the 4 intestate estate of the late Domingo Gabriel on a bond of P30,000.00. Subsequently, a notice to creditors for the filing of claims against the estate of the decedent was published in the "Metropolitan News." As a consequence, Aida Valencia, mother of private respondent, filed a "Motion to File Claim of (sic) the Intestate Estate of Domingo P. Gabriel" alleging that the decision in a civil case between her and the deceased remained unsatisfied and that she thereby had an interest 5 in said estate. On December 12, 1988, private respondent filed for approval by the probate court an "Inventory and Appraisal" placing the value of the properties left by the decedent at P18,960,000.00, which incident was 6 set for hearing on January 16, 1989. On February 2, 1989, petitioners Nilda, Eva, Boy, George, Rosemarie, and Maribel, all surnamed Gabriel, filed their "Opposition and Motion" praying for the recall of the letters of administration issued to private respondent and the issuance of such letters instead to petitioner Nilda Gabriel, as the legitimate daughter 7 of the deceased, or any of the other oppositors who are the herein petitioners. After some exchanges and on order of the court, petitioners filed an "Opposition to the Petition and Motion," dated May 20, 1989, alleging that (1) they were not duly informed by personal notice of the petition for administration; (2) petitioner Nilda Gabriel, as the legitimate daughter, should be preferred over private respondent; (3) private respondent has a conflicting and/or adverse interest against the estate because he might prefer the claims of his mother and (4) most of the properties of the decedent have already been relinquished by way of transfer of ownership to petitioners and should not be included in the value of the estate sought to be administered by private respondent. 8 On September 21, 1989, the probate court issued an order denying the opposition of petitioners on the ground that they had not shown any circumstance sufficient to overturn the order of July 8, 1988, in that (1) no evidence was submitted by oppositor Nilda Gabriel to prove that she is a legitimate daughter of the deceased; and (2) there is no proof to show that the person who was appointed administrator is unworthy, incapacitated or unsuitable to perform the trust as to make his appointment inadvisable under these 9 circumstances. The motion for reconsideration filed by petitioners was likewise denied in an order dated 10 December 22, 1989. From said orders, herein petitioners filed a special civil action for certiorari with the Court of Appeals, on the following grounds: 1. The orders of September 21, 1989 and December 22, 1989 are null and void, being contrary to the facts, law and jurisprudence on the matter;
3 1

2. Respondent judge, in rendering the aforesaid orders, gravely acted with abuse of discretion amounting to lack and/or excess of jurisdiction, hence said orders are null and void ab initio; and 3. Private respondent is morally incompetent and unsuitable to perform the duties of an administrator as he would give prior preference to the claims of his mother against the 11 estate itself. As stated at the outset, the Court of Appeals rendered judgment dismissing that petition for certiorari on the ground that the appointment of an administrator is left entirely to the sound discretion of the trial court which may not be interfered with unless abused; that the fact that there was no personal notice served on petitioners is not a denial of due process as such service is not a jurisdictional requisite and petitioners were heard on their opposition; and that the alleged violation of the order of preference, if any, is an error of fact or law which is a mistake of judgment, correctible by appeal and not by the special civil action 12 of certiorari. In the petition for review on certiorari at bar, petitioners primarily aver that under Section 6, Rule 78 of the Rules of Court, it is the surviving spouse who is first in the order of preference for the appointment of an administrator. Petitioner Felicitas Jose-Gabriel is the widow and legal surviving spouse of the deceased Domingo Gabriel and should, therefore, be preferred over private respondent who is one of the illegitimate children of the decedent by claimant. Aida Valencia. Secondly, they claim that assuming that the widow is incompetent, the next of kin must be appointed. As between a legitimate and an illegitimate child, the former is preferred, hence petitioner Nilda Gabriel, as the legitimate daughter, must be preferred over private respondent who is an illegitimate son. Thirdly, it is contended that the non-observance or violation per se of the order of preference already constitutes a grave abuse of discretion amounting to lack of jurisdiction. On the other hand, private respondent contends that the court did not commit a grave abuse of discretion in not following the order of preference because the same is not absolute and the choice of who to appoint rests in the sound discretion of the court. He calls attention to the fact that petitioners Nilda Gabriel and Felicitas Jose-Gabriel never applied for appointment despite the lapse of more than nine (9) months from the death of Domingo Gabriel, hence it was not possible for the probate court to have considered them for appointment. Besides, it is not denied that several properties of the deceased have already been relinquished to herein petitioners, hence they would have no interest in applying for letters of administration. Lastly, private respondent submits that it has not been shown that he is incompetent nor is he disqualified from being appointed or serving as administrator. Section 6, Rule 78 of the Rules of Court provides: Sec. 6. When and to whom letters of administration granted. If no executor is named in the will, or the executor or executors are incompetent, refuse the trust, or fail to give bond, or a person dies intestate, administration shall be granted: (a) To the surviving husband or wife, as the case may be, or next of kin, or both, in the discretion of the court, or to such person as such surviving husband or wife, or next of kin, requests to have appointed, if competent and willing to serve; (b) If such husband or wife, as the case may be, or the next of kin, or the person selected by them, be incompetent or unwilling, or if the husband or widow, or next of kin, neglects for thirty (30) days after the death of the person to apply for administration or to request that administration be granted to some other person, it may be granted to one or more of the principal creditors, if competent and willing to serve; (c) If there is no such creditor competent and willing to serve, it may be granted to such other person as the court may select. (Emphases ours.) Evidently, the foregoing provision of the Rules prescribes the order of preference in the issuance of letters of administration, categorically seeks out the surviving spouse, the next of kin and the creditors, and requires that sequence to be observed in appointing an administrator. It would be a grave abuse of discretion for the probate court to imperiously set aside and insouciantly ignore that directive without any valid and sufficient reason therefor. In the appointment of the administrator of the estate of a deceased person, the principal consideration reckoned with is the interest in said estate of the one to be appointed as administrator. This is the same consideration which Section 6 of Rule 78 takes into account in establishing the order of preference in the appointment of administrators for the estate. The underlying assumption behind this rule is that those who

will reap the benefit of a wise, speedy and economical administration of the estate, or, on the other hand, suffer the consequences of waste, improvidence or mismanagement, have the highest interest and most 13 influential motive to administer the estate correctly. This is likewise the same consideration which the law takes into account in establishing the preference of the widow to administer the estate of her husband upon the latter's death, because she is supposed to 14 have an interest therein as a partner in the conjugal partnership. Under the law, the widow would have the right of succession over a portion of the exclusive property of the decedent, aside from her share in the conjugal partnership. For such reason, she would have as much, if not more, interest in administering 15 the entire estate correctly than any other next of kin. On this ground alone, petitioner Felicitas JoseGabriel, the widow of the deceased Domingo Gabriel, has every right and is very much entitled to the administration of the estate of her husband since one who has greater interest in the estate is preferred to 16 another who has less. Private respondent, however, argues that Felicitas Jose-Gabriel may no longer be appointed administratrix by reason of her failure to apply for letters of administration within thirty (30) days from the death of her husband, as required under the rules. It is true that Section 6(b) of Rule 78 provides that the preference given to the surviving spouse or next of kin may be disregarded by the court where said persons neglect to apply for letters of administration for thirty (30) days after the decedent's death. However, it is our considered opinion that such failure is not sufficient to exclude the widow from the administration of the estate of her husband. There must be a very 17 strong case to justify the exclusion of the widow from the administration. In the case at bar, there is no compelling reason sufficient to disqualify Felicitas Jose-Gabriel from appointment as administratrix of the decedent's estate. Moreover, just as the order of preference is not 18 absolute and may be disregarded for valid cause despite the mandatory tenor in the opening sentence of Rule 78 for its observance, so may the 30-day period be likewise waived under the permissive tone in paragraph (b) of said rule which merely provides that said letters, as an alternative, "may be granted to one or more of the principal creditors." On the other hand, we feel that we should not nullify the appointment of private respondent as administrator. The determination of a person's suitability for the office of judicial administrator rests, to a great extent, in the sound judgment of the court exercising the power of appointment and said judgment is 19 not to be interfered with on appeal unless the said court is clearly in error. Administrators have such a right and corresponding interest in the execution of their trust as would entitle them to protection from removal without just cause. Thus, Section 2 of Rule 82 provides the legal and specific causes authorizing the probate court to remove an administrator. While it is conceded that the court is invested with ample discretion in the removal of an administrator, it must, however, have some fact legally before it in order to justify such removal. There must be evidence of an act or omission on the part of the administrator not conformable to or in disregard of the rules or the orders of the court which it deems sufficient or substantial to warrant the removal of the 20 administrator. In the instant case, a mere importunity by some of the heirs of the deceased, there being no factual and substantial bases therefor, is not adequate ratiocination for the removal of private respondent. Suffice it to state that the removal of an administrator does not lie on the whims, caprices and dictates of the heirs or beneficiaries of the estate. In addition, the court may also exercise its discretion in appointing an administrator where those who are entitled to letters fail to apply therefor within a given 21 time. On the equiponderance of the foregoing legal positions, we see no reason why, for the benefit of the estate and those interested therein, more than one administrator may not be appointed since that is both 22 legally permissible and sanctioned in practice. Section 6(a) of Rule 78 specifically states that letters of administration may be issued to both the surviving spouse and the next of 23 kin. In fact, Section 2 of Rule 82 contemplates a contingency which may arise when there is only one administrator but which may easily be remediable where there is co-administration, to wit: "When an executor or administrator dies, resigns, or is removed the remaining executor or administrator may administer the trust alone, . . . ." Also, co-administration herein will constitute a recognition of both the extent of the interest of the widow in the estate and the creditable services rendered to and which may further be expected from private respondent for the same estate. Under both Philippine and American jurisprudence, the appointment of co-administrators has been upheld for various reasons, viz: (1) to have the benefit of their judgment and perhaps at all times to have different 24 interests represented; (2) where justice and equity demand that opposing parties or factions be 25 represented in the management of the estate of the deceased; 26 (3) where the estate is large or, from any cause, an intricate and perplexing one to settle; (4) to have all interested persons satisfied and the representatives to work in harmony for the best interests of the

