G.R. No.

82027 March 29, 1990

ROMARICO G. VITUG, petitioner,
vs.
THE HONORABLE COURT OF APPEALS and ROWENA
FAUSTINO-CORONA, respondents.
Rufino B. Javier Law Office for petitioner.
Quisumbing, Torres & Evangelista for private respondent.

The trial courts 6 upheld the validity of this agreement and

granted "the motion to sell some of the estate of Dolores L.
Vitug, the proceeds of which shall be used to pay the personal
funds of Romarico Vitug in the total sum of P667,731.66 ... ." 7
On the other hand, the Court of Appeals, in the petition for
certiorari filed by the herein private respondent, held that the
above-quoted
survivorship
agreement
constitutes
a
conveyance mortis causa which "did not comply with the
formalities of a valid will as prescribed by Article 805 of the
Civil Code," 8 and secondly, assuming that it is a mere
donation inter vivos, it is a prohibited donation under the
provisions of Article 133 of the Civil Code. 9

SARMIENTO, J.:
This case is a chapter in an earlier suit decided by this Court 1
involving the probate of the two wills of the late Dolores
Luchangco Vitug, who died in New York, U. S.A., on November
10, 1980, naming private respondent Rowena Faustino-Corona
executrix. In our said decision, we upheld the appointment of
Nenita Alonte as co-special administrator of Mrs. Vitug's estate
with her (Mrs. Vitug's) widower, petitioner Romarico G. Vitug,
pending probate.
On January 13, 1985, Romarico G. Vitug filed a motion asking
for authority from the probate court to sell certain shares of
stock and real properties belonging to the estate to cover
allegedly his advances to the estate in the sum of
P667,731.66, plus interests, which he claimed were personal
funds. As found by the Court of Appeals, 2 the alleged
advances consisted of P58,147.40 spent for the payment of
estate tax, P518,834.27 as deficiency estate tax, and
P90,749.99 as "increment thereto." 3 According to Mr. Vitug,
he withdrew the sums of P518,834.27 and P90,749.99 from
savings account No. 35342-038 of the Bank of America,
Makati, Metro Manila.

The dispositive portion of the decision of the Court of Appeals

states:
WHEREFORE, the order of respondent Judge dated
November 26, 1985 (Annex II, petition) is hereby set aside
insofar as it granted private respondent's motion to sell certain
properties of the estate of Dolores L. Vitug for reimbursement
of his alleged advances to the estate, but the same order is
sustained in all other respects. In addition, respondent Judge is
directed to include provisionally the deposits in Savings
Account No. 35342-038 with the Bank of America, Makati, in
the inventory of actual properties possessed by the spouses at
the time of the decedent's death. With costs against private
respondent. 10
In his petition, Vitug, the surviving spouse, assails the
appellate court's ruling on the strength of our decisions in
Rivera v. People's Bank and Trust Co. 11 and Macam v.
Gatmaitan 12 in which we sustained the validity of
"survivorship agreements" and considering them as aleatory
contracts. 13
The petition is meritorious.

On April 12, 1985, Rowena Corona opposed the motion to sell

on the ground that the same funds withdrawn from savings
account No. 35342-038 were conjugal partnership properties
and part of the estate, and hence, there was allegedly no
ground for reimbursement. She also sought his ouster for
failure to include the sums in question for inventory and for
"concealment of funds belonging to the estate." 4
Vitug insists that the said funds are his exclusive property
having acquired the same through a survivorship agreement
executed with his late wife and the bank on June 19, 1970. The
agreement provides:
We hereby agree with each other and with the BANK OF
AMERICAN
NATIONAL
TRUST
AND
SAVINGS
ASSOCIATION (hereinafter referred to as the BANK), that all
money now or hereafter deposited by us or any or either of us
with the BANK in our joint savings current account shall be the
property of all or both of us and shall be payable to and
collectible or withdrawable by either or any of us during our
lifetime, and after the death of either or any of us shall belong
to and be the sole property of the survivor or survivors, and
shall be payable to and collectible or withdrawable by such
survivor or survivors.
We further agree with each other and the BANK that the
receipt or check of either, any or all of us during our lifetime, or
the receipt or check of the survivor or survivors, for any
payment or withdrawal made for our above-mentioned account
shall be valid and sufficient release and discharge of the BANK
for such payment or withdrawal. 5

The conveyance in question is not, first of all, one of mortis

causa, which should be embodied in a will. A will has been
defined as "a personal, solemn, revocable and free act by
which a capacitated person disposes of his property and rights
and declares or complies with duties to take effect after his
death." 14 In other words, the bequest or device must pertain
to the testator. 15 In this case, the monies subject of savings
account No. 35342-038 were in the nature of conjugal funds In
the case relied on, Rivera v. People's Bank and Trust Co., 16
we rejected claims that a survivorship agreement purports to
deliver one party's separate properties in favor of the other, but
simply, their joint holdings:
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... Such conclusion is evidently predicated on the assumption

that Stephenson was the exclusive owner of the fundsdeposited in the bank, which assumption was in turn based on
the facts (1) that the account was originally opened in the
name of Stephenson alone and (2) that Ana Rivera "served
only as housemaid of the deceased." But it not infrequently
happens that a person deposits money in the bank in the name
of another; and in the instant case it also appears that Ana
Rivera served her master for about nineteen years without
actually receiving her salary from him. The fact that
subsequently Stephenson transferred the account to the name
of himself and/or Ana Rivera and executed with the latter the
survivorship agreement in question although there was no
relation of kinship between them but only that of master and
servant, nullifies the assumption that Stephenson was the
exclusive owner of the bank account. In the absence, then, of

clear proof to the contrary, we must give full faith and credit to
the certificate of deposit which recites in effect that the funds in
question belonged to Edgar Stephenson and Ana Rivera; that
they were joint (and several) owners thereof; and that either of
them could withdraw any part or the whole of said account
during the lifetime of both, and the balance, if any, upon the
death of either, belonged to the survivor. 17
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In Macam v. Gatmaitan, 18 it was held:

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This Court is of the opinion that Exhibit C is an aleatory

contract whereby, according to article 1790 of the Civil Code,
one of the parties or both reciprocally bind themselves to give
or do something as an equivalent for that which the other party
is to give or do in case of the occurrence of an event which is
uncertain or will happen at an indeterminate time. As already
stated, Leonarda was the owner of the house and Juana of the
Buick automobile and most of the furniture. By virtue of Exhibit
C, Juana would become the owner of the house in case
Leonarda died first, and Leonarda would become the owner of
the automobile and the furniture if Juana were to die first. In
this manner Leonarda and Juana reciprocally assigned their
respective property to one another conditioned upon who might
die first, the time of death determining the event upon which
the acquisition of such right by the one or the other depended.
This contract, as any other contract, is binding upon the parties
thereto. Inasmuch as Leonarda had died before Juana, the
latter thereupon acquired the ownership of the house, in the
same manner as Leonarda would have acquired the ownership
of the automobile and of the furniture if Juana had died first. 19
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There is no showing that the funds exclusively belonged to one

party, and hence it must be presumed to be conjugal, having
been acquired during the existence of the marita. relations. 20
Neither is the survivorship agreement a donation inter vivos,
for obvious reasons, because it was to take effect after the
death of one party. Secondly, it is not a donation between the
spouses because it involved no conveyance of a spouse's own
properties to the other.
It is also our opinion that the agreement involves no
modification petition of the conjugal partnership, as held by the
Court of Appeals, 21 by "mere stipulation" 22 and that it is no
"cloak" 23 to circumvent the law on conjugal property relations.
Certainly, the spouses are not prohibited by law to invest
conjugal property, say, by way of a joint and several bank
account, more commonly denominated in banking parlance as
an "and/or" account. In the case at bar, when the spouses
Vitug opened savings account No. 35342-038, they merely put
what rightfully belonged to them in a money-making venture.
They did not dispose of it in favor of the other, which would
have arguably been sanctionable as a prohibited donation. And
since the funds were conjugal, it can not be said that one
spouse could have pressured the other in placing his or her
deposits in the money pool.

ART. 2010. By an aleatory contract, one of the parties or both

reciprocally bind themselves to give or to do something in
consideration of what the other shall give or do upon the
happening of an event which is uncertain, or which is to occur
at an indeterminate time.
Under the aforequoted provision, the fulfillment of an aleatory
contract depends on either the happening of an event which is
(1) "uncertain," (2) "which is to occur at an indeterminate time."
A survivorship agreement, the sale of a sweepstake ticket, a
transaction stipulating on the value of currency, and insurance
have been held to fall under the first category, while a contract
for life annuity or pension under Article 2021, et sequentia, has
been categorized under the second. 25 In either case, the
element of risk is present. In the case at bar, the risk was the
death of one party and survivorship of the other.
However, as we have warned:
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But although the survivorship agreement is per se not contrary

to law its operation or effect may be violative of the law. For
instance, if it be shown in a given case that such agreement is
a mere cloak to hide an inofficious donation, to transfer
property in fraud of creditors, or to defeat the legitime of a
forced heir, it may be assailed and annulled upon such
grounds. No such vice has been imputed and established
against the agreement involved in this case. 26
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There is no demonstration here that the survivorship

agreement had been executed for such unlawful purposes, or,
as held by the respondent court, in order to frustrate our laws
on wills, donations, and conjugal partnership.
The conclusion is accordingly unavoidable that Mrs. Vitug
having predeceased her husband, the latter has acquired upon
her death a vested right over the amounts under savings
account No. 35342-038 of the Bank of America. Insofar as the
respondent court ordered their inclusion in the inventory of
assets left by Mrs. Vitug, we hold that the court was in error.
Being the separate property of petitioner, it forms no more part
of the estate of the deceased.
WHEREFORE, the decision of the respondent appellate court,
dated June 29, 1987, and its resolution, dated February 9,
1988, are SET ASIDE.
No costs.
SO ORDERED.

G.R. No. L-42088 May 7, 1976

The validity of the contract seems debatable by reason of its
"survivor-take-all" feature, but in reality, that contract imposed
a mere obligation with a term, the term being death. Such
agreements are permitted by the Civil Code. 24
Under Article 2010 of the Code:

ALFREDO G. BALUYUT, petitioner,

vs.
HON. ERNANI CRUZ PAO, ENCARNACION LOPEZ VDA.
DE BALUYUT, JOSE ESPINO and CORAZON ESPINO,
respondents.

Mary Concepcion-Bautista for petitioner.

Santiago, Salunat and Agbayani for respondent Encarnacion
Lopez Vda. de Baluyut.

At the hearing of Mrs. Baluyut's urgent motion on November

17, 1975 no oral and documentary evidence was presented.
The lower court merely examined Mrs. Baluyut as follows:
Court:

We want also to hear her testimony.

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AQUINO, J.:
Sotero Baluyut died in Manila on January 6, 1975 at the age of
eighty-six, leaving an estate allegedly valued at not less than
two million pesos.

Atty. Salunat:
We are now therefore presenting the widow,
your Honor, to take the witness stand for examination by the
court.
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A few weeks later, or on February 20, his nephew, Alfredo G.

Baluyut, filed in the Court of First Instance of Quezon City a
verified petition for letters of administration. He alleged that the
deceased was survived by his widow, Encarnacion Lopez, who
was mentally incapable of acting as administratrix of the
decedent's estate. Alfredo surmised that the decedent had
executed a will. He prayed that he be appointed regular
administrator and in the meantime as special administrator.
The lower court in its order of February 24, 1975 appointed
Alfredo G. Baluyut as special administrator with a bond of
P100,000.

The lower court in its order of March 24, 1975 cancelled

Baluyut's appointment as special administrator. In that same
order the lower court noted that after asking Mrs. Baluyut a
series of questions while on the witness stand, it found that she
"is healthy and mentally qualified".
Alfredo G. Baluyut moved for the reconsideration of that order.
Acting on that motion, the lower court in its order of March 31,
1975 appointed Baluyut and Jose Espino as special
administrators.
Mrs. Baluyut in her verified amended opposition of September
2, 1975 asked that Espino, former governor of Nueva Vizcaya
and an alleged acknowledged natural child of Sotero Baluyut,
be appointed administrator should she not be named
administratrix.

Q.

Ilocano? A. No, your Honor.

Atty. Salunat:
She can testify in Tagalog your Honor, which
comprehensible.
Court: Your remember when you were born, Mrs. Baluyut?
A. March 25, 1901.
Where did you graduate? Madres Dominicas.

Q.
When did you get married to Sec. Baluyut? A. I
cannot remember the date but this was in Lingayen.
Q.

What church? A. A Catholic.

Court:

You want to ask more questions Attorney?

Atty. Salunat:
Honor.

Alfredo G. Baluyut opposed the urgent motion. He alleged that

Espino was not a natural child of Sotero Baluyut because
Espino's parents were the spouses Elino Espino and Josefa de
Guzman. Alfredo further alleged that Mrs. Baluyut was
declared an incompetent by the Juvenile and Domestic
Relations Court of Quezon City in its order of September 25,
1975 in Special Proceeding No. QC-00939 for the
guardianship of Mrs. Baluyut. That proceeding was instituted
by her sisters, Cristeta Lopez Vda. de Cuesta and Guadalupe
Lopez-Viray.

Just a few clarificatory questions, your

Q.

Do you know Gov. Espino? A. Yes.

Q.
to me.

Why do you know him? A. Because he is like a son

Q.
Do you know whether Gov. Espino has any
relationship with the late Don Sotero Baluyut? A. Yes, why
not.
Q.
Will you please tell us what is the relationship if there
is any? A. He is his son, sir.
Atty. Salunat:

On November 12, 1975 Mrs. Baluyut filed an urgent motion

praying that she be appointed administratrix. She reasoned out
that Alfredo G. Baluyut had no more interest in the decedent's
estate because as a collateral relative he was excluded by
Espino and other supposed descendants of the deceased who
had intervened in the proceeding, and, therefore, it was not
necessary to continue with the reception of his evidence.

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Court to witness: Can you testify in English?-No, your Honor,

Pampango.

Q.
Mrs. Baluyut in her verified opposition of March 8, 1975 alleged
that she was unaware that her deceased husband executed a
will. She characterized as libelous the allegation as to her
mental incapacity. She prayed that she be named
administratrix and that the appointment of Alfredo G. Baluyut
as special administrator be set aside.

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Court:

I think that would be all, your Honor.

Submitted?

Atty. Salunat:
We will ask the Court to (be allowed to)
submit a rejoinder, your Honor.
The probate court in its order of November 27, 1975
terminated the appointments of Espino and Alfredo G. Baluyut
as special administrators and appointed Mrs. Baluyut as
regular administratrix with a bond of P20,000. The order was
based on the fact that as surviving spouse she has a
preferential right to be appointed as administratrix of her
deceased husband's estate and that she is entitled to threefourths of the conjugal estate: one-half in her own right and
one-fourth as heir of the deceased. The lower court said it was
convinced of the widow's capacity and that her "sufficient
understanding" justified her appointment.

Letters of administration were issued to Mrs. Baluyut after she

posted her bond. She took her oath of office on November 29,
1975.

qualifications and affording oppositors a chance to contest the

petition (Matute vs. Court of Appeals, L-26106, January 31,
1969, 26 SCRA 768, 791).

On December 13, 1975 Alfredo G. Baluyut filed against

respondent Judge, Mrs. Baluyut and the Espino spouses this
special civil action of certiorari in order to set aside the order of
November 27 appointing Mrs. Baluyut as administratrix.

In this case the probate court briefly and perfunctorily

interrogated Mrs. Baluyut in order to satisfy itself on her mental
capacity. The court did not give Alfredo G. Baluyut a chance to
contest her qualifications. He had squarely raised the issue as
to her competency. The probate court assumed that

This court issued a restraining order enjoining the respondents

from enforcing the order of November 27 and from disposing of
the funds or assets of the estate in their possession or
deposited in certain banks.
The Espino's in their comment alleged that Alfredo G. Baluyut
is aware that Jose Espino was acknowledged in a notarial
instrument by Sotero Baluyut as his natural child.
Mrs. Baluyut in her comment alleged that Alfredo G. Baluyut
instituted the administration proceeding after he had failed to
get from her a cheek for P500,000 belonging to the decedent's
estate and that he grossly misrepresented that she was
mentally incompetent. She further alleged that the order of the
Juvenile and Domestic Relations Court declaring her an
incompetent was issued in a blitzkrieg manner because it was
based on the report of Doctor Lourdes V. Lapuz which was
filed in court just one day before the order was issued.
Mrs. Baluyut's main contention is that it is the probate court
and not the Juvenile and Domestic Relations Court that should
decide the issue as to her competency to act as administratrix.
Alfredo G. Baluyut in his manifestation of February 2, 1976
disclosed that Sotero Baluyut executed a notarial will on April
14, 1973. In that will he bequeathed to Mrs. Baluyut his onehalf share in certain conjugal assets and one-fourth of the
residue of his estate. The remaining three-fourths were
bequeated to his collateral relatives named Irene, Erlinda,
Estrellita, Eliseo and Alfredo, all surnamed Baluyut, and
Emerita, Emilio and Benjamin, all surnamed Miranda. The
testator designated Mrs. Baluyut as executrix. Espino is not
mentioned in that will.
In this Court's resolution of May 7, 1976 respondents'
comments were treated as their answers. The case was
deemed submitted for decision.
The issue is whether the lower court acted with grave abuse of
discretion in appointing Mrs. Baluyut as administratrix.
We hold that while the probate court correctly assumed that
Mrs. Baluyut as surviving spouse enjoys preference in the
granting of letters of administration (Sec. 6[a), Rule 78, Rules
of Court), it does not follow that she should be named
administratrix without conducting a full-dress hearing on her
competency to discharge that trust.
Even the directive of the testator in his will designating that a
certain person should act as executor is not binding on the
probate court and does not automatically entitle him to the
issuance of letters testamentary. A hearing has to be held in
order to ascertain his fitness to act as executor. He might have
been fit to act as executor when the will was executed but
supervening circumstances might have rendered him unfit for
that position.
Thus, it was held that a hearing is necessary in order to
determine the suitability of the person to be appointed
administrator by giving him the opportunity to prove his

Alfredo G. Baluyut had no interest in the decedent's estate. As

it now turned out, he is one of the legatees named in the
decedent's alleged will.
Moreover, it is necessary to convert the proceeding in the
lower court into a testamentary proceeding. The probate of the
will cannot be dispensed with and is a matter of public policy
(Art. 838, Civil Code; See. 1, Rule 75, Rules of Court; Guevara
vs. Guevara, 74 Phil. 479 and 98 Phil. 249).
After the will is probated, the prior letters of administration
should be revoked and proceedings for the issuance of letters
testamentary or of administration under the will should be
conducted (Sec. 1, Rule 82, Rules of Court; Cartajena vs.
Lijauco and Zaballa, 38 Phil. 620; Rodriguez vs. De Borja, L21993, 64 O.G. 754, 17 SCRA 418).
Whether Sotero Baluyut died testate or intestate, it is
imperative in the interest of the orderly administration of justice
that a hearing be held to determine Mrs. Baluyut's fitness to act
as executrix or administratrix. Persons questioning her
capacity should be given an adequate opportunity to be heard
and to present evidence.
The lower court departed from the usual course of probate
procedure in summarily appointing Mrs. Baluyut as
administratrix on the assumption that Alfredo G. Baluyut was
not an interested party. That irregularity became more
pronounced after Alfredo G. Baluyut's revelation that the
decedent had executed a will. He anticipated that development
when he articulated in his petition his belief that Sotero Baluyut
executed wills which should be delivered to the court for
probate.
Certiorari lies when a grave abuse of discretion was patently
committed by the lower court or if the petitioner's contention is
clearly tenable or when the broader interests of justice or
public policy justify the nullification of the questioned order
(Manila Electric Company and Sheriff of Quezon City vs. Hon.
Enriquez and Espinosa, 110 Phil. 499, 503; Pacheco vs.
Tumangday and Fernando, 108 Phil. 238; Raneses vs. Teves,
L-26854, March 4, 1976).
Before closing, a pending incident herein should be resolved.
Alfredo G. Baluyut in his motion of January 15, 1976 prayed
that respondent Judge be enjoined from acting on Mrs.
Baluyut's motion for the appointment of Espino as special
administrator. In view of Alfredo G. Baluyut's manifestation of
April 2, 1976 that his motion had become moot, the same is
hereby denied.
WHEREFORE, the lower court's order of November 27, 1975
appointing Mrs. Baluyut as administratrix is set aside. The
letters of administration granted to her are cancelled. The
probate court is directed to conduct further proceedings in
consonance with the guidelines delineated in this decision.
Costs against respondent Mrs. Baluyut.

