Rule 74

Sec. 1
1. Villafria v. Plazo, G.R. No. 187524, August 5, 2015
THIRD DIVISION
G.R. No. 187524, August 05, 2015
SPOUSES MARIA BUTIONG AND FRANCISCO VILLAFRIA, SUBSTITUTED BY
DR. RUEL B. VILLAFRIA, Petitioners, v. MA. GRACIA RIOZA PLAZO AND MA.
FE RIOZA ALARAS,Respondents.
DECISION
PERALTA, J.:
Before the-Court is a petition for review on certiorari under Rule 45 of the Rules of Court
seeking to reverse and set aside the Decision1 and Resolution,2 dated March 13, 2009
and April 23, 2009, respectively, of the Court Appeals (CA) in CA-G.R. SP No. 107347,
which affirmed the Judgment3dated October 1, 2001 of the Regional Trial Court (RTC)
of Nasugbu, Batangas, Branch 14, in Civil Case No. 217.
The antecedent facts are as follows:LawlibraryofCRAlaw
On November 16, 1989, Pedro L. Rioza died intestate, leaving several heirs, including
his children with his first wife, respondents Ma. Gracia R. Plazo and Ma. Fe Alaras, as
well as several properties including a resort covered by Transfer Certificates of Title
(TCT) No. 51354 and No. 51355, each with an area of 351 square meters, and a family
home, the land on which it stands is covered by TCT Nos. 40807 and 40808, both located
in Nasugbu, Batangas.4redarclaw
In their Amended Complaint for Judicial Partition with Annulment of Title and Recovery
of Possession5dated September 15, 1993, respondents alleged that sometime in March
1991, they discovered that their co-heirs, Pedro's second wife, Benita Tenorio and other
children, had sold the subject properties to petitioners, spouses Francisco Villafria and
Maria Butiong, who are now deceased and substituted by their son, Dr. Ruel B. Villafria,
without their knowledge and consent. When confronted about the sale, Benita
acknowledged the same, showing respondents a document she believed evidenced receipt
of her share in the sale, which, however, did not refer to any sort of sale but to a previous
loan obtained by Pedro and Benita from a bank.6 The document actually evidenced
receipt from Banco Silangan of the amount of P87,352.62 releasing her and her late
husband's indebtedness therefrom.7 Upon inquiry, the Register of Deeds of Nasugbu
informed respondents that he has no record of any transaction involving the subject

properties, giving them certified true copies of the titles to the same. When respondents
went to the subject properties, they discovered that 4 out of the 8 cottages in the resort
had been demolished. They were not, however, able to enter as the premises were
padlocked.
Subsequently, respondents learned that on July 18, 1991, a notice of an extra-judicial
settlement of estate of their late father was published in a tabloid called Balita. Because
of this, they caused the annotation of their adverse claims over the subject properties
before the Register of Deeds of Nasugbu and filed their complaint praying, among others,
for the annulment of all documents conveying the subject properties to the petitioners and
certificates of title issued pursuant thereto.8redarclaw
In their Answer,9 petitioners denied the allegations of the complaint on the ground of lack
of personal knowledge and good faith in acquiring the subject properties. In the course of
his testimony during trial, petitioner Francisco further contended that what they
purchased was only the resort.10 He also presented an Extra-Judicial Settlement with
Renunciation, Repudiations and Waiver of Rights and Sale which provides, among
others, that respondents' co-heirs sold the family home to the spouses Rolando and Ma.
Cecilia Bondoc for P1 million as well as a Deed of Sale whereby Benita sold the resort to
petitioners for P650,000.00.11redarclaw
On October 1, 2001, the trial court nullified the transfer of the subject properties to
petitioners and spouses Bondoc due to irregularities in the documents of conveyance
offered by petitioners.as well as the circumstances surrounding the execution of the same.
Specifically, the Extra-Judicial Settlement was notarized by a notary public who was not
duly commissioned as such on the date it was executed.12 The Deed of Sale was undated,
the date of the acknowledgment therein was left blank, and the typewritten name "Pedro
Rioza, Husband" on the left side of the document was not signed.13 The trial court also
observed that both documents were never presented to the Office of the Register of Deeds
for registration and that the titles to the subject properties were still in the names of Pedro
and his second wife Benita. In addition, the supposed notaries and buyers of the subject
properties were not even presented as witnesses who supposedly witnessed the signing
and execution of the documents of conveyance.14 On the basis thereof, the trial court
ruled in favor of respondents, in its Judgment, the pertinent portions of its fallo
provide:LawlibraryofCRAlaw
WHEREFORE, foregoing premises considered, judgment is hereby rendered as
follows:LawlibraryofCRAlaw
xxxx
4. a) Declaring as a nullity the Extra-Judicial Settlement with Renunciation, Repudiation

and Waiver of Rights and Sale" (Exh. "1", Villafria) notarized on December 23, 1991 by
Notary Public Antonio G. Malonzo of Manila, Doc. No. 190, Page No. 20, Book No.
IXII, Series of 1991.
b) Declaring as a nullity the Deed of Absolute Sale (Exh. "2", Villafria), purportedly
executed by Benita T. Rioza in favor of spouses Francisco Villafria and Maria Butiong,
purportedly notarized by one Alfredo de Guzman, marked Doc. No. 1136, Page No. 141,
Book No. XXX, Series of 1991.
c) Ordering the forfeiture of any and all improvements introduced by defendants
Francisco Villafria dnd Maria Butiong in the properties covered by TCT No. 40807,
40808, 51354 and 51355 of the Register of Deeds for Nasugbu, Batangas.
5. Ordering defendant Francisco Villafria and all persons, whose occupancy within the
premises of the four (4) parcels of land described in par. 4-c above is derived from the
rights and interest of defendant Villafria, to vacate its premises and to deliver possession
thereof, and all improvements existing thereon to plaintiffs, for and in behalf of the estate
of decedent Pedro L. Rioza.
6. Declaring the plaintiffs and the defendants-heirs in the Amended Complaint to be the
legitimate heirs of decedent Pedro L. RifSoza, each in the capacity and degree
established, as well as their direct successors-in-interest, and ordering the defendant
Registrar of Deeds to issue the corresponding titles in their names in the proportion
established by law, pro indiviso, in TCT Nos. 40807, 40808, 51354, 51355 and 40353
(after restoration) within ten (10) days from finality of this Decision, upon payment of
lawful fees, except TCT No. 40353, which shall be exempt from all expenses for its
restoration.
With no costs.
SO ORDERED.15
On appeal, the CA affirmed the trial court's Judgment in its Decision16 dated October 31,
2006 in the following wise:LawlibraryofCRAlaw
The person before whom the resort deed was acknowledged, Alfredo de Guzman, was not
commissioned as a notary public from 1989 to July 3, 1991, the date the certification was
issued. Such being the case, the resort deed is not a public document and the presumption
of- regularity accorded to public documents will not apply to the same. As laid down in
Tigno, el al. v. Aquino, et al.:LawlibraryofCRAlaw
The validity of a notarial certification necessarily derives from the authority of the

notarial officer. If the notary public does net have the capacity to notarize a document, but
does so anyway, then the document should be treated as unnotarized. The rule may strike
as rather harsh, and perhaps may prove to be prejudicial to parties in good faith relying
on the proferred authority of the notary public or the person pretending to be one. Still, to
admit otherwise would render merely officious the elaborate process devised by this
Court in order that a lawyer may receive a notarial commission. Without such a rule, the
notarization of a document by a duly-appointed notary public will have the same legal
effect as one accomplished by a non-lawyer engaged in pretense.
The notarization of a document carries considerable legal effect. Notarization of a private
document converts such document into a public one, and renders it admissible in court
without further proof of its authenticity. Thus, notarization is not an empty routine; to the
contrary, it engages public interest in a substantial degree and the protection of that
interest requires preventing those who are not qualified or authorized to act as notaries
public from imposing upon the public and the courts and administrative offices
generally.Parenthetically, the settlement/family home deed cannot be considered a public
document. This is because the following cast doubt on the document's authenticity, to
wit:LawlibraryofCRAlaw
1.) The date of its execution was not indicated;
2.) The amount of consideration was superimposed;
3.) It was not presented to the Registry of Deeds of Nasugbu, Batangas for annotation;
and
4.) Not even the supposed notary public," Alfredo de Guzman, or the purported buyer, the
Spouses Rolando and Ma. Cecilia Bondoc, were presented as witnesses.
Concededly, the absence of notarization in the resort deed and/or the lacking details in the
settlement/family home deed did not necessarily invalidate the transactions evidenced by
the said documents. However, since the said deeds are private documents, perforce, their
due execution and authenticity becomes subject to the requirement of proof under the
Rules on Evidence, Section 20, Rule 132 of which provides:LawlibraryofCRAlaw
Sec. 20. Proof of private document. - Before any private document offered as authentic is
received in evidence, its due execution aijd .authenticity must be proved
either:LawlibraryofCRAlaw
(a) By anyone who saw the document executed or written; or
(b) By evidence of the genuineness of the signature or handwriting of the maker.The
Complaining Heirs insist that the settlement/family home and the resort deed are void as
their signatures thereon are forgeries as opposed to the Villafrias who profess the deeds'
enforceability. After the Complaining Heirs presented proofs in support of their claim that
their signatures were forged, the burden then fell upon the Villafrias to disprove the same,
or conversely, to prove the authenticity and due execution of the said deeds. The

Villafrias failed in this regard.

As aforestated, the Villafrias did not present as witnesses (a) the notary public who
purportedly notarized the questioned instrument, (b) the witnesses who appeared] in the
instruments as eyewitnesses to the signing, or (c) an expert to prove the authenticity and
genuineness of all the signatures appearing o,n the said instruments. Verily, the rule that,
proper foundation must be laid for the admission of documentary evidence; that is, the
identity and authenticity of the document must be reasonably established as a prerequisite
to its admission, was prudently observed by the lower court when it refused to admit the
settlement/family home and the resort deeds as their veracity are doubtful.17
Aggrieved, petitioners, substituted by their son Ruel Villafria, filed a Motion for
Reconsideration dated November 24, 2006 raising the trial court's lack of jurisdiction. It
was alleged that when the Complaint for Judicial Partition with Annulment of Title and
Recovery of Possession was filed, there was yet no settlement of Pedro's estate,
determination as to the nature thereof, nor was there an identification of the number of
legitimate heirs. As such, the trial court ruled on the settlement of the intestate estate of
Pedro in its ordinary jurisdiction when the action filed was for Judicial Partition.
Considering that the instant action is really one for settlement of intestate estate, the trial
court, sitting merely in its probate jurisdiction, exceeded its jurisdiction when it ruled
upon the issues of forgery and ownership. Thus, petitioner argued that said ruling is void
and has no effect for having been rendered without jurisdiction. The Motion for
Reconsideration was, however, denied by the appellate court on February 26, 2007.
On appeal, this Court denied on June 20, 2007, petitioner's Petition for Review on
Certiorari for submitting a verification of the petition, a certificate of non-forum shopping
and an affidavit of service that failed to comply with the 2004 Rules on Notarial Practice
regarding competent evidence of affiant's identities.18 In its Resolution19 dated
September 26, 2007, this Court also denied petitioner's Motion for Reconsideration in the
absence of any compelling reason to warrant a modification of the previous denial. Thus,
the June 20, 2007 Resolution became final and executory on October 31, 2007 as
certified by the Entry of Judgment issued by the Court.20redarclaw
On January 16, 2008, the Court further denied petitioner's motion for leave to admit a
second motion for reconsideration of its September 26, 2007 Resolution, considering that
the same is a prohibited pleading under Section 2, Rule 52, in relation to Section 4, Rule
56 of the 1997 Rules of Civil Procedure, as amended. Furthermore, petitioner's letter
dated December 18, 2007 pleading the Court to take a second, look at his petition for
review on certiorari and that a decision thereon be rendered based purely on its merits
was noted without action.21redarclaw
Unsatisfied, petitioner wrote a letter dated March 24, 2008 addressed to then Chief
Justice Reynato S. Puno praying that a decision on the case be rendered based on the

.merits and not on formal requirements "as he stands to lose everything his parents had
left him just because the verification against non-forum shopping is formally defective."
However, in view of the Entry of Judgment having been made on October 31, 2007, the
Court likewise noted said letter without action.22redarclaw
On November 27, 2008, the RTC issued an Order, issuing a Partial Writ of Execution of
its October 1, 2001 Decision with respect to the portions disposing of petitioner's claims
as affirmed by the CA.
The foregoing notwithstanding, petitioner filed, on February 11, 2009, a Petition for
Annulment of Judgment and Order before the CA assailing the October 1, 2001 Decision
as well as the November 27, 2008 Order of the RTC on the grounds of extrinsic fraud and
lack of jurisdiction. In its Decision dated March 13, 2009, however, the CA dismissed the
petition and affirmed the rulings of the trial court in the following
wise:LawlibraryofCRAlaw
Although the assailed Decision of the Court a quo has already become final and
executory and in fact entry of judgment was issued on 31 October 2007, supra,
nevertheless, to put the issues to rest, We deem it apropos to tackle the same.
The Petitioner argues that the assailed Decision and Order of the Court a quo, supra,
should be annulled and set aside on the grounds of extrinsic fraud and lack of jurisdiction.
We are not persuaded,
xxxx
Section 2 of the Rules as stated above provides that the annulment of a judgment may "be
based only on grounds of extrinsic fraud and lack of jurisdiction." In RP v. The Heirs of
Sancho Magdato, the High Tribunal stressed that:LawlibraryofCRAlaw
There is extrinsic fraud when "the unsuccessful party had been prevented from exhibiting
fully his case, by fraud or deception practiced on him by his opponent, as by keeping him
away from court, ... or where the defendant never had knowledge of the suit, being kept
in ignorance by the acts of the plaintiff; ..."Otherwise put, extrinsic or collateral fraud
pertains to such fraud which prevents the aggrieved party from having a trial or
presenting his case to the court, or is used to procure the judgment without fair
submission of the controversy. This refers to acts intended to keep the unsuccessful party
away from the courts as when there is a false promise of compromise or when one is kept
in ignorance of the suit.
The pivotal issues before Us are: (1) whether there was a time during the proceedings
below that the Petitioners ever prevented from exhibiting fully their case, by fraud or

deception, practiced on them by Respondents, and (2) whether the Petitioners were kept
away from the court or kept in ignorance by the acts of the Respondent?
We find nothing of that sort. Instead, what We deduced as We carefully delved into the
evidentiary facts surrounding the instant case as well as the proceedings below as shown
in the 36-page Decision of the Court a quo, is that the Petitioners were given ample time
to rebut the allegations of the Respondents and had in fact addressed every detail of
Respondent's cause of action against them. Thus, Petitioners' allegation of the Court a
quo's lack of jurisdiction is misplaced.
Our pronouncement on the matter finds support in the explicit ruling of the Supreme
Court in Sps. Santos, et al. v. Sps. Lumbao, thus:LawlibraryofCRAlaw
It is elementary that the active participation of a party in a case pending against him
before a court is tantamount to recognition of that court's jurisdiction and willingness to
abide by the resolution of the case which will bar said party from later on impugning the
court's jurisdiction.In fine, under the circumstances obtaining in this case the Petitioners
are stopped from assailing the Court a quo's lack of jurisdiction.
Too, We do not find merit in the Petitioners' second issue, supra.
As mentioned earlier, entry of judgment had already been made on the assailed Decision
and Order as early as 31 October 2007.
xxxx
It maybe that the doctrine of finality of judgments permits certain equitable remedies
such as a petition for annulment. But the rules are clear. The annulment by the Court of
Appeals of judgments or final orders and resolutions in civil actions of the Regional Trial
Courts is resorted to only where the ordinary remedies of new trial, appeal, petition for
relief or other appropriate remedies are no longer available through no fault of the
petitioner, supra.
If Petitioners lost their chance to avail themselves of the appropriate remedies or appeal
before the Supreme Court, that is their own look out. The High Tribunal has emphatically
pointed out in Mercado, et al. v. Security Bank Corporation, thus:LawlibraryofCRAlaw
A principle almost repeated to satiety is that "an action for annulment of judgment cannot
and is not a substitute for the lost remedy of-appeal." A party must have first availed of
appeal, a motion for new trial or a petition for relief before an action for annulment can
prosper. Its obvious rationale is to prevent the party from benefiting from his inaction or
negligence. Also, the action for annulment of judgment must be based either on (a)
extrinsic fraud or (b) lack of jurisdiction or denial of due process. Having failed to avail
of the remedies and there being a clear showing that neither of the grounds was present,

the petition must be dismissed. Only a disgruntled litigant would find such legal
disposition unacceptable.23When the appellate court denied Petitioner's Motion for
Reconsideration in its Resolution dated April 23, 2009, petitioner filed the instant Petition
for Review on Certiorari on June 10, 2009, invoking the following
ground:LawlibraryofCRAlaw

I.

THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN NOT RULING

THAT THE REGIONAL TRIAL COURT, BRANCH 14, NASUGBU, BATANGAS,
ACTED WITHOUT JURISDICTION IN ENTERTAINING THE SPECIAL
PROCEEDING FOR THE SETTLEMENT OF ESTATE OF PEDRO RIOZA AND
THE CIVIL ACTION FOR ANNULMENT OF TITLE OF THE HEIRS AND THIRD
PERSONS IN ONE PROCEEDING.24
Petitioner asserts that while the complaint filed by respondents was captioned as "Judicial
Partition with Annulment of Title and Recovery of Possession," the allegations therein
show that the cause of action is actually one for settlement of estate of decedent Pedro.
Considering that settlement of estate is a special proceeding cognizable by a probate
court of limited jurisdiction while judicial partition with annulment of title and recovery
of possession are ordinary civil actions cognizable by a court of general jurisdiction, the
trial court exceeded its jurisdiction in entertaining the latter while it was sitting merely in
its probate jurisdiction. This is in view of the prohibition found in the Rules on the
joinder of special civil actions and ordinary civil actions.25 Thus, petitioner argued that
the ruling of the trial court is void and has no effect for having been rendered in without
jurisdiction.
Petitioner also reiterates the arguments raised before the appellate court that since the
finding of forgery relates only to the signature of respondents and not to their co-heirs
who assented to the conveyance, the transaction should be considered valid as to them.
Petitioner also denies the findings of the courts below that his parents are builders in bad
faith for they only took possession of the subject properties after the execution of the
transfer documents and after they paid the consideration on the sale.
The petition is bereft of merit.
Petitioner maintains that since respondents' complaint alleged the following causes of
action, the same is actually one for settlement of estate and not of judicial
partition:LawlibraryofCRAlaw

FIRST CAUSE OF ACTION

1. That Pedro L. Rioza, Filipino and resident of Nasugbu, Batangas at the time of his
death, died intestate on November 16, 1989. Copy of his death certificate is hereto
attached as Annex "A";
2. That Plaintiffs together with the Defendants enumerated from paragraph 2-A to 2-J are
the only known heirs of the above-mentioned decedent. The plaintiffs and the Defendants
Rolando, Rafael, Antonio, Angelito, Lorna all surnamed Rioza, and Myrna R. Limon or
Myrna R. Rogador, Epifanio Belo and Ma. Theresa R. Demafelix are the decedent's
legitimate children with his first wife, while Benita Tenorio Rifioza, is the decedent's
widow and Bernadette Rioza, the decedent's daughter with said widow. As such, said
parties are co-owners by virtue of an intestate inheritance from the decedent, of the
properties enumerated in the succeeding paragraph;
3. That the decedent left the following real properties all located in Nasugbu,
Batangas:LawlibraryofCRAlaw
xxxx
16. That the estate of decedent Pedro L. Rioza has no known legal indebtedness;
17. That said estate remains undivided up to this date and it will be to the best interest of
all heirs that same be partitioned judicially.26
Petitioner is mistaken. It is true that some of respondents' causes of action pertaining to
the properties left behind by the decedent Pedro, his known heirs, and the nature and
extent of their interests thereon, may fall under an action for settlement of estate.
However, a complete reading of the complaint would readily show that, based on the
nature of the suit, the allegations therein, and the reliefs prayed for, the action is clearly
one for judicial partition with annulment of title and recovery of possession.
Section 1, Rule 74 of the Rules of Court provides:LawlibraryofCRAlaw
RULE 74
Summary Settlement of Estate

Section 1. Extrajudicial settlement by agreement between heirs. If the decedent left no

will and no debts and the heirs are all of age, or the minors are represented by their
judicial or legal representatives duly authorized for the purpose,the parties may without

securing letters of administration, divide the estate among themselves as they see fit by
means of a public instrument filed in the office of the register of deeds, and should they
disagree, they may do so in an ordinary action of partition. If there is only one heir, he
may adjudicate to himself the entire estate by means of an affidavit filled in the office of
the register of deeds. The parties to an extrajudicial settlement, whether by public
instrument or by stipulation in a pending action for partition, or the sole heir who
adjudicates the entire estate to himself by means of an affidavit shall file, simultaneously
with and as a condition precedent to the filing of the public instrument, or stipulation in
the action for partition, or of the affidavit in the office of the register of deeds, a bond
with the said register of deeds, in an amount equivalent to the value of the personal
property involved as certified to under oath by the parties concerned and conditioned
upon the payment of any just claim that may be filed under section 4 of this rule. It shall
be presumed that the decedent left no debts if no creditor files a petition for letters of
administration within two (2) years after the death of the decedent.
The fact of the extrajudicial settlement or administration shall be published in a
newspaper of general circulation in the manner provided in the next succeeding section;
but no extrajudicial settlement shall be binding upon any person who has not participated
therein or had no notice thereof.27
In this relation, Section 1, Rule 69 of the Rules of Court provides:LawlibraryofCRAlaw
Section 1. Complaint in action for partition of real estate. A person having the right to
compel the partition of real estate may do so as provided in this Rule, setting forth in his
complaint the nature and extent of his title and an adequate description of the real estate
of which partition is demanded and joining as defendants all other persons interested in
the property.28
As can be gleaned from the foregoing provisions, the allegations of respondents in their
complaint are but customary, in fact, mandatory, to a complaint for partition of real estate.
Particularly, the complaint alleged: (1) that Pedro died intestate; (2) that respondents,
together with their co-heirs, are all of legal age, with the exception of one who is
represented by a judicial representative duly authorized for the purpose; (3) that the heirs
enumerated are the only known heirs of Pedro; (4) that there is an account and
description of all real properties left by Pedro; (5) that Pedro's estate has no known
indebtedness; and (6) that respondents, as rightful heirs to the decedent's estate, pray for
the partition of the same in accordance with the laws of intestacy. It is clear, therefore,
that based on the allegations of the complaint, the case is one for judicial partition. That
the complaint alleged causes of action identifying the heirs of the decedent, properties of
the estate, and their rights thereto, does not perforce make it an action for settlement of
estate.