estate; and (5) when a person entitled to the administration of an estate desires to have another 28 competent person associated with him in the office. Under the circumstances obtaining herein, we deem it just, equitable and advisable that there be a coadministration of the estate of the deceased by petitioner Felicitas Jose-Gabriel and private respondent Roberto Dindo Gabriel. As earlier stated, the purpose of having co-administrators is to have the benefit of their judgment and perhaps at all times to have different interests represented, especially considering that in this proceeding they will respectively represent the legitimate and illegitimate groups of heirs to the estate. Thereby, it may reasonably be expected that all interested persons will be satisfied, with the representatives working in harmony under the direction and supervision of the probate court. WHEREFORE, the judgment of respondent Court of Appeals is MODIFIED by AFFIRMING the validity of the appointment of respondent Roberto Dindo Gabriel as judicial administrator and ORDERING the appointment of petitioner Felicitas Jose-Gabriel as co-administratrix in Special Proceeding No. 88-4458 of Branch XI, Regional Trial Court of Manila. Rule 79. Opposing Issuances of letters testamentary and of administration, when and to whom issued PILIPINAS SHELL PETROLEUM CORPORATION, petitioner, vs. FIDEL P. DUMLAO, Judge of the Court of First Instance of Agusan Del Norte and Butuan City, BONIFACIO CANONOY, Judicial Administrator of the Estate of Regino Canonoy, CARMEN VDA. DE CANONOY, TEODULO CANONOY, REGINO CANONOY, JR., MARIANITA CANONOY GUINTO and GLORIA CANONOY BASA, respondents. Dominguez & Paderna Law Offices Co. for petitioner. Wenceslao B. Rosales for private respondents.

27

DAVIDE, JR., J.: Brought to focus in this petition are the following issues: (a) whether the jurisdictional facts that need to be stated in a petition for letters of administration under Section 2(a), Rule 79 of the Rules of Court include the specific assertion that the petitioner therein is an "interested person," and (b) whether the administration court may properly and validly dismiss a petition for letters of administration filed by one who is not an "interested person" after having appointed an heir of the decedent as administrator of the latter's intestate estate and set for pre-trial a claim against the said estate Ricardo M. Gonzalez, District Manager of Shell Philippines, Inc. for Mindanao (hereinafter referred to as Shell), filed on 8 January 1973 a petition entitled "In the Matter of the Intestate Estate of the Deceased Regino Canonoy, Petition for Letters of Administration, Ricardo M. Gonzalez, Petitioner" with the then Court of First Instance (now Regional Trial Court) of Agusan del Norte and Butuan City, praying therein that he be appointed judicial administrator of the estate of the deceased Regino Canonoy. The case was docketed as SP PROC. No. 343 and was raffled to Branch II of the trial court. On 27 January 1973, Judge Vicente B. Echavez, Jr. of Branch II issued an Order (1) setting the hearing on the petition for 23 March 1973 at 8:30 a.m.; (2) directing that the order be published, at petitioner's expense, once a week for three (3) consecutive weeks in a newspaper with a nationwide circulation published regularly by a government agency or entity, or in any newspaper published and edited in any part of the country which is in operation during the existence of the present national emergency and of general circulation in the province of Agusan del Norte and in Butuan City, if any there be; and (3) ordering that copies of the order be sent by registered mail or personal delivery, at the petitioner's expense, to each of all the known heirs of the deceased Regino Canonoy, within the periods prescribed 1 by Section 4, Rule 76 of the Rules of Court. In their Opposition to the issuance of letters of administration to Gonzalez filed on 21 March 2 1973, private respondents, who are heirs of Regino Canonoy, allege that: Gonzalez "is a complete stranger to the intestate estate" of Regino Canonoy; he is "not even a creditor" of the estate; he is a resident of Davao City and thus if appointed as administrator of the estate, the bulk of which is located in Butuan City, "he would not be able to perform his duties efficiently;" and he is an employee of Shell Philippines, Inc., an alleged creditor of the estate, and so "he would not be able to properly and effectively protect the interest of the estate in case of conflicts." They, however, "propose" and pray that since Bonifacio Canonoy, one of Regino's sons, enjoys preference in appointment pursuant to Section 6, Rule

78 of the Rules of Court, he should "be appointed administrator of the said intestate estate and the corresponding letters of administration be issued in his favor." On 25 July 1973, after due hearing, the trial court appointed Bonifacio Canonoy as administrator of the 3 intestate estate of Regino Canonoy, having found him competent to act as such. None of the parties moved to reconsider this order or appealed therefrom. On 23 November 1973, herein petitioner Shell, then known as Shell Philippines, Inc., filed its claim against the estate of the deceased Regino Canonoy. The duly appointed administrator, Bonifacio Canonoy, filed on 9 October 1974 a Motion to Dismiss the 4 claim of Shell which the latter contested by filing an Opposition. Shell likewise filed an amended claim 5 against the estate. On 12 May 1975, the administrator filed his Reply to the Opposition to Motion to 6 7 Dismiss. On 25 May 1975, he filed an Answer to the amended claim filed by Shell. In the said Answer, he interposes compulsory counterclaims for the estate in the amount of P659,423.49 representing rentals for land occupied by the Shell Service Station, lighting allowances, allowances for salaries and wages of service attendants, sales commission due the deceased Regino Canonoy and reasonable attorney's fees. Petitioner filed an answer to the Counterclaim. Upon joinder of the issues on Shell's claim, the trial court, this time presided over by respondent Judge 9 Fidel P. Dumlao, set the pre-trial for 15 August 1975. 8 This was later re-set to 23 September 1975. On 18 August 1975, petitioner filed a motion to require the judicial administrator to file an inventory of the 10 properties of the deceased. At the pre-trial held on 23 September 1975, counsel for the administrator requested for time to file a Motion to Dismiss the case. In an Order issued on that date, the court granted him ten (10) days to file the motion; opposing counsel was likewise given ten (10) days from receipt of the same to file whatever pleading he may deem proper to file, after which the motion shall be deemed submitted for 11 resolution. The motion was filed on 30 September 1975. It alleges that the court did not acquire jurisdiction over the subject matter and nature thereof because the petitioner therein, Mr. Gonzalez, is not 12 the "interested person" contemplated by Section 2, Rule 79 of the Rules of Court. Shell filed its 13 Opposition to the Motion on 16 October 1975 on the ground that the trial court had acquired jurisdiction over the case to issue letters of administration as the interest of Gonzalez in the estate is not a jurisdictional fact that needs to be alleged in the petition. If at all, Gonzalez' lack of interest in the estate of the deceased only affected his competence to be appointed administrator. In an Order dated 8 November 14 1975, respondent Judge, finding the motion to be well-taken and meritorious, dismissed the case. The motion for its reconsideration having been denied by the trial court on 23 January 15 1976, Shell filed the instant petition which it denominated as a petition for review on certiorari under Rule 45 of the Rules of Court. In the Resolution dated 6 December 1976, this Court required the respondents to comment on the 16 17 petition; the latter complied with the same on 31 January 1977. Thereafter, on 7 February 1977, this Court resolved, inter alia, to treat the petition for review as a special civil action under Rule 65 of the 18 Rules of Court and require the parties to submit their respective Memoranda; petitioner filed its 19 20 Memorandum on 4 April 1977 while the respondents filed theirs on 3 June 1977. The petition is impressed with merit; it must perforce be granted. Under the peculiar circumstances of the case, the trial court clearly acted with grave abuse of discretion when it dismissed SP PROC. No. 343 after having set for pre-trial petitioner's amended claim against the estate. That said dismissal was predicated solely on the ground that petitioner therein, Ricardo Gonzalez, is not an "interested person," and that, since such interest is a jurisdictional requirement, the trial court acquired no jurisdiction over the case, serves only to compound the error. 1. Section 2, Rule 79 of the Rules of Court provides: xxx xxx xxx Sec. 2. Contents of petition of letters of administration. A petition for letters of administration must be filed by an interested person and must show, so far as known to the petitioner: (a) The jurisdictional facts; (b) The names, ages, and residences of the heirs, and the names and residences of the creditors, of the decedent; (c) The probable value and character of the property of the estate;