SO ORDERED.

G.R. No. L-23445

declared that the will has been duly authenticated.2 But

petitioner and oppositors, in the court below and here on
appeal, travelled on the issue of law, to wit: Is the will
intrinsically a nullity?
June 23, 1966

REMEDIOS NUGUID, petitioner and appellant,

vs.
FELIX NUGUID and PAZ SALONGA NUGUID, oppositors
and appellees.
Custodio O. Partade for petitioner and appellant.
Beltran, Beltran and Beltran for oppositors and appellees.
SANCHEZ, J.:
Rosario Nuguid, a resident of Quezon City, died on December
30, 1962, single, without descendants, legitimate or
illegitimate. Surviving her were her legitimate parents, Felix
Nuguid and Paz Salonga Nuguid, and six (6) brothers and
sisters, namely: Alfredo, Federico, Remedios, Conrado,
Lourdes and Alberto, all surnamed Nuguid.

We pause to reflect. If the case were to be remanded for

probate of the will, nothing will be gained. On the contrary, this
litigation will be protracted. And for aught that appears in the
record, in the event of probate or if the court rejects the will,
probability exists that the case will come up once again before
us on the same issue of the intrinsic validity or nullity of the will.
Result: waste of time, effort, expense, plus added anxiety.
These are the practical considerations that induce us to a
belief that we might as well meet head-on the issue of the
validity of the provisions of the will in question.3 After all, there
exists a justiciable controversy crying for solution.
2. Petitioner's sole assignment of error challenges the
correctness of the conclusion below that the will is a complete
nullity. This exacts from us a study of the disputed will and the
applicable statute.
Reproduced hereunder is the will:

On May 18, 1963, petitioner Remedios Nuguid filed in the

Court of First Instance of Rizal a holographic will allegedly
executed by Rosario Nuguid on November 17, 1951, some 11
years before her demise. Petitioner prayed that said will be
admitted to probate and that letters of administration with the
will annexed be issued to her.
On June 25, 1963, Felix Nuguid and Paz Salonga Nuguid,
concededly the legitimate father and mother of the deceased
Rosario Nuguid, entered their opposition to the probate of her
will. Ground therefor, inter alia, is that by the institution of
petitioner Remedios Nuguid as universal heir of the deceased,
oppositors who are compulsory heirs of the deceased in the
direct ascending line were illegally preterited and that in
consequence the institution is void.
On August 29, 1963, before a hearing was had on the petition
for probate and objection thereto, oppositors moved to dismiss
on the ground of absolute preterition.
On September 6, 1963, petitioner registered her opposition to
the motion to dismiss.1wph1.t
The court's order of November 8, 1963, held that "the will in
question is a complete nullity and will perforce create intestacy
of the estate of the deceased Rosario Nuguid" and dismissed
the petition without costs.
A motion to reconsider having been thwarted below, petitioner
came to this Court on appeal.
1. Right at the outset, a procedural aspect has engaged our
attention. The case is for the probate of a will. The court's area
of inquiry is limited to an examination of, and resolution on,
the extrinsic validity of the will. The due execution thereof, the
testatrix's testamentary capacity, and the compliance with the
requisites or solemnities by law prescribed, are the questions
solely to be presented, and to be acted upon, by the court.
Said court at this stage of the proceedings is not called
upon to rule on the intrinsic validity or efficacy of the provisions
of the will, the legality of any devise or legacy therein.1
A peculiar situation is here thrust upon us. The parties shunted
aside the question of whether or not the will should be allowed
probate. For them, the meat of the case is the intrinsic validity
of the will. Normally, this comes only after the court has

Nov. 17, 1951

I, ROSARIO NUGUID, being of sound and disposing mind and
memory, having amassed a certain amount of property, do
hereby give, devise, and bequeath all of the property which I
may have when I die to my beloved sister Remedios Nuguid,
age 34, residing with me at 38-B Iriga, Q.C. In witness
whereof, I have signed my name this seventh day of
November, nineteen hundred and fifty-one.
(Sgd.) Illegible
T/ ROSARIO NUGUID
The statute we are called upon to apply in Article 854 of the
Civil Code which, in part, provides:
ART. 854. The preterition or omission of one, some, or all of
the compulsory heirs in the direct line, whether living at the
time of the execution of the will or born after the death of the
testator, shall annul the institution of heir; but the devises and
legacies shall be valid insofar as they are not inofficious. ...
Except for inconsequential variation in terms, the foregoing is a
reproduction of Article 814 of the Civil Code of Spain of 1889,
which is similarly herein copied, thus
Art. 814. The preterition of one or all of the forced heirs in the
direct line, whether living at the time of the execution of the will
or born after the death of the testator, shall void the institution
of heir; but the legacies and betterments4 shall be valid, in so
far as they are not inofficious. ...
A comprehensive understanding of the term preterition
employed in the law becomes a necessity. On this point
Manresa comments:
La pretericion consiste en omitar al heredero en el testamento.
O no se le nombra siquiera o aun nombrandole como padre,
hijo, etc., no se le instituya heredero ni se le deshereda
expresamente ni se le asigna parte alguna de los bienes,
resultando privado de un modo tacito de su derecho a legitima.
Para que exista pretericion, con arreglo al articulo 814, basta
que en el testamento omita el testador a uno cualquiera de

aquellos a quienes por su muerte corresponda la herencia

forzosa.
Se necesita, pues, a) Que la omision se refiera a un heredero
forzoso. b) Que la omision sea completa; que el heredero
forzoso nada reciba en el testamento.
It may now appear trite bat nonetheless helpful in giving us a
clear perspective of the problem before us, to have on hand a
clear-cut definition of the word annul:
To "annul" means to abrogate, to make void ... In re Morrow's
Estate, 54 A. 342, 343, 204 Pa. 484.6
The word "annul" as used in statute requiring court to annul
alimony provisions of divorce decree upon wife's remarriage
means to reduce to nothing; to annihilate; obliterate; blot out; to
make void or of no effect; to nullify; to abolish. N.J.S.A. 2:50
38 (now N.J.S. 2A:34-35). Madden vs. Madden, 40 A. 2d 611,
614, 136 N..J Eq. 132.7
ANNUL. To reduce to nothing; annihilate; obliterate; to make
void or of no effect; to nullify; to abolish; to do away with. Ex
parte Mitchell, 123 W. Va. 283, 14 S.E. 2d. 771, 774.8
And now, back to the facts and the law. The deceased Rosario
Nuguid left no descendants, legitimate or illegitimate. But she
left forced heirs in the direct ascending line her parents, now
oppositors Felix Nuguid and Paz Salonga Nuguid. And, the will
completely omits both of them: They thus received nothing by
the testament; tacitly, they were deprived of their legitime;
neither were they expressly disinherited. This is a clear case of
preterition. Such preterition in the words of Manresa "anulara
siempre la institucion de heredero, dando caracter absoluto a
este ordenamiento referring to the mandate of Article 814, now
854 of the Civil Code.9 The one-sentence will here institutes
petitioner as the sole, universal heir nothing more. No
specific legacies or bequests are therein provided for. It is in
this posture that we say that the nullity is complete. Perforce,
Rosario Nuguid died intestate. Says Manresa:
En cuanto a la institucion de heredero, se anula. Lo que se
anula deja de existir, en todo o en parte? No se aade
limitacion alguna, como en el articulo 851, en el que se
expresa que se anulara la institucion de heredero en cuanto
prejudique a la legitima del deseheredado Debe, pues,
entenderse que la anulacion es completa o total, y que este
articulo como especial en el caso que le motiva rige con
preferencia al 817. 10
The same view is expressed by Sanchez Roman:
La consecuencia de la anulacion o nulidad de la institucion de
heredero por pretericion de uno, varios o todos los forzosos en
linea recta, es la apertura de la sucesion intestada total o
parcial. Sera total, cuando el testador que comete la
pretericion, hubiese dispuesto de todos los bienes por titulo
universal de herencia en favor de los herederos instituidos,
cuya institucion se anula, porque asi lo exige la generalidad
del precepto legal del art. 814, al determinar, como efecto de
la pretericion, el de que "anulara la institucion de heredero." ...
11
Really, as we analyze the word annul employed in the statute,
there is no escaping the conclusion that the universal
institution of petitioner to the entire inheritance results in totally
abrogating the will. Because, the nullification of such institution
of universal heir without any other testamentary disposition
in the will amounts to a declaration that nothing at all was

written. Carefully worded and in clear terms, Article 854 offers

no leeway for inferential interpretation. Giving it an expansive
meaning will tear up by the roots the fabric of the statute. On
this point, Sanchez Roman cites the "Memoria annual del
Tribunal Supreme, correspondiente a 1908", which in our
opinion expresses the rule of interpretation, viz:
... El art. 814, que preceptua en tales casos de pretericion la
nulidad de la institucion de heredero, no consiente
interpretacion alguna favorable a la persona instituida en el
sentido antes expuesto aun cuando parezca, y en algun caso
pudiera ser, mas o menos equitativa, porque una nulidad no
significa en Derecho sino la suposicion de que el hecho o el
acto no se ha realizado, debiendo por lo tanto procederse
sobre tal base o supuesto, y consiguientemente, en un
testamento donde falte la institucion, es obligado llamar a los
herederos forzosos en todo caso, como habria que llamar a los
de otra clase, cuando el testador no hubiese distribudo todos
sus bienes en legados, siendo tanto mas obligada esta
consecuencia legal cuanto que, en materia de testamentos,
sabido es, segun tiene declarado la jurisprudencia, con
repeticion, que no basta que sea conocida la voluntad de
quien testa si esta voluntad no aparece en la forma y en las
condiciones que la ley ha exigido para que sea valido y eficaz,
por lo que constituiria una interpretacion arbitraria, dentro del
derecho positivo, reputar como legatario a un heredero cuya
institucion fuese anulada con pretexto de que esto se
acomodaba mejor a la voluntad del testador, pues aun cuando
asi fuese, sera esto razon para modificar la ley, pero no
autoriza a una interpretacion contraria a sus terminos y a los
principios que informan la testamentifaccion, pues no porque
parezca mejor una cosa en el terreno del Derecho
constituyente, hay razon para convereste juicio en regla de
interpretacion, desvirtuando y anulando por este procedimiento
lo que el legislador quiere establecer. 12
3. We should not be led astray by the statement in Article 854
that, annullment notwithstanding, "the devises and legacies
shall be valid insofar as they are not inofficious". Legacies and
devises merit consideration only when they are so expressly
given as such in a will. Nothing in Article 854 suggests that the
mere institution of a universal heir in a will void because of
preterition would give the heir so instituted a share in the
inheritance. As to him, the will is inexistent. There must be, in
addition to such institution, a testamentary disposition granting
him bequests or legacies apart and separate from the nullified
institution of heir. Sanchez Roman, speaking of the two
component parts of Article 814, now 854, states that preterition
annuls the institution of the heir "totalmente por la pretericion";
but added (in reference to legacies and bequests) "pero
subsistiendo ... todas aquellas otras disposiciones que no se
refieren a la institucion de heredero ... . 13 As Manresa puts it,
annulment throws open to intestate succession the entire
inheritance including "la porcion libre (que) no hubiese
dispuesto en virtud de legado, mejora o donacion. 14
As aforesaid, there is no other provision in the will before us
except the institution of petitioner as universal heir. That
institution, by itself, is null and void. And, intestate succession
ensues.
4. Petitioner's mainstay is that the present is "a case of
ineffective disinheritance rather than one of preterition". 15
From this, petitioner draws the conclusion that Article 854
"does not apply to the case at bar". This argument fails to
appreciate
the
distinction
between
pretention
and
disinheritance.

Preterition "consists in the omission in the testator's will of the

forced heirs or anyone of them, either because they are not
mentioned therein, or, though mentioned, they are neither
instituted as heirs nor are expressly disinherited." 16
Disinheritance, in turn, "is a testamentary disposition depriving
any compulsory heir of his share in the legitime for a cause
authorized by law. " 17 In Manresa's own words: "La privacion
expresa de la legitima constituye la desheredacion. La
privacion tacita de la misma se denomina pretericion." 18
Sanchez Roman emphasizes the distinction by stating that
disinheritance "es siempre voluntaria"; preterition, upon the
other hand, is presumed to be "involuntaria". 19 Express as
disinheritance should be, the same must be supported by a
legal cause specified in the will itself. 20
The will here does not explicitly disinherit the testatrix's
parents, the forced heirs. It simply omits their names
altogether. Said will rather than be labeled ineffective
disinheritance is clearly one in which the said forced heirs
suffer from preterition.
On top of this is the fact that the effects flowing from preterition
are totally different from those of disinheritance. Preterition
under Article 854 of the Civil Code, we repeat, "shall annul the
institution of heir". This annulment is in toto, unless in the will
there are, in addition, testamentary dispositions in the form of
devises or legacies. In ineffective disinheritance under Article
918 of the same Code, such disinheritance shall also "annul
the institution of heirs", put only "insofar as it may prejudice the
person disinherited", which last phrase was omitted in the case
of preterition. 21 Better stated yet, in disinheritance the nullity
is limited to that portion of the estate of which the disinherited
heirs have been illegally deprived. Manresa's expressive
language, in commenting on the rights of the preterited heirs in
the case of preterition on the one hand and legal disinheritance
on the other, runs thus: "Preteridos, adquiren el derecho a
todo; desheredados, solo les corresponde un tercio o dos
tercios, 22 el caso. 23
5. Petitioner insists that the compulsory heirs ineffectively
disinherited are entitled to receive their legitimes, but that the
institution of heir "is not invalidated," although the inheritance
of the heir so instituted is reduced to the extent of said
legitimes. 24
This is best answered by a reference to the opinion of Mr.
Chief Justice Moran in the Neri case heretofore cited, viz:
But the theory is advanced that the bequest made by universal
title in favor of the children by the second marriage should be
treated as legado and mejora and, accordingly, it must not be
entirely annulled but merely reduced. This theory, if adopted,
will result in a complete abrogation of Articles 814 and 851 of
the Civil Code. If every case of institution of heirs may be made
to fall into the concept of legacies and betterments reducing
the bequest accordingly, then the provisions of Articles 814
and 851 regarding total or partial nullity of the institution,
would. be absolutely meaningless and will never have any
application at all. And the remaining provisions contained in
said article concerning the reduction of inofficious legacies or
betterments would be a surplusage because they would be
absorbed by Article 817. Thus, instead of construing, we would
be destroying integral provisions of the Civil Code.
The destructive effect of the theory thus advanced is due
mainly to a failure to distinguish institution of heirs from
legacies and betterments, and a general from a special
provision. With reference to article 814, which is the only
provision material to the disposition of this case, it must be

observed that the institution of heirs is therein dealt with as a

thing separate and distinct from legacies or betterments. And
they are separate and distinct not only because they are
distinctly and separately treated in said article but because
they are in themselves different. Institution of heirs is a bequest
by universal title of property that is undetermined. Legacy
refers to specific property bequeathed by a particular or special
title. ... But again an institution of heirs cannot be taken as a
legacy. 25
The disputed order, we observe, declares the will in question
"a complete nullity". Article 854 of the Civil Code in turn merely
nullifies "the institution of heir". Considering, however, that the
will before us solely provides for the institution of petitioner as
universal heir, and nothing more, the result is the same. The
entire will is null.
Upon the view we take of this case, the order of November 8,
1963 under review is hereby affirmed. No costs allowed. So
ordered.

G.R. No. L-54919 May 30, 1984

POLLY CAYETANO, petitioner,
vs.
HON. TOMAS T. LEONIDAS, in his capacity as the Presiding
Judge of Branch XXXVIII, Court of First Instance of Manila and
NENITA CAMPOS PAGUIA, respondents.
Ermelo P. Guzman for petitioner.
Armando Z. Gonzales for private respondent.