It must be recalled that the general rule is that when a person dies intestate, or, if testate,
failed to name an executor in his will or the executor so named is incompetent, or refuses
the trust, or. fails to furnish the bond required by the Rules of Court, then the decedent's
estate shall be judicially administered and the competent court shall appoint a qualified
administrator in the order established in Section 6 of Rule 78 of the Rules of Court.29 An
exception to this rule, however, is found in the aforequoted Section 1 of Rule 74 wherein
the heirs of a decedent, who left no will and no debts due from his estate, may divide the
estate either extrajudicially or in an ordinary action for partition without submitting the
same for judicial administration nor applying for the appointment of an administrator by
the court.30 The reason is that where the deceased dies without pending obligations, there
is no necessity for the appointment of an administrator to administer the estate for them
and to deprive the real owners of their possession to which they are immediately
entitled.31redarclaw
In this case, it was expressly alleged in the complaint, and was not disputed, that Pedro
died without a will, leaving his estate without any pending obligations. Thus, contrary to
petitioner'.s contention, respondents were under no legal obligation to submit me subject
properties of the estate to a special proceeding for settlement of intestate estate, and are,
in fact, encouraged to have the same partitioned, judicially or extrajudicially, by Pereira v.
Court of Appeals:32redarclaw
Section 1, Rule 74 of the Revised Rules of Court, however, does not preclude the heirs
from instituting administration proceedings, even if the estate has no" debts or
obligations, if they do not desire to resort for good reasons to an ordinary action for
partition. While Section 1 allows the heirs to divide the estate among themselves as they
may see fit, or to resort to an ordinary action for partition, the said provision does not
compel them to do so if they have good reasons to take a different course of action. It
should be noted that recourse to an administration proceeding even if the estate has no
debts is sanctioned only if the heirs have good reasons for not resorting to an action for
partition. Where' partition is possible, either in or out of court, the estate should not be
burdened with an administration proceeding without good and compelling reasons.
Thus, it has been repeatedly held that when a person dies without leaving pending
obligations to be paid, his heirs, whether of age or not, are not bound to submit the
property to a judicial administration, which is always long and costly, or to apply for the
appointment of an administrator by the Court. It has been uniformly held that in such case
the judicial administration and the appointment of an administrator are superfluous and
unnecessary proceedings.33
Thus, respondents committed no error in filing an action for judicial partition instead of a

special proceeding for the settlement of estate as the same is expressly permitted by law.
That the complaint contained allegations inherent in an action for settlement of estate
does not mean that there was a prohibited joinder of causes of action for questions as to
the estate's properties as well as a determination of the heirs, their status as such, and the
nature and extent of their titles to the estate, may also be properly ventilated in partition
proceedings alone.34 In fact, a complete inventory of the estate may likewise be done
during the partition proceedings, especially since the estate has no debts.35 Indeed, where
the more expeditious remedy of partition is available to the heirs, then they may not be
compelled to submit to administration proceedings, dispensing of the risks of delay and
of the properties being dissipated.36redarclaw
Moreover, the fact that respondents' complaint al$o prayed for the annulment of title and
recovery of possession does not strip the trial court off of its jurisdiction to hear and
decide the case. Asking for the annulment of certain transfers of property could very well
be achieved in an action for partition,37as can be seen in cases where courts determine
the parties' rights arising from complaints asking not only for the partition of estates but
also for the annulment of titles and recovery of ownership and possession of property.38
In fact, in Bagayas v. Bagayas,39 wherein a complaint for annulment of sale and partition
was dismissed by the trial court due to the impropriety of an action for annulment as it
constituted a collateral attack on the certificates of title of the respondents therein, this
Court found the dismissal to be improper in the following manner:LawlibraryofCRAlaw
In Lacbayan v. Samoy, Jr. (Lacbayan) which is an action for partition premised on the
existence or non-existence of co-ownership between the parties, the Court categorically
pronounced that a resolution on the issue of ownership does not subject the Torrens title
issued over the disputed realties to a collateral attack. It must be borne in mind that what
cannot be collaterally attacked is the certificate of title and not the title itself. As
pronounced inLacbayan:LawlibraryofCRAlaw
There is no dispute that a Torrens certificate of title cannot be collaterally attacked, but
that rule is not material to the case at bar. What cannot be collaterally attacked is the
certificate of title and not the title itself. The certificate referred to is that document issued
by the Register of Deeds known as the TCT. In contrast, the title referred to by law means
ownership which is, more often than not, represented by that document. Petitioner
apparently confuses title with the certificate of title. Title as a concept of ownership
should not be confused with the certificate of title as evidence of such ownership
although both are interchangeably used. (Emphases supplied)
Thus, the RTC erroneously dismissed petitioner's petition for annulment of sale on the
ground that it constituted a collateral attack since she was actually assailing Rogelio and
Orlando's title to the subject lands and not any Torrens certificate of title over the same.

Indeed, an action for partition does not preclude the settlement of the issue of ownership.
In fact, the determination as to the existence of the same is necessary in the resolution of
an action for partition, as held in Municipality of Bian v. Garcia:40redarclaw
The first phase of a partition and/or accounting suit is taken up with the determination of
whether or not a co-ownership in fact exists, and a partition is proper (i.e., not otherwise
legally proscribed) and may be made by voluntary agreement of all the parties interested
in the property. This phase may end with a declaration that plaintiff is not entitled to have
a partition either because a co-ownership does not exist, or partition is legally prohibited.
It may end, on the other hand, with an adjudgment that a co-ownership does in truth
exist, partition is proper in the premises and an accounting of rents and profits received
by the defendant from the real estate in question is in order, x x x
The second phase commences when it appears that "the parties are unable to agree upon
the partition" directed by the court. In that event[,] partition shall be done for the parties
by the [c]ourt with the assistance of not more than three (3) commissioners. This second
stage may well also deal with the rendition of the accounting itself and its approval by the
[cjourt after the- parties have been accorded opportunity to be heard thereon, and an
award for the recovery by the party or parties thereto entitled of their just share in the
rents and profits of the real estate in question, x x x.41redarclaw
An action for partition, therefore, is premised on the existence or non-existence of coownership between the parties.42 Unless and until the issue of co-ownership is
definitively resolved, it would be premature to effect a partition of an estate.43redarclaw
In view of the foregoing, petitioner's argument that the trial court acted without
jurisdiction in entertaining -the action of settlement of estate and annulment of title in a
single proceeding is clearly erroneous for the instant complaint is precisely one for
judicial partition with annulment of title and recovery of possession, filed within the
confines of applicable law and jurisprudence. Under Section 144 of Republic Act No.
7691 (RA 7691),45 amending Batas Pambansa Big. 129, the RTC shall exercise exclusive
original jurisdiction over all civil actions in which the subject of the litigation is incapable
of pecuniary estimation. Since the action herein was not merely for partition and recovery
of ownership but also for annulment of title and documents, the action is incapable of
pecuniary estimation and thus cognizable by the RTC. Hence, considering that the trial
court clearly had jurisdiction in rendering its decision, the instant petition for annulment
Sf judgment must necessarily fail.
Note that even if the instant action was one for annulment of title alone, without the
prayer for judicial partition, the requirement of instituting a separate special proceeding
for the determination of the status and rights of the respondents as putative heirs may be

dispensed with, in light of the fact that the parties had voluntarily submitted the issue to
the trial court and had already presented evidence regarding the issue of heirship.46 In
Portugal v. Portugal-Beltran,47 the Court explained:LawlibraryofCRAlaw
In the case at bar, respondent, believing rightly or wrongly that she was the sole heir to
Portugal's estate, executed on February 15, 1988 the questioned Affidavit of Adjudication
under the second sentence of Rule 74, Section 1 of the Revised Rules of Court. Said rule
is an exception to the general rule that when a person dies leaving a property, it should be
judicially administered and the competent court should appoint a qualified administrator,
in the order established in Sec. 6, Rule 78 in case the deceased left no will, or in case he
did, he failed to name an executor therein.
xxxx
It appearing, however, that in the present case the only property of the intestate estate of
Portugal is the Caloocan parcel of land, to still subject it, under the circumstances of the
case, to a special proceeding which could be long, hence, not expeditious, just to establish
the status of petitioners as heirs is not only impractical; it is burdensome to the estate with
the costs and expenses of an administration proceeding. And it is superfluous in light of
the fact that the parties to the civil case - subject of the present case, could and had
already in fact presented evidence before the trial court which assumed jurisdiction over
the case upon the issues it defined during pre-trial.
In fine, under the circumstances of the present case, there being no compelling reason to
still subject Portugal's estate to administration proceedings since a determination of
petitioners' status as heirs could be achieved in the civil case filed by petitioners, the trial
court should proceed to evaluate the evidence presented by the parties during the trial and
render a decision thereon upon the issues it defined during pre-trial, x x x.48
Thus, in view of the clarity of respondents' complaint and the causes of action alleged
therein, as well as the fact that the trial court, in arriving at its decision, gave petitioner
more than ample opportunity to advance his claims, petitioner cannot now be permitted to
allege lack of jurisdiction just because the judgment rendered was adverse to them. To
repeat, the action filed herein is one for judicial partition and not for settlement of
intestate estate. Consequently, that respondents also prayed for the annulment of title and
recovery of possession in the same proceeding does not strip the court off of its
jurisdiction for asking for the annulment of certain transfers of property could very well
be achieved in an action for partition.
As for petitioner's contention that the sale must be considered valid as to the heirs who
assented to the conveyance as well as their allegation of good faith, this Court does not

find any Compelling reason to deviate from the ruling of the appellate court. As
sufficiently found by both courts below, the authenticity and due execution of the
documents on which petitioner's claims are based were inadequately proven. They were
undated, forged, and acknowledged before a notary public who was not commissioned as
such on the date they were executed. They were never presented to the Register of Deeds
for registration. Neither were the supposed notaries and buyers of the subject properties
presented as witnesses.
While it may be argued that Benita, one of the co-heirs to the estate, actually
acknowledged the sale of the resort, the circumstances surrounding the same militate
against the fact of its occurrence. Not only was the Deed of Sale supposedly executed by
Benita undated and unsigned by Pedro, but the document she presented purportedly
evidencing her receipt of her share in the sale, did not refer to any sort of sale but to a
previous loan obtained by Pedro and Benita from a bank.
Moreover, credence must be given on the appellate court's observations as to petitioners'
actuations insofar as the transactions alleged herein are concerned. First, they were
seemingly uncertain as to the number and/or identity of the properties bought by them.49
In their Answer, they gave the impression that" they bought both the resort and the family
home and yet, during trial, Francisco Villafria claimed they only bought the resort. In
fact, it was only then that they presented the subject Extra-Judicial Settlement and Deed
of Sale.50Second, they never presented any other document which would evidence their
actual payment of consideration to the selling heirs.51Third, in spite of the blatant legal
infirmities of the subject documents of conveyance, petitioners still took possession of
the properties, demolished several cottages, and introduced permanent improvements
thereon.
In all, the Court agrees with the appellate court that petitioners failed to adequately
substantiate, with convincing, credible and independently verifiable proof, their claim
that they had, in fact, purchased the subject properties. The circumstances surrounding
the purported transfers cast doubt on whether they actually took place. In substantiating
their claim, petitioners relied solely on the Extra-Judicial Settlement and Deed of Sale,
who utterly failed to prove their authenticity and due execution. They cannot, therefore,
be permitted to claim absolute ownership of the subject lands based on the same.
Neither can they be considered as innocent purchasers for value and builders in good
faith. Good faith consists in the belief of the builder that the land the latter is building on
is one's own without knowledge of any defect or flaw in one's title.52 However, in view
of the manifest defects in the instruments conveying their titles, petitioners should have
been placed on guard. Yet, they still demolished several cottages and constructed
improvement on the properties. Thus, their claim of good faith cannot be given credence.

Indeed, a judgment which has acquired finality becomes immutable and unalterable,
hence, may no longer be modified in any respect except to correct clerical errors or
mistakes, all the issues between the parties being deemed resolved and. laid to rest.53 It is
a fundamental principle in our judicial system and essential to an effective and efficient
administration of justice that, once a judgment has become final, the winning party be,
not through a mere subterfuge, deprived of the fruits of the verdict.54 Exceptions to the
immutability of final judgment are allowed only under the most extraordinary of
circumstances.55 Yet, when petitioner is given more than ample opportunity to be heard,
unbridled access to the appellate courts, as well as unbiased judgments rendered after a
consideration of evidence presented by the parties, as in the case at hand, the Court shall
refrain from reversing the rulings of the courts below in the absence of any showing that
the same were rendered with fraud or lack of jurisdiction.
WHEREFORE, premises considered, the instant petition is DENIED. The Decision and
Resolution, dated March 13, 2009 and April 23, 2009, respectively, of the Court Appeals
in CA-G.R. SP No. 107347, which affirmed the Judgment dated October 1, 2001 of the
Regional Trial Court of Nasugbu, Batangas, Branch 14, in Civil Case No. 217, insofar as
it concerns the resort covered by Transfer Certificates of Title No. 51354 and No. 51355,
and family home covered by TCT No. 40807 and 40808, are AFFIRMED.
SO ORDERED.cralawlawlibrary
Velasco, Jr., (Chairperson), Perez,* Leonen,**and Jardeleza, JJ., concur.

2. Robusquillo v. Sps. Galvez, G.R. No. 204029, June 4, 2014

Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 204029

June 4, 2014

AVELINA ABARIENTOS REBUSQUILLO [substituted by her heirs, except Emelinda

R. Gualvez] and SALVADOR A. OROSCO, Petitioners,
vs.
SPS. DOMINGO and EMELINDA REBUSQUILLO GUALVEZ and the CITY
ASSESSOR OF LEGAZPI CITY,Respondents.
DECISION
VELASCO, JR., J.:

Before Us is a Petition for Review on Certiorari under Rule 45 assailing the Decision1
and Resolution2 dated March 30, 2012 and September 25, 2012, respectively, of the
Court of Appeals (CA) in CA-G.R. CV No. 93035, which reversed and set aside the
Decision dated January 20, 2009 of the Regional Trial Court (RTC), Branch 4 in Legazpi
City, in Civil Case No. 10407.
The antecedent facts may be summarized as follows:
On October 26, 2004, petitioners Avelina Abarientos Rebusquillo (Avelina) and Salvador
Orosco (Salvador) filed a Complaint for annulment and revocation of an Affidavit of
Self-Adjudication dated December 4, 2001 and a Deed of Absolute Sale dated February
6, 2002 before the court a quo. In it, petitioners alleged that Avelina was one of the
children of Eulalio Abarientos (Eulalio) and Victoria Villareal (Victoria). Eulalio died
intestate on July 3, 1964, survived by his wife Victoria, six legitimate children, and one
illegitimate child, namely: (1) Avelina Abarientos-Rebusquillo, petitioner in this case; (2)
Fortunata Abarientos-Orosco, the mother of petitioner Salvador; (3) Rosalino Abarientos;
(4) Juan Abarientos; (5) Feliciano Abarientos; (6) Abraham Abarientos; and (7) Carlos
Abarientos. His wife Victoria eventually died intestate on June 30, 1983.
On his death, Eulalio left behind an untitled parcel of land in Legazpi City consisting of
two thousand eight hundred sixty-nine(2,869) square meters, more or less, which was
covered by Tax Declaration ARP No. (TD) 0141.
In 2001, Avelina was supposedly made to sign two (2) documents by her daughter
Emelinda Rebusquillo-Gualvez (Emelinda) and her son-in-law Domingo Gualvez
(Domingo), respondents in this case, on the pretext that the documents were needed to
facilitate the titling of the lot. It was only in 2003, so petitioners claim, that Avelina
realized that what she signed was an Affidavit of Self-Adjudication and a Deed of
Absolute Sale in favor of respondents.
As respondents purportedly ignored her when she tried to talk to them, Avelina sought the
intervention of the RTC to declare null and void the two (2) documents in order to
reinstate TD0141 and so correct the injustice done to the other heirs of Eulalio.
In their answer, respondents admitted that the execution of the Affidavit of SelfAdjudication and the Deed of Sale was intended to facilitate the titling of the subject
property. Paragraph 9 of their Answer reads:
Sometime in the year 2001, [petitioner] Avelina together with the other heirs of Eulalio
Abarientos brought out the idea to [respondent] Emelinda Rebusquillo-Gualvez to have
the property described in paragraph 8 of the complaint registered under the Torrens
System of Registration. To facilitate the titling of the property, so that the same could be
attractive to prospective buyers, it was agreed that the propertys tax declaration could be
transferred to [respondents] Spouses [Emelinda] R. Gualvez and Domingo Gualvez who
will spend all the cost of titling subject to reimbursement by all other heirs in case the
property is sold; That it was agreed that all the heirs will be given their corresponding

shares on the property; That pursuant to said purpose Avelina Abarientos-Rebusquillo

with the knowledge and consent of the other heirs signed and executed an Affidavit of
Self-Adjudication and a Deed of Absolute Sale in favor of [respondents] Gualvez. In fact,
[petitioner] Avelina Rebusquillo was given an advance sum of FIFTY THOUSAND
PESOS (P50,000.00) by [respondent] spouses and all the delinquent taxes paid by
[respondents].3
After trial, the RTC rendered its Decision dated January 20, 2009 annulling the Affidavit
of Self-Adjudication and the Deed of Absolute Sale executed by Avelina on the grounds
that (1) with regard to the Affidavit of Self-Adjudication, she was not the sole heir of her
parents and was not therefore solely entitled to their estate; and (2) in the case of the
Deed of Absolute Sale, Avelina did not really intend to sell her share in the property as it
was only executed to facilitate the titling of such property. The dispositive portion of the
RTC Decision reads:
WHEREFORE, premises considered, judgment is hereby rendered, as follows:
1. The subject Affidavit of Self-Adjudication of the Estate of the Deceased Spouses
Eulalio Abarientos and Victoria Villareal, dated December 4, 2001 as well as the subject
Deed of Absolute Sale, notarized on February 6, 2002, covering the property described in
par. 8 of the Amended Complaint are hereby ordered ANNULLED;
2. That defendant City Assessors Officer of Legazpi City is hereby ordered to CANCEL
the Tax Declaration in the name of private [respondents] spouses Gualvez under ARP No.
4143 and to REINSTATE the Tax Declaration under ARP No. 0141 in the name of
Eulalio Abarientos;
3. By way of restitution, [petitioner] Avelina Abarientos Rebusquillo is hereby ordered to
return or refund to [respondents] spouses Domingo Gualvez and Emelinda Gualvez, the
P50,000.00 given by the latter spouses to the former.4
Assailing the trial courts decision, respondents interposed an appeal with the CA arguing
that the Deed of Sale cannot be annulled being a public document that has for its object
the creation and transmission of real rights over the immovable subject property. The fact
that Avelinas testimony was not offered in evidence, so respondents argued, the signature
on the adverted deed remains as concrete proof of her agreement to its terms. Lastly,
respondents contended that the Complaint filed by petitioners Avelina and Salvador
before the RTC is not the proper remedy provided by law for those compulsory heirs
unlawfully deprived of their inheritance.
Pending the resolution of respondents appeal, Avelina died intestate on September 1,
2009 leaving behind several living heirs5 including respondent Emelinda.
In its Decision dated March 30, 2012, the appellate court granted the appeal and reversed
and set aside the Decision of the RTC. The CA held that the RTC erred in annulling the
Affidavit of Self-Adjudication simply on petitioners allegation of the existence of the

heirs of Eulalio, considering that issues on heirship must be made in administration or

intestate proceedings, not in an ordinary civil action. Further, the appellate court observed
that the Deed of Absolute Sale cannot be nullified as it is a notarized document that has in
its favor the presumption of regularity and is entitled to full faith and credit upon its face.
Aggrieved by the CAs Decision, petitioner Avelina, as substituted by her heirs except
respondent Emelinda, and petitioner Salvador are now before this Court ascribing
reversible error on the part of the appellate court.
We find merit in the instant petition.
It has indeed been ruled that the declaration of heirship must be made in a special
proceeding, not in an independent civil action. However, this Court had likewise held that
recourse to administration proceedings to determine who heirs are is sanctioned only if
there is a good and compelling reason for such recourse.6 Hence, the Court had allowed
exceptions to the rule requiring administration proceedings as when the parties in the
civil case already presented their evidence regarding the issue of heirship, and the RTC
had consequently rendered judgment upon the issues it defined during the pre-trial.7 In
Portugal v. Portugal-Beltran,8 this Court held:
In the case at bar, respondent, believing rightly or wrongly that she was the sole heir to
Portugals estate, executed on February 15, 1988 the questioned Affidavit of Adjudication
under the second sentence of Rule 74, Section 1 of the Revised Rules of Court. Said rule
is an exception to the general rule that when a person dies leaving a property, it should be
judicially administered and the competent court should appoint a qualified administrator,
in the order established in Sec. 6, Rule 78 in case the deceased left no will, or in case he
did, he failed to name an executor therein.
Petitioners claim, however, to be the exclusive heirs of Portugal. A probate or intestate
court, no doubt, has jurisdiction to declare who are the heirs of a deceased.
It appearing, however, that in the present case the only property of the intestate estate of
Portugal is the Caloocan parcel of land to still subject it, under the circumstances of the
case, to a special proceeding which could be long, hence, not expeditious, just to establish
the status of petitioners as heirs is not only impractical; it is burdensome to the estate with
the costs and expenses of an administration proceeding. And it is superfluous in light of
the fact that the parties to the civil case - subject of the present case, could and had
already in fact presented evidence before the trial court which assumed jurisdiction over
the case upon the issues it defined during pre-trial.
In fine, under the circumstances of the present case, there being no compelling reason to
still subject Portugals estate to administration proceedings since a determination of
petitioners status as heirs could be achieved in the civil case filed by petitioners, the trial
court should proceed to evaluate the evidence presented by the parties during the trial and
render a decision thereon upon the issues it defined during pre-trial x x x. (emphasis
supplied)