(d) The name of the person for whom letters of administration are prayed. But no defect in the petition shall render void the issuance of letters of administration. xxx xxx xxx The jurisdictional facts alluded to are: the death of the testator, his residence at the time of his death in the province where the probate court is sitting or, if he is an inhabitant of a foreign country, his having left 21 22 his estate in such province. These facts are amply enumerated in the petition filed by Gonzalez. The fact of death of the intestate and of his residence within the country are foundation facts upon which all the subsequent proceedings in the administration of the estate rest, and that if the intestate was not an inhabitant of the state at the time of his death, and left no assets in the state, and none came into it afterwards, no jurisdiction is conferred on the court to grant letters of administration in any 23 county. Clearly, the allegation that a petitioner seeking letters of administration is an interested person, does not fall within the enumeration of jurisdictional facts. Of course, since the opening sentence of the section requires that the petition must be filed by an interested person, it goes without saying that a motion to dismiss may lie not on the basis of lack of jurisdiction on the part of the court, but rather on the ground of lack of legal capacity to institute the proceedings. This is precisely what happened in Saguinsin vs. Lindayag, where the dismissal of a petition for letters of administration was affirmed because the petitioner "is not an heir of her deceased sister and, therefore, 25 has no material and direct interest in her estate." In the said case, this Court defined an interested party as one who would be benefited by the estate, such as an heir, or one who has a claim against the estate, 26 such as a creditor; this interest must be material and direct, not merely indirect or contingent. The Saguinsin doctrine is not, however, without exception. An objection to a petition for letters of administration on that ground may be barred by waiver or estoppel. Private respondents herein did not file a motion to dismiss the petition filed by Gonzalez on the ground of 27 lack of capacity to sue; they instead filed an Opposition which, unfortunately, did not ask for the dismissal of the petition but merely opposed the issuance of letters of administration in favor of Gonzalez because, among other reasons, he is a stranger to the estate. The Opposition also proposed that Bonifacio Canonoy, one of the children of the deceased Regino Canonoy, be appointed administrator of the latter's intestate estate. The failure to move for a dismissal amounted to a waiver of the abovementioned ground. Section 8, Rule 15 of the Rules of Court provides that: A motion attacking a pleading or a proceeding shall include all objections then available, and all objections not so included shall be deemed waived. However, if a motion to dismiss is not filed, as what obtains in this case, any of the grounds available for such a motion, except for improper venue, may be pleaded as an affirmative defense, and a preliminary 28 hearing thereon may be had as if a motion to dismiss had been filed. Excepted from the above rules are the following grounds: (a) failure to state a cause of action which may be alleged in a later pleading if one is permitted, or by a motion for judgment on the pleadings, or at the trial on the merits; and (b) lack of 29 jurisdiction over the subject matter of the action, subject to the exception as hereinafter discussed. In Insurance Company of North America vs. C.F. Sharp & Co., Inc.,
30 24

this Court ruled:

Finally, appellant would contend that plaintiff has no capacity to sue and is not the real party in interest. It is now too late to raise these objections here. These should have been asserted in the motion to dismiss filed by defendant below. Not having been included therein, they are now barred by the rule on omnibus motion. By proposing that Bonifacio Canonoy be appointed as administrator instead of Mr. Gonzalez, private respondents have in fact approved or ratified the filing of the petition by the latter. In Eusebio vs. Valmores,
31

We held that: xxx xxx xxx

The evidence submitted in the hearing does not satisfactorily prove that the petitioner was legally adopted; hence, he did not have any interest in the properties of the deceased Rosalia Saquitan. Under ordinary circumstances, such defect would authorize the dismissal of the proceedings especially in view of the fact that the surviving spouse of

Rosalia Saquitan had filed an affidavit of adjudication under the provisions of Section 1 of Rule 74 of the Rules. Counsel for Domingo Valmores, however, had not objected to the application for the appointment of an administrator; he only objected to the appointment of the said stranger Eulogio Eusebio as administrator, claiming to have the right as surviving spouse to be appointed as such administrator. By this act of Domingo Valmores, surviving spouse of the deceased, therefore, the fatal defect in the petition may be considered, as cured. In other words, the filing of the petition for the appointment of an administrator may be considered as having been ratified by the surviving husband, Domingo Valmores, and for this reason the proceedings may not be dismissed. 2. There can be no dispute that the trial court had acquired jurisdiction over SP PROC. No. 343. Immediately after the filing of the case, the trial court complied with Section 3, Rule 79 of the Rules of Court by issuing the Order dated 27 January 1973. At the initial hearing on 25 July 1973, petitioner Gonzalez established the jurisdictional requirements by submitting in evidence proof of publication and service of notices of the petition. Thereafter, it heard the evidence on the qualifications and competence of Bonifacio Canonoy, then appointed him as the administrator and finally directed that letters of administration be issued to him, and that he takes his oath of office after putting up a surety or property 32 bond in the amount of P5,000.00. It is be presumed that Bonifacio Canonoy immediately qualified as administrator because in that capacity, 33 he filed a motion to dismiss petitioner's claim against the estate, a Reply to the Opposition to the motion 34 to dismiss and an Answer to the petitioner's amended claim against the estate wherein he interposed a 35 counterclaim, praying thus: WHEREFORE, it is most respectfully prayed of this Honorable Court to dismiss the above-mentioned "Amended Claim Against the Estate" and to order the claimant to pay into the intestate estate of Regino Canonoy the said sum of P659,423.49, together with the interest thereon at the legal rate beginning from the date hereof, the reasonable attorney's fees for the prosecution of this counterclaim, and costs; OR IN THE ALTERNATIVE, in the event that any sum is found due from and payable by the said intestate estate of Regino Canonoy in favor of the said claimant, the said amount be deducted from the above-mentioned sum and, thereafter, to order the claimant to pay the balance remaining unto the said intestate estate of Regino Canonoy, together with interest thereon at the legal rate beginning from date hereof, the reasonable attorney's fees for the prosecution of this counterclaim, and costs. Clearly, therefore, not only had the administrator and the rest of the private respondents voluntarily submitted to the jurisdiction of the trial court, they even expressly affirmed and invoked such jurisdiction in praying for reliefs and remedies in their favor, namely: (a) denial of Gonzalez' prayer to be appointed as administrator, (b) appointment of Bonifacio Canonoy as administrator, (c) denial of petitioner Shell's amended claim against the estate, and (d) the granting of the counterclaim. Hence, they cannot now be heard to question the jurisdiction of the trial court. While it may be true that jurisdiction may be raised at any stage of the proceedings, a party who has affirmed and invoked it in a particular matter to secure an affirmative relief cannot be allowed to afterwards deny that same jurisdiction to escape penalty. In Tijam, et al. al. vs. Sibonghanoy, et al.,
36

this Court held:

It has been held that a party can not invoke the jurisdiction of a court to secure affirmative relief against his opponent and, after obtaining or failing to obtain such relief, repudiate or question that same jurisdiction (Dean vs. Dean, 136 Or. 694, 86 A.L.R. 79). In the case just cited, by way of explaining the rule, it was further said that the question whether ( sic) the court had jurisdiction either of the subject-matter of the action or of the parties was not important in such cases because the party is barred from such conduct not because the judgment or order of the court is valid and conclusive as an adjudication, but for the reason that such a practice can not be tolerated obviously for reasons of public policy. Furthermore, it has also been held that after voluntarily submitting a cause and encountering an adverse decision on the merits, it is too late for the loser to question the jurisdiction or power of the court (Pease vs. Rathbun-Jones etc., 243 U.S. 273, 61 L. Ed. 715, 37 S. Ct. 283; St. Louis etc. vs. McBride, 141 U.S. 127, 35 L. Ed. 659). And in Littleton vs. Burgess, 16 Wyo. 58, the Court said that it is not right for a party who has affirmed and invoked the jurisdiction of a court in a particular matter to secure an affirmative relief, to afterwards deny that same jurisdiction to escape a penalty.

The respondent Judge should have lent his ears to Tijam vs. Sibonghanoy instead of peremptorily granting the motion to dismiss in an Order which does not even care to expound on why the court found the said motion to be meritorious. He exhibited undue haste in removing the case from his docket and in abdicating judicial authority and responsibility. Howsoever viewed, he committed grave abuse of discretion. WHEREFORE, the instant petition is hereby GRANTED and the Order of respondent Judge of 8 November 1975 in SP PROC. No. 343 is hereby SET ASIDE. The court below is further ordered to hear and decide petitioner's claim against the estate in said case, unless supervening events had occurred making it unnecessary, and to conduct therein further proceedings pursuant to the Rules of Court until the case is closed and terminated. Costs against private respondents. Rule 80. Special Administration ROWENA F. CORONA, petitioner, vs. THE COURT OF APPEALS, ROMARICO G. VITUG, AVELINO L. CASTILLO, NICANOR CASTILLO, KATHLEEN D. LUCHANGCO, GUILLERMO LUCHANGCO, JR., ANTONIO LUCHANGCO, RODOLFO TORRES, REYNALDO TORRES and PURISIMA T. POLINTAN, respondents. N.J. Quisumbing for petitioner. Jose F. Tiburcio for respondents Luchangcos, Torres and Polintan. Ricardo S. Inton for respondents Castillos. Rufino V. Javier for respondent Vitug. & MELENCIO-HERRERA, J.:1wph1.t A Petition to review on certiorari the judgment of the Court of Appeals (CA-G.R. No. 12404-SP) of August 11, 1981, upholding the appointment by the Court of First Instance of Rizal, Pasig, Branch VI, of respondent Romarico G. Vitug, as Special Administrator, although in the Will of his deceased wife, she had disinherited him, as well as the Appellate Court's Resolution of February 17, 1982 denying reconsideration. On November 10, 1980, Dolores Luchangco Vitug died in New York, U.S.A., leaving two Wills: one, a holographic Will dated October 3, 1980, which excluded her husband, respondent Romarico G. Vitug, as one of her heirs, and the other, a formal Will sworn to on October 24, 1980, or about three weeks thereafter, which expressly disinherited her husband Romarico "for reason of his improper and immoral conduct amounting to concubinage, which is a ground for legal separation under Philippine Law"; bequeathed her properties in equal shares to her sisters Exaltacion L. Allarde, Vicenta L. Faustino and Gloria L. Teoxon, and her nieces Rowena F. Corona and Jennifer F. Way; and appointed Rowena F. Corona, herein petitioner, as her Executrix. On November 21, 1980, Rowena filed a petition for the probate of the Wills before the Court of First Instance of Rizal, Branch VI (Spec.Procs. No. 9398), and for the appointment of Nenita P. Alonte as Administrator because she (Rowena) is presently employed in the United Nations in New York City. On December 2, 1980, upon Rowena's urgent Motion, the Probate Court appointed Nenita P. Alonte as Special Administratrix, upon a P100,000.00 bond. On December 12, 1980, the surviving husband, Romarico Vitug, filed an "Opposition and Motion" and prayed that the Petition for Probate be denied and that the two Wills be disallowed on the ground that they were procured through undue and improper pressure and influence, having been executed at a time when the decedent was seriously ill and under the medical care of Dr. Antonio P. Corona,, petitioner's husband, and that the holographic Will impaired his legitime. Romarico further prayed for his appointment as Special Administrator because the Special Administratrix appointed is not related to the heirs and has no interest to be protected, besides, the surviving spouse is qualified to administer.
1