GUTIERREZ, JR., J.:

This is a petition for review on certiorari, seeking to annul the
order of the respondent judge of the Court of First Instance of
Manila, Branch XXXVIII, which admitted to and allowed the
probate of the last will and testament of Adoracion C. Campos,
after an ex-parte presentation of evidence by herein private
respondent.
On January 31, 1977, Adoracion C. Campos died, leaving her
father, petitioner Hermogenes Campos and her sisters, private
respondent Nenita C. Paguia, Remedios C. Lopez and Marieta
C. Medina as the surviving heirs. As Hermogenes Campos
was the only compulsory heir, he executed an Affidavit of
Adjudication under Rule 74, Section I of the Rules of Court
whereby he adjudicated unto himself the ownership of the
entire estate of the deceased Adoracion Campos.
Eleven months after, on November 25, 1977, Nenita C. Paguia
filed a petition for the reprobate of a will of the deceased,
Adoracion Campos, which was allegedly executed in the
United States and for her appointment as administratrix of the
estate of the deceased testatrix.
In her petition, Nenita alleged that the testatrix was an
American citizen at the time of her death and was a permanent
resident of 4633 Ditman Street, Philadelphia, Pennsylvania,
U.S.A.; that the testatrix died in Manila on January 31, 1977
while temporarily residing with her sister at 2167 Leveriza,
Malate, Manila; that during her lifetime, the testatrix made her
last wig and testament on July 10, 1975, according to the laws
of Pennsylvania, U.S.A., nominating Wilfredo Barzaga of New
Jersey as executor; that after the testatrix death, her last will

and testament was presented, probated, allowed, and

registered with the Registry of Wins at the County of
Philadelphia, U.S.A., that Clement L. McLaughlin, the
administrator who was appointed after Dr. Barzaga had
declined and waived his appointment as executor in favor of
the former, is also a resident of Philadelphia, U.S.A., and that
therefore, there is an urgent need for the appointment of an
administratrix to administer and eventually distribute the
properties of the estate located in the Philippines.
On January 11, 1978, an opposition to the reprobate of the will
was filed by herein petitioner alleging among other things, that
he has every reason to believe that the will in question is a
forgery; that the intrinsic provisions of the will are null and void;
and that even if pertinent American laws on intrinsic provisions
are invoked, the same could not apply inasmuch as they would
work injustice and injury to him.
On December 1, 1978, however, the petitioner through his
counsel, Atty. Franco Loyola, filed a Motion to Dismiss
Opposition (With Waiver of Rights or Interests) stating that he
"has been able to verify the veracity thereof (of the will) and
now confirms the same to be truly the probated will of his
daughter Adoracion." Hence, an ex-parte presentation of
evidence for the reprobate of the questioned will was made.
On January 10, 1979, the respondent judge issued an order, to
wit:
At the hearing, it has been satisfactorily established that
Adoracion C. Campos, in her lifetime, was a citizen of the
United States of America with a permanent residence at 4633
Ditman Street, Philadelphia, PA 19124, (Exhibit D) that when
alive, Adoracion C. Campos executed a Last Will and
Testament in the county of Philadelphia, Pennsylvania, U.S.A.,
according to the laws thereat (Exhibits E-3 to E-3-b) that while
in temporary sojourn in the Philippines, Adoracion C. Campos
died in the City of Manila (Exhibit C) leaving property both in
the Philippines and in the United States of America; that the
Last Will and Testament of the late Adoracion C. Campos was
admitted and granted probate by the Orphan's Court Division
of the Court of Common Pleas, the probate court of the
Commonwealth of Pennsylvania, County of Philadelphia,
U.S.A., and letters of administration were issued in favor of
Clement J. McLaughlin all in accordance with the laws of the
said foreign country on procedure and allowance of wills
(Exhibits E to E-10); and that the petitioner is not suffering from
any disqualification which would render her unfit as
administratrix of the estate in the Philippines of the late
Adoracion C. Campos.
WHEREFORE, the Last Will and Testament of the late
Adoracion C. Campos is hereby admitted to and allowed
probate in the Philippines, and Nenita Campos Paguia is
hereby appointed Administratrix of the estate of said decedent;
let Letters of Administration with the Will annexed issue in
favor of said Administratrix upon her filing of a bond in the
amount of P5,000.00 conditioned under the provisions of
Section I, Rule 81 of the Rules of Court.
Another manifestation was filed by the petitioner on April 14,
1979, confirming the withdrawal of his opposition,
acknowledging the same to be his voluntary act and deed.
On May 25, 1979, Hermogenes Campos filed a petition for
relief, praying that the order allowing the will be set aside on
the ground that the withdrawal of his opposition to the same
was secured through fraudulent means. According to him, the
"Motion to Dismiss Opposition" was inserted among the papers

which he signed in connection with two Deeds of Conditional

Sales which he executed with the Construction and
Development Corporation of the Philippines (CDCP). He also
alleged that the lawyer who filed the withdrawal of the
opposition was not his counsel-of-record in the special
proceedings case.
The petition for relief was set for hearing but the petitioner
failed to appear. He made several motions for postponement
until the hearing was set on May 29, 1980.
On May 18, 1980, petitioner filed another motion entitled
"Motion to Vacate and/or Set Aside the Order of January 10,
1979, and/or dismiss the case for lack of jurisdiction. In this
motion, the notice of hearing provided:
Please include this motion in your calendar for hearing on May
29, 1980 at 8:30 in the morning for submission for
reconsideration and resolution of the Honorable Court. Until
this Motion is resolved, may I also request for the future setting
of the case for hearing on the Oppositor's motion to set aside
previously filed.
The hearing of May 29, 1980 was re-set by the court for June
19, 1980. When the case was called for hearing on this date,
the counsel for petitioner tried to argue his motion to vacate
instead of adducing evidence in support of the petition for
relief. Thus, the respondent judge issued an order dismissing
the petition for relief for failure to present evidence in support
thereof. Petitioner filed a motion for reconsideration but the
same was denied. In the same order, respondent judge also
denied the motion to vacate for lack of merit. Hence, this
petition.
Meanwhile, on June 6,1982, petitioner Hermogenes Campos
died and left a will, which, incidentally has been questioned by
the respondent, his children and forced heirs as, on its face,
patently null and void, and a fabrication, appointing Polly
Cayetano as the executrix of his last will and testament.
Cayetano, therefore, filed a motion to substitute herself as
petitioner in the instant case which was granted by the court on
September 13, 1982.
A motion to dismiss the petition on the ground that the rights of
the petitioner Hermogenes Campos merged upon his death
with the rights of the respondent and her sisters, only
remaining children and forced heirs was denied on September
12, 1983.
Petitioner Cayetano persists with the allegations that the
respondent judge acted without or in excess of his jurisdiction
when:
1)
He ruled the petitioner lost his standing in court
deprived the Right to Notice (sic) upon the filing of the Motion
to Dismiss opposition with waiver of rights or interests against
the estate of deceased Adoracion C. Campos, thus, paving the
way for the hearing ex-parte of the petition for the probate of
decedent will.
2)
He ruled that petitioner can waive, renounce or
repudiate (not made in a public or authenticated instrument), or
by way of a petition presented to the court but by way of a
motion presented prior to an order for the distribution of the
estate-the law especially providing that repudiation of an
inheritance must be presented, within 30 days after it has
issued an order for the distribution of the estate in accordance
with the rules of Court.

3)
He ruled that the right of a forced heir to his legitime
can be divested by a decree admitting a will to probate in
which no provision is made for the forced heir in complete
disregard of Law of Succession
4)
He denied petitioner's petition for Relief on the ground
that no evidence was adduced to support the Petition for Relief
when no Notice nor hearing was set to afford petitioner to
prove the merit of his petition a denial of the due process
and a grave abuse of discretion amounting to lack of
jurisdiction.
5)
He acquired no jurisdiction over the testate case, the
fact that the Testator at the time of death was a usual resident
of Dasmarias, Cavite, consequently Cavite Court of First
Instance has exclusive jurisdiction over the case (De Borja vs.
Tan, G.R. No. L-7792, July 1955).
The first two issues raised by the petitioner are anchored on
the allegation that the respondent judge acted with grave
abuse of discretion when he allowed the withdrawal of the
petitioner's opposition to the reprobate of the will.
We find no grave abuse of discretion on the part of the
respondent judge. No proof was adduced to support
petitioner's contention that the motion to withdraw was secured
through fraudulent means and that Atty. Franco Loyola was not
his counsel of record. The records show that after the firing of
the contested motion, the petitioner at a later date, filed a
manifestation wherein he confirmed that the Motion to Dismiss
Opposition was his voluntary act and deed. Moreover, at the
time the motion was filed, the petitioner's former counsel, Atty.
Jose P. Lagrosa had long withdrawn from the case and had
been substituted by Atty. Franco Loyola who in turn filed the
motion. The present petitioner cannot, therefore, maintain that
the old man's attorney of record was Atty. Lagrosa at the time
of filing the motion. Since the withdrawal was in order, the
respondent judge acted correctly in hearing the probate of the
will ex-parte, there being no other opposition to the same.

xxx

In the case at bar, the petitioner maintains that since the

respondent judge allowed the reprobate of Adoracion's will,
Hermogenes C. Campos was divested of his legitime which
was reserved by the law for him.
This contention is without merit.
Although on its face, the will appeared to have preterited the
petitioner and thus, the respondent judge should have denied
its reprobate outright, the private respondents have sufficiently
established that Adoracion was, at the time of her death, an
American citizen and a permanent resident of Philadelphia,
Pennsylvania, U.S.A. Therefore, under Article 16 par. (2) and
1039 of the Civil Code which respectively provide:
Art. 16 par. (2).

xxx

However, intestate and testamentary successions, both with

respect to the order of succession and to the amount of
successional rights and to the intrinsic validity of testamentary
provisions, shall be regulated by the national law of the person
whose succession is under consideration, whatever may be
the nature of the property and regardless of the country
wherein said property may be found.
Art. 1039.
Capacity to succeed is governed by the law of the nation of the
decedent.
the law which governs Adoracion Campo's will is the law of
Pennsylvania, U.S.A., which is the national law of the
decedent. Although the parties admit that the Pennsylvania law
does not provide for legitimes and that all the estate may be
given away by the testatrix to a complete stranger, the
petitioner argues that such law should not apply because it
would be contrary to the sound and established public policy
and would run counter to the specific provisions of Philippine
Law.
It is a settled rule that as regards the intrinsic validity of the
provisions of the will, as provided for by Article 16(2) and 1039
of the Civil Code, the national law of the decedent must apply.
This was squarely applied in the case of Bellis v. Bellis (20
SCRA 358) wherein we ruled:
It is therefore evident that whatever public policy or good
customs may be involved in our system of legitimes, Congress
has not intended to extend the same to the succession of
foreign nationals. For it has specifically chosen to leave, inter
alia, the amount of successional rights, to the decedent's
national law. Specific provisions must prevail over general
ones.
xxx

The third issue raised deals with the validity of the provisions of
the will. As a general rule, the probate court's authority is
limited only to the extrinsic validity of the will, the due execution
thereof, the testatrix'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. However, 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.
(Maninang vs. Court of Appeals, 114 SCRA 478).

xxx

xxx

xxx

The parties admit that the decedent, Amos G. Bellis, was a

citizen of the State of Texas, U.S.A., and under the law of
Texas, there are no forced heirs or legitimes. Accordingly,
since the intrinsic validity of the provision of the will and the
amount of successional rights are to be determined under
Texas law, the Philippine Law on legitimes cannot be applied
to the testacy of Amos G. Bellis.
As regards the alleged absence of notice of hearing for the
petition for relief, the records wig bear the fact that what was
repeatedly scheduled for hearing on separate dates until June
19, 1980 was the petitioner's petition for relief and not his
motion to vacate the order of January 10, 1979. There is no
reason why the petitioner should have been led to believe
otherwise. The court even admonished the petitioner's failing to
adduce evidence when his petition for relief was repeatedly set
for hearing. There was no denial of due process. The fact that
he requested "for the future setting of the case for hearing . . ."
did not mean that at the next hearing, the motion to vacate
would be heard and given preference in lieu of the petition for
relief. Furthermore, such request should be embodied in a
motion and not in a mere notice of hearing.
Finally, we find the contention of the petition as to the issue of
jurisdiction utterly devoid of merit. Under Rule 73, Section 1, of
the Rules of Court, it is provided that:

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 resided
at the time of his death, and if he is an inhabitant of a foreign
country, the Court of First Instance of any province in which he
had estate. The court first taking cognizance of the settlement
of the estate of a decedent, shall exercise jurisdiction to the
exclusion of all other courts. The jurisdiction assumed by a
court, so far as it depends on the place of residence of the
decedent, or of the location of his estate, shall not be
contested in a suit or proceeding, except in an appeal from that
court, in the original case, or when the want of jurisdiction
appears on the record.
Therefore, the settlement of the estate of Adoracion Campos
was correctly filed with the Court of First Instance of Manila
where she had an estate since it was alleged and proven that
Adoracion at the time of her death was a citizen and
permanent resident of Pennsylvania, United States of America
and not a "usual resident of Cavite" as alleged by the
petitioner. Moreover, petitioner is now estopped from
questioning the jurisdiction of the probate court in the petition
for relief. It is a settled rule that a party cannot invoke the
jurisdiction of a court to secure affirmative relief, against his
opponent and after failing to obtain such relief, repudiate or
question that same jurisdiction. (See Saulog Transit, Inc. vs.
Hon. Manuel Lazaro, et al., G. R. No. 63 284, April 4, 1984).

motion to dismiss the petition on the ground lack of interest in

the estate, she being neither heir nor a creditor thereof. The
motion alleged that the late Maria V. Lindayag was survived by
her husband the movant and their legally adopted minor
children named Jesus, Concepcion, and Catherine, all
surnamed Lindayag the decedent having left no legitimate
natural or illegitimate child. A certified true copy of the decision
of the Justice of the Peace of Olongapo, Zambales, dated July
6, 1953 decreeing the adoption of said minors the decedent
and her husband was attached to the motion.
In opposing the motion to dismiss petitioner argued that only
the facts alleged in the petition should be considered in
determining its sufficiency.lawphil.net
On July 28, 1960, after due hearing on the motion aforesaid,
the Court issued the following order of dismissal:
It appearing that the herein petitioner is only a sister of the
deceased Maria V. Lindayag; that the deceased is survived by
her husband and her three (3) adopted children named: Jesus,
Concepcion and Catherine, all surnamed Lindayag were
adopted by the deceased on July 6, 1953; that the herein
petitioner is obviously not an heir and has no interest in estate;
and that the surviving heirs oppose the instant petition on the
ground that they want to settle the estate extra-judicially
among them to avoid unnecessary expenses in prosecuting
this case, the Court finds the oppositors' opposition to be well
taken.

WHEREFORE, the petition for certiorari and prohibition is

hereby dismissed for lack of merit.

WHEREFORE, let this case be dismissed. No pronouncement

as to costs.

SO ORDERED.

Petitioner's motion for the reconsideration of the above order

having been denied, she took the present appeal.

G.R. No. L-17759

December 17, 1962

ISABEL V. SAGUINSIN, petitioner-appellant,

vs.
DIONISIO LINDAYAG, ET AL., oppositors-appellees.
Gatchalian and Sison for petitioner-appellant.
Delgado, Flores, Macapagal and Dizon for oppositorsappellees.
DIZON, J.:
On November 10, 1959 Maria V. Lindayag died intestate in
Olongapo, Zambales. On May 27, 1960 her sister, Isabel V.
Saguinsin filed with the Court of First Instance of said province
a verified petition for the issuance in her favor of letters of
administration over the estate of said deceased, alleging,
among other things, that the latter left real and personal
properties situated in the Provinces of Zambales and Bulacan
worth approximately P100,000.00; that the names, ages and
residences of her surviving heirs were: (1) Dionisio Lindayag,
60 years of age, surviving husband, residing at Olongapo,
Zambales, (2) Isabel V. Saguinsin 54 years of age, sister of the
deceased, residing at Hagonoy, Bulacan (3) Aurea V.
Sacdalan, 46 years of age, sister of the deceased, and (4) Ines
V. Calayag, 70 years of age, sister of the deceased, both
residing at Paombong, Bulacan; and that, as far as petitioner
knew, the decedent left no debts at the time of her death.
On June 21, 1960 Dionisio V. Lindayag, the surviving spouse,
in his behalf and in representation of the minors Jesus,
Concepcion, and Catherine, all surnamed Lindayag, filed a

The question to be resolved in this appeal is whether petitioner

is "an interested person" in the estate of deceased Maria V.
Lindayag.
According to Section 2, Rule 80 of the Rules of Court, a
petition for letters of administration must be filed an "interested
person". An interested party has defined in this connection as
one who would be benefited by the estate, such as an heir, or
one who has a claim against the estate, such as a creditor
(Intestate Estate of Julio Magbanwa, 40 O.G. 1171). And it is
well settled in this jurisdiction that in civil actions as well as
special proceedings, the interest required in order that a
person may be a party thereto must be material and direct, and
not merely indirect or contingent. (Trillana vs. Crisostomo, G.R.
No. L-3378, August 22, 1951; Espinosa vs. Barrios, 70 Phil.
311)
Petitioner's interest in the estate of the deceased Maria V.
Lindayag was disputed, through a motion to dismiss her
petition, by the surviving spouse on the ground that said
deceased was survived by him and by three legally adopted
children thus excluding petitioner as an heir. In the course of
the hearing held in connection with said motion, evidence was
introduced in support thereof which, according to the lower
court, established that said deceased was survived not only by
her husband but by three legally adopted children named
Jesus, Concepcion, and Catherine, all surnamed Lindayag.
Upon these facts which petitioner does not dispute it is
manifest that she is not an heir of her deceased sister and,
therefore, has no material and direct interest in her estate.

Petitioner's view that when a motion to dismiss a complaint or

a petition is filed, only the facts alleged in the complaint or
petition may be taken into account is not entirely correct. To
the contrary, the rule is that at said hearing said motion may be
proved or disproved in accordance with the rules of evidence,
and it has been held that for that purpose, the hearing should
be conducted as an ordinary hearing; and that the parties
should be allowed to present evidence, except when the
motion is based on the failure of the complaint or of the petition
to state a cause of action (Asejo vs. Leonoso, 44 O. G. No. 10,
3832). In the present case, the motion to dismiss the petition
was grounded on petitioner's lack of legal capacity to institute
the proceedings which, as already stated heretofore, was fully
substantiated by the evidence presented during the hearing.

He contested the disposition in the will of a house and lot

located in Cabadbaran, Agusan Del Norte. He claimed that
said property could not be conveyed by decedent in its entirety,
as she was not its sole owner.

IN VIEW OF ALL THE FOREGOING, the order appealed from

is affirmed, with costs.

For one, no evidence was presented to show that the will in

question is different from the will actually executed by the
testatrix. The only objections raised by the oppositors . . . are
that the will was not written in the handwriting of the testatrix
which properly refers to the question of its due execution, and
not to the question of identity of will. No other will was alleged
to have been executed by the testatrix other than the will
herein presented. Hence, in the light of the evidence adduced,
the identity of the will presented for probate must be accepted,
i.e., the will submitted in Court must be deemed to be the will
actually executed by the testatrix.