Similar to Portugal, in the present case, there appears to be only one parcel of land being
claimed by the contending parties as the inheritance from Eulalio. It would be more
practical, as Portugal teaches, to dispense with a separate special proceeding for the
determination of the status of petitioner Avelina as sole heir of Eulalio, especially in light
of the fact that respondents spouses Gualvez admitted in court that they knew for a fact
that petitioner Avelina was not the sole heir of Eulalio and that petitioner Salvador was
one of the other living heirs with rights over the subject land. As confirmed by the RTC in
its Decision, respondents have stipulated and have thereby admitted the veracity of the
following facts during the pre-trial:
IV UNCONTROVERTED FACTS: (Based on the stipulation of facts in the Pre-Trial
Order)
A. x x x
B. [Petitioners] and private [respondents] spouses Gualvez admitted the following facts:
1. Identity of the parties;
2. Capacity of the [petitioners] and private [respondents] to sue and be sued;
3. [Petitioner] Avelina Abarientos-Rebusquilllo is not the only surviving heir of deceased
spouses Eulalio and Victoria Abarientos;
4. Petitioner Salvador Orosco is a co-owner/possessor of a portion of the subject
property;
5. Fortunata Abarientos-Orosco is the sister of Avelina Abarientos;
6. [Respondent] Emelinda Rebusquillo-Gualves is a daughter of [petitioner] Avelina A.
Rebusquillo;
7. [Petitioner] Avelina Rebusquillo was born on Nov. 10, 1923;
8. The existence of Affidavit of Self-Adjudication of Estate of the Deceased and Deed of
Absolute Sale executed by [petitioner] Avelina A. Rebusquillo on the subject property.9
(emphasis supplied)
In light of the admission of respondents spouses Gualvez, it is with more reason that a
resort to special proceeding will be but an unnecessary superfluity. Accordingly, the court
a quo had properly rendered judgment on the validity of the Affidavit of SelfAdjudication executed by Avelina. As pointed out by the trial court, an Affidavit of SelfAdjudication is only proper when the affiant is the sole heir of the decedent. The second
sentence of Section 1, Rule 74 of the Rules of Court is patently clear that selfadjudication is only warranted when there is only one heir:

Section 1. Extrajudicial settlement by agreement between heirs. x x x If there is only

one heir, he may adjudicate to himself the entire estate by means of an affidavit filed in
the office of the register of deeds. x x x (emphasis supplied)
As admitted by respondents, Avelina was not the sole heir of Eulalio. In fact, as admitted
by respondents, petitioner Salvador is one of the co-heirs by right of representation of his
mother. Without a doubt, Avelina had perjured herself when she declared in the affidavit
that she is "the only daughter and sole heir of spouses EULALIO ABARIENTOS AND
VICTORIA VILLAREAL."10 The falsity of this claim renders her act of adjudicating to
herself the inheritance left by her father invalid. The RTC did not, therefore, err in
granting Avelinas prayer to declare the affidavit null and void and so correct the wrong
she has committed.
In like manner, the Deed of Absolute Sale executed by Avelina in favor of respondents
was correctly nullified and voided by the RTC. Avelina was not in the right position to
sell and transfer the absolute ownership of the subject property to respondents. As she
was not the sole heir of Eulalio and her Affidavit of Self-Adjudication is void, the subject
property is still subject to partition. Avelina, in fine, did not have the absolute ownership
of the subject property but only an aliquot portion. What she could have transferred to
respondents was only the ownership of such aliquot portion. It is apparent from the
admissions of respondents and the records of this case that Avelina had no intention to
transfer the ownership, of whatever extent, over the property to respondents. Hence, the
Deed of Absolute Sale is nothing more than a simulated contract.
The Civil Code provides:
Art. 1345. Simulation of a contract may be absolute or relative. The former takes place
when the parties do not intend to be bound at all; the latter, when the parties conceal their
true agreement. (emphasis supplied)
Art. 1346. An absolutely simulated or fictitious contract is void. A relative simulation,
when it does not prejudice a third person and is not intended for any purpose contrary to
law, morals, good customs, public order or public policy binds the parties to their real
agreement.
In Heirs of Policronio Ureta Sr. v. Heirs of Liberato Ureta,11 this Court explained the
concept of the simulation of contracts:
In absolute simulation, there is a colorable contract but it has no substance as the parties
have no intention to be bound by it. The main characteristic of an absolute simulation is
that the apparent contract is not really desired or intended to produce legal effect or in
any way alter the juridical situation of the parties. As a result, an absolutely simulated or
fictitious contract is void, and the parties may recover from each other what they may
have given under the contract. However, if the parties state a false cause in the contract to
conceal their real agreement, the contract is relatively simulated and the parties are still
bound by their real agreement. Hence, where the essential requisites of a contract are

present and the simulation refers only to the content or terms of the contract, the
agreement is absolutely binding and enforceable between the parties and their successors
in interest. (emphasis supplied)
In the present case, the true intention of the parties in the execution of the Deed of
Absolute Sale is immediately apparent from respondents very own Answer to
petitioners Complaint. As respondents themselves acknowledge, the purpose of the Deed
of Absolute Sale was simply to "facilitate the titling of the [subject] property," not to
transfer the ownership of the lot to them. Furthermore, respondents concede that
petitioner Salvador remains in possession of the property and that there is no indication
that respondents ever took possession of the subject property after its supposed purchase.
Such failure to take exclusive possession of the subject property or, in the alternative, to
collect rentals from its possessor, is contrary to the principle of ownership and is a clear
badge of simulation that renders the whole transaction void.12
Contrary to the appellate courts opinion, the fact that the questioned Deed of Absolute
Sale was reduced to writing and notarized does not accord it the quality of
incontrovertibility otherwise provided by the parole evidence rule. The form of a contract
does not make an otherwise simulated and invalid act valid. The rule on parole evidence
is not, as it were, ironclad. Sec. 9, Rule 130 of the Rules of Court provides the
exceptions:
Section 9. Evidence of written agreements. x x x
However, a party may present evidence to modify, explain or add to the terms of written
agreement if he puts in issue in his pleading:
(a) An intrinsic ambiguity, mistake or imperfection in the written agreement;
(b) The failure of the written agreement to express the true intent and agreement of the
parties thereto;
(c) The validity of the written agreement; or
(d) The existence of other terms agreed to by the parties or their successors in interest
after the execution of the written agreement.
The term "agreement" includes wills. (emphasis supplied)
The failure of the Deed of Absolute Sale to express the true intent and agreement of the
contracting parties was clearly put in issue in the present case. Again, respondents
themselves admit in their Answer that the Affidavit of Self-Adjudication and the Deed of
Absolute Sale were only executed to facilitate the titling of the property. The RTC is,
therefore, justified to apply the exceptions provided in the second paragraph of Sec. 9,
Rule 130 to ascertain the true intent of the parties, which shall prevail over the letter of
the document. That said, considering that the Deed of Absolute Sale has been shown to be

void for being absolutely simulated, petitioners are not precluded from presenting
evidence to modify, explain or add to the terms of the written agreement.13
WHEREFORE, the instant petition is GRANTED. The Decision dated March 30, 2012
and the Resolution dated September 25, 2012 of the Court of Appeals in CA-G.R. CV
No. 93035 are hereby REVERSED and SET ASIDE. The Decision dated January 20,
2009 in Civil Case No. 10407 of the Regional Trial Court (RTC),Branch 4 in Legazpi
City is REINSTATED.
SO ORDERED.

3. Neri v. Heirs of Sps. Yusop, G.R. No. 194366, October 10, 2012
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 194366

October 10, 2012

NAPOLEON D. NERI, ALICIA D. NERI-MONDEJAR, VISMINDA D. NERICHAMBERS, ROSA D. NERI-MILLAN, DOUGLAS D. NERI, EUTROPIA D. ILLUTCOCKINOS AND VICTORIA D. ILLUT-PIALA, Petitioners,
vs.
HEIRS OF HADJI YUSOP UY AND JULPHA* IBRAHIM UY, Respondents.
DECISION
PERLAS-BERNABE, J.:
In this Petition for Review on Certiorari1 under Rule 45 of the Rules of Court, petitioners
Napoleon D. Neri (Napoleon), Alicia D. Neri-Mondejar (Alicia), Visminda D. NeriChambers (Visminda), Rosa D. Neri-Millan (Rosa), Douglas D. Neri (Douglas), Eutropia
D. Illut-Cockinos (Eutropia), and Victoria D. Illut-Piala (Victoria) seek to reverse and set
aside the April 27, 2010 Decision2 and October 18, 2010 Resolution3 of the Court of
Appeals (CA) in CA-G.R. CV No. 01031-MIN which annulled the October 25, 2004
Decision4 of the Regional Trial Court (RTC) of Panabo City, Davao del Norte and
instead, entered a new one dismissing petitioners complaint for annulment of sale,
damages and attorneys feesagainst herein respondents heirs of spouses Hadji Yusop Uy
and Julpha Ibrahim Uy (heirs of Uy).
The Facts
During her lifetime, Anunciacion Neri (Anunciacion) had seven children, two (2) from
her first marriage with Gonzalo Illut (Gonzalo), namely: Eutropia and Victoria, and five

(5) from her second marriage with Enrique Neri (Enrique), namely: Napoleon, Alicia,
Visminda, Douglas and Rosa. Throughout the marriage of spouses Enrique and
Anunciacion, they acquired several homestead properties with a total area of 296,555
square meters located in Samal, Davao del Norte, embraced by Original Certificate of
Title (OCT) Nos. (P-7998) P-21285, (P-14608) P-51536and P-20551 (P-8348)7issued on
February 15, 1957, August 27, 1962 and July 7, 1967, respectively.
On September 21, 1977, Anunciacion died intestate. Her husband, Enrique, in his
personal capacity and as natural guardian of his minor children Rosa and Douglas,
together with Napoleon, Alicia, and Vismindaexecuted an Extra-Judicial Settlement of
the Estate with Absolute Deed of Sale8 on July 7, 1979, adjudicating among themselves
the said homestead properties, and thereafter, conveying themto the late spouses Hadji
Yusop Uy and Julpha Ibrahim Uy (spouses Uy)for a consideration of P 80,000.00.
On June 11, 1996, the children of Enrique filed a complaint for annulment of saleof the
said homestead properties against spouses Uy (later substituted by their heirs)before the
RTC, docketed as Civil Case No.96-28, assailing the validity of the sale for having been
sold within the prohibited period. Thecomplaint was later amended to include Eutropia
and Victoriaas additional plaintiffs for having been excluded and deprived of their
legitimes as childrenof Anunciacion from her first marriage.
In their amended answer with counterclaim, the heirs of Uy countered that the sale took
place beyond the 5-year prohibitory period from the issuance of the homestead patents.
They also denied knowledge of Eutropia and Victorias exclusionfrom the extrajudicial
settlement and sale of the subject properties, and interposed further the defenses of
prescription and laches.
The RTC Ruling
On October 25, 2004, the RTC rendered a decision ordering, among others, the
annulment of the Extra-Judicial Settlement of the Estate with Absolute Deed of Sale. It
ruled that while the sale occurred beyond the 5-year prohibitory period, the sale is still
void because Eutropia and Victoria were deprived of their hereditary rights and that
Enrique had no judicial authority to sell the shares of his minor children, Rosa and
Douglas.
Consequently, it rejected the defenses of laches and prescription raised by spouses Uy,
who claimed possession of the subject properties for 17 years, holding that co-ownership
rights are imprescriptible.
The CA Ruling
On appeal, the CAreversed and set aside the ruling of the RTC in its April 27, 2010
Decision and dismissed the complaint of the petitioners. It held that, while Eutropia and
Victoria had no knowledge of the extrajudicial settlement and sale of the subject
properties and as such, were not bound by it, the CA found it unconscionable to permit

the annulment of the sale considering spouses Uys possession thereof for 17 years, and
thatEutropia and Victoriabelatedlyfiled their actionin 1997, ormore than two years
fromknowledge of their exclusion as heirs in 1994 when their stepfather died. It,
however, did not preclude the excluded heirs from recovering their legitimes from their
co-heirs.
Similarly, the CA declared the extrajudicial settlement and the subsequent saleas valid
and binding with respect to Enrique and hischildren, holding that as co-owners, they have
the right to dispose of their respective shares as they consider necessary or fit.While
recognizing Rosa and Douglas to be minors at that time, they were deemed to have
ratified the sale whenthey failed to question it upon reaching the age of majority.Italso
found laches to have set in because of their inaction for a long period of time.
The Issues
In this petition, petitioners imputeto the CA the following errors:
I. WHEN IT UPHELDTHE VALIDITY OF THE "EXTRA JUDICIAL SETTLEMENT
OF THE ESTATE WITH ABSOLUTE DEED OF SALE" AS FAR AS THE SHARES OF
EUTROPIA AND VICTORIA WERE CONCERNED, THEREBY DEPRIVING THEM
OF THEIR INHERITANCE;
II. WHEN IT DID NOT NULLIFY OR ANNUL THE "EXTRA JUDICIAL
SETTLEMENT OF THE ESTATE WITH ABSOLUTE DEED OF SALE" WITH
RESPECT TO THE SHARESOF ROSA AND DOUGLAS, THEREBY DEPRIVING
THEM OF THEIR INHERITANCE; and
III. WHEN IT FOUND THAT LACHES OR PRESCRIPTION HAS SET IN.
The Ruling of the Court
The petitionis meritorious.
It bears to stress that all the petitioners herein are indisputably legitimate children of
Anunciacion from her first and second marriages with Gonzalo and Enrique, respectively,
and consequently, are entitled to inherit from her in equal shares, pursuant to Articles 979
and 980 of the Civil Code which read:
ART. 979. Legitimate children and their descendants succeed the parents and other
ascendants, without distinction as to sex or age, and even if they should come from
different marriages.
xxx
ART. 980. The children of the deceased shall always inherit from him in their own right,
dividing the inheritance in equal shares.

As such, upon the death of Anunciacion on September 21, 1977, her children and Enrique
acquired their respective inheritances,9 entitling them to their pro indiviso shares in her
whole estate, as follows:
Enrique

9/16 (1/2 of the conjugal assets + 1/16)

Eutropia 1/16
Victoria

1/16

Napoleo
1/16
n
Alicia

1/16

Visminda 1/16
Rosa

1/16

Douglas 1/16
Hence, in the execution of the Extra-Judicial Settlement of the Estate with Absolute Deed
of Sale in favor of spouses Uy, all the heirs of Anunciacionshould have participated.
Considering that Eutropia and Victoria were admittedly excluded and that then minors
Rosa and Douglas were not properly represented therein, the settlement was not valid and
binding uponthem and consequently, a total nullity.
Section 1, Rule 74 of the Rules of Court provides:
SECTION 1. Extrajudicial settlement by agreement between heirs. x x x
The fact of the extrajudicial settlement or administration shall be published in a
newspaper of general circulation in the manner provided in the next succeeding section;
but no extrajudicial settlement shall be binding upon any person who has not participated
therein or had no notice thereof. (Underscoring added)
The effect of excluding the heirs in the settlement of estate was further elucidated in
Segura v. Segura,10 thus:
It is clear that Section 1 of Rule 74 does not apply to the partition in question which was
null and void as far as the plaintiffs were concerned. The rule covers only valid partitions.
The partition in the present case was invalid because it excluded six of the nine heirs who
were entitled to equal shares in the partitioned property. Under the rule "no extrajudicial
settlement shall be binding upon any person who has not participated therein or had no
notice thereof." As the partition was a total nullity and did not affect the excluded heirs, it

was not correct for the trial court to hold that their right to challenge the partition had
prescribed after two years from its execution
However, while the settlement of the estate is null and void, the subsequent sale of the
subject propertiesmade by Enrique and his children, Napoleon, Alicia and Visminda, in
favor of the respondents isvalid but only with respect to their proportionate shares
therein.It cannot be denied that these heirs have acquired their respective shares in the
properties of Anunciacion from the moment of her death11and that, as owners thereof,
they can very well sell their undivided share in the estate.12
With respect to Rosa and Douglas who were minors at the time of the execution of the
settlement and sale, their natural guardian and father, Enrique, represented them in the
transaction. However, on the basis of the laws prevailing at that time, Enrique was merely
clothed with powers of administration and bereft of any authority to dispose of their 2/16
shares in the estate of their mother, Anunciacion.
Articles 320 and 326 of the Civil Code, the laws in force at the time of the execution of
the settlement and sale, provide:
ART. 320. The father, or in his absence the mother, is the legal administrator of the
property pertaining to the child under parental authority. If the property is worth more
than two thousand pesos, the father or mother shall give a bond subject to the approval of
the Court of First Instance.
ART. 326. When the property of the child is worth more than two thousand pesos, the
father or mother shall be considered a guardian of the childs property, subject to the
duties and obligations of guardians under the Rules of Court.
Corollarily, Section 7, Rule 93 of the Rules of Court also provides:
SEC. 7. Parents as Guardians. When the property of the child under parental authority
is worth two thousand pesos or less, the father or the mother, without the necessity of
court appointment, shall be his legal guardian. When the property of the child is worth
more than two thousand pesos, the father or the mother shall be considered guardian of
the childs property, with the duties and obligations of guardians under these Rules, and
shall file the petition required by Section 2 hereof. For good reasons, the court may,
however, appoint another suitable persons.
Administration includes all acts for the preservation of the property and the receipt of
fruits according to the natural purpose of the thing. Any act of disposition or alienation,
or any reduction in the substance of the patrimony of child, exceeds the limits of
administration.13 Thus, a father or mother, as the natural guardian of the minor under
parental authority, does not have the power to dispose or encumber the property of the
latter. Such power is granted by law only to a judicial guardian of the wards property and
even then only with courts prior approval secured in accordance with the proceedings set
forth by the Rules of Court.14