Oppositions to probate with almost Identical arguments and prayers were also filed by respondent (1) Avelino L. Castillo and Nicanor Castillo, legitimate children of Constancia Luchangco, full blood sister of the decedent; (2) Guillermo Luchangco, full blood brother of the decedent; (3) Rodolfo Torres, Reynaldo Torres, and Purisima Torres Polintan, all legitimate children of the deceased Lourdes Luchangco Torres, full blood sister of the decedent. On December 18, 1980, Nenita P. Alonte posted her bond and took her oath of office before a Notary Public. On February 6, 1981, the Probate Court set aside its Order of December 2, 1980 appointing Nenita as Special Administratrix, and appointed instead the surviving husband, Romarico as Special Administrator with a bond of P200,000.00, essentially for the reasons that under Section 6, Rule 78, of the Rules of Court, the surviving spouse is first in the order of preference for appointment as Administrator as he has an interest in the estate; that the disinheritance of the surviving spouse is not among the grounds of disqualification for appointment as Administrator; that the next of kin is appointed only where the surviving spouse is not competent or is unwilling to serve besides the fact that the Executrix appointed, is not the next of kin but merely a niece, and that the decedent's estate is nothing more than half of the unliquidated conjugal partnership property. Petitioner moved for reconsideration with an alternate Motion for the appointment of co-Special Administrators to which private respondents filed their Opposition. Reconsideration having been denied, petitioner resorted to a Petition for certiorari before the Court of Appeals to annul, for having been issued with grave abuse of discretion, the Order setting aside the appointment of Nenita as Special Administratrix and appointing in her stead the surviving spouse Romarico. On August 11, 1981, the Court of Appeals found no grave abuse of discretion on the part of the Probate Court and dismissed the Petition stating that the Probate Court strictly observed the order of preference established by the Rules; that petitioner though named Executrix in the alleged Will, declined the trust and instead nominated a stranger as Special Administrator; that the surviving husband has legitimate interests to protect which are not adverse to the decedent's estate which is merely part of the conjugal property; and that disinheritance is not a disqualification to appointment as Special Administrator besides the fact that the legality of the disinheritance would involve a determination of the intrinsic validity of the Will which is decidedly premature at this stage. On March 24, 1982, petitioner elevated the case to this Court for review on certiorari after her Motion for Reconconsideration was turned down by the Court of Appeals. Petitioner stresses that the order of preference laid down in the Rules should not be followed where the surviving spouse is expressly disinherited, opposes probate, and clearly possesses an adverse interest to the estate which would disqualify him from the trust. The three sets of Oppositors, all respondents herein, in the Comments which they respectively filed, essentially claimed lack of grave abuse of discretion on the part of the Appellate Court in upholding the appointment of the surviving husband as Special Administrator; that certiorari is improper and unavailing as the appointment of a Special Administrator is discretionary with the Court and is unappealable; that coadministratorship is impractical and unsound and as between the surviving husband, who was responsible for the accumulation of the estate by his acumen and who must be deemed to have a beneficial interest in the entire estate, and a stranger, respondent Court had made the correct choice; and that the legality of the disinheritance made by the decedent cannot affect the appointment of a Special Administrator. This Court, in resolving to give due course to the Petition taking into account the allegations, arguments and issues raised by the parties, is of the considered opinion that petitioner's nominee, Nenita F. Alonte, should be appointed as co-Special Administrator. The executrix's choice of Special Administrator, considering her own inability to serve and the wide latitude of discretion given her by the testatrix in her Will (Annex "A-1"), is entitled to the highest consideration. Objections to Nenita's appointment on grounds of impracticality and lack of kinship are over-shadowed by the fact that justice and equity demand that the side of the deceased wife and the faction of the surviving husband be represented in the management of 2 the decedent's estate. En passant, it is apropos to remind the Special Administrators that while they may have respective interests to protect, they are officers of the Court subject to the supervision and control of the Probate Court and are expected to work for the best interests of the entire estate, its smooth administration, and its earliest settlement.

WHEREFORE, modifying the judgment under review, the Court of First Instance of Rizal, Branch VI, is hereby ordered, in Special Proceedings No. 9398 pending before it, to appoint Nenita F. Alonte as coSpecial Administrator, properly bonded, who shall act as such jointly with the other Special Administrator on all matters affecting the estate. G.R. No. 109979 March 11, 1999 RICARDO C. SILVERIO, SR., petitioner, vs. COURT OF APPEALS, SPECIAL SEVENTH DIVISION, HON. FRANCISCO X. VELEZ, Presiding Judge, RTC, Makati, Branch 57 and EDGARDO S. SILVERIO, respondents.

PURISIMA, J.: At bar is a Petition for Review on Certiorari under Rule 45 of the Rules of Court seeking the reversal of 1 2 the Decision of the Court of Appeals (Special Seventh Division) dated January 20, 1993 in CA GR SP No. 29038. On October 7, 1987, Beatriz Silverio died without leaving any will in the Municipality of Makati, Metro Manila, she was survived by the legal heirs, namely: NAMES RELATION 1. Ricardo Silverio Husband 2. Edmundo Silverio Son 3. Edgardo Silverio Son 4. Ricardo Silverio, Jr. Son 5. Nelia Silverio Daughter 6. Ligaya S. dela Merced Daughter
3

On November 12, 1990, or more than three (3) years from the death of the deceased, Edgardo Silverio filed a Petition for Letters of Administration with Branch 57, of the Regional Trial Court in Makati City. On November 28, 1990, he filed an Urgent Petition for Appointment of Special Administrator, alleging that during her marriage with Ricardo Silverio, the deceased acquired real and personal properties in the Philippines and outside the country, the character, identity and aggregate value of which are still undetermined and not known to petitioner except the personal properties estimated to be worth P1,000,000.00; that during the lifetime of the late Beatriz Silverio, the surviving spouse has not made any settlement, judicial or extrajudicial, of the properties of the deceased; that their surviving son, Ricardo Silverio, Jr., has taken control and management of the properties left by the deceased for his own benefit and advantage; that petitioner, one of the legal heirs of the deceased, is competent and willing to act as administrator. On December 4, 1990, the respondent judge issued an Order to the following effect: WHEREFORE, notice is hereby given that said Petition is set for hearing on January 24, 1991 at 8:30 o'clock in the morning, at which date and time, all interested parties are hereby cited to appear and show cause if any they have, why said Petition should not be granted. Let this Order be published at the expense of the Petitioner, once a week for three (3) consecutive weeks in a newspaper of general circulation, the publication of which is to be assigned to the newspaper chosen after the raffle conducted by the Executive Judge of this Court. Likewise, let this Order and the Petition be posted at least two (2) weeks before hearing by the Branch Sheriff at petitioner's expense in the Bulletin Board of the Clerk of Court of Makati, Metro Manila, Municipal Building and Public Market of Makati, Metro Manila.