G.R. No. 106720 September 15, 1994

SPOUSES ROBERTO AND THELMA AJERO, petitioners,
vs.
THE COURT OF APPEALS AND CLEMENTE SAND,
respondents.

Notwithstanding the oppositions, the trial court admitted the

decedent's holographic will to probate. It found, inter alia:
Considering then that the probate proceedings herein must
decide only the question of identity of the will, its due execution
and the testamentary capacity of the testatrix, this probate
court finds no reason at all for the disallowance of the will for
its failure to comply with the formalities prescribed by law nor
for lack of testamentary capacity of the testatrix.

xxx

xxx

xxx

Miguel D. Larida for petitioners.

Montilla Law Office for private respondent.

PUNO, J.:
This is an appeal by certiorari from the Decision of the Court of
Appeals 1 in CA-G.R. CV No. 22840, dated March 30, 1992,
the dispositive portion of which reads;
PREMISES CONSIDERED, the questioned decision of
November 19, 1988 of the trial court is hereby REVERSED
and SET ASIDE, and the petition for probate is hereby
DISMISSED. No costs.
The earlier Decision was rendered by the RTC of Quezon City,
Branch 94, 2 in Sp. Proc. No. Q-37171, and the instrument
submitted for probate is the holographic will of the late Annie
Sand, who died on November 25, 1982.
In the will, decedent named as devisees, the following:
petitioners Roberto and Thelma Ajero, private respondent
Clemente Sand, Meriam S. Arong, Leah Sand, Lilia Sand,
Edgar Sand, Fe Sand, Lisa S. Sand, and Dr. Jose Ajero, Sr.,
and their children.
On January 20, 1983, petitioners instituted Sp. Proc. No. Q37171, for allowance of decedent's holographic will. They
alleged that at the time of its execution, she was of sound and
disposing mind, not acting under duress, fraud or undue
influence, and was in every respect capacitated to dispose of
her estate by will.
Private respondent opposed the petition on the grounds that:
neither the testament's body nor the signature therein was in
decedent's handwriting; it contained alterations and corrections
which were not duly signed by decedent; and, the will was
procured by petitioners through improper pressure and undue
influence. The petition was likewise opposed by Dr. Jose Ajero.

While the fact that it was entirely written, dated and signed in
the handwriting of the testatrix has been disputed, the
petitioners, however, have satisfactorily shown in Court that
the holographic will in question was indeed written entirely,
dated and signed in the handwriting of the testatrix. Three (3)
witnesses who have convincingly shown knowledge of the
handwriting of the testatrix have been presented and have
explicitly and categorically identified the handwriting with which
the holographic will in question was written to be the genuine
handwriting and signature of the testatrix. Given then the
aforesaid evidence, the requirement of the law that the
holographic will be entirely written, dated and signed in the
handwriting of the testatrix has been complied with.
xxx

xxx

xxx

As to the question of the testamentary capacity of the testratix,

(private respondent) Clemente Sand himself has testified in
Court that the testatrix was completely in her sound mind when
he visited her during her birthday celebration in 1981, at or
around which time the holographic will in question was
executed by the testatrix. To be of sound mind, it is sufficient
that the testatrix, at the time of making the will, knew the value
of the estate to be disposed of, the proper object of her bounty,
and the character of the testamentary act . . . The will itself
shows that the testatrix even had detailed knowledge of the
nature of her estate. She even identified the lot number and
square meters of the lots she had conveyed by will. The
objects of her bounty were likewise identified explicitly. And
considering that she had even written a nursing book which
contained the law and jurisprudence on will and succession,
there is more than sufficient showing that she knows the
character of the testamentary act.
In this wise, the question of identity of the will, its due
execution and the testamentary capacity of the testatrix has to
be resolved in favor of the allowance of probate of the will
submitted herein.

Likewise, no evidence was presented to show sufficient reason

for the disallowance of herein holographic will. While it was
alleged that the said will was procured by undue and improper
pressure and influence on the part of the beneficiary or of
some other person, the evidence adduced have not shown any
instance where improper pressure or influence was exerted on
the testatrix. (Private respondent) Clemente Sand has testified
that the testatrix was still alert at the time of the execution of
the will, i.e., at or around the time of her birth anniversary
celebration in 1981. It was also established that she is a very
intelligent person and has a mind of her own. Her
independence of character and to some extent, her sense of
superiority, which has been testified to in Court, all show the
unlikelihood of her being unduly influenced or improperly
pressured to make the aforesaid will. It must be noted that the
undue influence or improper pressure in question herein only
refer to the making of a will and not as to the specific
testamentary provisions therein which is the proper subject of
another proceeding. Hence, under the circumstances, this
Court cannot find convincing reason for the disallowance of the
will herein.

(e)
If the signature of the testator was procured by fraud
or trick, and he did not intend that the instrument should be his
will at the time of fixing his signature thereto.

Considering then that it is a well-established doctrine in the law

on succession that in case of doubt, testate succession should
be preferred over intestate succession, and the fact that no
convincing grounds were presented and proven for the
disallowance of the holographic will of the late Annie Sand, the
aforesaid will submitted herein must be admitted to probate. 3
(Citations omitted.)

(5)

On appeal, said Decision was reversed, and the petition for

probate of decedent's will was dismissed. The Court of
Appeals found that, "the holographic will fails to meet the
requirements for its validity." 4 It held that the decedent did not
comply with Articles 813 and 814 of the New Civil Code, which
read, as follows:
Art. 813: When a number
holographic will are signed
disposition has a signature
dispositions preceding it,
dispositions.

of dispositions appearing in a
without being dated, and the last
and date, such date validates the
whatever be the time of prior

Art. 814: In case of insertion, cancellation, erasure or alteration

in a holographic will, the testator must authenticate the same
by his full signature.
It alluded to certain dispositions in the will which were either
unsigned and undated, or signed but not dated. It also found
that the erasures, alterations and cancellations made thereon
had not been authenticated by decedent.
Thus, this appeal which is impressed with merit.
Section 9, Rule 76 of the Rules of Court provides that will shall
be disallowed in any of the following cases:
(a)

If not executed and attested as required by law;

(b)
If the testator was insane, or otherwise mentally
incapable to make a will, at the time of its execution;
(c)
If it was executed under duress, or the influence of
fear, or threats;
(d)
If it was procured by undue and improper pressure
and influence, on the part of the beneficiary, or of some other
person for his benefit;

In the same vein, Article 839 of the New Civil Code reads:
Art. 839: The will shall be disallowed in any of the following
cases;
(1)
If the formalities required by law have not been
complied with;
(2)
If the testator was insane, or otherwise mentally
incapable of making a will, at the time of its execution;
(3)
If it was executed through force or under duress, or
the influence of fear, or threats;
(4)
If it was procured by undue and improper pressure
and influence, on the part of the beneficiary or of some other
person;
If the signature of the testator was procured by fraud;

(6)
If the testator acted by mistake or did not intend that
the instrument he signed should be his will at the time of
affixing his signature thereto.
These lists are exclusive; no other grounds can serve to
disallow a will. 5 Thus, in a petition to admit a holographic will
to probate, the only issues to be resolved are: (1) whether the
instrument submitted is, indeed, the decedent's last will and
testament; (2) whether said will was executed in accordance
with the formalities prescribed by law; (3) whether the
decedent had the necessary testamentary capacity at the time
the will was executed; and, (4) whether the execution of the will
and its signing were the voluntary acts of the decedent. 6
In the case at bench, respondent court held that the
holographic will of Anne Sand was not executed in accordance
with the formalities prescribed by law. It held that Articles 813
and 814 of the New Civil Code, ante, were not complied with,
hence, it disallowed the probate of said will. This is erroneous.
We reiterate what we held in Abangan vs. Abangan, 40 Phil.
476, 479 (1919), that:
The object of the solemnities surrounding the execution of wills
is to close the door against bad faith and fraud, to avoid
substitution of wills and testaments and to guaranty their truth
and authenticity. Therefore, the laws on this subject should be
interpreted in such a way as to attain these primordial ends.
But, on the other hand, also one must not lose sight of the fact
that it is not the object of the law to restrain and curtail the
exercise of the right to make a will. So when an interpretation
already given assures such ends, any other interpretation
whatsoever, that adds nothing but demands more requisites
entirely unnecessary, useless and frustrative of the testator's
last will, must be disregarded.
For purposes of probating non-holographic wills, these formal
solemnities include the subscription, attestation, and
acknowledgment requirements under Articles 805 and 806 of
the New Civil Code.
In the case of holographic wills, on the other hand, what
assures authenticity is the requirement that they be totally
autographic or handwritten by the testator himself, 7 as
provided under Article 810 of the New Civil Code, thus:

A person may execute a holographic will which must be

entirely written, dated, and signed by the hand of the testator
himself. It is subject to no other form, and may be made in or
out of the Philippines, and need not be witnessed. (Emphasis
supplied.)
Failure to strictly observe other formalities will not result in the
disallowance of a holographic will that is unquestionably
handwritten by the testator.
A reading of Article 813 of the New Civil Code shows that its
requirement affects the validity of the dispositions contained in
the holographic will, but not its probate. If the testator fails to
sign and date some of the dispositions, the result is that these
dispositions cannot be effectuated. Such failure, however,
does not render the whole testament void.
Likewise, a holographic will can still be admitted to probate,
notwithstanding non-compliance with the provisions of Article
814. In the case of Kalaw vs. Relova 132 SCRA 237 242
(1984), this Court held:
Ordinarily, when a number of erasures, corrections, and
interlineations made by the testator in a holographic Will have
not been noted under his signature, . . . the Will is not thereby
invalidated as a whole, but at most only as respects the
particular words erased, corrected or interlined. Manresa gave
an identical commentary when he said "la omission de la
salvedad no anula el testamento, segun la regla de
jurisprudencia establecida en la sentencia de 4 de Abril de
1985." 8 (Citations omitted.)

of the same Code are essential to the probate of a

holographic will.
The Court of Appeals further held that decedent Annie Sand
could not validly dispose of the house and lot located in
Cabadbaran, Agusan del Norte, in its entirety. This is correct
and must be affirmed.
As a general rule, courts in probate proceedings are limited to
pass only upon the extrinsic validity of the will sought to be
probated. However, in exceptional instances, courts are not
powerless to do what the situation constrains them to do, and
pass upon certain provisions of the will. 11 In the case at
bench, decedent herself indubitably stated in her holographic
will that the Cabadbaran property is in the name of her late
father, John H. Sand (which led oppositor Dr. Jose Ajero to
question her conveyance of the same in its entirety). Thus, as
correctly held by respondent court, she cannot validly dispose
of the whole property, which she shares with her father's other
heirs.
IN VIEW WHEREOF, the instant petition is GRANTED. The
Decision of the Court of Appeals in CA-G.R. CV No. 22840,
dated March 30, 1992, is REVERSED and SET ASIDE, except
with respect to the invalidity of the disposition of the entire
house and lot in Cabadbaran, Agusan del Norte. The Decision
of the Regional Trial Court of Quezon City, Branch 94 in Sp.
Proc. No. Q-37171, dated November 19, 1988, admitting to
probate the holographic will of decedent Annie Sand, is hereby
REINSTATED, with the above qualification as regards the
Cabadbaran property. No costs.
SO ORDERED.

Thus, unless the unauthenticated alterations, cancellations or

insertions were made on the date of the holographic will or on
testator's signature, 9 their presence does not invalidate the
will itself. 10 The lack of authentication will only result in
disallowance of such changes.
It is also proper to note that the requirements of authentication
of changes and signing and dating of dispositions appear in
provisions (Articles 813 and 814) separate from that which
provides for the necessary conditions for the validity of the
holographic will (Article 810). The distinction can be traced to
Articles 678 and 688 of the Spanish Civil Code, from which the
present provisions covering holographic wills are taken. They
read as follows:
Art. 678: A will is called holographic when the testator writes it
himself in the form and with the requisites required in Article
688.
Art. 688: Holographic wills may be executed only by persons of
full age.
In order that the will be valid it must be drawn on stamped
paper corresponding to the year of its execution, written in its
entirety by the testator and signed by him, and must contain a
statement of the year, month and day of its execution.
If it should contain any erased, corrected, or interlined words,
the testator must identify them over his signature.
Foreigners may execute holographic wills in their own
language.
This separation and distinction adds support to the
interpretation that only the requirements of Article 810 of the
New Civil Code and not those found in Articles 813 and 814

SPOUSES ROBERTO AND THELMA AJERO, petitioners,

vs.
THE COURT OF APPEALS AND CLEMENTE SAND,
respondents.
Miguel D. Larida for petitioners.
Montilla Law Office for private respondent.
PUNO, J.:
This is an appeal by certiorari from the Decision of the Court of
Appeals 1 in CA-G.R. CV No. 22840, dated March 30, 1992,
the dispositive portion of which reads;
PREMISES CONSIDERED, the questioned decision of
November 19, 1988 of the trial court is hereby REVERSED
and SET ASIDE, and the petition for probate is hereby
DISMISSED. No costs.
The earlier Decision was rendered by the RTC of Quezon City,
Branch 94, 2 in Sp. Proc. No. Q-37171, and the instrument
submitted for probate is the holographic will of the late Annie
Sand, who died on November 25, 1982.
In the will, decedent named as devisees, the following:
petitioners Roberto and Thelma Ajero, private respondent
Clemente Sand, Meriam S. Arong, Leah Sand, Lilia Sand,
Edgar Sand, Fe Sand, Lisa S. Sand, and Dr. Jose Ajero, Sr.,
and their children.
On January 20, 1983, petitioners instituted Sp. Proc. No. Q37171, for allowance of decedent's holographic will. They
alleged that at the time of its execution, she was of sound and
disposing mind, not acting under duress, fraud or undue
influence, and was in every respect capacitated to dispose of
her estate by will.
Private respondent opposed the petition on the grounds that:
neither the testament's body nor the signature therein was in

decedent's handwriting; it contained alterations and corrections

which were not duly signed by decedent; and, the will was
procured by petitioners through improper pressure and undue
influence. The petition was likewise opposed by Dr. Jose Ajero.
He contested the disposition in the will of a house and lot
located in Cabadbaran, Agusan Del Norte. He claimed that
said property could not be conveyed by decedent in its entirety,
as she was not its sole owner.
Notwithstanding the oppositions, the trial court admitted the
decedent's holographic will to probate. It found, inter alia:
Considering then that the probate proceedings herein must
decide only the question of identity of the will, its due execution
and the testamentary capacity of the testatrix, this probate
court finds no reason at all for the disallowance of the will for
its failure to comply with the formalities prescribed by law nor
for lack of testamentary capacity of the testatrix.
For one, no evidence was presented to show that the will in
question is different from the will actually executed by the
testatrix. The only objections raised by the oppositors . . . are
that the will was not written in the handwriting of the testatrix
which properly refers to the question of its due execution, and
not to the question of identity of will. No other will was alleged
to have been executed by the testatrix other than the will
herein presented. Hence, in the light of the evidence adduced,
the identity of the will presented for probate must be accepted,
i.e., the will submitted in Court must be deemed to be the will
actually executed by the testatrix.
xxx xxx xxx
While the fact that it was entirely written, dated and signed in
the handwriting of the testatrix has been disputed, the
petitioners, however, have satisfactorily shown in Court that
the holographic will in question was indeed written entirely,
dated and signed in the handwriting of the testatrix. Three (3)
witnesses who have convincingly shown knowledge of the
handwriting of the testatrix have been presented and have
explicitly and categorically identified the handwriting with which
the holographic will in question was written to be the genuine
handwriting and signature of the testatrix. Given then the
aforesaid evidence, the requirement of the law that the
holographic will be entirely written, dated and signed in the
handwriting of the testatrix has been complied with.
xxx xxx xxx
As to the question of the testamentary capacity of the testratix,
(private respondent) Clemente Sand himself has testified in
Court that the testatrix was completely in her sound mind when
he visited her during her birthday celebration in 1981, at or
around which time the holographic will in question was
executed by the testatrix. To be of sound mind, it is sufficient
that the testatrix, at the time of making the will, knew the value
of the estate to be disposed of, the proper object of her bounty,
and the character of the testamentary act . . . The will itself
shows that the testatrix even had detailed knowledge of the
nature of her estate. She even identified the lot number and
square meters of the lots she had conveyed by will. The
objects of her bounty were likewise identified explicitly. And
considering that she had even written a nursing book which
contained the law and jurisprudence on will and succession,
there is more than sufficient showing that she knows the
character of the testamentary act.
In this wise, the question of identity of the will, its due
execution and the testamentary capacity of the testatrix has to
be resolved in favor of the allowance of probate of the will
submitted herein.
Likewise, no evidence was presented to show sufficient reason
for the disallowance of herein holographic will. While it was
alleged that the said will was procured by undue and improper
pressure and influence on the part of the beneficiary or of
some other person, the evidence adduced have not shown any
instance where improper pressure or influence was exerted on

the testatrix. (Private respondent) Clemente Sand has testified

that the testatrix was still alert at the time of the execution of
the will, i.e., at or around the time of her birth anniversary
celebration in 1981. It was also established that she is a very
intelligent person and has a mind of her own. Her
independence of character and to some extent, her sense of
superiority, which has been testified to in Court, all show the
unlikelihood of her being unduly influenced or improperly
pressured to make the aforesaid will. It must be noted that the
undue influence or improper pressure in question herein only
refer to the making of a will and not as to the specific
testamentary provisions therein which is the proper subject of
another proceeding. Hence, under the circumstances, this
Court cannot find convincing reason for the disallowance of the
will herein.
Considering then that it is a well-established doctrine in the law
on succession that in case of doubt, testate succession should
be preferred over intestate succession, and the fact that no
convincing grounds were presented and proven for the
disallowance of the holographic will of the late Annie Sand, the
aforesaid will submitted herein must be admitted to probate. 3
(Citations omitted.)
On appeal, said Decision was reversed, and the petition for
probate of decedent's will was dismissed. The Court of
Appeals found that, "the holographic will fails to meet the
requirements for its validity." 4 It held that the decedent did not
comply with Articles 813 and 814 of the New Civil Code, which
read, as follows:
Art. 813: When a number of dispositions appearing in a
holographic will are signed without being dated, and the last
disposition has a signature and date, such date validates the
dispositions preceding it, whatever be the time of prior
dispositions.
Art. 814: In case of insertion, cancellation, erasure or alteration
in a holographic will, the testator must authenticate the same
by his full signature.
It alluded to certain dispositions in the will which were either
unsigned and undated, or signed but not dated. It also found
that the erasures, alterations and cancellations made thereon
had not been authenticated by decedent.
Thus, this appeal which is impressed with merit.
Section 9, Rule 76 of the Rules of Court provides that will shall
be disallowed in any of the following cases:
(a) If not executed and attested as required by law;
(b) If the testator was insane, or otherwise mentally incapable
to make a will, at the time of its execution;
(c) If it was executed under duress, or the influence of fear, or
threats;
(d) If it was procured by undue and improper pressure and
influence, on the part of the beneficiary, or of some other
person for his benefit;
(e) If the signature of the testator was procured by fraud or
trick, and he did not intend that the instrument should be his
will at the time of fixing his signature thereto.
In the same vein, Article 839 of the New Civil Code reads:
Art. 839: The will shall be disallowed in any of the following
cases;
(1) If the formalities required by law have not been complied
with;
(2) If the testator was insane, or otherwise mentally incapable
of making a will, at the time of its execution;
(3) If it was executed through force or under duress, or the
influence of fear, or threats;
(4) If it was procured by undue and improper pressure and
influence, on the part of the beneficiary or of some other
person;
(5) If the signature of the testator was procured by fraud;