Consequently, the disputed sale entered into by Enrique in behalf of his minor children
without the proper judicial authority, unless ratified by them upon reaching the age of
majority,15 is unenforceable in accordance with Articles 1317 and 1403(1) of the Civil
Code which provide:
ART. 1317. No one may contract in the name of another without being authorized by the
latter or unless he has by law a right to represent him.
A contract entered into in the name of another by one who has no authority or legal
representation, or who has acted beyond his powers, shall be unenforceable, unless it is
ratified, expressly or impliedly, by the person on whose behalf it has been executed,
before it is revoked by the other contracting party.
ART. 1403. The following contracts are unenforceable, unless they are ratified:
(1) Those entered into the name of another person by one who has been given no
authority or legal representation, or who has acted beyond his powers;
xxx
Ratification means that one under no disability voluntarily adopts and gives sanction to
some unauthorized act or defective proceeding, which without his sanction would not be
binding on him. It is this voluntary choice, knowingly made, which amounts to a
ratification of what was theretofore unauthorized, and becomes the authorized act of the
party so making the ratification.16 Once ratified, expressly or impliedly such as when the
person knowingly received benefits from it, the contract is cleansed from all its defects
from the moment it was constituted,17 as it has a retroactive effect.
Records, however, show that Rosa had ratified the extrajudicial settlement of the estate
with absolute deed of sale. In Napoleon and Rosas Manifestation18 before the RTC
dated July 11, 1997,they stated:
"Concerning the sale of our parcel of land executed by our father, Enrique Neri concurred
in and conformed to by us and our other two sisters and brother (the other plaintiffs), in
favor of Hadji Yusop Uy and his spouse Hadja Julpa Uy on July 7, 1979, we both
confirmed that the same was voluntary and freely made by all of us and therefore the sale
was absolutely valid and enforceable as far as we all plaintiffs in this case are
concerned;" (Underscoring supplied)
In their June 30, 1997 Joint-Affidavit,19 Napoleon and Rosa also alleged:
"That we are surprised that our names are included in this case since we do not have any
intention to file a case against Hadji Yusop Uy and Julpha Ibrahim Uy and their family
and we respect and acknowledge the validity of the Extra-Judicial Settlement of the
Estate with Absolute Deed of Sale dated July 7, 1979;" (Underscoring supplied)

Clearly, the foregoing statements constitutedratification of the settlement of the estate and
the subsequent sale, thus, purging all the defects existing at the time of its execution and
legitimizing the conveyance of Rosas 1/16 share in the estate of Anunciacion to spouses
Uy. The same, however, is not true with respect to Douglas for lack of evidence showing
ratification.
Considering, thus, that the extrajudicial settlement with sale is invalid and therefore, not
binding on Eutropia, Victoria and Douglas, only the shares ofEnrique, Napoleon, Alicia,
Visminda and Rosa in the homestead properties have effectivelybeen disposed in favor of
spouses Uy. "A person can only sell what he owns, or is authorized to sell and the buyer
can as a consequence acquire no more than what the sellercan legally transfer."20 On this
score, Article 493 of the Civil Codeis relevant, which provides:
Each co-owner shall have the full ownership of his part and of the fruits and benefits
pertaining thereto, and he may therefore alienate, assign or mortgage it, and even
substitute another person in its enjoyment, except when personal rights are involved. But
the effect of the alienation or the mortgage, with respect to the co-owners, shall be limited
to the portion which may be allotted to him in the division upon the termination of the coownership.
Consequently, spouses Uy or their substituted heirs became pro indiviso co-owners of the
homestead properties with Eutropia, Victoria and Douglas, who retained title to their
respective 1/16 shares. They were deemed to be holding the 3/16 shares of Eutropia,
Victoria and Douglas under an implied constructive trust for the latters benefit,
conformably with Article 1456 of the Civil Code which states:"if property is acquired
through mistake or fraud, the person obtaining it is, by force of law, considered a trustee
of an implied trust for the benefit of the person from whom the property comes." As such,
it is only fair, just and equitable that the amount paid for their shares equivalent to P
5,000.0021 each or a total of P 15,000.00 be returned to spouses Uy with legal interest.
On the issue of prescription, the Court agrees with petitioners that the present action has
not prescribed in so far as it seeks to annul the extrajudicial settlement of the estate.
Contrary to the ruling of the CA, the prescriptive period of 2 years provided in Section 1
Rule 74 of the Rules of
Court reckoned from the execution of the extrajudicial settlement finds no application to
petitioners Eutropia, Victoria and Douglas, who were deprived of their lawful
participation in the subject estate. Besides, an "action or defense for the declaration of the
inexistence of a contract does not prescribe" in accordance with Article 1410 of the Civil
Code.
However, the action to recover property held in trust prescribes after 10 years from the
time the cause of action accrues,22 which is from the time of actual notice in case of
unregistered deed.23 In this case, Eutropia, Victoria and Douglas claimed to have
knowledge of the extrajudicial settlement with sale after the death of their father, Enrique,

in 1994 which spouses Uy failed to refute. Hence, the complaint filed in 1997 was well
within the prescriptive period of 10 years.
WHEREFORE, the instant petition is GRANTED. The April 27, 2010 Decision and
October 18, 2010 Resolution of the Court of Appeals are REVERSED and SET ASIDE
and a new judgment is entered:
1. Declaring the Extra-Judicial Settlement of the Estate of Anunciacion Neri NULL and
VOID;
2. Declaring the Absolute Deed of Sale in favor of the late spouses Hadji Yusop Uy and
Julpha Ibrahim Uy as regards the 13/16 total shares of the late Enrique Neri, Napoleon
Neri, Alicia D. Neri-Mondejar, Visminda D. Neri-Chambers and Rosa D. Neri-Millan
VALID;
3. Declaring Eutropia D. Illut-Cockinos, Victoria D. Illut-Piala and Douglas D. Neri as
the LAWFUL OWNERSof the 3/16 portions of the subject homestead properties, covered
by Original Certificate of Title Nos. (P-7998) P-2128, (P-14608) P-5153 and P-20551 (P8348); and
4. Ordering the estate of the late Enrique Neri, as well as Napoleon Neri, Alicia D. NeriMondejar, Visminda D. Neri-Chambers and Rosa D. Neri-Millan to return to the
respondents jointly and solidarily the amount paid corresponding to the 3/16 shares of
Eutropia, Victoria and Douglas in the total amount of P 15,000.00, with legal interest at
6% per annum computed from the time of payment until finality of this decision and 12%
per annum thereafter until fully paid.
No pronouncement as to costs.
SO ORDERED.

4. Cua v. Vargas, G.R. No. 156536, October 31, 2006

Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 156536

October 31, 2006

JOSEPH CUA, petitioner,

vs.
GLORIA A. VARGAS, AURORA VARGAS, RAMON VARGAS, MARITES VARGAS,
EDELINA VARGAS AND GEMMA VARGAS, respondents.

DECISION

AZCUNA, J.:
This is a petition for review under Rule 45 of the Rules of Court seeking the reversal of
the decision1 dated March 26, 2002, and the resolution2 dated December 17, 2002, of the
Court of Appeals in CA-G.R. SP No. 59869 entitled "Gloria A. Vargas, Aurora Vargas,
Ramon Vargas, Marites Vargas, Edelina Vargas and Gemma Vargas v. Joseph Cua."
The facts are as follows:
A parcel of residential land with an area of 99 square meters located in San Juan, Virac,
Catanduanes was left behind by the late Paulina Vargas. On February 4, 1994, a notarized
Extra Judicial Settlement Among Heirs was executed by and among Paulina Vargas' heirs,
namely Ester Vargas, Visitacion Vargas, Juan Vargas, Zenaida V. Matienzo, Rosario V.
Forteza, Andres Vargas, Gloria Vargas, Antonina Vargas and Florentino Vargas,
partitioning and adjudicating unto themselves the lot in question, each one of them
getting a share of 11 square meters. Florentino, Andres, Antonina and Gloria, however,
did not sign the document. Only Ester, Visitacion, Juan, Zenaida and Rosario signed it.
The Extra Judicial Settlement Among Heirs was published in the Catanduanes Tribune
for three consecutive weeks.3
On November 15, 1994, an Extra Judicial Settlement Among Heirs with Sale4 was again
executed by and among the same heirs over the same property and also with the same
sharings. Once more, only Ester, Visitacion, Juan, Zenaida and Rosario signed the
document and their respective shares totaling 55 square meters were sold to Joseph Cua,
petitioner herein.
According to Gloria Vargas, the widow of Santiago Vargas and one of respondents herein,
she came to know of the Extra Judicial Settlement Among Heirs with Sale dated
November 16, 1994 only when the original house built on the lot was being demolished
sometime in May 1995.5 She likewise claimed she was unaware that an earlier Extra
Judicial Settlement Among Heirs dated February 4, 1994 involving the same property had
been published in the Catanduanes Tribune.6
After knowing of the sale of the 55 square meters to petitioner, Gloria Vargas tried to
redeem the property, with the following letter7 sent to petitioner on her behalf:
29th June 1995
Mr. Joseph Cua
Capilihan, Virac, Catanduanes
Sir:

This is in behalf of my client, Ms. Aurora Vargas,8 (c/o Atty. Prospero V. Tablizo) one of
the lawful heirs of the late Paulina Vargas, original owner of Lot No. 214 of Virac,
Poblacion covered by ARP No. 031-0031 in her name.
I understand that a document "Extra Judicial Settlement Among Heirs with Sale" was
executed by some of my client's co-heirs and alleged representatives of other co-heirs, by
virtue of which document you acquired by purchase from the signatories to the said
document, five (5) shares with a total area of fifty-five square meters of the abovedescribed land.
This is to serve you notice that my client shall exercise her right of legal redemption of
said five (5) shares as well as other shares which you may likewise have acquired by
purchase. And you are hereby given an option to agree to legal redemption within a
period of fifteen (15) days from your receipt hereof.
Should you fail to convey to me your agreement within said 15-day-period, proper legal
action shall be taken by my client to redeem said shares.
Thank you.
Very truly yours,
(Sgd.)
JUAN G. ATENCIA
When the offer to redeem was refused and after having failed to reach an amicable
settlement at the barangay level,9 Gloria Vargas filed a case for annulment of Extra
Judicial Settlement and Legal Redemption of the lot with the Municipal Trial Court
(MTC) of Virac, Catanduanes against petitioner and consigned the amount of P100,000
which is the amount of the purchase with the Clerk of Court on May 20, 1996.10 Joining
her in the action were her children with Santiago, namely, Aurora, Ramon, Marites,
Edelina and Gemma, all surnamed Vargas.
Subsequently, Carlos Gianan, Jr. and Gloria Arcilla, heirs of the alleged primitive owner
of the lot in question, Pedro Lakandula, intervened in the case.11
Respondents claimed that as co-owners of the property, they may be subrogated to the
rights of the purchaser by reimbursing him the price of the sale. They likewise alleged
that the 30-day period following a written notice by the vendors to their co-owners for
them to exercise the right of redemption of the property had not yet set in as no written
notice was sent to them. In effect, they claimed that the Extra Judicial Settlement Among
Heirs and the Extra Judicial Settlement Among Heirs with Sale were null and void and
had no legal and binding effect on them.12
After trial on the merits, the MTC rendered a decision13 in favor of petitioner, dismissing
the complaint as well as the complaint-in-intervention for lack of merit, and declaring the
Deed of Extra Judicial Settlement Among Heirs with Sale valid and binding. The MTC

upheld the sale to petitioner because the transaction purportedly occurred after the
partition of the property among the co-owner heirs. The MTC opined that the other heirs
could validly dispose of their respective shares. Moreover, the MTC found that although
there was a failure to strictly comply with the requirements under Article 1088 of the
Civil Code14 for a written notice of sale to be served upon respondents by the vendors
prior to the exercise of the former's right of redemption, this deficiency was cured by
respondents'actual knowledge of the sale, which was more than 30 days before the filing
of their complaint, and their consignation of the purchase price with the Clerk of Court,
so that the latter action came too late. Finally, the MTC ruled that respondents failed to
establish by competent proof petitioner's bad faith in purchasing the portion of the
property owned by respondents' co-heirs.15
On appeal, the Regional Trial Court (RTC), Branch 42, of Virac, Catanduanes affirmed
the MTC decision in a judgment dated November 25, 1999. The matter was thereafter
raised to the Court of Appeals (CA).
The CA reversed the ruling of both lower courts in the assailed decision dated March 26,
2002, declaring that the Extra Judicial Settlement Among Heirs and the Extra Judicial
Settlement Among Heirs with Sale, dated February 4, 1994 and November 15, 1994,
respectively, were void and without any legal effect. The CA held that, pursuant to
Section 1, Rule 74 of the Rules of Court, 16 the extrajudicial settlement made by the
other co-heirs is not binding upon respondents considering the latter never participated in
it nor did they ever signify their consent to the same.
His motion for reconsideration having been denied, petitioner filed the present petition
for review.
The issues are:
Whether heirs are deemed constructively notified and bound, regardless of their failure to
participate therein, by an extrajudicial settlement and partition of estate when the
extrajudicial settlement and partition has been duly published; and,
Assuming a published extrajudicial settlement and partition does not bind persons who
did not participate therein, whether the written notice required to be served by an heir to
his co-heirs in connection with the sale of hereditary rights to a stranger before partition
under Article 1088 of the Civil Code17 can be dispensed with when such co-heirs have
actual knowledge of the sale such that the 30-day period within which a co-heir can
exercise the right to be subrogated to the rights of a purchaser shall commence from the
date of actual knowledge of the sale.
Petitioner argues, as follows:
Firstly, the acquisition by petitioner of the subject property subsequent to the extrajudicial
partition was valid because the partition was duly published. The publication of the same
constitutes due notice to respondents and signifies their implied acquiescence thereon.

Respondents are therefore estopped from denying the validity of the partition and sale at
this late stage. Considering that the partition was valid, respondents no longer have the
right to redeem the property.
Secondly, petitioner is a possessor and builder in good faith.
Thirdly, the MTC had no jurisdiction over the complaint because its subject matter was
incapable of pecuniary estimation. The complaint should have been filed with the RTC.
Fourthly, there was a non-joinder of indispensable parties, the co-heirs who sold their
interest in the subject property not having been impleaded by respondents.
Fifthly, the appeal to the CA should have been dismissed as it was not properly verified
by respondents. Gloria Vargas failed to indicate that she was authorized to represent the
other respondents (petitioners therein) to initiate the petition. Moreover, the verification
was inadequate because it did not state the basis of the alleged truth and/or correctness of
the material allegations in the petition.
The petition lacks merit.
The procedure outlined in Section 1 of Rule 74 is an ex parte proceeding. The rule plainly
states, however, that persons who do not participate or had no notice of an extrajudicial
settlement will not be bound thereby.18 It contemplates a notice that has been sent out or
issued before any deed of settlement and/or partition is agreed upon (i.e., a notice calling
all interested parties to participate in the said deed of extrajudicial settlement and
partition), and not after such an agreement has already been executed19 as what
happened in the instant case with the publication of the first deed of extrajudicial
settlement among heirs.
The publication of the settlement does not constitute constructive notice to the heirs who
had no knowledge or did not take part in it because the same was notice after the fact of
execution. The requirement of publication is geared for the protection of creditors and
was never intended to deprive heirs of their lawful participation in the decedent's estate.
In this connection, the records of the present case confirm that respondents never signed
either of the settlement documents, having discovered their existence only shortly before
the filing of the present complaint. Following Rule 74, these extrajudicial settlements do
not bind respondents, and the partition made without their knowledge and consent is
invalid insofar as they are concerned.
This is not to say, though, that respondents' co-heirs cannot validly sell their hereditary
rights to third persons even before the partition of the estate. The heirs who actually
participated in the execution of the extrajudicial settlements, which included the sale to
petitioner of their pro indiviso shares in the subject property, are bound by the same.
Nevertheless, respondents are given the right to redeem these shares pursuant to Article
1088 of the Civil Code. The right to redeem was never lost because respondents were

never notified in writing of the actual sale by their co-heirs. Based on the provision, there
is a need for written notice to start the period of redemption, thus:
Should any of the heirs sell his hereditary rights to a stranger before the partition, any or
all of the co-heirs may be subrogated to the rights of the purchaser by reimbursing him
for the price of the sale, provided they do so within the period of one month from the
time they were notified in writing of the sale by the vendor. (Emphasis supplied.)
It bears emphasis that the period of one month shall be reckoned from the time that a coheir is notified in writing by the vendor of the actual sale. Written notice is indispensable
and mandatory,20 actual knowledge of the sale acquired in some other manner by the
redemptioner notwithstanding. It cannot be counted from the time advance notice is given
of an impending or contemplated sale. The law gives the co-heir thirty days from the time
written notice of the actual sale within which to make up his or her mind and decide to
repurchase or effect the redemption.21
Though the Code does not prescribe any particular form of written notice nor any
distinctive method for written notification of redemption, the method of notification
remains exclusive, there being no alternative provided by law.22This proceeds from the
very purpose of Article 1088, which is to keep strangers to the family out of a joint
ownership, if, as is often the case, the presence of outsiders be undesirable and the other
heir or heirs be willing and in a position to repurchase the share sold.23
It should be kept in mind that the obligation to serve written notice devolves upon the
vendor co-heirs because the latter are in the best position to know the other co-owners
who, under the law, must be notified of the sale.24 This will remove all uncertainty as to
the fact of the sale, its terms and its perfection and validity, and quiet any doubt that the
alienation is not definitive.25 As a result, the party notified need not entertain doubt that
the seller may still contest the alienation. 26
Considering, therefore, that respondents' co-heirs failed to comply with this requirement,
there is no legal impediment to allowing respondents to redeem the shares sold to
petitioner given the former's obvious willingness and capacity to do so.
Likewise untenable is petitioner's contention that he is a builder in good faith. Good faith
consists in the belief of the builder that the land the latter is building on is one's own
without knowledge of any defect or flaw in one's title.27Petitioner derived his title from
the Extra Judicial Settlement Among Heirs With Sale dated November 15, 1994. He was
very much aware that not all of the heirs participated therein as it was evident on the face
of the document itself. Because the property had not yet been partitioned in accordance
with the Rules of Court, no particular portion of the property could have been identified
as yet and delineated as the object of the sale. This is because the alienation made by
respondents' co-heirs was limited to the portion which may be allotted to them in the
division upon the termination of the co-ownership. Despite this glaring fact, and over the

protests of respondents, petitioner still constructed improvements on the property. For

this reason, his claim of good faith lacks credence.
As to the issue of lack of jurisdiction, petitioner is estopped from raising the same for the
first time on appeal. Petitioner actively participated in the proceedings below and sought
affirmative ruling from the lower courts to uphold the validity of the sale to him of a
portion of the subject property embodied in the extrajudicial settlement among heirs.
Having failed to seasonably raise this defense, he cannot, under the peculiar
circumstances of this case, be permitted to challenge the jurisdiction of the lower court at
this late stage. While it is a rule that a jurisdictional question may be raised at any time,
an exception arises where estoppel has already supervened.
Estoppel sets in when a party participates in all stages of a case before challenging the
jurisdiction of the lower court. One cannot belatedly reject or repudiate its decision after
voluntarily submitting to its jurisdiction, just to secure affirmative relief against one's
opponent or after failing to obtain such relief. The Court has, time and again, frowned
upon the undesirable practice of a party submitting a case for decision and then accepting
the judgment, only if favorable, and attacking it for lack of jurisdiction when adverse.28
Petitioner's fourth argument, that there is a non-joinder of indispensable parties, similarly
lacks merit. An indispensable party is a party-in-interest without whom there can be no
final determination of an action and who is required to be joined as either plaintiff or
defendant.29 The party's interest in the subject matter of the suit and in the relief sought
is so inextricably intertwined with the other parties that the former's legal presence as a
party to the proceeding is an absolute necessity. Hence, an indispensable party is one
whose interest will be directly affected by the court's action in the litigation. In the
absence of such indispensable party, there cannot be a resolution of the controversy
before the court which is effective, complete, or equitable.30
In relation to this, it must be kept in mind that the complaint filed by respondents
ultimately prayed that they be allowed to redeem the shares in the property sold by their
co-heirs. Significantly, the right of the other heirs to sell their undivided share in the
property to petitioner is not in dispute. Respondents concede that the other heirs acted
within their hereditary rights in doing so to the effect that the latter completely and
effectively relinquished their interests in the property in favor of petitioner. Petitioner
thus stepped into the shoes of the other heirs to become a co-owner of the property with
respondents. As a result, only petitioner's presence is absolutely required for a complete
and final determination of the controversy because what respondents seek is to be
subrogated to his rights as a purchaser.
Finally, petitioner contends that the petition filed by respondents with the CA should have
been dismissed because the verification and certificate of non-forum shopping appended
to it were defective, citing specifically the failure of respondent Gloria Vargas to: (1)
indicate that she was authorized to represent her co-respondents in the petition, and (2)
state the basis of the alleged truth of the allegations.