Let copies of this Order be sent by registered mail to all the surviving heirs of the late 4 BEATRIZ SILVERIO mentioned above. On December 17, 1990, respondent Judge Francisco X. Velez of Branch 57, Regional Trial Court, Makati City, issued the following Order appointing Edgardo Silverio as Special Administrator. WHEREFORE, EDGARDO SILVERIO is hereby appointed as Special Administrator pending appointment of a Regular Administrator and the Branch Clerk of this Court is 5 hereby commissioned to administer the oath of EDGARDO SILVERIO. On January 24, 1991, Ricardo Silverio, Sr. interposed his Opposition to the Petition for Letters of Administration. On February 21, 1997, the private respondent testified or his behalf and was cross-examined on October 7, 1991. The reception of evidence for petitioner was scheduled on October 25 and 28, 1991. However, on October 22, 1991, the petitioner filed an Urgent Motion to Transfer the Hearing to any day during the last week of November or first week of December 1991 because he had a settlement conference in the case against Land Use Development Corporation at Department 8 of the Superior Court of Contra Cost Country at 725, Court Street, Martinez, California, in Case No. C-105-025, entitled Silicor USA, Inc. vs. Kraft Developers, Incorporated, et al. On October 28, 1991, the trial judge declared that the failure of petitioner to appear and adduce evidence on his behalf amounted to a waiver of his right to present evidence; ratiocinating, thus: When this case was called for hearing today for the start of the reception of the evidence for the Oppositor, Ricardo Silverio, Sr., counsel for the said Oppositor instead invited the attention of this Court to this URGENT, MOTION FOR TRANSFER OF HEARING dated October 21, 1991 and pointed out to this Court that the said motion was also intended to postpone the hearing set for today. For his part, petitioner's counsel thereupon reiterated his vehement objection to another postponement, pointing out that eventhough the said oppositor filed his OPPOSITION herein as early as January 1991, yet the said Oppositor never has appeared personally nor exerted any effort to prosecute his Opposition and has instead, employed all means to postpone or otherwise defer the reception of his evidence, even after the herein petitioner had been designated by this Court as Special Administrator (see our Order of December 17, 1990). Petition's counsel also pointed out that the opposing counsel is aware that he resides in Sydney, Australia and incurs substantial expenses everytime he comes to the Philippines for the hearing of this case, and then only to be faced by a postponement sought each time by the oppositor's counsel. This Court recalls the setting of this case on October 25 and 28, 1991 were fixed after the oppositor's counsel assured this Court that the oppositor would return from the United States for this purpose. Yet again, we are now confronted with another effort of the oppositor to postpone the hearing of this case, despite the petitioner's own open court motion to consider the oppositor as having waived his right to adduce evidence in support of his petition. Since there is no indication whatever that the oppositor is serious in his opposition, other than the assurances of his counsel which have all turned out to be false inasmuch as the oppositor has never appeared as promised since January of this year, thereby resulting in the undue delay bereft of any progress in this present case, the court hereby to consider the failure of the Oppositor Ricardo Silverio, Sr. to appear or present evidence in his behalf as a waiver of his right to present evidence in support of his 6 opposition. On October 29, 1991, the respondent judge appointed the private respondent as regular administrator in an Order stating: WHEREFORE, EDGARDO SILVEREO is hereby appointed as regular ADMINISTRATOR of the Intestate Estate of the late Beatriz Silverio to serve with a P200,000.00 bond. He is hereby required to take possession and management of all the real and personal estate of the deceased and shall return to this Court a true inventory and appraisal of all the properties of the deceased which shall come into his possession 7 and knowledge within three (3) months from date thereof. xxx xxx xxx

On November 19, 1991, the Oppositor presented an Omnibus Motion to transfer the hearing set on June 4, 1992 on the ground that oppositor movant was preoccupied with a) post-election matters and b) preparation for his assumption of office as Congressman for the Third District of Bulacan, but the said motion was denied on June 4, 1992, respondent Judge ruling, as follows: In response thereto, the petitioner's counsel registered his vehement objections to the postponement, first upon the ground that the excuse given in the said motion is not a valid ground for the cancellation of hearing. Furthermore, according to petitioner's counsel, the hearing today was set as a result of a joint agreement of the contending counsels arrived in open Court during the last hearing on Feb. 5, 1991 and that said petitioner's counsel was not given ample time to react thereto because the said motion was filed only last June 1, 1992 and the said petitioner's counsel has not even received yet a copy thereof. Moreover, petitioner's counsel likewise recalled to the Court that he agreed to postpone his cross-examination of the Oppositor during the last hearing of this case upon the declared agreement for its resumption set for today. Lastly, petitioner's counsel complains that both the respondent and his counsel are aware of the fact that petitioner's counsel is domiciled in Sydney, Australia and it has cost a lot of time, effort and money for the said petitioner's counsel to travel to the Philippines in order to be present in court today, and only to find out that both Oppositor and his counsel have not appeared. As correctly concluded by the petitioner's counsel, the Oppositor and his counsel have no legal ground to presume that their motion for transfer of hearing will be 8 approved by this Court. So also, on August 17, 1992, the respondent judge denied the Motion for Reconsideration filed by the petitioner on June 29, 1992. On September 23, 1992, Ricardo C. Silverio Sr. filed a Petition for Certiorari with Prayer for a Writ of Preliminary Injunction, Prohibition and/or Restraining Order with the Court of Appeals docketed as CA GR SP No. 29038, seeking to annul and set aside the following orders of the respondent judge, to wit: a) Order dated December 17, 1990 appointing Private Respondent as Special Administrator; b) Order dated October 28, 1991; c) Order dated October 29, 1991 appointing Private Respondent as Regular Administrator; d) Order dated June 4, 1992; e) Order dated August 17, 1992.
9

On January 20, 1993, the respondent court dismissed for lack of merit the petition for certiorari, pursuant to Section 2(c), Rule 6 of the Revised Internal of the Court of Appeals, ratiocinating thus: First of all, with respect to respondent Judge Benito of Branch 152, RTC of Makati, there is no showing that said respondent has acted with grave abuse of discretion, amounting to lack or in excess of jurisdiction in Civil Case No. 11-9146. When private respondent filed the said civil case, he had been appointed as special administrator by respondent Judge Velez of Branch 57 of the same court in Sp. Proc M-2629. . . . Secondly, petitioner is estopped by laches from questioning the validity of the Order December 17, 1990 appointing private respondent as special administrator considering that he participated in the subsequent proceedings without assailing said order in due time. xxx xxx xxx . . . The petition failed to show that respondent Judge was whimsical or capricious in issuing said orders. It is evident from said orders that the herein petitioner has not been true to his assurance that he will be present the next hearing agreed upon by the parties. ... xxx xxx xxx

The rule is clear and unequivocal. It does not provide that the surviving spouse takes precedence exclusive of and over all other heirs of the deceased in the appointment of the administrator. . . . Lastly, . . . If at all an error is committed by respondent Judge Velez, it is an error of judgment that is correctible only by appeal. Errors of judgment are not within the province of a special civil action for certiorari(Purefoods Corp vs. NLRC 171 SCRA 475) Petitioner made mention of an appeal brought by him to this Court but a verification from the Judicial Records Division does not show that an appeal from the orders appointing private respondent as regular and denying petitioner's motion for reconsideration has 10 been perfected. . . . On April 27, 1993, respondent court denied the motion for reconsideration of its Decision dated February 8, 1993. Undaunted, petitioner found his way to this Court via the present petition for review on certiorari, contending that: I RESPONDENT COURT COMMITTED GRAVE ABUSE OF DISCRETION IN HOLDING THAT PETITIONER WAS NOT DENIED DUE PROCESS OF LAW. II RESPONDENT COURT ERRED IN ITS INTERPRETATION THAT SECTION 6, RULE 11 78 OF THE REVISED RULES OF COURT DOES NOT PROVIDE FOR AN ORDER OF PREFERENCE IN THE APPOINTMENT OF THE ADMINISTRATOR. III RESPONDENT COURT ERRED IN NOT RULING THAT PRIVATE RESPONDENT HAS NOT SATISFACTORY ESTABLISHED BY AT LEAST AN IOTA OF PROOF THAT HE IS 12 QUALIFIED AND COMPETENT TO ACT AS ADMINISTRATOR. On July 26, 1993, the private respondent sent in a Comment, stating as follows: Another cognate reason that militates against the appointment of petitioner as administrator, is his utter failure to show that he is a fit and proper person to discharge the duties of an administrator. The conduct of the petitioner in relation to the management of the assets of the conjugal partnership between petitioner and the deceased spouse betrays his moral fitness to act as administrator of the intestate estate of the decedent. Petitioner was not only cheating on his wife by maintaining illicit relationship with another woman. He was also at the same time systematically stripping assets of their conjugal partnership then under his administration. During the period covering June, 1965, June 1971 and February, 1974 the petitioner, acting in his capacity as administrator/trustee of the conjugal partnership between him and his wife Beatriz S. Silverio, and using funds of said conjugal partnership, purchased three (3) properties situated at North Forbes, Makati, Metro Manila, Old Forbes, Makati, Metro Manila, and Bel Air, Makati, Metro Manila. In breach of his fiduciary duty as administrator of the said conjugal partnership, and without the knowledge and consent of his wife Beatriz, petitioner fraudulently and surreptitiously caused the said properties to be registered in the names of three (3) illegitimate children with his mistress Carmen Zuniga, in order to place said properties beyond the reach of his lawful wife Beatriz Silverio. To deprive further his legitimate wife of her lawful share in, the conjugal assets, petitioner removed assets of the conjugal partnership from the Philippines and invested them in California, U.S.A. under either his name and/or corporation, to the exclusion of his legal wife. Thus, having stripped the conjugal partnership of assets, no reasonable mind can perceive the petitioner, as administrator, bringing suit against himself for the recovery of those assets of the conjugal partnership, which he had fraudulently removed and concealed for his own benefit and advantage.