(6) If the testator acted by mistake or did not intend that the
instrument he signed should be his will at the time of affixing
his signature thereto.
These lists are exclusive; no other grounds can serve to
disallow a will. 5 Thus, in a petition to admit a holographic will
to probate, the only issues to be resolved are: (1) whether the
instrument submitted is, indeed, the decedent's last will and
testament; (2) whether said will was executed in accordance
with the formalities prescribed by law; (3) whether the
decedent had the necessary testamentary capacity at the time
the will was executed; and, (4) whether the execution of the will
and its signing were the voluntary acts of the decedent. 6
In the case at bench, respondent court held that the
holographic will of Anne Sand was not executed in accordance
with the formalities prescribed by law. It held that Articles 813
and 814 of the New Civil Code, ante, were not complied with,
hence, it disallowed the probate of said will. This is erroneous.
We reiterate what we held in Abangan vs. Abangan, 40 Phil.
476, 479 (1919), that:
The object of the solemnities surrounding the execution of wills
is to close the door against bad faith and fraud, to avoid
substitution of wills and testaments and to guaranty their truth
and authenticity. Therefore, the laws on this subject should be
interpreted in such a way as to attain these primordial ends.
But, on the other hand, also one must not lose sight of the fact
that it is not the object of the law to restrain and curtail the
exercise of the right to make a will. So when an interpretation
already given assures such ends, any other interpretation
whatsoever, that adds nothing but demands more requisites
entirely unnecessary, useless and frustrative of the testator's
last will, must be disregarded.
For purposes of probating non-holographic wills, these formal
solemnities include the subscription, attestation, and
acknowledgment requirements under Articles 805 and 806 of
the New Civil Code.
In the case of holographic wills, on the other hand, what
assures authenticity is the requirement that they be totally
autographic or handwritten by the testator himself, 7 as
provided under Article 810 of the New Civil Code, thus:
A person may execute a holographic will which must be
entirely written, dated, and signed by the hand of the testator
himself. It is subject to no other form, and may be made in or
out of the Philippines, and need not be witnessed. (Emphasis
supplied.)
Failure to strictly observe other formalities will not result in the
disallowance of a holographic will that is unquestionably
handwritten by the testator.
A reading of Article 813 of the New Civil Code shows that its
requirement affects the validity of the dispositions contained in
the holographic will, but not its probate. If the testator fails to
sign and date some of the dispositions, the result is that these
dispositions cannot be effectuated. Such failure, however,
does not render the whole testament void.
Likewise, a holographic will can still be admitted to probate,
notwithstanding non-compliance with the provisions of Article
814. In the case of Kalaw vs. Relova 132 SCRA 237 242
(1984), this Court held:
Ordinarily, when a number of erasures, corrections, and
interlineations made by the testator in a holographic Will have
not been noted under his signature, . . . the Will is not thereby
invalidated as a whole, but at most only as respects the
particular words erased, corrected or interlined. Manresa gave
an identical commentary when he said "la omission de la
salvedad no anula el testamento, segun la regla de
jurisprudencia establecida en la sentencia de 4 de Abril de
1985." 8 (Citations omitted.)
Thus, unless the unauthenticated alterations, cancellations or
insertions were made on the date of the holographic will or on
testator's signature, 9 their presence does not invalidate the

will itself. 10 The lack of authentication will only result in

disallowance of such changes.
It is also proper to note that the requirements of authentication
of changes and signing and dating of dispositions appear in
provisions (Articles 813 and 814) separate from that which
provides for the necessary conditions for the validity of the
holographic will (Article 810). The distinction can be traced to
Articles 678 and 688 of the Spanish Civil Code, from which the
present provisions covering holographic wills are taken. They
read as follows:
Art. 678: A will is called holographic when the testator writes it
himself in the form and with the requisites required in Article
688.
Art. 688: Holographic wills may be executed only by persons of
full age.
In order that the will be valid it must be drawn on stamped
paper corresponding to the year of its execution, written in its
entirety by the testator and signed by him, and must contain a
statement of the year, month and day of its execution.
If it should contain any erased, corrected, or interlined words,
the testator must identify them over his signature.
Foreigners may execute holographic wills in their own
language.
This separation and distinction adds support to the
interpretation that only the requirements of Article 810 of the
New Civil Code and not those found in Articles 813 and 814
of the same Code are essential to the probate of a
holographic will.
The Court of Appeals further held that decedent Annie Sand
could not validly dispose of the house and lot located in
Cabadbaran, Agusan del Norte, in its entirety. This is correct
and must be affirmed.
As a general rule, courts in probate proceedings are limited to
pass only upon the extrinsic validity of the will sought to be
probated. However, in exceptional instances, courts are not
powerless to do what the situation constrains them to do, and
pass upon certain provisions of the will. 11 In the case at
bench, decedent herself indubitably stated in her holographic
will that the Cabadbaran property is in the name of her late
father, John H. Sand (which led oppositor Dr. Jose Ajero to
question her conveyance of the same in its entirety). Thus, as
correctly held by respondent court, she cannot validly dispose
of the whole property, which she shares with her father's other
heirs.
IN VIEW WHEREOF, the instant petition is GRANTED. The
Decision of the Court of Appeals in CA-G.R. CV No. 22840,
dated March 30, 1992, is REVERSED and SET ASIDE, except
with respect to the invalidity of the disposition of the entire
house and lot in Cabadbaran, Agusan del Norte. The Decision
of the Regional Trial Court of Quezon City, Branch 94 in Sp.
Proc. No. Q-37171, dated November 19, 1988, admitting to
probate the holographic will of decedent Annie Sand, is hereby
REINSTATED, with the above qualification as regards the
Cabadbaran property. No costs.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado and Mendoza, JJ., concur.

G.R. No. L-38338 January 28, 1985

IN THE MATTER OF THE INTESTATE ESTATE OF ANDRES
G. DE JESUS AND BIBIANA ROXAS DE JESUS, SIMEON
R. ROXAS & PEDRO ROXAS DE JESUS, petitioners,
vs.
ANDRES R. DE JESUS, JR., respondent.
Raul S. Sison Law Office for petitioners.
Rafael Dinglasan, Jr. for heir M. Roxas.
Ledesma, Guytingco Velasco and Associates for Ledesa and
A. R. de Jesus.
GUTIERREZ, JR., J.:
This is a petition for certiorari to set aside the order of
respondent Hon. Jose C. Colayco, Presiding Judge Court of
First Instance of Manila, Branch XXI disallowing the probate of
the holographic Will of the deceased Bibiana Roxas de Jesus.
The antecedent facts which led to the filing of this petition are
undisputed.
After the death of spouses Andres G. de Jesus and Bibiana
Roxas de Jesus, Special Proceeding No. 81503 entitled "In the
Matter of the Intestate Estate of Andres G. de Jesus and
Bibiana Roxas de Jesus" was filed by petitioner Simeon R.
Roxas, the brother of the deceased Bibiana Roxas de Jesus.
On March 26, 1973, petitioner Simeon R. Roxas was
appointed administrator. After Letters of Administration had
been granted to the petitioner, he delivered to the lower court a
document purporting to be the holographic Will of the
deceased Bibiana Roxas de Jesus. On May 26, 1973,
respondent Judge Jose Colayco set the hearing of the probate
of the holographic Win on July 21, 1973.
Petitioner Simeon R. Roxas testified that after his appointment
as administrator, he found a notebook belonging to the
deceased Bibiana R. de Jesus and that on pages 21, 22, 23
and 24 thereof, a letter-win addressed to her children and
entirely written and signed in the handwriting of the deceased
Bibiana R. de Jesus was found. The will is dated "FEB./61 "
and states: "This is my win which I want to be respected
although it is not written by a lawyer. ...
The testimony of Simeon R. Roxas was corroborated by the
testimonies of Pedro Roxas de Jesus and Manuel Roxas de
Jesus who likewise testified that the letter dated "FEB./61 " is
the holographic Will of their deceased mother, Bibiana R. de
Jesus. Both recognized the handwriting of their mother and
positively Identified her signature. They further testified that
their deceased mother understood English, the language in
which the holographic Will is written, and that the date
"FEB./61 " was the date when said Will was executed by their
mother.
Respondent Luz R. Henson, another compulsory heir filed an
"opposition to probate" assailing the purported holographic Will
of Bibiana R. de Jesus because a it was not executed in
accordance with law, (b) it was executed through force,
intimidation and/or under duress, undue influence and
improper pressure, and (c) the alleged testatrix acted by
mistake and/or did not intend, nor could have intended the said
Will to be her last Will and testament at the time of its
execution.
On August 24, 1973, respondent Judge Jose C. Colayco
issued an order allowing the probate of the holographic Will
which he found to have been duly executed in accordance with
law.
Respondent Luz Roxas de Jesus filed a motion for
reconsideration alleging inter alia that the alleged holographic
Will of the deceased Bibiana R. de Jesus was not dated as
required by Article 810 of the Civil Code. She contends that the
law requires that the Will should contain the day, month and
year of its execution and that this should be strictly complied
with.

On December 10, 1973, respondent Judge Colayco

reconsidered his earlier order and disallowed the probate of
the holographic Will on the ground that the word "dated" has
generally been held to include the month, day, and year. The
dispositive portion of the order reads:
WHEREFORE, the document purporting to be the holographic
Will of Bibiana Roxas de Jesus, is hereby disallowed for not
having been executed as required by the law. The order of
August 24, 1973 is hereby set aside.
The only issue is whether or not the date "FEB./61 " appearing
on the holographic Will of the deceased Bibiana Roxas de
Jesus is a valid compliance with the Article 810 of the Civil
Code which reads:
ART. 810. A person may execute a holographic will which must
be entirely written, dated, and signed by the hand of the
testator himself. It is subject to no other form, and may be
made in or out of the Philippines, and need not be witnessed.
The petitioners contend that while Article 685 of the Spanish
Civil Code and Article 688 of the Old Civil Code require the
testator to state in his holographic Win the "year, month, and
day of its execution," the present Civil Code omitted the phrase
Ao mes y dia and simply requires that the holographic Will
should be dated. The petitioners submit that the liberal
construction of the holographic Will should prevail.
Respondent Luz Henson on the other hand submits that the
purported holographic Will is void for non-compliance with
Article 810 of the New Civil Code in that the date must contain
the year, month, and day of its execution. The respondent
contends that Article 810 of the Civil Code was patterned after
Section 1277 of the California Code and Section 1588 of the
Louisiana Code whose Supreme Courts had consistently ruled
that the required date includes the year, month, and day, and
that if any of these is wanting, the holographic Will is invalid.
The respondent further contends that the petitioner cannot
plead liberal construction of Article 810 of the Civil Code
because statutes prescribing the formalities to be observed in
the execution of holographic Wills are strictly construed.
We agree with the petitioner.
This will not be the first time that this Court departs from a strict
and literal application of the statutory requirements regarding
the due execution of Wills. We should not overlook the liberal
trend of the Civil Code in the manner of execution of Wills, the
purpose of which, in case of doubt is to prevent intestacy
The underlying and fundamental objectives permeating the
provisions of the law on wigs in this Project consists in the
liberalization of the manner of their execution with the end in
view of giving the testator more freedom in expressing his last
wishes, but with sufficien safeguards and restrictions to
prevent the commission of fraud and the exercise of undue and
improper pressure and influence upon the testator.
This objective is in accord with the modem tendency with
respect to the formalities in the execution of wills. (Report of
the Code Commission, p. 103)
In Justice Capistrano's concurring opinion in Heirs of
Raymundo Castro v. Bustos (27 SCRA 327) he emphasized
that:
xxx xxx xxx
... The law has a tender regard for the will of the testator
expressed in his last will and testament on the ground that any
disposition made by the testator is better than that which the
law can make. For this reason, intestate succession is nothing
more than a disposition based upon the presumed will of the
decedent.
Thus, the prevailing policy is to require satisfaction of the legal
requirements in order to guard against fraud and bad faith but
without undue or unnecessary curtailment of testamentary
privilege Icasiano v. Icasiano, 11 SCRA 422). If a Will has
been executed in substantial compliance with the formalities of
the law, and the possibility of bad faith and fraud in the

exercise thereof is obviated, said Win should be admitted to

probate (Rey v. Cartagena 56 Phil. 282). Thus,
xxx xxx xxx
... More than anything else, the facts and circumstances of
record are to be considered in the application of any given rule.
If the surrounding circumstances point to a regular execution of
the wilt and the instrument appears to have been executed
substantially in accordance with the requirements of the law,
the inclination should, in the absence of any suggestion of bad
faith, forgery or fraud, lean towards its admission to probate,
although the document may suffer from some imperfection of
language, or other non-essential defect. ... (Leynez v. Leynez
68 Phil. 745).
If the testator, in executing his Will, attempts to comply with all
the requisites, although compliance is not literal, it is sufficient
if the objective or purpose sought to be accomplished by such
requisite is actually attained by the form followed by the
testator.
The purpose of the solemnities surrounding the execution of
Wills has been expounded by this Court in Abangan v. Abanga
40 Phil. 476, where we ruled that:
The object of the solemnities surrounding the execution of wills
is to close the door against bad faith and fraud, to avoid
substitution of wills and testaments and to guaranty their truth
and authenticity. ...
In particular, a complete date is required to provide against
such contingencies as that of two competing Wills executed on
the same day, or of a testator becoming insane on the day on
which a Will was executed (Velasco v. Lopez, 1 Phil. 720).
There is no such contingency in this case.
We have carefully reviewed the records of this case and found
no evidence of bad faith and fraud in its execution nor was
there any substitution of Wins and Testaments. There is no
question that the holographic Will of the deceased Bibiana
Roxas de Jesus was entirely written, dated, and signed by the
testatrix herself and in a language known to her. There is also
no question as to its genuineness and due execution. All the
children of the testatrix agree on the genuineness of the
holographic Will of their mother and that she had the
testamentary capacity at the time of the execution of said Will.
The objection interposed by the oppositor-respondent Luz
Henson is that the holographic Will is fatally defective because
the date "FEB./61 " appearing on the holographic Will is not
sufficient compliance with Article 810 of the Civil Code. This
objection is too technical to be entertained.
As a general rule, the "date" in a holographic Will should
include the day, month, and year of its execution. However,
when as in the case at bar, there is no appearance of fraud,
bad faith, undue influence and pressure and the authenticity of
the Will is established and the only issue is whether or not the
date "FEB./61" appearing on the holographic Will is a valid
compliance with Article 810 of the Civil Code, probate of the
holographic Will should be allowed under the principle of
substantial compliance.
WHEREFORE, the instant petition is GRANTED. The order
appealed from is REVERSED and SET ASIDE and the order
allowing the probate of the holographic Will of the deceased
Bibiana Roxas de Jesus is reinstated.
SO ORDERED.
Teehankee (Chairman), Melencio-Herrera, Plana, Relova and
De la Fuente, JJ., concur.