The general rule is that the certificate of non-forum shopping must be signed by all the
plaintiffs or petitioners in a case and the signature of only one of them is insufficient. 31
Nevertheless, the rules on forum shopping, which were designed to promote and facilitate
the orderly administration of justice, should not be interpreted with such absolute
literalness as to subvert their own ultimate and legitimate objective. Strict compliance
with the provisions regarding the certificate of non-forum shopping merely underscores
its mandatory nature in that the certification cannot be altogether dispensed with or its
requirements completely disregarded.32 Under justifiable circumstances, the Court has
relaxed the rule requiring the submission of such certification considering that although it
is obligatory, it is not jurisdictional.33
Thus, when all the petitioners share a common interest and invoke a common cause of
action or defense, the signature of only one of them in the certification against forum
shopping substantially complies with the rules.34 The co-respondents of respondent
Gloria Vargas in this case were her children. In order not to defeat the ends of justice, the
Court deems it sufficient that she signed the petition on their behalf and as their
representative.
WHEREFORE, the petition is DENIED for lack of merit. Costs against petitioner.
SO ORDERED.
Puno, J., Chairperson, Sandoval-Gutierrez, Corona, and Garcia, JJ., concur.

5. Portugal v. Portugal-Beltran, G.R. No. 155555, August 16, 2005

THIRD DIVISION

[G.R. No. 155555. August 16, 2005]

ISABEL P. PORTUGAL and JOSE DOUGLAS PORTUGAL JR., petitioners, vs.

LEONILA PORTUGAL-BELTRAN, respondent.
DECISION
CARPIO MORALES, J.:
Petitioners Isabel P. Portugal and her son, Jose Douglas Portugal Jr., assail the
September 24, 2002[1] Decision of the Court of Appeals affirming that of the Regional
Trial Court (RTC) of Caloocan City, Branch 124[2] which dismissed, after trial, their

complaint for annulment of title for failure to state a cause of action and lack of
jurisdiction.
From the records of the case are gathered the following material allegations claims
of the parties which they sought to prove by testimonial and documentary evidence
during the trial of the case:
On November 25, 1942, Jose Q. Portugal (Portugal) married Paz Lazo.[3]
On May 22, 1948, Portugal married petitioner Isabel de la Puerta.[4]
On September 13, 1949, petitioner Isabel gave birth to a boy whom she named Jose
Douglas Portugal Jr., her herein co-petitioner.[5]
On April 11, 1950, Paz gave birth to a girl, Aleli,[6] later baptized as Leonila
Perpetua Aleli Portugal, herein respondent.[7]
On May 16, 1968, Portugal and his four (4) siblings executed a Deed of ExtraJudicial Partition and Waiver of Rights[8] over the estate of their father, Mariano
Portugal, who died intestate on November 2, 1964.[9] In the deed, Portugals siblings
waived their rights, interests, and participation over a 155 sq. m. parcel of land located in
Caloocan in his favor.[10]
On January 2, 1970, the Registry of Deeds for Caloocan City issued Transfer
Certificate of Title (TCT) No. 34292 covering the Caloocan parcel of land in the name of
Jose Q. Portugal, married to Paz C. Lazo.[11]
On February 18, 1984, Paz died.
On April 21, 1985, Portugal died intestate.
On February 15, 1988, respondent executed an Affidavit of Adjudication by Sole
Heir of Estate of Deceased Person[12] adjudicating to herself the Caloocan parcel of
land. TCT No. 34292/T-172[13] in Portugals name was subsequently cancelled and in
its stead TCT No. 159813[14] was issued by the Registry of Deeds for Caloocan City on
March 9, 1988 in the name of respondent, Leonila Portugal-Beltran, married to Merardo
M. Beltran, Jr.
Later getting wind of the death in 1985 of Portugal and still later of the 1988 transfer
by respondent of the title to the Caloocan property in her name, petitioners filed before
the RTC of Caloocan City on July 23, 1996 a complaint[15] against respondent for
annulment of the Affidavit of Adjudication executed by her and the transfer certificate of
title issued in her name.
In their complaint, petitioners alleged that respondent is not related whatsoever to the
deceased Portugal, hence, not entitled to inherit the Caloocan parcel of land and that she
perjured herself when she made false representations in her Affidavit of Adjudication.

Petitioners accordingly prayed that respondents Affidavit of Adjudication and the

TCT in her name be declared void and that the Registry of Deeds for Caloocan be
ordered to cancel the TCT in respondents name and to issue in its stead a new one in their
(petitioners) name, and that actual, moral and exemplary damages and attorneys fees and
litigation expenses be awarded to them.
Following respondents filing of her answer, the trial court issued a Pre-Trial Order
chronicling, among other things, the issues as follows:
a. Which of the two (2) marriages contracted by the deceased Jose Q. Portugal Sr., is
valid?
b. Which of the plaintiff . . . Jose Portugal Jr. and defendant Leonila P. Beltran is the legal
heir of the deceased Jose Q. Portugal Sr.?
c. Whether or not TCT No. 159813 was issued in due course and can still be contested by
plaintiffs.
d. Whether or not plaintiffs are entitled to their claims under the complaint.[16]
(Underscoring supplied)
After trial, the trial court, by Decision of January 18, 2001,[17] after giving an
account of the testimonies of the parties and their witnesses and of their documentary
evidence, without resolving the issues defined during pre-trial, dismissed the case for lack
of cause of action on the ground that petitioners status and right as putative heirs had not
been established before a probate (sic) court, and lack of jurisdiction over the case, citing
Heirs of Guido and Isabel Yaptinchay v. Del Rosario.[18]
In relying on Heirs of Guido and Isabel Yaptinchay, the trial court held:
The Heirs of Yaptinchay case arose from facts not dissimilar to the case at bar.
xxx
In the instant case, plaintiffs presented a Marriage Contract, a Certificate of Live Birth,
pictures (sic) and testimonial evidence to establish their right as heirs of the decedent.
Thus, the preliminary act of having a status and right to the estate of the decedent, was
sought to be determined herein. However, the establishment of a status, a right, or a
particular fact is remedied through a special proceeding (Sec. 3(c), Rule 1, 1997 Rules of
Court), not an ordinary civil action whereby a party sues another for the enforcement or
protection of a right, or the protection or redress of a wrong (ibid, a). The operative term
in the former is to establish, while in the latter, it is to enforce, a right. Their status and
right as putative heirs of the decedent not having been established, as yet, the Complaint
failed to state a cause of action.
The court, not being a probate (sic) court, is without jurisdiction to rule on plaintiffs
cause to establish their status and right herein. Plaintiffs do not have the personality to

sue (Secs. 1 and 2, Rule 3, in relation to Secs. 1 and 2, Rule 2, supra).[19] (Italics in the
original; emphasis and underscoring supplied).
Petitioners thereupon appealed to the Court of Appeals, questioning the trial courts
ratio decedendi in dismissing the case as diametrically opposed to this Courts following
ruling in Cario v. Cario ,[20] viz:
Under Article 40 of the Family Code, the absolute nullity of a previous marriage may be
invoked for purposes of remarriage on the basis solely of a final judgment declaring such
previous marriage void. Meaning, where the absolute nullity of a previous marriage is
sought to be invoked for purposes of contracting a second marriage, the sole basis
acceptable in law, for said projected marriage to be free from legal infirmity, is a final
judgment declaring the previous void. (Domingo v. Court of Appeals, 226 SCRA 572,
579 [1993]) However, for purposes other than remarriage, no judicial action is necessary
to declare a marriage an absolute nullity. For other purposes, such as but not limited to
the determination of heirship, legitimacy or illegitimacy of a child, settlement of estate,
dissolution of property regime, or a criminal case for that matter, the court may pass upon
the validity of marriage even after the death of the parties thereto, and even in a suit not
directly instituted to question the validity of said marriage, so long as it is essential to the
determination of the case. (Nial, et al. v. Bayadog, GR No. 13378, March 14, 2000). In
such cases, evidence must be adduced, testimonial or documentary, to prove the existence
of grounds rendering such a previous marriage an absolute nullity. These need not be
limited solely to an earlier final judgment of a court declaring such previous marriage
void. (Domingo v. Court of Appeals, supra) (Emphasis and underscoring supplied).
Conceding that the ruling in Cario was promulgated (in 2001) subsequent to that of
Heirs of Guido and Isabel Yaptinchay (in 1999), the appellate court found Cario to be
inapplicable, however, to the case in this wise:
To be borne in mind is the fact that the main issue in the Cario case was the validity of
the two marriages contracted by the deceased SPO4 Santiago Cario, whose death benefits
was the bone of contention between the two women both named Susan (viz., Susan
Nicdao Cario and Susan Yee Cario) both of whom he married. It is not disputed in said
case that SPO4 S. Cario contracted two marriages with said two women during his
lifetime, and the only question was: which of these two marriages was validly celebrated?
The award of the death benefits of the deceased Cario was thus, merely an incident to the
question of which of the two marriages was valid. Upon the other hand, the case at bench
is of a different milieu. The main issue here is the annulment of title to property. The only
undisputed fact in this case is that the deceased Jose Portugal, during his lifetime, owned
a parcel of land covered by Transfer Certificate of Title (TCT) No. T-34292. However,
here come two contending parties, herein plaintiffs-appellants and defendant-appellee,
both now insisting to be the legal heir(s) of the decedent. x x x. The status and rights of
the parties herein have not, therefore, been definitively established, as yet. x x x.
Necessarily and naturally, such questions as to such status or right must be properly

ventilated in an appropriate special proceeding, not in an ordinary civil action,

whereunder a party sues another for the enforcement or protection of a right, or the
protection or redress of a wrong. The institution of an ordinary civil suit for that purpose
in the present case is thus impermissible. For it is axiomatic that what the law prohibits or
forbids directly, it cannot permit or allow indirectly. To permit, or allow, a declaration of
heirship, or the establishment of the legitimacy or illegitimacy of a child to be determined
in an ordinary civil action, not in an appropriate special proceeding brought for that
purpose, is thus to impinge upon this axiom. x x x[21] (Emphasis in the original,
underscoring supplied).
The appellate court, by Decision of September 24, 2002,[22] thus affirmed the trial
courts dismissal of the case.
Hence, the present Petition for Review on Certiorari,[23] faulting the appellate
court to have erred when
I.
. . . it affirmed the RTC decision dismissing the initiatory complaint as it failed to state a
cause of action.
II.
. . . (i) it applied the ruling in Heirs of Guido [and Isabel] Yaptingchay despite the
existence of a later and contrary ruling in Cario, and (ii) when the Honorable CA and the
lower court failed to render judgment based on the evidence presented relative to the
issues raised duringpre-trial, . . .[24] (Emphasis and underscoring supplied).
Petitioners thus prayed as follows:
WHEREFORE, it is respectfully prayed of this Honorable Supreme Court that the
questioned CA decision be reversed, and a new one entered in accordance with the
prayers set forth in the instant complaint based on the above disquisition and evidence
adduced by petitioners in the court a quo.
IN THE ALTERNATIVE, should the Honorable Supreme Court find that the
pronouncements in Cario apply, a decision be entered remanding to the court a quo the
determination of the issues of which of the two marriages is valid, and the determination
of heirship and legitimacy of Jose Jr. and Leonila preparatory to the determination of the
annulment of title issued in the name of Leonila.
Other relief and remedy just and equitable in the premises are likewise prayed for.[25]
(Underscoring supplied).
Petitioners, in the main, argue that the appellate court misapplied Heirs of Guido and
Isabel Yaptinchay and in effect encouraged multiplicity of suits which is discouraged by
this Court as a reading of Cario shows; that Cario allows courts to pass on the

determination of heirship and the legitimacy or illegitimacy of a child so long as it is

necessary to the determination of the case; and that contrary to the appellate courts ruling,
they had established their status as compulsory heirs.
In the main, the issue in the present petition is whether petitioners have to institute a
special proceeding to determine their status as heirs before they can pursue the case for
annulment of respondents Affidavit of Adjudication and of the TCT issued in her name.
In the above-cited case of Heirs of Guido and Isabel Yaptinchay,[26] the therein
petitioners executed on March 17, 1994 an extrajudicial settlement of the estate of the
deceased Guido and Isabel Yaptinchay, owners-claimants of the two lots mentioned
therein. They later discovered on August 26, 1994 that a portion, if not all, of the two lots
had been titled in the name of the therein respondent Golden Bay Realty and
Development Corporation which in turn sold portions thereof to the therein individual
respondents. The therein petitioners Heirs thus filed a complaint for annulment of titles.
The therein respondents moved to dismiss the case for failure of the therein petitioners to,
inter alia, state a cause of action and prove their status as heirs. The trial court granted the
motion to dismiss in this wise:
But the plaintiffs who claimed to be the legal heirs of the said Guido and Isabel
Yaptinchay have not shown any proof or even a semblance of itexcept the allegations that
they are the legal heirs of the aforementioned Yaptinchaysthat they have been declared
the legal heirs of the deceased couple. Now, the determination of who are the legal heirs
of the deceased couple must be made in the proper special proceedings in court, and not
in an ordinary suit for reconveyance of property. This must take precedence over the
action for reconveyance . . .[27] (Italics in the original; underscoring supplied).
On petition for certiorari by the Heirs, this Court, albeit holding that the petition was an
improper recourse, found that the trial court did not commit grave abuse of discretion in
dismissing the case. Citing Litam et al. v. Rivera[28] and Solivio v. Court of Appeals,
[29] this Court held that the declaration of heirship can be made only in a special
proceeding inasmuch as the petitioners here are seeking the establishment of a status or
right.
In the above-cited case of Litam,[30] Gregorio Dy Tam instituted a special
proceeding for issuance of letters of administration before the then Court of First Instance
(CFI) of Rizal, alleging in his petition that he is the son of Rafael Litam who died in
Manila on January 10, 1951 and is survived by him and his therein named seven (7)
siblings who are children of the decedent by his marriage to Sia Khin celebrated in China
in 1911; that the decedent contracted in 1922 in the Philippines another marriage with
Marcosa Rivera; and that the decedent left neither a will nor debt. Dy Tam thus prayed
for the issuance of letters of administration to Marcosa Rivera, the surviving spouse of
the decedent. The CFI granted the petition and issued letters of administration to, on
Marcosas request, her nephew Arminio Rivera.

While the special proceeding was pending, Dy Tam and his purported siblings filed a
civil case before the same court, against the estate of Rafael Litam administrator Arminio
Rivera and Remedios R. Espiritu, duly appointed guardian of Marcosa. In their
complaint, Dy Tam and his purported siblings substantially reproduced the allegations
made in his petition in the special proceeding, with the addition of a list of properties
allegedly acquired during the marriage of the decedent and Marcosa.
Finding the issue raised in the civil case to be identical to some unresolved incidents
in the special proceeding, both were jointly heard by the trial court, following which it
rendered a decision in the civil case dismissing it, declaring, inter alia, that the plaintiffs
Dy Tam et al. are not the children of the decedent whose only surviving heir is Marcosa.
On appeal to this Court by Dy Tam et al., one of the two issues raised for
determination was whether they are the legitimate children of Rafael Litam.
This Court, holding that the issue hinged on whether Rafael Litam and Sia Khin were
married in 1911, and whether Rafael Litam is the father of appellants Dy Tam et al.,
found substantially correct the trial courts findings of fact and its conclusion that, among
other things, the birth certificates of Dy Tam et al. do not establish the identity of the
deceased Rafael Litam and the persons named therein as father [and] it does not appear in
the said certificates of birth that Rafael Litam had in any manner intervened in the
preparation and filing thereof; and that [t]he other documentary evidence presented by
[them] [is] entirely immaterial and highly insufficient to prove the alleged marriage
between the deceased Rafael Litam and Sia Khin and [their] alleged status . . . as children
of said decedent.
This Court went on to opine in Litam, however, that the lower court should not have
declared, in the decision appealed from, that Marcosa is the only heir of the decedent, for
such declaration is improper in the [civil case], it being within the exclusive competence
of the court in [the] [s]pecial [p]roceeding.
In Solivio,[31] also cited in Heirs of Guido and Isabel Yaptinchay, there was a
special proceeding for the settlement of the estate of the deceased, who was a soltero,
filed before the RTC of Iloilo. In the special proceeding, Branch 23 of said court declared
as sole heir Celedonia Solivio, the decedents maternal aunt-half sister of his mother.
Concordia Javellana-Villanueva, the decedents paternal aunt-sister of his father, moved to
reconsider the courts order declaring Celedonia Solivio as sole heir of the decedent, she
claiming that she too was an heir. The court denied the motion on the ground of tardiness.
Instead of appealing the denial of her motion, Concordia filed a civil case against
Celedonia before the same RTC, for partition, recovery of possession, ownership and
damages. The civil case was raffled to Branch 26 of the RTC, which rendered judgment
in favor of Concordia. On appeal by Celedonia, the appellate court affirmed the said
judgment.

On petition for review filed before this Court by Celedonia who posed, among other
issues, whether Branch 26 of the RTC of Iloilo had jurisdiction to entertain [the civil
action] for partition and recovery of Concordia Villanuevas share of the estate of [the
deceased] while the [estate] proceedings . . . were still pending . . . in Branch 23 of the
same court, this Court held that [i]n the interest of orderly procedure and to avoid
confusing and conflicting dispositions of a decedents estate, a court should not interfere
with [estate] proceedings pending in a co-equal court, citing Guilas v. CFI Judge of
Pampanga.[32]
This Court, however, in Solivio, upon [c]onsidering that the estate proceedings are
still pending, but nonetheless [therein private respondent-Concordia Villanueva] had lost
her right to have herself declared as co-heir in said proceedings, opted to proceed to
discuss the merits of her claim in the interest of justice, and declared her an heir of the
decedent.
In Guilas[33] cited in Solivio, a project of partition between an adopted daughter,
the therein petitioner Juanita Lopez Guilas (Juanita), and her adoptive father was
approved in the proceedings for the settlement of the testate estate of the decedentadoptive mother, following which the probate court directed that the records of the case
be archived.
Juanita subsequently filed a civil action against her adoptive father to annul the
project of partition on the ground of lesion, preterition and fraud, and prayed that her
adoptive father immediately deliver to her the two lots allocated to her in the project of
partition. She subsequently filed a motion in the testate estate proceedings for her
adoptive father to deliver to her, among other things, the same two lots allotted to her.
After conducting pre-trial in the civil case, the trial court, noting the parties
agreement to suspend action or resolution on Juanitas motion in the testate estate
proceedings for the delivery to her of the two lots alloted to her until after her complaint
in the civil case had been decided, set said case for trial.
Juanita later filed in the civil case a motion to set aside the order setting it for trial on
the ground that in the amended complaint she, in the meantime, filed, she acknowledged
the partial legality and validity of the project of partition insofar as she was allotted the
two lots, the delivery of which she was seeking. She thus posited in her motion to set
aside the April 27, 1966 order setting the civil case for hearing that there was no longer a
prejudicial question to her motion in the testate estate proceedings for the delivery to her
of the actual possession of the two lots. The trial court, by order of April 27, 1966, denied
the motion.
Juanita thereupon assailed the April 27, 1966 order before this Court.
The probate courts approval of the project of partition and directive that the records
of the case be sent to the archives notwithstanding, this Court held that the testate estate

proceedings had not been legally terminated as Juanitas share under the project of
partition had not been delivered to her. Explained this Court:
As long as the order of the distribution of the estate has not been complied with, the
probate proceedings cannot be deemed closed and terminated (Siguiong vs. Tecson,
supra.); because a judicial partition is not final and conclusive and does not prevent the
heir from bringing an action to obtain his share, provided the prescriptive period therefor
has not elapse (Mari vs. Bonilla, 83 Phil., 137). The better practice, however, for the heir
who has not received his share, is to demand his share through a proper motion in the
same probate or administration proceedings, or for re-opening of the probate or
administrative proceedings if it had already been closed, and not through an independent
action, which would be tried by another court or Judge which may thus reverse a decision
or order of the probate o[r] intestate court already final and executed and re-shuffle
properties long ago distributed and disposed of (Ramos vs. Ortuzar, 89 Phil. 730, 741742; Timbol vs. Cano, supra,; Jingco vs. Daluz, L-5107, April 24, 1953, 92 Phil. 1082;
Roman Catholic vs. Agustines, L-14710, March 29, 1960, 107 Phil., 455, 460-461).[34]
(Emphasis and underscoring supplied).
This Court thus set aside the assailed April 27, 1966 order of the trial court setting the
civil case for hearing, but allowed the civil case to continue because it involves no longer
the two lots adjudicated to Juanita.
The common doctrine in Litam, Solivio and Guilas in which the adverse parties are
putative heirs to the estate of a decedent or parties to the special proceedings for its
settlement is that if the special proceedings are pending, or if there are no special
proceedings filed but there is, under the circumstances of the case, a need to file one, then
the determination of, among other issues, heirship should be raised and settled in said
special proceedings. Where special proceedings had been instituted but had been finally
closed and terminated, however, or if a putative heir has lost the right to have himself
declared in the special proceedings as co-heir and he can no longer ask for its re-opening,
then an ordinary civil action can be filed for his declaration as heir in order to bring about
the annulment of the partition or distribution or adjudication of a property or properties
belonging to the estate of the deceased.
In the case at bar, respondent, believing rightly or wrongly that she was the sole heir
to Portugals estate, executed on February 15, 1988[35] the questioned Affidavit of
Adjudication under the second sentence of Rule 74, Section 1 of the Revised Rules of
Court.[36] Said rule is an exception to the general rule that when a person dies leaving a
property, it should be judicially administered and the competent court should appoint a
qualified administrator, in the order established in Sec. 6, Rule 78 in case the deceased
left no will, or in case he did, he failed to name an executor therein.[37]
Petitioners claim, however, to be the exclusive heirs of Portugal. A probate or
intestate court, no doubt, has jurisdiction to declare who are the heirs of a deceased.