In the meantime, private respondent, as administrator, had already succeeded in identifying four (4) valuable real properties belonging to the conjugal partnership of petitioner and the deceased Beatriz S. Silverio. Suits have been commenced for the recovery of said properties from the present registered owners holding the same for petitioner. . . . Amended Complaint filed by the private respondent, as administrator of the intestate estate of the late Beatriz S. Silverio, against petitioner Ricardo C. Silverio, Sr. and his alter ego Pilipinas Development Corporation, docketed as Civil Case No. 91-1146 RTC Makati. . . . Amended Complaint-in-intervention filed by the private respondent herein, as administrator, against petitioner Ricardo C. Silverio, Sr. and his three (3) illegitimate children with Carmen Zuniga, docketed as Civil Case No. 17467, RTC Makati, for the recovery of three (3) valuable real properties placed by petitioner in the names of his illegitimate children. xxx xxx xxx Aside from the conflict of interest, the moral reputation and integrity of petitioner is dubious- if not totally wanting, as evidenced by the news item in the Philippine Daily Inquirer last April 23, 1991, which reported that the Supreme Court upheld action taken by a Cebu Judge to cancel the bailbond of businessman Ricardo C. Silverio, Sr., who had allegedly delayed the resolution of tax evasion charges filed against him. . . . xxx xxx xxx In sheer desperation to oust private respondent as administrator of the intestate estate of the late Beatriz S. Silverio, petitioner's counsel, with a measure of haughtiness unworthy of his professional calling, embarked in character assassination by wilfully ( sic) and unlawfully labeling the private respondent as a greedy and avaricious person, and fabricating an alleged unholy alliance among the private respondent, Biomega Corporation, and creditors of petitioners and Delta Motor Corporation. Petitioner meticulously alleges that "respondent through Biomega Corporation with offices at No. 384 E. Rodriguez Avenue, Cubao, Quezon City, offered their services to collect whatever claims Toyota Motor Corporation has with Delta Motor Corporation and advised Toyota Motor Corporation that they had definite information concerning assets pertaining to Delta Motor Corporation and the petitioner, both in the Philippines and overseas that are held in the names of third parties." xxx xxx xxx In resorting to character assassination, the motive of petitioner is highly suspicious. Firstly, private respondent was never a subscriber, director, or officer of any entity known as Biomega Corporation; secondly, verification with the Securities and Exchange Commission discloses that Biomega Corporation is non-existent; thirdly, it is unthinkable that a letter supposedly addressed to a certain Masao Mitake, President of Toyota Motor Philippines, Inc., would be sent to Atty. Marcelo P. Villanueva; and lastly, the interest of Delta Motor Corporation is totally separate and distinct from that of the intestate estate of the late Beatriz S. Silverio, so much so that even granting for argument's sake that private respondent proposes to act in behalf of Toyota Motor Corporation to recover its claims against Delta Motor Corporation, such actuation has no bearing or relevance to 13 the administration of the intestate estate of the late Beatriz S. Silverio. . . . On August 18, 1993, Ricardo C. Silverio, Sr. filed a Reply alleging, among others: Private respondent attached in his Comment a news clipping from the Philippine Daily Inquirer dated April 23, 1991 . . . wherein it was reported that "In a decision the tribunal upheld the action taken by a Cebu Judge to cancel the bail bond of businessman Ricardo Silverio, Sr., who had allegedly delayed the resolution of the tax evasion charges filed against him during the Marcos regime due to frequent trips abroad". Private respondent has been capitalizing on this alleged "tax evasion charges". The case referred to is Crim. Case No. CBU-6304 entitled "People of the Phils. vs. Ricardo C. Silverio, Sr.,et al" for violation of Securities Act and not for tax evasion. Petitioner in the said case was charged together with some officers of Philippine Underwriters and Finance Corporation in his capacity as Chairman of the Board of the defunct financing company. The case is still pending in the sala of Judge Ramon Gaviola of Cebu where Petitioner herein has filed a Demurrer to the Evidence. Petitioner has since then been given clearance to travel. xxx xxx xxx

Private Respondent does not have the business acumen that his stepfather has. It is of public knowledge that Petitioner has built a business empire from car assembly to appliance manufacturing banking and finance, to shipping and mining and real estate. Private respondent endeavored to show conflict of interest which are merely gratuitous allegations. xxx xxx xxx
14

On September 7, 1993, the petitioner presented a Supplemental Reply to the Comment. Attached thereto was the Information in Criminal Case No. CBU-6394, entitled: "People of the Philippines vs. Ricardo Silverio, Sr., Hermilo Rodis, Sr., Edgar Quinto, Ruben Rodis, Jose A.M. Flores and Douglas San Diego; "For Violation of Section 20(4) of the Revised Securities Act". In his Rejoinder dated October 13, 1993, private respondent asserted that: In the t instant case, petitioner gratuitously concludes that he can no longer avail of the remedy provided for by Section 2, Rule 82 of the Rules of Court "because the appeal had been perfected and respondent Judge has lost jurisdiction over the case. With respect, it is submitted that such conclusion is unwarranted and completely erroneous. The mere perfection of an appeal from an Order appointing a regular administrator does not deprive the intestate court of jurisdiction to entertain application for removal of an administrator pursuant to Section 2, Rule 82 of the Rules of Court. An appeal from said Order does not stay the implementation thereof, especially where administrator appointed has taken his oath and commenced to discharge the duties of his office as such. Hence, the original record of the case remains with the intestate court, so that the intestate court may deal with other matters related to the administration of the estate of the deceased. xxx xxx xxx In any event, there is nothing on record to show that petitioner was indeed preoccupied with his alleged legal struggle in the U.S. over the administration of the estate of the deceased in the United States. Besides, the existence of any legal contest between petitioner and his son, Ricardo S. Silverio, Jr., in the United States, is not a legal impediment to the filing of the proper petition for letters of administration over the estate of the deceased spouse in the proper courts of the Philippines. Anent the allegation that private respondent has not presented up to now any evidence that petitioner was not only cheating on his wife by maintaining illicit marital relationship with another woman, and systematically stripping assets of their conjugal partnership then under administration, the Court may please take judicial notice that in Civil Case No. 17467 of the Regional Trial Court, Makati, Metro Manila, entitled "Edgardo S. Silverio, as special administrator of the intestate estate of the late BEATRIZ S. SILVERIO vs. Maria Rowena Z. Silverio De Los Reyes, Ricardo C. Silverio, Sr., et al., petitioner candidly admitted that during the lifetime of his legal wife Beatriz Silverio, he was cohabiting with a certain Carmen Zuniga with whom he has three (3) children, namely, Maria Rowena Z. Silverio, Maria Roxanne Z. Silverio, and Ricardo Z. Silverio III. Petitioner also admitted in said civil case that he purchased three (3) valuable real properties in Cambridge Circle, North Forbes, Intsia Street, Old Forbes, and Taurus Street, Bel Air, all in Makati, Metro Manila, and placed said properties in the names of his three (3) illegitimate children. . . . Be that as it may, is (sic) a person charged of violation of the Securities Act morally forthright and honest? The Court may please take judicial notice that many investors of Philfinance, Inc., a corporation of which petitioner is either a stockholders, ( sic) directors, (sic) and/or officers, (sic) lost their lifesavings as a result of the serious breach of the Securities Act by the officers of said corporation. . . . But this imaginary business acumen of the petitioner is not enough to warrant his appointment as administrator of the estate of his deceased spouse, for it is also of public knowledge that petitioner built his business empire during the time his crony, Ferdinand Marcos, was President of the Philippines. As well, it is also of public knowledge that petitioner succeeded in managing his companies into bankruptcy, so much so that none of the alleged businesses built by petitioner is presently operating.

xxx xxx xxx More significantly, the private respondent has demonstrated his competence and fitness as administrator of the intestate estate of the late Beatriz Silverio. Just recently, the private respondent has obtained a judgment in Civil Case No. 1746 of the Regional Trial Court, Makati, Metro Manila, entitled "Edgardo S. Silverio, etc. vs Ricardo C. Silverio, Sr., et al.," whereby the defendants were ordered to reconvey the three (3) real properties placed by petitioner in the names of his illegitimate children to the conjugal partnership of petitioner and the late Betriz S. Silverio. Petitioner received a copy of said decision, through the counsel, on 31 August 1993, and no appeal has been taken therefrom by petitioner notwithstanding the lapse of the period for perfecting an appeal. . . . . . . there are indications that the letters addressed to Mr. Masao Mitake and Toyota Motor Corporation, Tokyo, Japan, are fabricated, particularly the transmission thereof to petitioners counsel. The Honorable Court may please take note that it takes the fastest facsimile machine (GROUP III) at least one (1) minute to transmit one (1) page of a document. Yet, as indicated in the notation on each of the letters allegedly received by petitioner's counsel, each letter bears the notation "10/03/91 at 14.24" indicating that all 15 the three letters were sent at 14:25 or 2:25 pm, which is physically impossible. On November 4, 1993, the petitioner filed a Respectful Manifestation as regards the order of acquittal in Crim. Case No. CBU-6304 for violation of the Securities Act and not for tax evasion issued by Hon. Judge 16 Benigno Gaviola of Branch 9, Regional Trial Court, Cebu City. On June 28, 1996, petitioner filed a Respectful Urgent Manifestation and Motion for the Issuance of a Temporary Restraining Order and/or Early Resolution, alleging: 4. That on April 22, 1996, Petitioner received through the undersigned counsel a "Petition To Allow Claim Against the Estate and For Annotation of Attorney's Lien filed by Atty. Cesar P. Uy, counsel of Private Respondent Edgardo S. Silverio. In this Petition, Counsel of Private Respondent Edgardo S. Silverio claims that he is entitled to Thirty three and one-third (33 1/3%) percent of the fair market value of the properties he allegedly recovered for the estate of Beatriz S. Silverio as Intervenor in Civil Case No. 17467 of the Regional Trial Court, Makati, Branch 143 as his attorney's fees as counsel of the "Administrator" Edgardo S. Silverio. Atty. Uy estimated that the said properties have a total value of P450,000,000.00, more or less. Not only did Atty. Uy claim that Edgardo S. Silverio is the "Administrator" but he also peremptorily changed the caption of the case in Branch 57, RTC, Makati from "Edgardo S. Silverio, Petitioner" to "Edgardo S. Silverio, Administrator". . . . . . . It is the respectful submission of the Petitioner herein that Respondent Judge Francisco X. Velez, whose Orders are being subject of review should wait for the Decision/Resolution of this Honorable Supreme Court. . . . xxx xxx xxx 8. . . . despite Petitioner's plea that Respondent Judge should wait for the resolution/decision of this Honorable Supreme Court as a matter of judicial courtesy and respect to this Honorable Supreme Court and not to pre-empt the decision that might be rendered by this Honorable Supreme Court in the above-entitled case, Respondent Judge appears to have shown undue interest in the case, bias and partiality towards. Private Respondent Edgardo S. Silverio and his counsel Atty. Cesar P. Uy. xxx xxx xxx 10. That on the same date, June 21, 1996, Petitioner herein filed a "Motion To Inhibit" addressed to Respondent Judge for him to voluntarily inhibit himself from hearing the "PETITION TO ALLOW CLAIM AGAINST THE ESTATE AND FOR ANNOTATION OF ATTORNEY'S LIEN" and for presiding in the SUBSEQUENT HEARINGS for the settlement of the INTESTATE ESTATE OF THE LATE BEATRIZ S. SILVERIO and that the case before Respondent Judge be re-raffled for assignment to another branch of the Regional Trial Court, Makati City, in order to avoid any suspicion of bias, partiality and/or 17 prejudice and in the interest of substantial justice. . . . On July 10, 1996, Edgardo S. Silverio filed his Comment the said motion for the issuance of a temporary retraining order, theorizing that the relief sought by the petitioner should be threshed out in a separate