G.R. No. 38050

September 22, 1933
In the matter of the will of Donata Manahan. TIBURCIA
MANAHAN, petitioner-appellee,
vs.
ENGRACIA MANAHAN, opponent-appellant.
J. Fernando Rodrigo for appellant.
Heraclio H. del Pilar for appellee.
IMPERIAL, J.:
This is an appeal taken by the appellant herein, Engracia
Manahan, from the order of the Court of the First Instance of
Bulacan dated July 1, 1932, in the matter of the will of the
deceased Donata Manahan, special proceedings No. 4162,
denying her motion for reconsideration and new trial filed on
May 11, 1932.
The fact in the case are as follows:
On August 29, 1930, Tiburcia Manahan instituted special
proceedings No. 4162, for the probate of the will of the
deceased Donata Manahan, who died in Bulacan, Province of
Bulacan, on August 3, 1930. The petitioner herein, niece of the
testatrix, was named the executrix in said will. The court set
the date for the hearing and the necessary notice required by
law was accordingly published. On the day of the hearing of
the petition, no opposition thereto was filed and, after the
evidence was presented, the court entered the decree
admitting the will to probate as prayed for. The will was
probated on September 22, 1930. The trial court appointed the
herein petitioner executrix with a bond of P1,000, and likewise
appointed the committed on claims and appraisal, whereupon
the testamentary proceedings followed the usual course. One
year and seven months later, that is, on My 11, 1932, to be
exact, the appellant herein filed a motion for reconsideration
and a new trial, praying that the order admitting the will to
probate be vacated and the authenticated will declared null
and void ab initio. The appellee herein, naturally filed her
opposition to the petition and, after the corresponding hearing
thereof, the trial court erred its over of denial on July 1, 1932.
Engracia Manahan, under the pretext of appealing from this
last order, likewise appealed from the judgment admitting the
will to probate.
In this instance, the appellant assigns seven (7) alleged errors
as committed by the trial court. Instead of discussing them one
by one, we believe that, essentially, her claim narrows down to
the following: (1) That she was an interested party in the
testamentary proceedings and, as such, was entitled to and
should have been notified of the probate of the will; (2) that the
court, in its order of September 22, 1930, did not really probate
the will but limited itself to decreeing its authentication; and (3)
that the will is null and void ab initio on the ground that the
external formalities prescribed by the Code of Civil Procedure
have not been complied with in the execution thereof.
The appellant's first contention is obviously unfounded and
untenable. She was not entitled to notification of the probate of
the will and neither had she the right to expect it, inasmuch as
she was not an interested party, not having filed an opposition
to the petition for the probate thereof. Her allegation that she
had the status of an heir, being the deceased's sister, did not
confer on her the right to be notified on the ground that the
testatrix died leaving a will in which the appellant has not been
instituted heir. Furthermore, not being a forced heir, she did not
acquire any successional right.
The second contention is puerile. The court really decreed the
authentication and probate of the will in question, which is the
only pronouncement required of the trial court by the law in
order that the will may be considered valid and duly executed
in accordance with the law. In the phraseology of the
procedural law, there is no essential difference between the
authentication of a will and the probate thereof. The words
authentication and probate are synonymous in this case. All
the law requires is that the competent court declared that in the

execution of the will the essential external formalities have

been complied with and that, in view thereof, the document, as
a will, is valid and effective in the eyes of the law.
The last contention of the appellant may be refuted merely by
stating that, once a will has been authenticated and admitted to
probate, questions relative to the validity thereof can no more
be raised on appeal. The decree of probate is conclusive with
respect to the due execution thereof and it cannot impugned
on any of the grounds authorized by law, except that of fraud,
in any separate or independent action or proceedings (sec.
625, Code of Civil Procedure; Castaeda vs. Alemany, 3 Phil.,
426; Pimentel vs. Palanca, 5 Phil., 436; Sahagun vs. De
Gorostiza, 7 Phil., 347; Limjuco vs. Ganara, 11 Phil., 393;
Montaano vs. Suesa, 14 Phil., 676; In re Estate of Johnson,
39 Phil., 156; Riera vs. Palmaroli, 40 Phil., 105; Austria vs.
Ventenilla, 21 Phil., 180; Ramirez vs. Gmur, 42 Phil., 855; and
Chiong Joc-Soy vs. Vao, 8 Phil., 119).
But there is another reason which prevents the appellant
herein from successfully maintaining the present action and it
is that inasmuch as the proceedings followed in a testamentary
case are in rem, the trial court's decree admitting the will to
probate was effective and conclusive against her, in
accordance with the provisions of section 306 of the said Code
of Civil Procedure which reads as follows:
SEC. 306. EFFECT OF JUDGMENT. . . . .
1. In case of a judgment or order against a specific thing, or in
respect to the probate of a will, or the administration of the
estate of a deceased person, or in respect to the personal,
political, or legal condition or relation of a particular person the
judgment or order is conclusive upon the title of the thing, the
will or administration, or the condition or relation of the person:
Provided, That the probate of a will or granting of letters of
administration shall only be prima facie evidence of the death
of the testator or intestate; . . . .
On the other hand, we are at a loss to understand how it was
possible for the herein appellant to appeal from the order of the
trial court denying her motion for reconsideration and a new
trial, which is interlocutory in character. In view of this
erroneous interpretation, she succeeded in appealing indirectly
from the order admitting the will to probate which was entered
one year and seven months ago.
Before closing, we wish to state that it is not timely to discuss
herein the validity and sufficiency of the execution of the will in
question. As we have already said, this question can no more
be raised in this case on appeal. After due hearing, the court
found that the will in question was valid and effective and the
order admitting it to probate, thus promulgated, should be
accepted and respected by all. The probate of the will in
question now constitutes res judicata.
Wherefore, the appeal taken herein is hereby dismissed, with
costs against the appellant. So ordered.
Avancea, C.J., Malcolm, Villa-Real, and Hull, JJ., concur.

G.R. No. L-53546 June 25, 1992

THE HEIRS OF THE LATE JESUS FRAN and CARMEN
MEJIA RODRIGUEZ, petitioners,
vs.
HON. BERNARDO LL. SALAS, CONCEPCION MEJIA
ESPINA and MARIA MEJIA GANDIONGCO, respondents.
DAVIDE, JR., J.:
This is a petition for certiorari and prohibition under Rule 65 of
the Revised Rules of Court, with prayer for a writ of preliminary
injunction, to annul and set aside, for having been issued
without jurisdiction or with grave abuse of discretion amounting
to lack of jurisdiction, the following Orders of the respondent
Judge in Special Proceedings No. 3309-R of Branch VIII of the
then Court of First Instance (now Regional Trial Court) of Cebu
entitled "In The Matter of the Petition for Probate of the Last
Will and Testament of Remedios Mejia Vda. de Tiosejo:"
1. The Order of 26 February 1980 setting for hearing private
respondents' Omnibus Motion for Reconsideration 1 which was
filed six (6) years, ten (10) months and eighteen (18) days after
the probate judgment was rendered and six (6) years and
twenty-one (21) days after the testate proceedings was
declared closed and terminated; and
2. The Order of 2 June 1980 finding the signature of the
testatrix in the last will and testament to be a forgery and (a)
declaring the testatrix as having died intestate; (b) declaring
the testamentary dispositions in said last will and testament as
null and void; (c) setting aside the order dated 10 September
1973 declaring the testate proceedings closed and terminated;
(d) revoking the appointment of Jesus Fran as executor while
appointing
respondent
Concepcion
M.
Espina
as
administratrix; and (e) ordering the conversion of the
proceedings to one of intestacy. 2 This Order effectively
annulled and set aside the probate judgment of 13 November
1972.
Petitioners would also have this Court nullify all other actions of
respondent Judge in said Sp. Proc. No. 3309-R; restore the
status quo therein prior to the issuance of the foregoing orders;
and permanently enjoin respondent Judge from reopening said
proceedings.
The following facts are not controverted:
Remedios M. Vda. de Tiosejo, a widow, died on 10 July 1972
in Cebu City with neither descendants nor ascendants; she left
real and personal properties located in Cebu City, Ormoc City
and Puerto Bello, Merida, Leyte. Earlier, on 23 April 1972, she
executed a last will and testament 3 wherein she bequeathed
to her collateral relatives (brothers, sisters, nephews and
nieces) all her properties, and designated Rosario Tan or,
upon the latter's death, Jesus Fran, as executor to serve
without bond. Instrumental witnesses to the will were Nazario
Pacquiao, Alcio Demerre and Primo Miro.
On 15 July 1972, Jesus Fran filed a petition with the Court of
First instance of Cebu for the probate of Remedios' last will
and testament. 4 The case was raffled to the original Branch
VIII thereof which was then presided over by Judge Antonio D.
Cinco. The petition alleged that Rosario Tan is not physically
well and, therefore, will not be assuming the position of
administratrix. Tan signed a waiver in favor of Jesus Fran on
the third page of the said petition. The probate court issued an
order setting the petition for hearing on 18 September 1972.
Meanwhile, on 31 July 1972, the court appointed petitioner
Jesus Fran as special administrator.
On 10 August 1972, the private respondents, who are sisters
of the deceased, filed a manifestation 5 alleging that they
needed time to study the petition because some heirs who are
entitled to receive their respective shares have been
intentionally omitted therein, and praying that they be given
ample time to file their opposition, after which the hearing be
reset to another date.

Private respondents did not file any opposition. Instead, they

filed on 18 September 1972 a "Withdrawal of Opposition to the
Allowance of Probate (sic) of the Will" wherein they expressly
manifested, with their "full knowledge and consent that . . . they
have no objection of (sic) the allowance of the . . . will of the
late Remedios Mejia Vda. de Tiosejo," and that they have "no
objection to the issuance of letters testamentary in favor of
petitioner, Dr. Jesus Fran." 6
No other party filed an opposition. The petition thus became
uncontested.
During the initial hearing, petitioner Fran introduced the
requisite evidence to establish the jurisdictional facts.
Upon a determination that the court had duly acquired
jurisdiction over the uncontested petition for probate, Judge
Cinco issued in open court an order directing counsel for
petitioner to present evidence proving the authenticity and due
execution of the will before the Clerk of Court who was,
accordingly, so authorized to receive the same.
The reception of evidence by the Clerk of Court immediately
followed. Petitioner Fran's first witness was Atty. Nazario R.
Pacquiao, one at the subscribing witnesses to the will. The
original of the will, marked as Exhibit "F", and its English
translation, marked as Exhibit "F-Translation", were submitted
to the Clerk of Court. 7 Petitioner Fran was the second and
also the last witness. He enumerated the names of the
surviving heirs of the deceased.
On 13 November 1972, the probate court rendered a decision
admitting to probate the will of the testatrix, Remedios Mejia
Vda. de Tiosejo, and appointing petitioner Fran as executor
thereof. 8 The dispositive portion of the decision reads:
WHEREFORE, in view of all the foregoing, judgment is hereby
rendered declaring the last will and testament of the deceased
Remedios Mejia Vda. de Tiosejo marked as Exhibit F as
admitted to probate. Dr. Jesus Fran is hereby appointed as
executor of the will. Let letters testamentary be issued in favor
of Dr. Jesus Fran. The special administrator's bond put up by
Dr. Jesus Fran as special administrator duly approved by this
Court shall serve and be considered as the executor's bond
considering that the special administrator and executor are one
and the same person.
The requisite notice to creditors was issued, but despite the
expiration of the period therein fixed, no claim was presented
against the estate.
On 4 January 1973, petitioner Fran filed an Inventory of the
Estate; 9 copies thereof were furnished each of the private
respondents.
Subsequently, a Project of Partition based on the dispositions
made in the will and signed by all the devisees and legatees,
with the exception of Luis Fran, Remedios C. Mejia and
respondent Concepcion M. Espina, was submitted by the
executor for the court's approval. 10 Said legatees and
devisees submitted certifications wherein they admit receipt of
a copy of the Project of Partition together with the notice of
hearing, and state that they had no objection to its approval. 11
The notice of hearing referred to in these certifications is the 6
August 1973 notice issued by the Clerk of Court setting the
hearing on the Project of Partition for 29 August 1973. 12
After the hearing on the Project of Partition, the court issued its
Order of 10 September 1973 13 approving the same, declaring
the parties therein as the only heirs entitled to the estate of
Remedios Mejia Vda. de Tiosejo, directing the administrator to
deliver to the said parties their respective shares and
decreeing the proceedings closed. The dispositive portion
thereof reads:
WHEREFORE, the signers (sic) to the project of partition are
declared the only, heirs entitled to the estate; the project of
partition submitted is ordered approved and the administrator
is ordered to deliver to each one of them their respective
aliquot parts as distributed in the said project of partition. It is

understood that if there are expenses incurred or to be

incurred as expenses of partition, Section 3 of Rule 90 shall be
followed.
Let this proceedings be now declared closed.
SO ORDERED.
Thereafter, the aforesaid Branch VIII of the Court of First
Instance of Cebu was converted to a Juvenile and Domestic
Relations Court. On November 1978, by virtue of Presidential
Decree No. 1439, Branch XVII (Davao City) of the Court of
First Instance of Cebu, presided over by herein respondent
Judge, was officially transferred to Cebu City and renumbered
as Branch VIII.
On 1 October 1979, private respondents filed with the new
Branch VIII an Omnibus Motion for Reconsideration of the
probate judgment of 13 November 1972 and the Order of
partition of 10 September 1973, in said motion, they ask the
court to declare the proceedings still open and admit their
opposition to the allowance of the will, 14 which they filed on 1
October 1979. They allege that: (a) they were not furnished
with a copy of the will; (b) the will is a forgery; (c) they were not
notified of any resolution or order on their manifestation
requesting time within which to file their opposition, or of the
order authorizing the clerk of court to receive the evidence for
the petitioner, or of the order closing the proceedings; (d) the
reception of evidence by the clerk of court was void per the
ruling in Lim Tanhu vs. Ramolete; 15 (e) the project of partition
contains no notice of hearing and they were not notified
thereof; (f) the petitioner signed the project of partition as
administrator and not as executor, thereby proving that the
decedent died intestate; (g) the petitioner did not submit any
accounting as required by law; and (h) the petitioner never
distributed the estate to the devisees and legatees.
In a detailed opposition 16 to the above Omnibus Motion for
Reconsideration, petitioner Fran refuted all the protestations of
private respondents. Among other reasons, he stresses therein
that: (a) private respondents are in estoppel to question the will
because they filed their Withdrawal Of Opposition To The
Allowance of Will which states that after thoroughly studying
the petition, to which was attached a copy of the English
translation of the will, they have no objection to its allowance;
the order directing the clerk of court to receive the evidence
was dictated in open court in the presence of private
respondents; private respondent Maria M. Gandiongco signed
the Project of Partition and private respondent Concepcion M.
Espina submitted a certification stating therein that she
received the notice of hearing therefor and has no objection to
its approval; (b) except for some properties, either covered by
a usufruct under the will or agreed upon by the parties to be
held in common by reason of its special circumstance, there
was an actual distribution of the estate in accordance with the
Project of Partition; insofar as private respondents are
concerned, they not only received their respective shares, they
even purchased the shares of the other devisees. To top it all,
private respondents' children, namely Rodrigo M. Gandiongco,
Jr. and Victor Espina, mortgaged their respective shares in
favor of a bank
Notwithstanding petitioners' objections, respondent Judge
issued on 26 February 1980 an Order setting for hearing the
said Omnibus Motion for Reconsideration on 8 April 1980 so
that "the witnesses and the exhibits (may be) properly
ventilated." 17
On 25 March 1980, petitioners filed a Motion to Dismiss the
Omnibus and to Reconsider the 26 February 1980 Order
setting it for hearing on 17 April 1980, 18 but the respondent
Judge prematurely denied it for lack of merit in his Order of 31
March 1980. 19
Consequently, on 8 April 1980, the instant petition was filed
challenging the jurisdiction of the lower court in taking

cognizance of the Omnibus Motion for Reconsideration

considering that the probate judgment and the order approving
the Project of Partition and terminating the proceedings had
long become final and had in fact been executed. Private
respondents had long lost their right to appeal therefrom. The
Omnibus Motion for Reconsideration cannot likewise be
treated as a petition for relief from judgment for under Rule 38
of the Revised Rules of Court, the same must be filed within
sixty (60) days from receipt of notice of the judgment/order and
within six (6) months from the date of said judgment.
Therefore, this remedy can no longer be availed of.
On 8 April 1980, the date the instant petition was filed,
respondent Judge proceeded with the hearing of the Omnibus
Motion for Reconsideration. He received the testimonies of
private respondents and one Romeo O. Varena, an alleged
handwriting expert from the Philippine Constabulary, who
averred that the signature of the testatrix on the will is a
forgery. The respondent Judge likewise issued an Order on the
same date stating that unless he received a restraining order
from this Court within twenty (20) days therefrom, he will
reopen Sp. Proc. No. 3309-R.
On 14 April 1980, petitioners filed a Supplemental Petition
asking this Court to restrain respondent Judge from reopening
the case. 20
In their voluminous Comments and Opposition to the petition
and Supplemental Petition, 21 private respondents not only
amplify in great detail the grounds raised in their Omnibus
Motion for Reconsideration, they also squarely raise for the
first time the following issues.
(a) The probate court never acquired jurisdiction over the case
since petitioner Jesus Fran failed to submit to the court the
original of the will.
(b) They were deprived of the opportunity to examine the will
as petitioner Jesus Fran did not attach it to the petition; what
was attached was only the English translation of the will.
(c) Even assuming that the probate judge could validly
delegate the reception of evidence to the Clerk of Court, the
proceeding before the latter would still be void as he failed to
take an oath of office before entering upon his duties as
commissioner and failed to render a report on the matters
submitted to him.
(d) Respondent Maria M. Vda. de Gandiongco was defrauded
into (sic) signing the Project of Partition and respondent
Concepcion M. Espina, her certification, when they were
misled by petitioner Fran into believing that the Agreement of
Petition to be submitted to the court is the Extra Judicial
Partition they signed on 7 May 1973.
(e) Petitioner Fran is guilty of fraud in urdervaluing the estate of
the late Remedios M. Vda. de Tiosejo by reporting properties
worth only P400,000.00 when in truth and in fact the estate has
an aggregate value of P2,094,333.00.
In the Resolution dated 2 June 1980, We issued a restraining
order enjoining respondent Judge from reopening Sp. Proc.
No. 3309-R. 22
However, on the same date, before the restraining order was
served on him; respondent Judge issued the impugned order
declaring the testamentary dispositions of the will void, finding
the signature of the late Remedios M. Vda. de Tiosejo to be a
forgery, decreeing the reopening of Sp. Proc. No. 3309-R and
converting the same into an intestate proceeding. 23
Hence, on 6 June 1980, petitioners filed their Second
Supplemental Petition 24 asking this Court to declare as null
and void the Order of 2 June 1980 and, pending such
declaration, to restrain respondent Judge from enforcing the
same. Private respondents filed their Comment and Opposition
to the Second Supplemental Petition on 9 July 1980.
Thereafter, as mandated in the resolution of 30 June 1980, 25
this Court gave due course to this case and required the
parties to file their respective Memoranda, which private

respondents complied with on 16 August 1980; 26 petitioners

filed theirs on 27 August 1980. 27 Consequently, the parties
continued to file several pleadings reiterating substantially the
same allegations and arguments earlier submitted to this
Court.
On 22 March 1984, counsel for petitioners filed a manifestation
informing this Court of the death of petitioner Fran on 29
February 1984 and enumerating therein his surviving heirs. On
2 April 1984, this Court resolved to have said heirs substitute
him in this case.
Over a year later, respondent Maria M. Vda. de Gandiongco
filed an affidavit, 28 sworn to before the acting Clerk of Court of
the Regional Trial Court in Cebu City, disclosing the following
material facts: (a) she signed the Omnibus Motion for
Reconsideration dated 1 October 1979 without knowing or
reading the contents thereof; (b) she saw the will of the late
Remedios M. Vda. de Tiosejo written in the Cebuano dialect
after the same was executed by the latter; the said will bearing
the authentic signature of Remedios was the very one
presented to the probate court by petitioner's counsel; (c) she
received the notice of hearing of the petition for probate and
because she was convinced that the signature of the testatrix
was genuine, she, together with Concepcion M. Espina,
withdrew her opposition; (d) she received her share of the
estate of the late Remedios M. Vda. de Tiosejo which was
distributed in accordance with the provisions of the latter's will;
and (e) she did not authorize Atty. Numeriano Estenzo or other
lawyers to present a motion to this Court after 25 February
1981 when Estenzo withdrew as counsel for private
respondents. She then asks this Court to consider as
withdrawn her Opposition to the Allowance of the Will, her
participation in the Omnibus Motion for Reconsideration and
her Opposition to this petition.
Due to this development, We required private respondent
Concepcion M. Espina to comment on the affidavit of private
respondent Maria M. Vda. de Gandiongco.
On 17 August 1985, private respondents filed a joint
manifestation 29 wherein they claim that Maria M. Vda. de
Gandiongco does not remember, executing the affidavit. A few
weeks before the affidavit was filed, particularly on 17 June
1985, Maria M. Vda. de Gandiongco was confined in the
hospital; she could not recall having signed, during this period,
any affidavit or recognized her sisters and other relatives.
On 19 September 1985, respondent Maria M. Vda. de
Gandiongco,
through
special
counsel,
filed
a
Manifestation/Motion with a second Affidavit attached thereto
30 confessing that she signed the Joint Manifestation dated 16
August 1985 "without knowing or being informed of its
contents, and only upon Mrs. Concepcion Espina's request."
She reiterated her desire to withdraw from the Omnibus Motion
for Reconsideration filed in Sp. Proc. No, 3309-R as well as
from the instant petition.
Despite the valiant attempt of private respondent Concepcion
M. Espina to influence and control the action of Maria
Gandiongco, there is nothing in the records that would cast any
doubt on the irrevocability of the latter's decision to withdraw
her participation in the Omnibus Motion for Reconsideration
and Opposition to this case. That decision, however, is not a
ground for dropping her as a private respondent as the
respondent Judge had already issued the abovementioned
Order of 2 June 1980.
The petition and the supplemental petitions are impressed with
merit.
We do not hesitate to rule that the respondent Judge
committed grave abuse of discretion amounting to lack of
jurisdiction when he granted the Omnibus Motion for
Reconsideration and thereafter set aside the probate judgment
of 13 November 1972 in Sp. Proc. No. 3309-R, declared the
subject will of the testatrix a forgery, nullified the testamentary