It appearing, however, that in the present case the only property of the intestate estate
of Portugal is the Caloocan parcel of land,[38] to still subject it, under the circumstances
of the case, to a special proceeding which could be long, hence, not expeditious, just to
establish the status of petitioners as heirs is not only impractical; it is burdensome to the
estate with the costs and expenses of an administration proceeding. And it is superfluous
in light of the fact that the parties to the civil case subject of the present case, could and
had already in fact presented evidence before the trial court which assumed jurisdiction
over the case upon the issues it defined during pre-trial.
In fine, under the circumstances of the present case, there being no compelling
reason to still subject Portugals estate to administration proceedings since a determination
of petitioners status as heirs could be achieved in the civil case filed by petitioners,[39]
the trial court should proceed to evaluate the evidence presented by the parties during the
trial and render a decision thereon upon the issues it defined during pre-trial, which bear
repeating, to wit:
1. Which of the two (2) marriages contracted by the deceased Jose Q. Portugal, is
valid;
2. Which of the plaintiff, Jose Portugal Jr. and defendant Leonila P. Beltran is the
legal heir of the deceased Jose Q. Portugal (Sr.);
3. Whether or not TCT No. 159813 was issued in due course and can still be
contested by plaintiffs;
4. Whether or not plaintiffs are entitled to their claim under the complaint.[40]
WHEREFORE, the petition is hereby GRANTED. The assailed September 24, 2002
Decision of the Court of Appeals is hereby SET ASIDE.
Let the records of the case be REMANDED to the trial court, Branch 124 of the
Regional Trial Court of Caloocan City, for it to evaluate the evidence presented by the
parties and render a decision on the above-enumerated issues defined during the pre-trial.
No costs.
SO ORDERED.

Sec. 2
1. Intestate Estate of Sebial v. Sebial, G.R. No. L-23419, June 27, 1975
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION

G.R. No. L-23419 June 27, 1975

INTESTATE ESTATE OF THE DECEASED GELACIO SEBIAL. BENJAMINA
SEBIAL, petitioner-appellee,
vs.
ROBERTA SEBIAL, JULIANO SEBIAL and HEIRS OF BALBINA SEBIAL,
oppositors-appellants.
C. de la Victoria & L. de la Victoria for appellants.
Robustiano D. Dejaresco for appellee.

AQUINO, J.:
Gelacio Sebial died intestate in 1943 in Pinamungajan Cebu. According to the appellants,
Gelacio Sebial, by his first wife Leoncia Manikis, who allegedly died in 1919, begot
three children named Roberta, Balbina and Juliano. By his second wife, Dolores Enad,
whom he allegedly married in 1927, he supposedly begot six children named Benjamina,
Valentina, Ciriaco, Gregoria, Esperanza and Luciano.
On June 17, 1960 Benjamina Sebial filed in the Court of First Instance of Cebu a verified
petition for the settlement of Gelacio Sebial's estate. She prayed that she be appointed
administratrix thereof (Spec. Proc. No. 2049-R). Roberta Sebial opposed the petition on
the ground that the estate of Gelacio Sebial had already been partitioned among his
children and that, if an administration proceeding was necessary, she, Roberta Sebial, a
resident of Guimbawian, a remote mountain barrio of Pinamungajan, where the
decedent's estate was supposedly located, should be the one appointed administratrix and
not Benjamina Sebial, a housemaid working at Talisay, Cebu which is about seventy
kilometers away from Pinamungajan. In a supplemental opposition the children of the
first marriage contended that the remedy of Benjamina Sebial was an action to rescind the
partition.
After hearing, the lower court in its order of January 16, 1961 appointed Benjamina
Sebial as administratrix. It found that the decedent left an estate consisting of lands with
an area of twenty-one hectares, valued at more than six thousand pesos, and that the
alleged partition of the decedent's estate was invalid and ineffective.
Letters of administration were issued to Benjamina Sebial on January 19, 1961. On the
same date, a notice to creditors was issued. The oppositors moved for the reconsideration
of the order appointing Benjamina Sebial as administratrix. They insisted that the
decedent's estate had been partitioned on August 29, 1945, as shown in Exhibits 5, 6, 7
and I, and that the action to rescind the partition had already prescribed. The lower court
denied the motion in its order of February 11, 1961.

The oppositors filed on March 16, 1961 a motion to terminate the administration
proceeding on the grounds that the decedent's estate was valued at less than six thousand
pesos and that it had already been partitioned and, therefore, there was no necessity for
the administration proceeding.
On April 27, 1961 Benjamina Sebial filed an inventory and appraisal of the decedent's
estate allegedly consisting of seven unregistered parcels of land, covered by Tax
Declarations Nos. 04477, 04478, 04490, 04491, 04492, 04493 and 04500, with a total
value of nine thousand pesos, all located at Barrio Guimbawian, Pinamungajan. The
oppositors registered their opposition to the inventory on the ground that the seven
parcels of land enumerated in the inventory no longer formed part of the decedent's
estate.
On May 6, 1961, the administratrix filed a motion to require Lorenzo Rematado,
Demetrio Camillo and the spouses Roberta Sebial and Lazaro Recuelo to deliver to her
the parcels of land covered by Tax Declarations Nos. 04478, 04490,04491 and 04493.
On June 24, 1961 the probate court issued an order suspending action on the pending
incidents in view of the possibility of an amicable settlement. It ordered the parties to
prepare a complete list of the properties belonging to the decedent, with a segregation of
the properties belonging to each marriage. Orders of the same tenor were issued by the
lower court on July 8 and October 28, 1961.
On November 11, 1961 the oppositors, Roberta Sebial, Juliano Sebial and the heirs of
Balbina Sebial, submitted their own inventory of the conjugal assets of Gelacio Sebial
and Leoncia Manikis, consisting of two parcels of land acquired in 1912 and 1915. They
alleged that the conjugal estate of Gelacio Sebial and Dolores Enad consisted of only one
parcel of land, containing an area of seven hectares, allegedly purchased with money
coming from the conjugal assets of Gelacio Sebial and Leoncia Manikis. They further
alleged that the said seven- hectare land was sold by the children of the second marriage
to Eduardo Cortado (Tax Declaration No. 2591).1wph1.t
The oppositors claimed that the aforementioned two parcels of land acquired during the
first marriage were partitioned in 1945 among (1) Roberta Sebial, (2) Juliano Sebial, (3)
Francisco Sebial as the representative of the estate of Balbina Sebial and (4) Valentina
Sebial as the representative of the six children of the second marriage, some of whom
were minors. They clarified that under that partition the three children of the first
marriage received a three-fourths share while the six children of second marriage
received a one-fourth share (Tax Declaration No. 06500). They also alleged that Eduardo
Cortado, Emilio Sialongo, Lorenzo Rematado and Lazaro Recuelo were the third persons
involved in the transfer of the lands pertaining to the estate of Gelacio Sebial (Tax
Declarations Nos. 04493, 06571 and 04471). To the inventory submitted by the
oppositors, the administratrix filed an opposition dated November 18, 1961.

In an order dated November 11, 1961 the lower court inexplicably required the
administratrix to submit another inventory. In compliance with that order she submitted
an inventory dated November 17, 1961, wherein she reproduced her inventory dated
April 17, 1961 and added two other items, namely, two houses allegedly valued at P8,000
and the fruits of the properties amounting to P5,000 allegedly received by the children of
the first marriage. The oppositor interposed an opposition to the said inventory.
On November 24, 1961 the oppositors filed a "motion for revision of partition" which
was based on their own inventory dated November 7, 1961.
The lower court in its order of December 11, 1961 approved the second inventory dated
November, 7, 1961 because there was allegedly a "prima facie evidence to show that" the
seven parcels of land and two houses listed therein belonged to the decedent's estate. In
another order also dated December 11, 1961 the lower court granted the motion of the
administratrix dated May 4, 1961 for the delivery to her of certain parcels of land and it
directed that the heirs of Gelacio Sebial, who are in possession of the parcels of land
covered by Tax Declarations Nos. 04493, 04491, 04490 and 04478, should deliver those
properties to the administratrix and should not disturb her in her possession and
administration of the same. The lower court denied the oppositors' motion dated
November 20, 1961 for "revision of partition".
On December 29, 1961 Roberta Sebial moved for the reconsideration of the two orders
on the grounds (1) that the court had no jurisdiction to approve an inventory filed beyond
the three-month period fixed in section 1, Rule 84 of the Rules of Court; (2) that the said
inventory is not supported by any documentary evidence because there is no tax
declaration at all in Gelacio Sebial's name; (3) that the two houses mentioned in the
inventory were nonexistent because they were demolished by the Japanese soldiers in
1943 and the materials thereof were appropriated by the administratrix and her brothers
and sisters; (4) that the valuation of P17,000 indicated in the inventory was fake,
fictitious and fantastic since the total value of the seven parcels of land amounted only to
P3,080; (5) that Gelacio Sebial's estate should be settled summarily because of its small
value as provided in section 2, Rule 74 of the Rules of Court and (6) that an ordinary
action is necessary to recover the lands in the possession of third persons.
The oppositors without awaiting the resolution of their motion for reconsideration filed a
notice of appeal from the two orders both dated December 11, 1961. The notice of appeal
was filed "without prejudice to the motion for reconsideration". Benjamina Sebial
opposed the motion for reconsideration. The lower court in its order of January 18, 1962
denied oppositors' motion for reconsideration. It approved Roberta Sebial's amended
record on appeal. The case was elevated to the Court of Appeals.
The Court of Appeals in its resolution of July 31, 1964 in CA-G.R. No. 31978.-R
certified the case to this Court because in its opinion the appeal involves only the legal
issues of (1) the construction to be given to section 2, Rule 74 and section 1, Rule 84
(now Rule 83) of the Rules of Court and (2) whether an ordinary civil action for recovery

of property and not an administration proceeding is the proper remedy, considering

oppositors' allegation that the estate of Gelacio Sebial was partitioned in 1945 and that
some of his heirs had already sold their respective shares (Per Angeles, Gatmaitan and
Concepcion Jr., JJ.)
The Clerk of Court of the lower court in his letter of January 15, 1963, transmitting the
amended record on appeal, said "there was no presentation of evidence by either parties
concerning the two orders appealed from".
This case involves the conflicting claims of some humble folks from a remote rural area
in Cebu regarding some unregistered farm lands. Because of her poverty Roberta Sebial
wanted to appeal in forma pauperis. Her husband Lazaro Recuelo and her nephew,
Candelario Carrillo, in order to justify the filing of a mimeographed brief, swore that their
families subsisted on root crops because they could not afford to buy corn grit or rice.
Oppositors' contention in their motion for reconsideration (not in their brief) that the
probate court had no jurisdiction to approve the inventory dated November 17, 1961
because the administratrix filed it after three months from the date of her appointment is
not well-taken. The three-month period prescribed in section 1, Rule 83 (formerly Rule
84) of the Rules of Court is not mandatory. After the filing of a petition for the issuance
of letters of administration and the publication of the notice of hearing, the proper Court
of First Instance acquires jurisdiction over a decedent's estate and retains that jurisdiction
until the proceeding is closed. The fact that an inventory was filed after the three-month
period would not deprive the probate court of jurisdiction to approve it. However, an
administrator's unexplained delay in filing the inventory may be a ground for his removal
(Sec. 2, Rule 82, Rules of Court).
The other contention of the oppositors that inasmuch as the value of the decedent's estate
is less than five thousand pesos and he had no debts, the estate could be settled
summarily under section 2, Rule 74 of the Rules of Court or that an administration
proceeding was not necessary (the limit of six thousand pesos was increased to ten
thousand pesos in section 2, Rule 74 effective on January 1, 1964) rests on a controversial
basis. While in the verified petition for the issuance of letters of administration, it was
alleged that the gross value of the decedent's estate was "not more than five thousand
pesos", in the amended inventory the valuation was P17,000. Indeed, one of the lower
court's omissions was its failure to ascertain by preponderance of evidence the actual
value of the estate, if there was still an estate to be administered. The approval of the
amended inventory was not such a determination.
Anyway, in the present posture of the proceeding, no useful purpose would be served by
dismissing the petition herein and ordering that a new petition for summary settlement be
filed. Inasmuch as a regular administrator had been appointed and a notice to creditors
had been issued and no claims were filed, the probate court could still proceed summarily
and expeditiously to terminate the proceeding. With the cooperation of the lawyers of the

parties, it should strive to effect an amicable settlement of the case (See arts. 222 and
2029, Civil Code).
If the efforts to arrive at an amicable settlement prove fruitless, then the probate court
should ascertain what assets constituted the estate of Gelacio Sebial, what happened to
those assets and whether the children of the second marriage (the petitioner was a child of
the second marriage and the principal oppositor was a child of first marriage) could still
have a share, howsoever small, in the decedent's estate.
The lower court's order of December 11, 1961, approving the amended inventory of
November 11, 1961, is not a conclusive determination of what assets constituted the
decedent's estate and of the valuations thereof. Such a determination is only provisional
in character and is without prejudice to a judgment in a separate action on the issue of
title or ownership (3 Moran's Comments on the Rules of Court, 1970 Ed., 448449).1wph1.t
The other order dated December 11, 1961 requires the delivery to the administratrix of
(1) two parcels of land covered by Tax Declarations Nos. 04491 and 04493 in the
possession of the spouses Lazaro Recuelo and Roberta Sebial, an oppositor-appellant; (2)
the parcel of land covered by Tax Declaration No. 04490 in the possession of Lorenzo
Rematado and (3) the parcel of land described under Tax Declaration No. 04478 in the
possession of Demetrio Camillo (Canillo), a child of the deceased Balbina Sebial, one of
the three children of the first marriage.
We hold that the said order is erroneous and should be set aside because the probate court
failed to receive evidence as to the ownership of the said parcels of land. The general rule
is that questions of title to property cannot be passed upon in a testate or intestate
proceeding. However, when the parties are all heirs of the decedent, it is optional upon
them to submit to the probate court the question of title to property and, when so
submitted, the probate court may definitely pass judgment thereon (3 Moran's Comment's
on the Rules of Court, 1970 Ed., pp. 448, 473; Alvarez vs. Espiritu, L-18833, August 14,
1965, 14 SCRA 892).
Lorenzo Rematado and Lazaro Recuelo are not heirs of the decedent. They are third
persons. The rule is that matters affecting property under administration may be taken
cognizance of by the probate court in the course of the intestate proceedings provided that
the interests of third persons are not prejudiced (Cunanan vs. Amparo, 80 Phil. 227; Ibid,
3 Moran 473).
However, third persons to whom the decedent's assets had been fraudulently conveyed
may be cited to appear in court and be examined under oath as to how they came into the
possession of the decedent's assets (Sec. 6, Rule 87, Rules of Court) but a separate action
would be necessary to recover the said assets (Chanco vs. Madrilejos, 12 Phil. 543;
Guanco vs. Philippine National Bank, 54 Phil. 244).

The probate court should receive evidence on the discordant contentions of the parties as
to the assets of decedent's estate, the valuations thereof and the rights of the transferees of
some of the assets. The issue of prescription should also be considered (see p. 84, Record
on Appeal). Generally prescription does not run in favor of a coheir as long as he
expressly or impliedly recognizes the coownership (Art. 494, Civil Code).1wph1.t
But from the moment that a coheir claims absolute and exclusive ownership of the
hereditary properties and denies the others any share therein, the question involved is no
longer one of partition but that of ownership (Bargayo vs. Camumot, 40 Phil. 857).
At the hearing of the petition for letters of administration some evidence was already
introduced on the assets constituting the estate of Gelacio Sebial. The petitioner testified
and presented Exhibits A to J and X to Y-3. The oppositor also testified and presented
Exhibits 2 to 10-A. The stenographic notes for the said hearing should be transcribed. In
addition to that evidence. The probate court should require the parties to present further
proofs on the ownership of the seven parcels of land and the materials of the two houses
enumerated in the amended inventory of November 17, 1961, on the alleged partition
effected in 1945 and on the allegations in oppositors' inventory dated November 7, 1961.
After receiving evidence, the probate court should decide once and for all whether there
are still any assets of the estate that can be partitioned and, if so, to effect the requisite
partition and distribution. If the estate has no more assets and if a partition had really
been made or the action to recover the lands transferred to third person had prescribed, it
should dismiss the intestate proceeding.
WHEREFORE, (a) the probate court's order of December 11, 1961, granting the
administratrix's motion of May 4, 1961 for the delivery to her of certain properties is set
aside; (b) its other order of December 11, 1961 approving the amended inventory should
not be considered as a final adjudication on the ownership of the properties listed in the
inventory and (c) this case is remanded to the lower court for further proceedings in
accordance with the guidelines laid down in this decision. No costs.
SO ORDERED.
Fernando (Chairman), Antonio and Concepcion, Jr., JJ., concur.

Separate Opinions

BARREDO, J., concurring:

Concurs considering the small value of the estate herein involved.

Separate Opinions
BARREDO, J., concurring:
Concurs considering the small value of the estate herein involved.

Sec. 4
1. Tan v. Benolirao, G.R. No. 153820, October 16, 2009

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 153820

October 16, 2009

DELFIN TAN, Petitioner,

vs.
ERLINDA C. BENOLIRAO, ANDREW C. BENOLIRAO, ROMANO C. BENOLIRAO,
DION C. BENOLIRAO, SPS. REYNALDO TANINGCO and NORMA D.
BENOLIRAO, EVELYN T. MONREAL, and ANN KARINA TANINGCO,Respondents.
DECISION
Is an annotation made pursuant to Section 4, Rule 74 of the Rules of Court (Rules) on a
certificate of title covering real property considered an encumbrance on the property? We
resolve this question in the petition for review on certiorari1 filed by Delfin Tan (Tan) to
assail the decision of the Court of Appeals (CA) in CA-G.R. CV No. 520332and the
decision of the Regional Trial Court (RTC)3 that commonly declared the forfeiture of his
P200,000.00 down payment as proper, pursuant to the terms of his contract with the
respondents.
THE ANTECEDENTS
The facts are not disputed. Spouses Lamberto and Erlinda Benolirao and the Spouses
Reynaldo and Norma Taningco were the co-owners of a 689-square meter parcel of land
(property) located in Tagaytay City and covered by Transfer Certificate of Title (TCT)
No. 26423. On October 6, 1992, the co-owners executed a Deed of Conditional Sale over
the property in favor of Tan for the price of P1,378,000.00. The deed stated:
a) An initial down-payment of TWO HUNDRED (P200,000.00) THOUSAND PESOS,
Philippine Currency, upon signing of this contract; then the remaining balance of ONE