proceeding instead of cluttering the records of this case. He added that according to Section 1(e), Rule 109 of the Revised Rules of Court which provides that "no appeal shall be allowed from the appointment of a special administrator", the Order appointing a special administrator of a decedent could not be stayed by a special civil action of certiorari, considering that such order is usually issued as dictated by the urgent need of an administrator to preserve the estate of the deceased person. Anent Petitioner's Motion for Inhibition, private respondent placing reliance on Sections 4 and 5 of Rule 15 of the Revised Rules of Court and Philippine Virginia Tobacco Administration vs. De los Angeles, G.R. No 27829, August 19, 1988, and Sembrano vs. Ramirez, G.R. No. L-45447, September 28, 1988; maintains that the same must be denied since it did not contain a notice of hearing and was addressed to the Branch Clerk of Court and not to the parties. The allegation of bias or partiality without a recitation of facts constituting the alleged bias or partiality is insufficient to disqualify a judge or deny him the authority to proceed with the case and it carries with it the insidious insinuation of malice on the part of the respondent judge, highly offensive, disparaging, and clear insult to the judicial officer without justifiable cause. Meanwhile, on July 17, 1996, Edmundo S. Silverio, one of the heirs, presented a Manifestation and Motion, contesting the appointment of Edgardo S. Silverio as regular administrator without his knowledge and consent and questioning why publication was resorted to instead of personal notice for him to timely object to the said appointment. On August 19, 1996, Ricardo C. Silverio filed a Supplemental to Respectful Urgent Manifestation and Motion for the Issuance of the Temporary Restraining Order and/or Early Resolution, which is the subject of the Order of the respondent judge, dated July 31, 1996, which reads: Accordingly, the Court hereby: (1) approves the Agreement for Attorney's Contingent Fee and allows the herein movant the corresponding claim against the estate of the deceased Beatriz S. Silverio equivalent to 33 1/3 percent of the fair market value of all the properties recovered by the said petitioner's counsel including the properties recovered in CV 17467 which originated from Br. 143 of the Regional Trial Court of Makati; (2) directs the Register of Deeds of Makati City to annotate forthwith in the proper books of his office and in the original copies of TCT Nos. (147129) 137156, (436570) 137155 and (36986) 337033 or any other transfer certificate of titles issued in lieu thereof the movant's claim of attorney's fees equivalent to 33 1/3 percent of all recovery for the estate of the late Beatriz S. Silverio; and (3) authorizing and ordering the Administrator to sell any and/or all of the aforesaid real properties for such amount or amounts approximating their fair market value and to pay out from the proceeds of such sale the corresponding attorney's fees of petitioner's counsel Atty. Cesar P. Uy equivalent to 33 1/3 percent of the fair market value of the fair market of the aforementioned three properties recovered by said petitioner's counsel for 18 the benefit of the intestate estate of Beatriz S. Silverio. On October 10, 1996, Ricardo C. Silverio filed a Reply alleging that: In the aforesaid Order dated July 31, 1996, respondent Judge Francisco X. Velez approved the Agreement for Attorney's Contingent Fee which was allegedly entered into by Atty. Cesar P. Uy with private respondent on January 21, 1991 for his approval. This alleged agreement was not previously submitted to respondent Judge immediately after January 21, 1991 for his approval. Neither were the heirs specially the petitioner herein informed of the unconscionable agreement which will give to Atty. Cesar P. Uy 33 1/3 percent of the estate to the prejudice of the heirs. For the subject properties, which according to Atty. Cesar P. Uy is estimated to have a fair market value of P450,000,000.00, the latter claims that he is entitled to 33 1/3 percent or P150,000,000.00, much bigger than the share of the petitioner who is a partner in the conjugal properties and an heir expects to get. . . . Even assuming arguendo that the appointment of Edgardo Silverio as a special administrator was valid and that his act of retaining Atty. Cesar P. Uy as counsel for the subject estate for a contingent fee of 33-1/3 % of any recovery was also valid, the Order of July 31, 1996 nevertheless erred in awarding to Atty. Cesar P. Uy a 33-1/3 % interest

in the three Makati real properties. The reason is that Atty. Uy was retained only as counsel for the subject estate and not for herein petitioner. Petitioner herein was already represented by the law firm of Quisumbing Torres and Evangelista in Civil case No. 17467 where the three Makati properties were recovered. The said law firm was also representing the original plaintiff Nelia Silverio Dee. Nelia Silverio Dee who was the first to prosecute the cause of action to declare the defendants holding title to the Makati properties in trust for the conjugal partnership, and for reconveyance thereof to the conjugal partnership. . . . xxx xxx xxx Respondent judge has no power of authorize, the private respondent Edgardo S. Silverio to sell the conjugal partnership properties and even real properties of the estate to pay the attorney's fees of Atty. Cesar P. Uy. The Special Administrator may only sell properties which are perishable and personal properties not real properties in pursuance of his responsibility to preserve the estate and it is for the best interest of the estate. A special administrator may be allowed to sell the properties of the estate if the purpose is to preserve the properties and its value but not payment of debts. (Public Administrator vs. Burdell, 4 Brad, Surr. (N.Y.) 252). The order of respondent judge authorizing private respondent to sell the subject properties or any portion thereof to pay to pay (sic) alleged attorney's fees of Atty. Cesar P. Uy in the estimated amount of P150,000,000.00 is definitely a grave abuse of judicial discretion amounting to lack of jurisdiction. This is not preservation but dissipation of the estate. xxx xxx xxx The properties which form part of the conjugal assets and the estate were accumulated through the efforts of petitioner and private respondent must not be allowed to dilute the same to his advantage and to the detriment of the other heirs and therefore must be stopped. The interest of the private respondent in the estate is only 1/8 as against petitioner herein and the other heirs supporting petitioner which is 7/8. Respondent Judge did not consider these facts in all his actuations. xxx xxx xxx . . . and that the motion is not a contentious and litigious pleading. The petition is devoid of merit. To begin with, petitioner contends that he was denied due process of law when the respondent judge considered his failure to be present on October 28 and 29, 1991 and adduce evidence on his behalf as a waiver of his right. After a careful study, the Court is of the view, and so holds, that contrary to petitioner's contention, the respondent judge did not err in so ruling, as it is evident from the Decision of the respondent court that the petitioner was not sincere in his own motion made in open court to attend the scheduled hearings for the reception of evidence. Well settled to the point of being elementary is the doctrine that the findings by the trial courts are binding on appellate courts and will not be disturbed on appeal. After a thorough review and examination of the evidence on hand, we discern no ground or basis for disregarding the findings and conclusion arrived at by the respondent judge. xxx xxx xxx Factual findings of the trial court shall not be disturbed on appeal unless the trial court has overlooked or ignored some fact or circumstance of sufficient weight or significance which, if considered, would alter the situation. . . . (The Heirs of Felicidad Canque, et al. v. Court of Appeals, etal., 275 SCRA 741) . . . applicable here, is the hornbook precept that factual findings of the trial court, specially when affirmed by the Court of Appeals, are deemed final and conclusive by this
19