dispositions therein and ordered the conversion of the testate

proceedings into one of intestacy.
It is not disputed that private respondents filed on the day of
the initial hearing of the petition their "Withdrawal of Opposition
To Allowance of Probate (sic) Will" wherein they unequivocally
state that they have no objection to the allowance of the will.
For all legal intents and purposes, they became proponents of
the same.
After the probate court rendered its decision on 13 November
1972, and there having been no claim presented despite
publication of notice to creditors, petitioner Fran submitted a
Project of Partition which private respondent Maria M. Vda. de
Gandiongco voluntarily signed and to which private respondent
Espina expressed her conformity through a certification filed
with the probate court. Assuming for the sake of argument that
private respondents did not receive a formal notice of the
decision as they claim in their Omnibus Motion for
Reconsideration, these acts nevertheless constitute indubitable
proof of their prior actual knowledge of the same. A formal
notice would have been an idle ceremony. In testate
proceedings, a decision logically precedes the project of
partition, which is normally an implementation of the will and is
among the last operative acts to terminate the proceedings. If
private respondents did not have actual knowledge of the
decision, they should have desisted from performing the above
acts and instead demanded from petitioner Fran the fulfillment
of his alleged promise to show them the will. The same
conclusion refutes and defeats the plea that they were not
notified of the order authorizing the Clerk of Court to receive
the evidence and that the Clerk of Court did not notify them of
the date of the reception of evidence. Besides, such plea must
fail because private respondents were present when the court
dictated the said order.
Neither do We give any weight to the contention that the
reception of evidence by the Clerk of Court is null and void per
the doctrine laid, down in Lim Tanhu vs. Ramolete. 31 In the
first place, Lim Tanhu was decided on 29 August 1975, nearly
four (4) years after the probate court authorized the Clerk of
Court to receive the evidence for the petitioner in this case. A
month prior to Lim Tanhu, or on 30 July 1975, this Court, in
Laluan vs. Malpaya, 32 recognized and upheld the practice of
delegating the reception of evidence to Clerks of Court. Thus:
No provision of law or principle of public policy prohibits a court
from authorizing its clerk of court to receive the evidence of a
party litigant. After all, the reception of evidence by the clerk of
court constitutes but a ministerial task the taking down of
the testimony of the witnesses and the marking of the pieces of
documentary evidence, if any, adduced by the party present.
This task of receiving evidence precludes, on the part of the
clerk of court the exercise of judicial discretion usually called
for when the other party who is present objects to questions
propounded and to the admission of the documentary evidence
proffered. 33 More importantly, the duty to render judgment on
the merits of the case still rests with the judge who is obliged to
personally and directly prepare the decision based upon the
evidence reported. 34
But where the proceedings before the clerk of court and the
concomitant result thereof, i.e., the judgment rendered by the
court based on the evidence presented in such limited
proceedings, prejudice the substantial rights of the aggrieved
party, then there exists, sufficient justification to grant the latter
complete opportunity to thresh out his case in court. 35
Monserrate vs. Court of Appeals, 36 decided on 29 September
1989, reiterated this rule. Lim Tanhu then cannot be used as
authority to nullify the order of the probate court authorizing the
Clerk of Court to receive the evidence for the rule is settled that
"when a doctrine of this Court is overruled and a different view
is adopted, the new doctrine should be applied prospectively,
and should not apply to parties who had relied on the old

doctrine and acted on the faith thereof." 37 It may also be

emphasized in this connection that Lim Tanhu did not live long;
it was subsequently overruled in Gochangco vs. Court of First
Instance of Negros Occidental, 38 wherein this Court, en banc,
through Justice, now Chief Justice, Andres R. Narvasa, in
reference to what the trial court termed as "the doctrinal rule
laid down in the recent case of Lim Tan Hu (sic) vs. Ramolete,"
ruled:
Now, that declaration does not reflect long observed and
established judicial practice with respect to default cases. It is
not quite consistent, too, with the several explicitly authorized
instances under the Rules where the function of receiving
evidence and even of making recommendatory findings of
facts on the basis thereof may be delegated to commissioners,
inclusive of the Clerk of Court. These instances are set out in
Rule 33, . . . ; Rule 67 and 69, . . . ; Rule 86, . . . ; Rule 136, . . .
. In all these instances, the competence of the clerk of court is
assumed. Indeed, there would seem, to be sure, nothing
intrinsically wrong in allowing presentation of evidence ex parte
before a Clerk of Court. Such a procedure certainly does not
foreclose relief to the party adversely affected who, for valid
cause and upon appropriate and seasonable application, may
bring about the undoing thereof or the elimination of prejudice
thereby caused to him; and it is, after all, the Court itself which
is duty bound and has the ultimate responsibility to pass upon
the evidence received in this manner, discarding in the process
such proofs as are incompetent and then declare what facts
have thereby been established. In considering and analyzing
the evidence preparatory to rendition of judgment on the
merits, it may not unreasonably be assumed that any serious
error in the ex-parte presentation of evidence, prejudicial to
any absent party, will be detected and duly remedied by the
Court, and/or may always, in any event, be drawn to its
attention by any interested party.
xxx xxx xxx
It was therefore error for the Court a quo to have declared the
judgment by default to be fatally flawed by the fact that the
plaintiff's evidence had been received not by the Judge himself
but by the clerk of court.
The alternative claim that the proceedings before the Clerk of
Court were likewise void because said official did not take an
oath is likewise untenable. The Clerk of Court acted as such
when he performed the delegated task of receiving evidence. It
was not necessary for him to take an oath for that purpose; he
was bound by his oath of office as a Clerk of Court. Private
respondents are obviously of the impression that by the
delegation of the reception of evidence to the Clerk of Court,
the latter became a commissioner as defined under Rule 33 of
the Rules of Court entitled Trial by Commissioner. This is not
correct; as this Court said in Laluan:
The provisions of Rule 33 of the Rules of Court invoked by
both parties properly relate to the reference by a court of any
or all of the issues in a case to a person so commissioned to
act or report thereon. These provisions explicitly spell out the
rules governing the conduct of the court, the commissioner,
and the parties before, during, and after the reference
proceedings. Compliance with these rules of conduct becomes
imperative only when the court formally orders a reference of
the case to a commissioner. Strictly speaking then, the
provisions of Rule 33 find no application to the case at bar
where the court a quo merely directed the clerk of court to take
down the testimony of the witnesses presented and to mark
the documentary evidence proferred on a date previously set
for hearing.
Belatedly realizing the absence of substance of the above
grounds, private respondents now claim in their Comments to
the Petition and the Supplemental Petition that the trial court
never acquired jurisdiction over the petition because only the
English translation of the will and not a copy of the same

was attached to the petition; the will was not even submitted to
the court for their examination within twenty (20) days after the
death of the testatrix; and that there was fraud in the
procurement of the probate judgment principally because they
were not given any chance to examine the signature of the
testatrix and were misled into signing the withdrawal of their
opposition on the assurance of petitioner Fran and their sister,
Rosario M. Tan, that the will would be shown to them during
the trial. These two grounds easily serve as the bases for the
postulation that the decision is null and void and so, therefore,
their omnibus motion became all the more timely and proper.
The contentions do not impress this Court.
In Santos vs. Castillo 39 and Salazar vs. Court of First
Instance of Laguna, 40 decided six (6) months apart in 1937,
this Court already ruled that it is not necessary that the original
of the will be attached to the petition. In the first, it ruled: "The
original of said document [the will] must be presented or
sufficient reasons given to justify the nonpresentation of said
original and the acceptance of the copy or duplicate thereof."
41 In the second case, this Court was more emphatic in
holding that:
The law is silent as to the specific manner of bringing the
jurisdictional allegations before the court, but practice and
jurisprudence have established that they should be made in
the form of an application and filed with the original of the will
attached thereto. It has been the practice in some courts to
permit attachment of a mere copy of the will to the application,
without prejudice to producing the original thereof at the
hearing or when the court so requires. This precaution has
been adopted by some attorneys to forestall its disappearance,
which has taken place in certain cases. 42
That the annexing of the original will to the petition is not a
jurisdictional requirement is clearly evident in Section 1, Rule
76 of the Rules of Court which allows the filing of a petition for
probate by the person named therein regardless of whether or
not he is in possession of the will, or the same is lost or
destroyed. The section reads in full as follows:
Sec. 1. Who may petition for the allowance of will. Any
executor, devisee, or legatee named in a will, or any other
person interested in the estate, may, at any time after the
death of the testator, petition the court having jurisdiction to
have the will allowed, whether the same be in his possession
or not, or is lost or destroyed.
In the instant case, a copy of the original will and its English
translation were attached to the petition as Annex "A" and
Annex "A-1", respectively, and made integral parts of the
same. It is to be presumed that upon the filing of the petition
the Clerk of Court, or his duly authorized subordinate,
examined the petition and found that the annexes mentioned
were in fact attached thereto. If they were not, the petition
cannot be said to have been properly presented and the Clerk
of Court would not have accepted it for docketing. Under
Section 6, Rule 136 of the Rules of Court, the Clerk of Court
shall receive and file all pleadings and other papers properly
presented, endorsing on each such paper the time when it was
filed. The presumption of regularity in the performance of
official duty militates against private respondents' claim that
Annex "A" of the petition was not in fact attached thereto.
The certification of the Assistant Clerk of Court issued on 8
April
1980, 43 or SIX (6) months after the filing of the motion for
reconsideration, to the effect that as per examination of the
records of Sp. Proc. No. 3309-R, "the copy of the Will
mentioned in the petition as Annex "A" is not found to be
attached as of this date in the said petition; only the English
Translation of said Will is attached thereof (sic) as Annex "A-1"
does not even save the day for private respondents. It is not
conclusive because it fails to state the fact that as hereafter
shown, the pages of the records which correspond to the four

(4) pages of Annex "A" were missing or were detached

therefrom. As emphatically asserted by the petitioners in their
Reply to the Comments of private respondents, 44 duly
supported by a certification of the former Clerk of Court of the
original Branch VIII of the court below, 45 and which private
respondents merely generally denied in their motion for
reconsideration with comments and opposition to consolidated
reply, 46 the four-page xerox copy of will, marked as Annex "A"
of the petition, became, as properly marked by the personnel
of the original Branch VIII of the court below upon the filing of
the petition, pages 5, 6, 7 and 8 while the translation thereof,
marked as Annex "A-1", became pages 9, 10, 11 and 12 of the
records. The markings were done in long hand. The records of
the case were thereafter sent to the Clerk of Court, 14th
Judicial District, Cebu City on 9 February 1978. These records,
now in the possession of the respondent Judge, show that said
pages 5, 6, 7 and 8 in long are missing. As a consequence
thereof, petitioners filed with the Executive Judge of the court
below an administrative complaint.
It is not likewise disputed that the original of the will was
submitted in evidence and marked as Exhibit "F". It forms part
of the records of the special proceedings a fact which
private respondents admit in their Omnibus Motion for
Reconsideration, thus:
9. That an examination of the alleged will of our deceased
sister has revealed that the signatures at the left hand margin
of Exhibit "F", are written by (sic) different person than the
signature appearing at the bottom of said alleged will . . . 47
The availability of the will since 18 September 1972 for their
examination renders completely baseless the private
respondents' claim of fraud on petitioner Fran's part in securing
the withdrawal of their opposition to the probate of the will. If
indeed such withdrawal was conditioned upon Fran's promise
that the private respondents would be shown the will during the
trial, why weren't the appropriate steps taken by the latter to
confront Fran about this promise before certifications of
conformity to the project of partition were filed?
Granting for the sake of argument that the non-fulfillment of
said promise constitutes fraud, such fraud is not of the kind
which provides sufficient justification for a motion for
reconsideration or a petition for relief from judgment under
Rule 37 and Rule 38, respectively, of the Rules of Court, or
even a separate action for annulment of judgment. It is settled
that for fraud to be invested with, sufficiency, it must be
extrinsic or collateral to the matters involved in the issues
raised during the trial which resulted in such judgment. 48
In Our jurisdiction, the following courses of action are open to
an aggrieved party to set aside or attack the validity of a final
judgment:
(1) Petition for relief under Rule 38 of the Rules of Court which
must be filed within sixty (60) days after learning of the
decision, but not more than six (6) months after such decision
is entered;
(2) By direct action, via a special civil action for certiorari, or by
collateral attack, assuming that the decision is void for want of
jurisdiction;
(3) By an independent civil action under Article 1114 of the
Civil Code, assuming that the decision was obtained through
fraud and Rule 38 can not be applied. 49
It is not difficult to see that private respondents had lost their
right to file a petition for relief from judgment, it appearing that
their omnibus motion for reconsideration was filed exactly six
(6) years, ten (10) months and twenty-two (22) days after the
rendition of the decision, and six (6) years, one (1) month and
thirteen (13) days after the court issued the order approving
the Project of Partition, to which they voluntarily expressed
their conformity through their respective certifications, and
closing the testate proceedings.

Private respondents did not avail of the other two (2) modes of
attack.
The probate judgment of 13 November 1972, long final and
undisturbed by any attempt to unsettle it, had inevitably passed
beyond the reach of the court below to annul or set the same
aside, by mere motion, on the ground that the will is a forgery.
Settled is the rule that the decree of probate is conclusive with
respect to the due execution of the will and it cannot be
impugned on any of the grounds authorized by law, except that
of fraud, in any separate or independent action or proceeding.
50 We wish also to advert to the related doctrine which holds
that final judgments are entitled to respect and should not be
disturbed; otherwise, there would be a wavering of trust in the
courts. 51 In Lee Bun Ting vs. Aligaen, 52 this Court had the
occasion to state the rationale of this doctrine, thus:
Reasons of public policy, judicial orderliness, economy and
judicial time and the interests of litigants, as well as the peace
and order of society, all require that stability be accorded the
solemn and final judgments of the courts or tribunals of
competent jurisdiction.
This is so even if the decision is incorrect 53 or, in criminal
cases, the penalty imposed is erroneous. 54
Equally baseless and unmeritorious is private respondents'
contention that the order approving the Project of Partition and
closing the proceedings is null and void because the Project of
Partition did not contain a notice of hearing and that they were
not notified of the hearing thereon. In truth, in her own
certification 55 dated 5 September 1973, private respondent
Concepcion M. Espina admitted that she "received a copy of
the Project of Partition and the Notice of Hearing in the aboveentitled proceeding, and that she has no objection to the
approval of the said Project of Partition." The notice of hearing
she referred to is the Notice of Hearing For Approval of Project
of Partition issued on 6 August 1973 by the Clerk of Court. 56
Private respondent Espina was lying through her teeth when
she claimed otherwise.
The non-distribution of the estate, which is vigorously denied
by the petitioners, is not a ground for the re-opening of the
testate proceedings. A seasonable motion for execution should
have been filed. In De Jesus vs.
Daza, 57 this Court ruled that if the executor or administrator
has possession of the share to be delivered, the probate court
would have jurisdiction within the same estate proceeding to
order him to transfer that possession to the person entitled
thereto. This is authorized under Section 1, Rule 90 of the
Rules of Court. However, if no motion for execution is filed
within the reglementary period, a separate action for the
recovery of the shares would be in order. As We see it, the
attack of 10 September 1973 on the Order was just a clever
ploy to give asemblance of strength and substance to the
Omnibus Motion for Reconsideration by depicting therein a
probate court committing a series of fatal, substantive and
procedural blunders, which We find to be imaginary, if not
deliberately fabricated.
WHEREFORE, the instant petition and supplemental petitions
are GRANTED. The Order of respondent Judge of 2 June
1980 and all other orders issued by him in Sp. Proc. No. 3309R, as well as all other proceedings had therein in connection
with or in relation to the Omnibus Motion for Reconsideration,
are hereby ANNULLED and SET ASIDE.
The restraining order issued on 2 June 1980 is hereby made
PERMANENT.
Costs against private respondent Concepcion M. Espina.
SO ORDERED.
Gutierrez, Jr., Bidin and Romero, JJ., concur.
Feliciano, J., took no part.