MILLION ONE HUNDRED SEVENTY EIGHT THOUSAND (P1,178,000.00) PESOS,

shall be payable within a period of one hundred fifty (150) days from date hereof without
interest;
b) That for any reason, BUYER fails to pay the remaining balance within above
mentioned period, the BUYER shall have a grace period of sixty (60) days within which
to make the payment, provided that there shall be an interest of 15% per annum on the
balance amount due from the SELLERS;
c) That should in case (sic) the BUYER fails to comply with the terms and conditions
within the above stated grace period, then the SELLERS shall have the right to forfeit the
down payment, and to rescind this conditional sale without need of judicial action;
d) That in case, BUYER have complied with the terms and conditions of this contract,
then the SELLERS shall execute and deliver to the BUYER the appropriate Deed of
Absolute Sale;
Pursuant to the Deed of Conditional Sale, Tan issued and delivered to the coowners/vendors Metrobank Check No. 904407 for P200,000.00 as down payment for the
property, for which the vendors issued a corresponding receipt.
On November 6, 1992, Lamberto Benolirao died intestate. Erlinda Benolirao (his widow
and one of the vendors of the property) and her children, as heirs of the deceased,
executed an extrajudicial settlement of Lambertos estate on January 20, 1993. On the
basis of the extrajudicial settlement, a new certificate of title over the property, TCT No.
27335, was issued on March 26, 1993 in the names of the Spouses Reynaldo and Norma
Taningco and Erlinda Benolirao and her children. Pursuant to Section 4, Rule 74 of the
Rules, the following annotation was made on TCT No. 27335:
x x x any liability to credirots (sic), excluded heirs and other persons having right to the
property, for a period of two (2) years, with respect only to the share of Erlinda, Andrew,
Romano and Dion, all surnamed Benolirao
As stated in the Deed of Conditional Sale, Tan had until March 15, 1993 to pay the
balance of the purchase price. By agreement of the parties, this period was extended by
two months, so Tan had until May 15, 1993 to pay the balance. Tan failed to pay and
asked for another extension, which the vendors again granted. Notwithstanding this
second extension, Tan still failed to pay the remaining balance due on May 21, 1993. The
vendors thus wrote him a letter demanding payment of the balance of the purchase price
within five (5) days from notice; otherwise, they would declare the rescission of the
conditional sale and the forfeiture of his down payment based on the terms of the
contract.
Tan refused to comply with the vendors demand and instead wrote them a letter (dated
May 28, 1993) claiming that the annotation on the title, made pursuant to Section 4, Rule
74 of the Rules, constituted an encumbrance on the property that would prevent the

vendors from delivering a clean title to him. Thus, he alleged that he could no longer be
required to pay the balance of the purchase price and demanded the return of his down
payment.
When the vendors refused to refund the down payment, Tan, through counsel, sent
another demand letter to the vendors on June 18, 1993. The vendors still refused to heed
Tans demand, prompting Tan to file on June 19, 1993 a complaint with the RTC of Pasay
City for specific performance against the vendors, including Andrew Benolirao, Romano
Benolirao, Dion Benolirao as heirs of Lamberto Benolirao, together with Evelyn Monreal
and Ann Karina Taningco (collectively, the respondents). In his complaint, Tan alleged
that there was a novation of the Deed of Conditional Sale done without his consent since
the annotation on the title created an encumbrance over the property. Tan prayed for the
refund of the down payment and the rescission of the contract.
On August 9, 1993, Tan amended his Complaint, contending that if the respondents insist
on forfeiting the down payment, he would be willing to pay the balance of the purchase
price provided there is reformation of the Deed of Conditional Sale. In the meantime, Tan
caused the annotation on the title of a notice of lis pendens.
On August 21, 1993, the respondents executed a Deed of Absolute Sale over the property
in favor of Hector de Guzman (de Guzman) for the price of P689,000.00.
Thereafter, the respondents moved for the cancellation of the notice of lis pendens on the
ground that it was inappropriate since the case that Tan filed was a personal action which
did not involve either title to, or possession of, real property. The RTC issued an order
dated October 22, 1993 granting the respondents motion to cancel the lis pendens
annotation on the title.
Meanwhile, based on the Deed of Absolute Sale in his favor, de Guzman registered the
property and TCT No. 28104 was issued in his name. Tan then filed a motion to carry
over the lis pendens annotation to TCT No. 28104 registered in de Guzmans name, but
the RTC denied the motion.
On September 8, 1995, after due proceedings, the RTC rendered judgment ruling that the
respondents forfeiture of Tans down payment was proper in accordance with the terms
and conditions of the contract between the parties.4The RTC ordered Tan to pay the
respondents the amount of P30,000.00, plus P1,000.00 per court appearance, as attorneys
fees, and to pay the cost of suit.
On appeal, the CA dismissed the petition and affirmed the ruling of the trial court in toto.
Hence, the present petition.
THE ISSUES
Tan argues that the CA erred in affirming the RTCs ruling to cancel the lis pendens
annotation on TCT No. 27335. Due to the unauthorized novation of the agreement, Tan
presented before the trial court two alternative remedies in his complaint either the

rescission of the contract and the return of the down payment, or the reformation of the
contract to adjust the payment period, so that Tan will pay the remaining balance of the
purchase price only after the lapse of the required two-year encumbrance on the title. Tan
posits that the CA erroneously disregarded the alternative remedy of reformation of
contract when it affirmed the removal of the lis pendens annotation on the title.
Tan further contends that the CA erred when it recognized the validity of the forfeiture of
the down payment in favor of the vendors. While admitting that the Deed of Conditional
Sale contained a forfeiture clause, he insists that this clause applies only if the failure to
pay the balance of the purchase price was through his own fault or negligence. In the
present case, Tan claims that he was justified in refusing to pay the balance price since
the vendors would not have been able to comply with their obligation to deliver a "clean"
title covering the property.
Lastly, Tan maintains that the CA erred in ordering him to pay the respondents
P30,000.00, plus P1,000.00 per court appearance as attorneys fees, since he filed the
foregoing action in good faith, believing that he is in the right.
The respondents, on the other hand, assert that the petition should be dismissed for
raising pure questions of fact, in contravention of the provisions of Rule 45 of the Rules
which provides that only questions of law can be raised in petitions for review on
certiorari.
THE COURTS RULING
The petition is granted.
No new issues can be raised in the Memorandum
At the onset, we note that Tan raised the following additional assignment of errors in his
Memorandum: (a) the CA erred in holding that the petitioner could seek reformation of
the Deed of Conditional Sale only if he paid the balance of the purchase price and if the
vendors refused to execute the deed of absolute sale; and (b) the CA erred in holding that
the petitioner was estopped from asking for the reformation of the contract or for specific
performance.
The Courts September 27, 2004 Resolution expressly stated that "No new issues may be
raised by a party in his/its Memorandum." Explaining the reason for this rule, we said
that:
The raising of additional issues in a memorandum before the Supreme Court is irregular,
because said memorandum is supposed to be in support merely of the position taken by
the party concerned in his petition, and the raising of new issues amounts to the filing of a
petition beyond the reglementary period. The purpose of this rule is to provide all parties
to a case a fair opportunity to be heard. No new points of law, theories, issues or
arguments may be raised by a party in the Memorandum for the reason that to permit
these would be offensive to the basic rules of fair play, justice and due process.5

Tan contravened the Courts explicit instructions by raising these additional errors.
Hence, we disregard them and focus instead on the issues previously raised in the petition
and properly included in the Memorandum.
Petition raises a question of law
Contrary to the respondents claim, the issue raised in the present petition defined in the
opening paragraph of this Decision is a pure question of law. Hence, the petition and
the issue it presents are properly cognizable by this Court.
Lis pendens annotation not proper in personal actions
Section 14, Rule 13 of the Rules enumerates the instances when a notice of lis pendens
can be validly annotated on the title to real property:
Sec. 14. Notice of lis pendens.
In an action affecting the title or the right of possession of real property, the plaintiff and
the defendant, when affirmative relief is claimed in his answer, may record in the office
of the registry of deeds of the province in which the property is situated a notice of the
pendency of the action. Said notice shall contain the names of the parties and the object
of the action or defense, and a description of the property in that province affected
thereby. Only from the time of filing such notice for record shall a purchaser, or
encumbrancer of the property affected thereby, be deemed to have constructive notice of
the pendency of the action, and only of its pendency against the parties designated by
their real names.
The notice of lis pendens hereinabove mentioned may be cancelled only upon order of
the court, after proper showing that the notice is for the purpose of molesting the adverse
party, or that it is not necessary to protect the rights of the party who caused it to be
recorded.
The litigation subject of the notice of lis pendens must directly involve a specific property
which is necessarily affected by the judgment.6
Tans complaint prayed for either the rescission or the reformation of the Deed of
Conditional Sale. While the Deed does have real property for its object, we find that
Tans complaint is an in personam action, as Tan asked the court to compel the
respondents to do something either to rescind the contract and return the down
payment, or to reform the contract by extending the period given to pay the remaining
balance of the purchase price. Either way, Tan wants to enforce his personal rights against
the respondents, not against the property subject of the Deed. As we explained in
Domagas v. Jensen:7
The settled rule is that the aim and object of an action determine its character. Whether a
proceeding is in rem, or in personam, or quasi in rem for that matter, is determined by its
nature and purpose, and by these only. A proceeding in personam is a proceeding to

enforce personal rights and obligations brought against the person and is based on the
jurisdiction of the person, although it may involve his right to, or the exercise of
ownership of, specific property, or seek to compel him to control or dispose of it in
accordance with the mandate of the court. The purpose of a proceeding in personam is to
impose, through the judgment of a court, some responsibility or liability directly upon the
person of the defendant. Of this character are suits to compel a defendant to specifically
perform some act or actions to fasten a pecuniary liability on him.
Furthermore, as will be explained in detail below, the contract between the parties was
merely a contract to sell where the vendors retained title and ownership to the property
until Tan had fully paid the purchase price. Since Tan had no claim of ownership or title
to the property yet, he obviously had no right to ask for the annotation of a lis pendens
notice on the title of the property.
Contract is a mere contract to sell
A contract is what the law defines it to be, taking into consideration its essential elements,
and not what the contracting parties call it.8 Article 1485 of the Civil Code defines a
contract of sale as follows:
Art. 1458. By the contract of sale one of the contracting parties obligates himself to
transfer the ownership and to deliver a determinate thing, and the other to pay therefor a
price certain in money or its equivalent.
A contract of sale may be absolute or conditional.
The very essence of a contract of sale is the transfer of ownership in exchange for a price
paid or promised.9
In contrast, a contract to sell is defined as a bilateral contract whereby the prospective
seller, while expressly reserving the ownership of the property despite delivery thereof to
the prospective buyer, binds himself to sell the property exclusively to the prospective
buyer upon fulfillment of the condition agreed, i.e., full payment of the purchase price.10
A contract to sell may not even be considered as a conditional contract of sale where the
seller may likewise reserve title to the property subject of the sale until the fulfillment of
a suspensive condition, because in a conditional contract of sale, the first element of
consent is present, although it is conditioned upon the happening of a contingent event
which may or may not occur.11
In the present case, the true nature of the contract is revealed by paragraph D thereof,
which states:
xxx
d) That in case, BUYER has complied with the terms and conditions of this contract, then
the SELLERS shall execute and deliver to the BUYER the appropriate Deed of Absolute
Sale;

xxx
Jurisprudence has established that where the seller promises to execute a deed of absolute
sale upon the completion by the buyer of the payment of the price, the contract is only a
contract to sell.12 Thus, while the contract is denominated as a Deed of Conditional Sale,
the presence of the above-quoted provision identifies the contract as being a mere
contract to sell.
A Section 4, Rule 74 annotation is an encumbrance on the property
While Tan admits that he refused to pay the balance of the purchase price, he claims that
he had valid reason to do so the sudden appearance of an annotation on the title
pursuant to Section 4, Rule 74 of the Rules, which Tan considered an encumbrance on the
property.
We find Tans argument meritorious.
The annotation placed on TCT No. 27335, the new title issued to reflect the extrajudicial
partition of Lamberto Benoliraos estate among his heirs, states:
x x x any liability to credirots (sic), excluded heirs and other persons having right to the
property, for a period of two (2) years, with respect only to the share of Erlinda, Andrew,
Romano and Dion, all surnamed Benolirao [Emphasis supplied.]
This annotation was placed on the title pursuant to Section 4, Rule 74 of the Rules, which
reads:
Sec. 4. Liability of distributees and estate. - If it shall appear at any time within two (2)
years after the settlement and distribution of an estate in accordance with the provisions
of either of the first two sections of this rule, that an heir or other person has been unduly
deprived of his lawful participation in the estate, such heir or such other person may
compel the settlement of the estate in the courts in the manner hereinafter provided for
the purpose of satisfying such lawful participation. And if within the same time of two (2)
years, it shall appear that there are debts outstanding against the estate which have not
been paid, or that an heir or other person has been unduly deprived of his lawful
participation payable in money, the court having jurisdiction of the estate may, by order
for that purpose, after hearing, settle the amount of such debts or lawful participation and
order how much and in what manner each distributee shall contribute in the payment
thereof, and may issue execution, if circumstances require, against the bond provided in
the preceding section or against the real estate belonging to the deceased, or both. Such
bond and such real estate shall remain charged with a liability to creditors, heirs, or other
persons for the full period of two (2) years after such distribution, notwithstanding any
transfers of real estate that may have been made. [Emphasis supplied.]
Senator Vicente Francisco discusses this provision in his book The Revised Rules of
Court in the Philippines,13where he states:

The provision of Section 4, Rule 74 prescribes the procedure to be followed if within two
years after an extrajudicial partition or summary distribution is made, an heir or other
person appears to have been deprived of his lawful participation in the estate, or some
outstanding debts which have not been paid are discovered. When the lawful participation
of the heir is not payable in money, because, for instance, he is entitled to a part of the
real property that has been partitioned, there can be no other procedure than to cancel the
partition so made and make a new division, unless, of course, the heir agrees to be paid
the value of his participation with interest. But in case the lawful participation of the heir
consists in his share in personal property of money left by the decedent, or in case unpaid
debts are discovered within the said period of two years, the procedure is not to cancel
the partition, nor to appoint an administrator to re-assemble the assets, as was allowed
under the old Code, but the court, after hearing, shall fix the amount of such debts or
lawful participation in proportion to or to the extent of the assets they have respectively
received and, if circumstances require, it may issue execution against the real estate
belonging to the decedent, or both. The present procedure is more expedient and less
expensive in that it dispenses with the appointment of an administrator and does not
disturb the possession enjoyed by the distributees.14 [Emphasis supplied.]
An annotation is placed on new certificates of title issued pursuant to the distribution and
partition of a decedents real properties to warn third persons on the possible interests of
excluded heirs or unpaid creditors in these properties. The annotation, therefore, creates a
legal encumbrance or lien on the real property in favor of the excluded heirs or creditors.
Where a buyer purchases the real property despite the annotation, he must be ready for
the possibility that the title could be subject to the rights of excluded parties. The
cancellation of the sale would be the logical consequence where: (a) the annotation
clearly appears on the title, warning all would-be buyers; (b) the sale unlawfully
interferes with the rights of heirs; and (c) the rightful heirs bring an action to question the
transfer within the two-year period provided by law.
As we held in Vda. de Francisco v. Carreon:15
And Section 4, Rule 74 xxx expressly authorizes the court to give to every heir his lawful
participation in the real estate "notwithstanding any transfers of such real estate" and to
"issue execution" thereon. All this implies that, when within the amendatory period the
realty has been alienated, the court in re-dividing it among the heirs has the authority to
direct cancellation of such alienation in the same estate proceedings, whenever it
becomes necessary to do so. To require the institution of a separate action for such
annulment would run counter to the letter of the above rule and the spirit of these
summary settlements. [Emphasis supplied.]
Similarly, in Sps. Domingo v. Roces,16 we said:
The foregoing rule clearly covers transfers of real property to any person, as long as the
deprived heir or creditor vindicates his rights within two years from the date of the
settlement and distribution of estate. Contrary to petitioners contention, the effects of this

provision are not limited to the heirs or original distributees of the estate properties, but
shall affect any transferee of the properties. [Emphasis supplied.]
Indeed, in David v. Malay,17 although the title of the property had already been
registered in the name of the third party buyers, we cancelled the sale and ordered the
reconveyance of the property to the estate of the deceased for proper disposal among his
rightful heirs.
By the time Tans obligation to pay the balance of the purchase price arose on May 21,
1993 (on account of the extensions granted by the respondents), a new certificate of title
covering the property had already been issued on March 26, 1993, which contained the
encumbrance on the property; the encumbrance would remain so attached until the
expiration of the two-year period. Clearly, at this time, the vendors could no longer
compel Tan to pay the balance of the purchase since considering they themselves could
not fulfill their obligation to transfer a clean title over the property to Tan.
Contract to sell is not rescinded but terminated
What then happens to the contract?
We have held in numerous cases18 that the remedy of rescission under Article 1191
cannot apply to mere contracts to sell. We explained the reason for this in Santos v. Court
of Appeals,19 where we said:
[I]n a contract to sell, title remains with the vendor and does not pass on to the vendee
until the purchase price is paid in full. Thus, in a contract to sell, the payment of the
purchase price is a positive suspensive condition. Failure to pay the price agreed upon is
not a mere breach, casual or serious, but a situation that prevents the obligation of the
vendor to convey title from acquiring an obligatory force. This is entirely different from
the situation in a contract of sale, where non-payment of the price is a negative resolutory
condition. The effects in law are not identical. In a contract of sale, the vendor has lost
ownership of the thing sold and cannot recover it, unless the contract of sale is rescinded
and set aside. In a contract to sell, however, the vendor remains the owner for as long as
the vendee has not complied fully with the condition of paying the purchase price. If the
vendor should eject the vendee for failure to meet the condition precedent, he is enforcing
the contract and not rescinding it. x x x Article 1592 speaks of non-payment of the
purchase price as a resolutory condition. It does not apply to a contract to sell. As to
Article 1191, it is subordinated to the provisions of Article 1592 when applied to sales of
immovable property. Neither provision is applicable [to a contract to sell]. [Emphasis
supplied.]
We, therefore, hold that the contract to sell was terminated when the vendors could no
longer legally compel Tan to pay the balance of the purchase price as a result of the legal
encumbrance which attached to the title of the property. Since Tans refusal to pay was
due to the supervening event of a legal encumbrance on the property and not through his

own fault or negligence, we find and so hold that the forfeiture of Tans down payment
was clearly unwarranted.
Award of Attorneys fees
As evident from our previous discussion, Tan had a valid reason for refusing to pay the
balance of the purchase price for the property. Consequently, there is no basis for the
award of attorneys fees in favor of the respondents.
On the other hand, we award attorneys fees in favor of Tan, since he was compelled to
litigate due to the respondents refusal to return his down payment despite the fact that
they could no longer comply with their obligation under the contract to sell, i.e., to
convey a clean title. Given the facts of this case, we find the award ofP50,000.00 as
attorneys fees proper.
Monetary award is subject to legal interest
Undoubtedly, Tan made a clear and unequivocal demand on the vendors to return his
down payment as early as May 28, 1993. Pursuant to our definitive ruling in Eastern
Shipping Lines, Inc. v. Court of Appeals,20 we hold that the vendors should return the
P200,000.00 down payment to Tan, subject to the legal interest of 6% per annum
computed from May 28, 1993, the date of the first demand letter.1avvphi1
Furthermore, after a judgment has become final and executory, the rate of legal interest,
whether the obligation was in the form of a loan or forbearance of money or otherwise,
shall be 12% per annum from such finality until its satisfaction. Accordingly, the
principal obligation of P200,000.00 shall bear 6% interest from the date of first demand
or from May 28, 1993. From the date the liability for the principal obligation and
attorneys fees has become final and executory, an annual interest of 12% shall be
imposed on these obligations until their final satisfaction, this interim period being
deemed to be by then an equivalent to a forbearance of credit.
WHEREFORE, premises considered, we hereby GRANT the petition and, accordingly,
ANNUL and SET ASIDE the May 30, 2002 decision of the Court of Appeals in CA-G.R.
CV No. 52033. Another judgment is rendered declaring the Deed of Conditional Sale
terminated and ordering the respondents to return the P200,000.00 down payment to
petitioner Delfin Tan, subject to legal interest of 6% per annum, computed from May 28,
1993. The respondents are also ordered to pay, jointly and severally, petitioner Delfin Tan
the amount of P50,000.00 as and by way of attorneys fees. Once this decision becomes
final and executory, respondents are ordered to pay interest at 12% per annum on the
principal obligation as well as the attorneys fees, until full payment of these amounts.
Costs against the respondents.
SO ORDERED.

2. Sps. Domingo v. Roces, G.R. No. 147468, April 9, 2003

FIRST DIVISION

[G.R. No. 147468. April 9, 2003]

SPOUSES EDUARDO ARENAS DOMINGO & JOSEFINA CHAVEZ DOMINGO,

petitioners, vs. LILIA MONTINOLA ROCES, CESAR ROBERTO M. ROCES,
ANA INES MAGDALENA ROCES TOLENTINO, LUIS MIGUEL M. ROCES,
JOSE ANTONIO M. ROCES and MARIA VIDA PRESENTACION ROCES,
respondents.
DECISION
YNARES-SANTIAGO, J.:
This is a petition for review on certiorari of the decision of the Court of Appeals
dated November 22, 2000 in CA-G.R. CV No. 62473,[1] as well as the resolution dated
March 15, 2001, denying petitioners Motion for Reconsideration.[2]
The facts are not in dispute.
The spouses Cesar and Lilia Roces were the owners of two contiguous parcels of
land located on Arayat Street, Mandaluyong, covered by Transfer Certificates of Title
Nos. 57217 and 57218.[3] On November 13, 1962, the Government Service Insurance
System (GSIS) caused the annotation of an affidavit of adverse claim on the titles
alleging that the spouses have mortgaged the same to it.[4]
Subsequently, GSIS wrote a letter to Cesar Roces demanding the surrender of the
owners duplicates of titles. When Roces failed to comply, GSIS filed a petition with the
then Court of First Instance of Rizal, docketed as Civil Case No. R-1359, praying that the
owners duplicates in Roces possession be declared null and void and that the Register of
Deeds of Pasig be directed to issue new owners duplicates to GSIS.[5] On September 5,
1977, the Court of First Instance issued an order granting the petition.[6] The order
became final and executory, and TCT Nos. 57217 (11663) and 57218 (11664) were
issued in the name of GSIS.[7]
Cesar Roces died intestate on January 26, 1980.[8] He was survived by his widow,
Lilia Roces, and their children: Cesar Roberto Roces, Ana Ines Magdalena Roces
Tolentino, Luis Miguel M. Roces, Jose Antonio Roces and Maria Vida Presentacion
Roces, all of whom are the respondents in this case.