Court when supported by substantial evidence. (Ugddan v. Court of Appeals, et al., 275 SCRA 35). . . Factual findings of the Court of Appeals are final and may not be reviewed on appeal by the Supreme Court except when the lower court and the Court of Appeals arrived at diverse factual findings. (Yobido et al v. Court of Appeals et al., 281 SCRA 1) . . . Where the factual findings of both the trial court and the Court of Appeals coincide, the same are binding on the Supreme Court. . . . (National Steel Corporation v. Court of Appeals, et al., 283 SCRA 45) With respect to the contention that petitioner was denied due process, the same is also untenable, it appearing from the records of the case that petitioner was amply given the opportunity to present his evidence, which he, however, waived. In a long line of decisions, this Court ruled that: xxx xxx xxx The essence of due process is to be found in the reasonable opportunity to be heard and submit any evidence one may have in support of one's defense. (Salonga v. Court of Appeals, 269 SCRA 534, PMI Colleges v. National Labor Relations Commission, 277 SCRA 462) What is repugnant to due process is the denial of the opportunity to be heard. (Garment and Textile Export Board v. Court of Appeals, 268 SCRA 258) There is no denial of due process where a party was given an opportunity to be heard. (Gutierrez v. Commission on Elections, 270 SCRA 413) The essence of due process is simply an opportunity to be heard and not that an actual hearing should always and indispensably be held. (Conti v. Labor Relations Commission, 271 SCRA 114) The essence of due process is simply an opportunity to be heard. Ysmael v. Court of Appeals, 273 SCRA 165 and Carvajal v. Court of Appeals, 280 SCRA 351) A formal type or trial-type hearing is not at all times and in all instances essential to due process the requirements of which are satisfied where the parties are afforded fair and reasonable opportunity to explain their side of the controversy. (Taberrah v. National Labor Relations Commission, 276 SCRA 431) For as long as the parties are given the opportunity to be heard before judgment is rendered, the demands of due process are sufficiently met. (Bangalisan v. Court of Appeals, 276 SCRA 619) As long as the party was given an opportunity to defend her interests in due course, she cannot be said to have been denied due process of law, for this opportunity to be heard is the very essence of due process. (Legarda v. Court of Appeals, 280 SCRA 642) Anent the issue concerning the interpretation of Section 6, Rule 78 of the Revised Rules of Court, we are of the view, and so hold, that the order of preference in the appointment of an administrator depends on the attendant facts and circumstances. In the case under consideration, the appointment of Edgardo S. Silverio as administrator is proper. Although in the case of Intestate Estate of the deceased Geronima Uy Coque. Juan Navas L. Sioca vs. Jose Garcia, 44 Phil 711[1923], this Court held that: A probate court cannot arbitrarily disregard the preferential rights of the surviving spouse to the administration of the estate of a deceased person; but if the person enjoying such preferential rights is unsuitable the court may appoint another person. In the same case, the court disregarded the order of preference ratiocinating, thus: . . . The determination of a person's suitability for the office of administrator rests, to a great extent, in the sound judgment of the court exercising the power of appointment and

such judgment will not be interfered with on appeal unless it appears affirmatively that the court below was in error. . . . Unsuitableness for appointment as administrator may consist in adverse interest of some kind or hostility to those immediately interested in the estate. . . . In the case of Esler vs. Tad-y, 46 Phil 854, this Court answered in the affirmative the query whether the probate court, in the exercise of its discretion, may disregard the order of preference to the administration, set forth in the Rules of Court. The deceased left a widow and a minor child. A person named as executor in a will which was not probated because not executed according to law was appointed administrator. The widow appealed on the ground that such administrator should not have been appointed without her consent. HELD: If the administrator was appointed by the trial court for the estate in accordance with Rule 79, section 6 of the Rules of Court, the trial court had discretion to issue the letters of administration to any of the persons mentioned in said section, and unless there has been an abuse of discretion, which does not appear to 20 have been committed in the present case, appointment shall not be revoked on appeal. So, also, in the case of Villamor vs. Court of Appeals, 162 SCRA 578, 579, this Court held that: We do not consider as "intriguing" the observation of the lower court and concurred in by the Court of Appeals that in both Special Proceedings in question, the administrators appointed were complete strangers to the decedents. There is nothing repulsive in this nor is this an indicium of fraud and collusion as found by the courts. Section 642 of the Code of Civil Procedure enumerates the persons who can act as executors and administrators. It provides that in case the persons who have the preferential right to be appointed are not competent or are unwilling to serve, administration may be granted to such other person as the court may appoint. And in the case of En el intestado del finado BERNABE BUSTAMANTE. RUFINA AREVALO contra JOSE BUSTAMANTE, ET AL., 69 Phil 656, [1940], the Court said: No es ciertamente destitucion la cue le hizo cesar en el cargo al apelante , porque destitucion supone siempre correccion o castigo, sino revocacion de la orden en virtud de la cual fue nombrado Administrador judicical, por causa de incapacidad. Es que en esta jurisdiccion, como ya se ha resuelto, el tener interes adverso a los de una Testamentaria o un Intestado, o a los de aquellos que estan interesados en ellos, es motivo suficiente de incapacidad para ser nombrado Administrador judicial de cualquiera de los mismos. . . . The appointment of a special administrator in a probate case lies in the sound discretion of the court, and he may be removed without reference to section 653 of the Code of Civil Procedure. (De Gala v. Gonzales and Ona, 53 Phil 104 [1929]) We discern no ground to disregard the finding of the respondent judge and the respondent court on the competence of the decedent's son, Edgardo S. Silverio, to act as administrator. His appointment as special, and later, as the regular administrator is sanctioned by law. Petitioner's Respectful Urgent Manifestation and Motion for the Issuance of a Temporary Restraining Order and/or Early Resolution on the Petition to Allow Claim against the Estate and for the Annotation of Attorney's Lien filed by counsel for private respondent, which was favorably acted upon by the respondent court, is impressed with merit. The respondent court is not vested with the power to order the special administrator to sell real properties of the estate pending determination of the validity of the regular administrator's appointment, pursuant to Section 2, Rule 80 of the Revised Rules of Court, which provides: Powers and duties of special administrator. Such special administrator shall take possession and charge of the goods, chattels, rights, credits, and estate of the deceased and preserve the same for the executor or administrator afterwards appointed, and for that purpose may commence and maintain suits as administrator. He may sell only such perishable and other property as the court orders sold. A special administrator shall not be liable to pay any debt of the deceased unless so ordered by the court. In the case of Testamentary Proceedings, Estate of the Deceased Juan Pimentel. Tecla Arganda v. Velez et al., Vol. XXXV, No. 134 O. G. 2429, the Court found, that:

Under the title "Sale of Estate" in Chapter XXXVI of the Code of the Civil Procedure, and the provisions which it comprises, from Section 714 to 724, the Code treats of and designates the powers of the Court of First Instance in testamentary and intestate proceedings, in connection with the sale of property belonging to the Estate. By virtue of the authority conferred by sections 714 to 724, the court may grant permission or authority for the sale of said property upon previous petition of the executor or administrator, provided the legal requirements are complied with, and the grounds required by the law in each case provided for in the above-mentioned sections are shown. The executor or administrator must comply with the rules established by section 722 of the Code. Of course in exercising its powers, when the court is convinced that a sufficient valid reason exists, it may order the executor or administrator to request permission or authority to sell property; but it cannot directly order its sale, because that would be neglecting to comply with the rules which must be observed before granting the said permission or authority. Section 722 requires that satisfactory proof be adduced and that the rules established in the first paragraphs be complied with, before granting the permission or authority to the executor or administrator. (Baun v. Heirs of Baun, 53 Phil., 654) With the exception of the case provided for in section 717 regarding the sale of the entire personality or part thereof for the purpose of preserving the other property of the deceased, and of that provided for in section 720 with reference to the sale of realty acquired by the executor or administrator by virtue of the execution of a judgment or the foreclosure of a mortgage the legal provisions above referred to, only recognize as a ground for the court to authorize the sale of the estate of a deceased person subject to administration, the application of its proceeds to the payment of the debts or expenses of administration or the settlement of any legacy (secs. 714, 715, 716, 717, 718, 719 and 721). As a rule and as a matter of courtesy and respect, the respondent court has to wait for the Decision of this Court before ruling on the matter of the claim for agreed contingent attorney's fees by Atty. Cesar P. Uy, amounting to thirty three and one third (33 1/3 %) per cent of the fair market value of the recovered properties. However, the issue has become moot and academic in light of the finding by this Court that Edgardo Silverio has been duly appointed as regular administrator. As regards the Motion to Inhibit the respondent judge, respondent Judge Francisco X. Velez may 21 voluntarily inhibit himself pursuant to Section 1(2), Rule 137 of the Revised Rules of Court and in line with the following ruling of this court: . . . no judge should not handle a case in which he might be perceived, rightly or wrongly, to be susceptible to bias and partiality. His judgment must not be tainted by even the slightest suspicion of improbity or preconceived interest. The rule is aimed at preserving at all times the faith and confidence in courts of justice by any party to the litigation. . . . (Urbanes, Jr. v. Court of Appeals, 236 SCRA 72, 77) However, this is not the attendant circumstance in this case. Petitioner's mere allegation of partiality and bias without the supporting facts is insufficient for the respondent judge to be required to decline from presiding over the subsequent proceedings. We are of the view that it does not constitute "just and valid reason". WHEREFORE, the Petition is partly granted and the Decision of the Court of Appeals AFFIRMED except the Order of Judge Francisco X. Velez, dated July 31, 1996, approving the Petition to Allow Claim for the Estate and for Annotation of Attorney's Lien which is SET ASIDE. No pronouncement as to costs.