G.R. No. 150739 August 18, 2005

SPOUSES BENIGNO QUE and ERLINDA QUE, and ADELA
URIAN, Petitioners,
vs.
COURT OF APPEALS, HON. FLORENCIO A. RUIZ, JR.,
Presiding Judge, RTC Br. 24, Cabugao, Ilocos Sur, and
ISABEL COSTALES, Respondents.
DECISION
CARPIO, J.:
The Case
This is a petition for review1 of the Court of Appeals Decision2
dated 26 June 2001 and its Resolution dated 8 November
2001. The 26 June 2001 Decision dismissed petitioners
petition while the 8 November 2001 Resolution denied their
motion for reconsideration.
The Facts
Since 1960, respondent Isabel Arrieta-Costales ("respondent")
has been occupying as owner a parcel of land in Sta. Monica,
Magsingal, Ilocos Sur measuring 7,033 square meters.
Designated as Lot No. 6023, the property was originally owned
by one Lorenzo Cario ("Lorenzo") who died in 1960. In 1997,
respondent declared the property in her name for taxation
purposes.
Petitioner Adela Urian ("Urian") is Lorenzos grandniece, being
the adopted daughter of Lorenzos nephew Gonzalo Cario
("Gonzalo"), son of Lorenzos brother Mariano Cario.
In February 2000, respondent filed a complaint against Urian
and petitioners Benigno Que and Erlinda Que ("spouses
Que")3 in the Regional Trial Court, Cabugao, Ilocos Sur,
Branch 24 ("trial court") for "Annulment of Quitclaim[,]
Ownership, Possession and Damages" ("Civil Case No. 503KC"). Respondent claimed that she is Lorenzos granddaughter
and as such, she inherited Lot No. 6023 from him. Respondent
sought the annulment of a Deed of Quitclaim4 dated 17 June
1999 and a handwritten Acknowledgment5 dated 2 July 1999,
both signed by one Isabel Arrieta ("Arrieta"). Under the Deed of
Quitclaim, Arrieta "renounce[d] all [her] rights, interests,
participation, title and possession" over Lot No. 6023 to the
spouses Que while in the Acknowledgment, Arrieta confirmed
receiving P30,000 from Urian. Respondent alleged that she did
not sign these documents. Respondent also prayed that the
trial court declare her owner of Lot No. 6023 and order
petitioners to pay damages.
When respondent filed her Complaint, the spouses Que had
taken possession of Lot No. 6023. The spouses Que also
declared the land in their name for tax purposes.
After petitioners received the complaint with the summonses
on 21 March 2000, they hired the services of one Atty. Ronnie
Ranot ("Atty. Ranot"). However, Atty. Ranot failed to file
petitioners Answer. On 4 May 2000, respondent moved to
declare petitioners in default. During the hearing of
respondents motion on 18 May 2000, only Urian appeared and
manifested that Atty. Ranot was still preparing the Answer. The
trial court found Urians manifestation unmeritorious and issued
an Order in open court declaring petitioners in default. In its
Order of 15 June 2000, the trial court granted respondents
motion to present her evidence ex parte and scheduled the
presentation of evidence on 20 June 2000. Respondent
presented her evidence accordingly, and the case was
submitted for judgment.
The Trial Courts Ruling
On 6 September 2000, the trial court rendered judgment in
respondents favor, the dispositive portion of which provides:
WHEREFORE, decision is hereby rendered in favor of the
plaintiff and against the defendants, as follows:
1. Adjudging the plaintiff as the true and absolute owner of Lot
6023, located at Brgy. Sta. Monica, Magsingal, Ilocos Sur and
entitled to the exclusive possession thereof;

2. Declaring the Deed of Quitclaim and the Acknowledgment

Letter/Receipt of no legal force and effect whatsoever and
ordering the de[f]endant [s]pouses Benigno and Erlinda Que to
vacate the land and restore the peaceful possession thereof to
the plaintiff;
3. Ordering the Municipal Assessor of Magsingal, Ilocos Sur to
recall/[cancel] the Tax Declaration in the name of [s]pouses
Benigno and Erlinda Que and to restore the tax declaration in
the name of plaintiff Isabel Costales; and
4. Ordering the defendants, jointly and severally to pay plaintiff,
P10,000.00 as and for [a]ttorneys fees, P50,000.00 as moral
damages, P5,000.00 as exemplary damages and the costs of
this suit.6
Urian received a copy of the trial courts Decision on 15
September 2000. The records do not show when the spouses
Que received theirs. On 10 October 2000, petitioners, through
a new counsel, Atty. Benjamin Bateria ("Atty. Bateria"), sought
reconsideration or new trial. Petitioners blamed their previous
counsel for the non-filing of their Answer. Petitioners attached
to their motion a Deed of Adjudication With Sale in which
Urian, as alleged sole heir of Gonzalo, adjudicated to herself
Lot No. 6023 and sold it to the spouses Que. Petitioners
claimed that in his last will and testament, Lorenzo devised Lot
No. 6023 to Gonzalo.
The trial court denied petitioners motion in its Order of 17
November 2000. The trial court held that as to Urian, its
Decision had become final because although she received a
copy of its Decision on 15 September 2000, the motion for
reconsideration or new trial was filed only on 10 October 2000.
As to the spouses Que, the trial court held that the motion was
pro forma since no affidavit of merit accompanied the motion.
Nor did the trial court find merit in the Deed of Adjudication
With Sale. The trial court noted that during the conciliation
proceedings at the Office of the Municipal Mayor of Magsingal,
Ilocos Sur, the spouses Que relied solely on the
Acknowledgment and Deed of Quitclaim as basis for their
claim of ownership of Lot No. 6023.7
On 18 December 2000, petitioners, represented this time by
one Atty. Oliver Cachapero ("Atty. Cachapero"), filed with the
trial court a petition for relief from judgment under Rule 38 of
the 1997 Rules of Civil Procedure ("Rules"). Petitioners
claimed that their failure to file an Answer and to seek
reconsideration or new trial on time was due to the excusable
negligence of their previous counsels. Petitioners also invoked
"mistake and fraud" as they were allegedly under the
impression that Atty. Ranot had prepared and filed "the
necessary pleading or that the necessary pleading to vacate
the judgment and secure new trial was prepared xxx and filed
xxx." This time, petitioners submitted a joint affidavit of merit
where they again invoked the Deed of Adjudication With Sale.
In its Order of 27 December 2000, the trial court denied the
petition for relief from judgment. The trial court held that the
negligence of their counsels bound petitioners. On the Deed of
Adjudication With Sale, the trial court reiterated its finding in
the Order of 17 November 2000 (denying petitioners motion
for reconsideration or new trial) that it has no merit.8
Petitioners filed a petition for certiorari in the Court of Appeals
to set aside the trial courts 27 December 2000 Order.
Petitioners contended that: (1) the trial court should have
required respondent to file an Answer to their petition instead
of dismissing it outright; (2) their previous counsels negligence
denied them due process hence they should not be bound by
it; and (3) the Deed of Quitclaim is not incompatible with the
Deed of Adjudication With Sale as the former merely
"strengthens" the spouses Ques ownership of Lot No. 6023.9
The Court of Appeals Ruling
In its Decision of 26 June 2001, the Court of Appeals denied
due course to and dismissed petitioners petition. The Court of
Appeals held that the trial court did not err in outrightly

dismissing the petition for relief from judgment for insufficiency

in form and substance under Section 4, Rule 38. The appellate
court further held that petitioners filed their petition for relief
from judgment beyond the 60-day period under Section 3, Rule
38. The Court of Appeals also noted that the Rules allow a
petition for relief from judgment only when there is no other
available remedy and not when litigants, like petitioners, lose a
remedy by negligence.
On petitioners claim that their counsels negligence should not
bind them, the Court of Appeals held:
The Petitioners heaped vituperation on their counsel for the
latters ineptitude and betrayal of Petitioners[] trust and
confidence for not filing the appropriate pleading to relieve the
Petitioners of their having been declared in default. But then,
the Petitioners were not themselves blameless. They were
duty-bound to make periodic inquiries from their counsel o[n]
the status of their case and as to whether the appropriate
pleading had already been filed and the resolution of the
Respondent Court, if any, on their pleadings xxx. If the
Petitioners failed to do so and, as it turned out, their counsel
failed to prepare and file the appropriate pleading, then the
Petitioners cannot complain. They are bound by their
ineptitude as well as their counsels. xxx
It bears stressing that the Respondent Court came out with its
Decision only on September 6, 2000 or after the lapse of more
than three (3) months after it issued its Order [of 18 May 2000]
declaring the Petitioners in default. In fine, the Petitioners had
more than ample time to file the appropriate pleadings before
the appropriate Court.10
Hence, this petition.11 Petitioners contend that
(I) Respondent Court of Appeals committed grave abuse of
discretion in the appreciation of facts and failed to appreciate
that [the] Petition for Relief from judgment arose from a default
order taken against petitioners due to [the] negligence of
petitioners[] counsel; [and]
(II) Respondent Court of Appeals fail[ed] to notice certain
relevant facts that will justify a different conclusion that
petitioners should not lose their case and [their] property
through technicality.12
In reversal of their earlier stance in the Court of Appeals,
petitioners no longer question the procedure the trial court
followed in denying their petition for relief from judgment.
Instead, they now claim that since that petition was an
"offshoot" of the trial courts Order declaring them in default for
their counsels negligence, petitioners seek excuse from such
negligence to avoid being deprived of property without due
process of law. Petitioners also raise new matters regarding
the merits of the trial courts Decision of 6 September 2000.13
The Issue
The issue is whether the Court of Appeals erred in dismissing
petitioners petition.
The Courts Ruling
The petition has no merit.
Petitioners are not Entitled to Relief from Judgment
The Court of Appeals did not err in ruling that petitioners are
not entitled to relief from judgment because their petition was
insufficient in form and substance, filed late, and improperly
availed of.
Petitioners Failed to Prove Fraud,
Mistake, or Excusable Negligence
Under Section 1, Rule 3814 ("Section 1"), the court may grant
relief from judgment only "[w]hen a judgment or final order is
entered, or any other proceeding is taken against a party in
any court through fraud, accident, mistake, or excusable
negligence xxx." In their petition for relief from judgment in the
trial court, petitioners contended that judgment was entered
against them through "mistake or fraud" because they were
allegedly under the impression that Atty. Ranot had prepared

and filed "the necessary pleading." This is not the fraud or

mistake contemplated under Section 1. As used in that
provision, "mistake" refers to mistake of fact, not of law, which
relates to the case.15 "Fraud," on the other hand, must be
extrinsic or collateral, that is, the kind which prevented the
aggrieved party from having a trial or presenting his case to the
court.16 Clearly, petitioners mistaken assumption that Atty.
Ranot had attended to his professional duties is neither
mistake nor fraud.
On the other hand, what petitioners appear to be claiming in
this petition is that this Court should reverse the Court of
Appeals and remand the case to the trial court for new trial on
the ground that their previous counsels negligence constitutes
"excusable negligence" under Section 1.
This claim is similarly without merit.
Under Section 1, the "negligence" must be excusable and
generally imputable to the party because if it is imputable to the
counsel, it is binding on the client.17 To follow a contrary rule
and allow a party to disown his counsels conduct would render
proceedings indefinite, tentative, and subject to reopening by
the mere subterfuge of replacing counsel.18 What the
aggrieved litigant should do is seek administrative sanctions
against the erring counsel and not ask for the reversal of the
courts ruling.19
Petitioners nevertheless seek exemption from the above rule
because their counsels negligence allegedly deprived them of
their day in court and, if the ruling of the Court of Appeals
stands, they will suffer deprivation of property without due
process of law.
Admittedly, this Court has relaxed the rule on the binding effect
of counsels negligence and allowed a litigant another chance
to present his case "(1) where [the] reckless or gross
negligence of counsel deprives the client of due process of
law; (2) when [the rules] application will result in outright
deprivation of the clients liberty or property; or (3) where the
interests of justice so require."20
None of these exceptions obtains here.
For a claim of counsels gross negligence to prosper, nothing
short of clear abandonment of the clients cause must be
shown.21 Here, what petitioners first, second, and third
counsels did was fail to file the Answer, file a belated and
defective motion for reconsideration or new trial, and belatedly
and erroneously file a petition for relief from judgment,
respectively. While these acts and omissions can plausibly
qualify as simple negligence, they do not amount to gross
negligence to justify the annulment of the proceedings below.
In Legarda v. Court of Appeals,22 where the Court initially held
that the counsels failure to file pleadings at the trial court and
later on appeal amounted to gross negligence, the Court, on
respondents motion, granted reconsideration and applied the
general rule binding the litigant to her counsels negligence.
The Court noted that the proceedings which led to the filing of
the petition in that case "were not attended by any irregularity."
The same observation squarely applies here. Neither can
petitioners rely on Boyer-Roxas v. Court of Appeals23 because
there, as here, the Court held that the petitioners counsel was
not grossly negligent.
Nor were petitioners denied procedural due process. In
essence, procedural due process is simply the opportunity to
be heard.24 Petitioners were afforded such opportunity. Thus,
petitioners were served a copy of the complaint and the
summonses and given 15 days to file their Answer. While there
is no showing from the records when petitioners received their
copy of the 18 May 2000 Order declaring them in default, there
is no dispute that Urian was present at the hearing when the
trial court issued that Order in open court. Petitioners were also
served a copy of the trial courts Decision of 6 September 2000
from which they had 15 days to appeal, seek reconsideration,

or new trial. Indeed, petitioners filed a motion for

reconsideration or new trial albeit belatedly and without
complying with proper formalities. Plainly, there was no denial
of due process to petitioners.
But even assuming that the lapses of petitioners counsels
amount to gross negligence denying petitioners their day in
court, petitioners contention that if we sustain the Court of
Appeals they will be deprived of property is baseless.
The spouses Que anchor their claim of ownership to Lot No.
6023 on the Deed of Adjudication With Sale Urian executed in
their favor and on the Deed of Quitclaim.25 Urians claim of
ownership over Lot No. 6023 is in turn based on Lorenzos
alleged testamentary disposition devising Lot No. 6023 to her
adoptive parent, Gonzalo. As proof of such testamentary
disposition, petitioners submitted an affidavit,26 dated 20
October 1940, of Lorenzos sister Eusebia Cario ("Eusebia").
The Court finds Eusebias affidavit insufficient to support
petitioners claims.
Under the Spanish Civil Code, the law governing Lorenzos
alleged will, all wills must be executed in writing27 except
when the testator takes part in any military operation or when
any warlike operation is imminent28 or when the testator29 is
in danger of shipwreck.30 In such cases, the testator can
execute the will orally in the presence of at least two
witnesses.31 Failure to comply with these formalities renders
the will void.32 Furthermore, the Code of Civil Procedure
requires that wills must be submitted to the proper court for
probate otherwise the same shall not pass either real or
personal property.33
Here, petitioners neither presented a copy of Lorenzos will nor
proved its oral execution under the circumstances provided in
the Spanish Civil Code. Petitioners similarly make no claim that
Lorenzos will was allowed in probate. Thus, not only is there
no proof that Lorenzo executed a will, there is also no basis to
hold that such will, if indeed executed, passed Lot No. 6023 to
Gonzalo. Significantly, Eusebia did not state in her affidavit that
Lorenzo executed a will. What Eusebia stated was that
Lorenzo "instructed" (inbilin) that Lot No. 6023 should be
inherited by Gonzalo. This, if any, merely indicates Lorenzos
intent to devise that piece of realty to Gonzalo but does not
prove his execution of a will instituting Gonzalo as heir to Lot
No. 6023.
On the Deed of Quitclaim, the Court finds no reason to disturb
the trial courts finding that respondents signature in that
document was forged.
In contrast, respondent has been in continuous possession of
Lot No. 6023 in the concept of an owner after Lorenzo died in
1960 until the spouses Que removed her from that property
shortly before respondent filed her complaint in February 2000.
While it does not appear that respondent had registered the
land in her name, her uninterrupted possession of Lot No.
6023 for nearly 40 years (beyond the 30-year extraordinary
acquisitive prescription34), coupled with the performance of
acts of ownership, such as payment of real estate taxes,
suffices to prove her ownership by prescription.35
The Petition for Relief from Judgment
was Filed Out of Time
Aside from petitioners failure to prove any of the grounds for
granting relief from judgment, they also sought relief belatedly.
We quote with approval the Court of Appeals ruling:
[T]he "Petition for Relief" filed by the Petitioners with the
Respondent Court was filed beyond the reglementary period
provided for in Section 3, Rule 38 of the Rules of Court,
quoted, infra:
"SEC. 3. Time for filing petition; contents and verification. A
petition provided for in either of the preceding sections of this
Rule must be verified, filed within sixty (60) days after the
petitioner learns of the judgment, final order, or other
proceeding to be set aside, and not more than six (6) months

after such judgment or final order was entered, or such

proceeding was taken; and must be accompanied with
affidavits showing the fraud, accident, mistake, or excusable
negligence relied upon, and the facts constituting the
petitioners good and substantial cause of action or defense, as
the case may be. xxx
As stated in the Order of the Respondent Court, xxx the
Petitioner Adela Urian received a copy of the Decision of the
Respondent [Court], on September 15, 2000. Indeed, on the
face of the Petition, the Petitioners admitted that the Petitioner
Adela Urian received a copy of the Decision of the Respondent
Court on said date. However, the said Petitioner filed her
"Petition for Relief" with the Respondent Court only on
December 18, 2000. By then, the sixty (60)-day period
provided for under the said Rule had already elapsed. Case
law has it that the periods provided for by the Rules are fixed,
inextendible and never interrupted and if the Petition is filed
beyond the period provided for by the Rules, the Petition
cannot be entertained and must be dismissed[.]
xxx
While it may be true that the Petitioner Adela Urian filed, on
October 12, 2000 a "Motion for Reconsideration and New
Trial", however, the same did not suspend the running of the
period under Rule 38 of the Rules of Court because it was filed
beyond the period therefor[.] xxx
Insofar as the Petitioners Benigno Que, et al., are concerned,
they merely alleged, in their Petition, that they received a copy
of the Decision of the Respondent at a much later date than
September 15, 2000 without, however, specifying the date
when they, in fact, received the Decision of the Respondent
Court[.]
xxx
We are not impervious [to] the claim of the Petitioners Benigno
Que, in their "Joint Affidavit of Merit" that they filed their
"Petition for Relief from Judgment" seasonably. But such an
allegation is merely a conclusion and not a sufficient showing
that their Petition was filed within the period provided for in
Rule 38 of the Rules.36 (Emphasis in the original)
Relief from Judgment not Proper
Lastly, as an equitable remedy, a petition for relief from
judgment is available only as a last recourse, when the
petitioner has no other remedy.37 This is not true here
because petitioners had at their disposal other remedies which
they in fact availed of, albeit belatedly or defectively, such as
when they filed their motion for reconsideration or new trial in
the trial court. As the Court of Appeals held:
[A] "Petition for Relief from Judgment" is not a general utility
tool in the procedural workshop. The relief granted under Rule
38 of the Rules of Court is of equitable character and is
allowed only when there is no other available or adequate
remedy. It is not regarded with favor. The judgment rendered
will not be disturbed where the complainant has or by
exercising proper diligence would have had an adequate
remedy at law. If the complainant lost a remedy at law from an
adverse judgment by his xxx negligence, such inequitable
conduct precludes him from relief under Rule 38 of the Rules
of Court.38 xxx
On the New Matters Petitioners Raise
On petitioners allegations concerning the merits of the trial
courts Decision of 6 September 2000, petitioners are barred
from doing in this appeal what they failed to do in the trial
court, that is, present their case. In any event, none of
petitioners contentions has merit.39
WHEREFORE, we DENY the petition. We AFFIRM the
Decision dated 26 June 2001 and the Resolution dated 8
November 2001 of the Court of Appeals.
SO ORDERED.
ANTONIO T. CARPIO

Associate Justice