On July 22, 1992, Reynaldo L. Montinola, a nephew of Lilia Roces, executed an

affidavit of self-adjudication over the Arayat properties. He alleged that the properties
were owned by the spouses Cesar and Lilia Roces, both of whom died intestate, on
September 13, 1987 and June 27, 1989, respectively; that the properties were acquired
during the existence of their marriage; that the spouses left no heirs except the brother of
Lilia Roces, who was his father; that neither of the spouses left any will nor any debts;
and that he was the sole heir of the Roces spouses.[9]
On January 5, 1993, Montinola filed a petition against GSIS with the Regional Trial
Court of Pasig, docketed as Civil Case No. R-4743, praying for the cancellation of TCT
Nos. 57217 (11663) and 57218 (11664).[10] During the trial, GSIS failed to produce
any document evidencing the alleged real estate mortgage by Roces of the properties.
Hence, the trial court rendered judgment in favor of Montinola, declaring the owners
duplicates of TCT No. 57217 (11663) and 57218 (11664) as null and void and ordering
the Registry of Deeds of Mandaluyong to issue new owners duplicates of the said titles.
[11]
GSIS did not appeal the aforesaid judgment; thus, the same became final and
executory. Accordingly, the Registry of Deeds of Mandaluyong issued TCT No. 7299 in
the name of Montinola in lieu of TCT No. 57218 (11664).[12]
Sometime in July 1993, Montinola executed a deed of absolute sale of the property
covered by TCT No. 7299 in favor of petitioner spouses Eduardo and Josefina Domingo.
[13] Thereafter, TCT No. 7673 was issued in the names of petitioners.
Both TCT Nos. 7299 and 7673 contained the following annotation:
Subject to the provision of Section 4, Rule 74 of the Rules of Court with respect to the
inheritance left by the deceased SPS. CESAR ROCES & LILIA MONTINOLA.[14]
When respondents learned of the sale of the property to petitioners, they filed a
complaint against Montinola and petitioners with the Regional Trial Court of Pasig. They
argued that the affidavit of self-adjudication was fraudulent because Montinola was not
an heir of the Roces spouses and it was not true that Lilia Roces was dead. Therefore, the
affidavit of self-adjudication, as well as the deed of absolute sale, TCT No. 7299, and
TCT No. 7673, all covering the subject property, were null and void.[15]
In their answer, petitioners alleged that they were buyers in good faith and that their
action was barred by estoppel and laches.[16]
After trial, the court a quo rendered judgment in favor of respondents, the dispositive
portion of which reads:
WHEREFORE, judgment is hereby rendered in favor of the plaintiffs against the
defendant Reynaldo L. Montinola who is hereby ordered to pay to the plaintiffs the
following sums:

a) P1,200,000.00 as actual damages, with interest thereon at the legal rate of six
(6) per centum per annum until fully paid;
b) Moral damages in the sum of P100,000.00;
c) Exemplary damages in the sum of P50,000.00;
d) Attorneys fees in the reasonable amount of P30,000.00; and costs.
The counterclaim of defendant spouses Eduardo and Josefina Domingo is dismissed and
the complaint against the Register of Deeds is likewise dismissed without costs.
SO ORDERED.[17]
Respondents appealed to the Court of Appeals, reiterating the reliefs prayed for in
their complaint below.[18] On November 22, 2000, the Court of Appeals rendered the
assailed Decision, the decretal portion of which reads:
IN THE LIGHT OF ALL THE FOREGOING, the appeal is GRANTED. The Decision of
the Court a quo appealed from is SET ASIDE AND REVERSED. Another Decision is
hereby rendered in favor of the Appellants as follows:
1. The Affidavit of Self-Adjudication (Exhibit G), Transfer Certificate of Title No. 7299
(Exhibits N and 22, Domingo), the Deed of Absolute Sale (Exhibit 20) and Transfer
Certificate of Title No. 7673 (Exhibit 21) are hereby declared null and void.
2. Transfer Certificate of Title No. 57218 (11664), under the names of Cesar P. Roces and
Lilia Montinola, is hereby reinstated.
3. The Appellees are hereby ordered to pay, jointly and severally, to the Appellants the
amount of P50,000.00 as and by way of attorneys fees.
4. Appellants claims for actual, moral and exemplary damages are dismissed.
5. The Appellee Reynaldo Montinola is hereby ordered to pay to the Appellees Spouses
Domingo the amount of P1,800,000.00, with interest thereon at the rate of 12% per
annum from the date of the Decision of this Court until the said amount is paid in full by
the said Appellee, the other cross-claims of the Appellees, inter se, are dismissed.
SO ORDERED.[19]
Petitioners filed a Motion for Reconsideration,[20] which was denied in a
Resolution dated March 15, 2000.[21] Hence this petition, raising the following errors:
1. THE COURT OF APPEALS ERRED IN HOLDING THAT THE ANNOTATION IN
THE TITLE REGARDING SEC. 4, RULE 74 IS AN ENCUMBRANCE WHICH
DISQUALIFIES PETITIONERS FROM BEING INNOCENT PURCHASERS FOR
VALUE;

2. THE COURT OF APPEALS ERRED IN NOT HOLDING THAT IT WAS

RESPONDENTS WHO MADE IT POSSIBLE FOR REYNALDO MONTINOLA TO
PERPETUATE THE FRAUD AND, THEREFORE, THEY SHOULD BE THE ONE TO
BEAR RESULTING DAMAGE;
3. THE COURT OF APPEALS ERRED IN NOT HOLDING THAT RESPONDENTS
HAVE NO EXISTING INTEREST IN THE PROPERTY SINCE IT WAS PREVIOUSLY
MORTGAGED AND FORECLOSED BY THE G.S.I.S.; AND
4. THE COURT OF APPEALS ERRED IN HOLDING PETITIONERS LIABLE TO
RESPONDENTS FOR ATTORNEYS FEES, THEREBY ADDING MORE INJURY TO
THEIR MISFORTUNE.[22]
The petition lacks merit.
It is true that one who deals with property registered under the Torrens system need
not go beyond the same, but only has to rely on the title. He is charged with notice only
of such burdens and claims as are annotated on the title. However, this principle does not
apply when the party has actual knowledge of facts and circumstances that would impel a
reasonably cautious man to make such inquiry or when the purchaser has knowledge of a
defect or the lack of title in his vendor or of sufficient facts to induce a reasonably
prudent man to inquire into the status of the title of the property in litigation. One who
falls within the exception can neither be denominated an innocent purchaser for value nor
a purchaser in good faith.[23]
As stated above, the titles, namely, TCT Nos. 7299 and 7673, contained annotations
which made reference to the provisions of Rule 74, Section 4 of the Rules of Court, viz:
SEC. 4. Liability of distributees and estate. If it shall appear at any time within two (2)
years after the settlement and distribution of an estate in accordance with the provisions
of either of the first two sections of this rule, that an heir or other person has been unduly
deprived of his lawful participation in the estate, such heir or such other person may
compel the settlement of the estate in the courts in the manner hereinafter provided for
the purpose of satisfying such lawful participation. And if within the same time of two (2)
years, it shall appear that there are debts outstanding against the estate which have not
been paid, or that an heir or other person has been unduly deprived of his lawful
participation payable in money, the court having jurisdiction of the estate may, by order
for that purpose, after hearing, settle the amount of such debts or lawful participation and
order how much and in what manner each distributee shall contribute in the payment
thereof, and may issue execution, if circumstances require, against the bond provided in
the preceding section or against the real estate belonging to the deceased, or both.Such
bond and such real estate shall remain charged with a liability to creditors, heirs, or other
persons for the full period of two (2) years after such distribution, notwithstanding any
transfers of real estate that may have been made.[24]

The foregoing rule clearly covers transfers of real property to any person, as long as
the deprived heir or creditor vindicates his rights within two years from the date of the
settlement and distribution of estate. Contrary to petitioners contention, the effects of this
provision are not limited to the heirs or original distributees of the estate properties, but
shall affect any transferee of the properties.
In David v. Malay ,[25] it was held that the buyer of real property the title of
which contain an annotation pursuant to Rule 74, Section 4 of the Rules of Court cannot
be considered innocent purchasers for value. In the same vein, the annotation at the back
of TCT No. 7299 in this case referring to Rule 74, Section 4 of the Rules of Court was
sufficient notice to petitioners of the limitation on Montinolas right to dispose of the
property. The presence of an irregularity which excites or arouses suspicion should
prompt the vendee to look beyond the certificate and investigate the title of the vendor
appearing on the face thereof.[26] Purchasers of registered land are bound by the
annotations found at the back of the certificate of title.[27]
Hence, petitioners cannot be considered buyers in good faith and cannot now avoid
the consequences brought about by the application of Rule 74, Section 4 of the Rules of
Court.
Petitioners claim that respondents were guilty of laches and estoppel is likewise
untenable. Laches is the failure or neglect, for an unreasonable and unexplained length of
time, to do that which, by exercising due diligence, could or should have been done
earlier. The essential elements of laches are: (1) conduct on the part of defendant or one
under whom he claims, giving rise to the situation complained of; (2) delay in asserting
complainants right after he had knowledge of the defendants conduct and after he has an
opportunity to sue; (3) lack of knowledge or notice on the part of the defendant that the
complainant would assert the right on which he bases his suit; and (4) injury or prejudice
to the defendant in the event relief is accorded to the complainant.[28]
On the other hand, estoppel by laches arises from the negligence or omission to
assert a right within a reasonable time, warranting a presumption that the party entitled to
assert it either has abandoned it or declined to assert it.[29]
In the case at bar, only four months elapsed from the time respondents discovered
Montinolas fraudulent acts, sometime in May 1993, to the time they filed their complaint
on September 6, 1993. This relatively short span of time can hardly be called
unreasonable, especially considering that respondents used this period of time to
investigate the transfers of the property.[30] Delay is an indispensable requisite for a
finding of estoppel by laches, but to be barred from bringing suit on grounds of estoppel
and laches, the delay must be lengthy and unreasonable.[31] No unreasonable delay can
be attributed to respondents in this case.

WHEREFORE, in view of the foregoing, the instant petition for review is DENIED.
The decision and resolution of the Court of Appeals in CA-G.R. No. CV No. 62473 are
AFFIRMED in toto.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Vitug, Carpio, and Azcuna, JJ., concur.

3. PEZA v. Fernandez, G.R. No. 138971, June 6, 2001

THIRD DIVISION

[G.R. No. 138971. June 6, 2001]

PHILIPPINE ECONOMIC ZONE AUTHORITY (PEZA), petitioner, vs. HON.

RUMOLDO R. FERNANDEZ, Regional Trial Court of Lapu-Lapu City (Branch
54); and the Heirs of the Deceased Spouses JUAN CUIZON and FLORENTINA
RAPAYA, respondents.
DECISION
PANGANIBAN, J.:
An action for reconveyance of land, an equitable remedy recognized under our land
registration laws, is subject to the applicable rules on prescription. Moreover, the right to
pursue such reivindicatory action may be defeated when the property sought to be
recovered has been conveyed to an innocent purchaser for value.

The Case
Before this Court is a Petition for Review on Certiorari under Rule 45 of the Rules of
Court, seeking to set aside the June 8, 1999 Decision[1] of the Court of Appeals (CA) in
CA-GR SP No. 47575. In the said Decision, the CA sustained the January 12, 1998[2]
and the March 31, 1998[3] Orders of the Regional Trial Court of Lapu-Lapu City
(Branch 54) in Civil Case No. 4534-L, which denied petitioners Motion to Dismiss and
Motion for Reconsideration, respectively. The dispositive portion of the CA Decision
reads as follows:

WHEREFORE, [there being] no abuse of discretion committed by respondent court, the

instant petition is hereby DISMISSED.

The Facts
The subject of the present controversy is Lot No. 4673 of the Opon Cadastre situated
in Lapu-Lapu City, covered by Original Certificate of Title (OCT) No. RO-2537 (May
19, 1982) and registered in the names of Florentina Rapaya, Victorino Cuizon, Isidro
Cuizon, Ursula Cuizon, Benito Lozano, Isabel Lozano, Pelagia Lozano, Augusto Lozano,
Valeriano Ybaez, Jesus Ybaez, Numeriano Ybaez, Martino Ybaez, Eutiquio Patalinghug,
Celedonio Patalinghug, Santiago Patalinghug and Silvino Patalinghug. The lot has an
area of 11,345 square meters, more or less.
On May 15, 1982, Jorgea Igot-Soroo, Frisca Booc and Felix Cuizon executed an
Extrajudicial Partition, in which they declared themselves as the only surviving heirs of
the registered owners of the aforesaid lot. Consequently, they were issued TCT No. 12467
on July 8, 1982.
Considering that the said lot was among the objects of expropriation proceedings
docketed as Civil Case No 510-L and pending before it, Branch XVI of the Regional
Trial Court (RTC) of Lapu-Lapu City rendered a partial Decision on August 11, 1982. In
that Decision, the RTC approved the Compromise Agreement entered into between the
Export Processing Zone Authority (EPZA) and the new registered owners of Lot No.
4673; namely, Jorgea Igot-Soroo, Frisca Booc and Felix Cuizon. In accordance with the
approved Compromise Agreement, EPZA would pay P68,070 as just compensation for
the expropriation of the subject property, which was to be used for an export processing
zone to be established in Lapu-Lapu City.
As a consequence of the RTC Decision, petitioner acquired title over Lot No. 4673
and the corresponding Transfer Certificate of Title (TCT) No. 12788 issued by the
Register of Deeds of Lapu-Lapu City on October 13, 1982.
On July 29, 1996, private respondents filed with the RTC of Lapu-Lapu City a
Complaint for Nullity of Documents, Redemption and Damages against petitioner and
Jorgea-Igot Soroo et al. Docketed as Civil Case No. 4534-L, the Complaint alleged that
herein private respondents had been excluded from the extrajudicial settlement of the
estate. It likewise sought the nullification of several documents, including TCT No.
12788 dated October 13, 1992, issued in the name of herein petitioner.
On February 17, 1997, petitioner filed a Motion to Dismiss the Complaint on the
ground of prescription. This Motion was denied by respondent judge in the Order dated
January 12, 1998. A Motion for Reconsideration thereof was likewise denied in the Order
dated March 31, 1998.

On April 30, 1998, petitioner elevated the matter to the Court of Appeals through a
Petition for Certiorari. As earlier noted, the CA dismissed the Petition.
Hence, this recourse.[4]

The CA Ruling
In denying the Petition, the CA ratiocinated as follows:
Civil Case No. 4534-L although instituted in the guise of a complaint for Nullity of
Documents, Redemption and Damages is in effect an action for reconveyance of the
property to plaintiffs of a portion which rightfully belong to them. It would be against
good reason and conscience not to hold that defendants, Francisca Frisca Booc, heirs of
deceased Jorg[e]a Igot-Soronio and heirs of Felix Cuizon committed a breach of trust
which enabled them to execute a Deed of Extrajudicial Partition[,] Special Power of
Attorney and Deed of Absolute Sale in favor of EPZA to the prejudice of the plaintiffs as
their co-heirs. Therefore, in an action like this case, the private respondents may be
ordered to make reconveyance of the property to the person rightfully entitled to it.
It is undeniable that defendants defrauded plaintiffs by falsely representing that they were
the only heirs of deceased Juan Cuizon and Florentina Rapaya, succeeded in having the
original title cancelled and enabling them to appropriate the land in favor of EPZA and a
new one issued in the name of the latter (EPZA). This way of acquiring title create[s]
what is called constructive trust in favor of the defrauded party and grants the latter the
right to vindicate [itself] x x x regardless of the lapse of time. Thus, it has been held that
if a person obtain(s) a legal title to the property by fraud or concealment, courts of equity
will impress upon the title a so called trust in favor of the defrauded party. In fact, it has
long been held that a co-heir who through fraud, succeeds in obtaining a certificate of
title in his name to the prejudice of his co-heirs, is deemed to hold the land in trust for the
latter. The excluded heirs action is imprescriptible.
And if the action involve(s) the declaration of the nullity or inexistence of a void or
inexistent contract which became the basis for the fraudulent registration of the subject
property, then the action is imprescriptible. This finds codal support in Article 1410 of the
Civil Code, which declares that the action or defense for the declaration of the
inexistence of a void contract does not prescribe.
As to the constructive notice rule alleged by the petitioner, (the) Supreme Court in the
case of Juan vs. Zuniga, citing Sevilla vs. Angeles, has this to say:
'While this ruling is correct as applied to ordinary actions by recovery of real
property which is covered by a torrens title upon the theory that its registration
under our registration system has the effect of constructive notice to the whole
world, the same cannot be applied x x x when the purpose of the action is to

compel a trustee to convey the property registered in his name for the benefit of
the cestui que trust. In other words, the defense of prescription cannot be set up
in an action whose purpose is to recover property held by a person for the
benefit of another.

The Issues
Petitioner interposes the following issues for the consideration of this Court:
I
Whether or not the appellate court erred in not holding that private respondents claim
against expropriated property had prescribed.
II
Whether or not the appellate court erred in not holding that reconveyance does not lie
against the expropriated property.[5]

The Courts Ruling

The Petition is meritorious.

First Issue: Prescription

Petitioner avers that private respondents claim against the subject property has
already prescribed, because the two-year period within which an unduly excluded heir
may seek a new settlement of the estate had already lapsed by the time private
respondents filed their action with the trial court. Petitioner further argues that private
respondents received constructive notice in view of the registration of the extrajudicial
partition with the Registry of Deeds. According to petitioner, the two-year period
commenced from July 8, 1982, the date of inscription of the extrajudicial settlement on
OCT No. 2537.
The pertinent provisions of Section 4, Rule 74 of the Rules of Court, are reproduced
for easy reference, as follows:
Section 4. Liability of distributees and estate. - If it shall appear at any time within two
(2) years after the settlement and distribution of an estate in accordance with the
provisions of either of the first two sections of this rule, that an heir or other person has
been unduly deprived of his lawful participation in the estate, such heir or such other

person may compel the settlement of the estate in the courts in the manner hereinafter
provided for the purpose of satisfying such lawful participation. And if within the same
time of two (2) years, it shall appear that there are debts outstanding against the estate
which have not been paid, or that an heir or other person has been unduly deprived of his
lawful participation payable in money, the court having jurisdiction of the estate may, by
order for that purpose, after hearing, settle the amount of such debts or lawful
participation and order how much and in what manner each distributee shall contribute in
the payment thereof, and may issue execution, if circumstances require, against the bond
provided in the preceding section or against the real estate belonging to the deceased, or
both. Such bond and such real estate shall remain charged with a liability to creditors,
heirs, or other persons for the full period of two (2) years after such distribution,
notwithstanding any transfers of real estate that may have been made. (Emphasis
supplied)
A perusal of the foregoing provision will show that persons unduly deprived of their
lawful participation in a settlement may assert their claim only within the two-year period
after the settlement and distribution of the estate. This prescription period does not apply,
however, to those who had no part in or had no notice of the settlement. Section 4, Rule
74 of the Rules of Court, is not meant to be a statute of limitations. Moreover, by no
reason or logic can one contend that an extrajudicial partition, being merely an ex parte
proceeding, would affect third persons who had no knowledge thereof.[6] Be that as it
may, it cannot be denied, either, that by its registration in the manner provided by law, a
transaction may be known actually or constructively.
In the present case, private respondents are deemed to have been constructively
notified of the extrajudicial settlement by reason of its registration and annotation in the
certificate of title over the subject lot. From the time of registration, private respondents
had two (2) years or until July 8, 1984, within which to file their objections or to demand
the appropriate settlement of the estate.
On the matter of constructive notice vis--vis prescription of an action to contest an
extrajudicial partition, a leading authority on land registration elucidates as follows:
While it may be true that an extrajudicial partition is an ex parte proceeding, yet after its
registration under the Torrens system and the annotation on the new certificate of title of
the contingent liability of the estate for a period of two years as prescribed in Rule 74,
Section 4, of the Rules of Court, by operation of law a constructive notice is deemed
made to all the world, so that upon the expiration of said period all third persons should
be barred [from going] after the particular property, except where title thereto still
remains in the names of the alleged heirs who executed the partition tainted with fraud, or
their transferees who may not qualify as innocent purchasers for value. If the liability of
the registered property should extend indefinitely beyond that period, then such
constructive notice which binds the whole world by virtue of registration would be
meaningless and illusory. x x x.[7] (Emphasis supplied)

The only exception to the above-mentioned prescription is when the title remains in
the hands of the heirs who have fraudulently caused the partition of the subject property
or in those of their transferees who cannot be considered innocent purchasers for value.
In this regard, title to the property in the present case was no longer in the name of
the allegedly fraudulent heirs, but already in that of an innocent purchaser for value the
government. Moreover, the government is presumed to have acted in good faith in the
acquisition of the lot, considering that title thereto was obtained through a Compromise
Agreement judicially approved in proper expropriation proceedings.
Even assuming that there was in fact fraud on the part of the other heirs, private
respondents may proceed only against the defrauding heirs, not against petitioner which
had no participation in or knowledge of the alleged fraud. The fact that the co-heirs title
to the property was fraudulently secured cannot prejudice the rights of petitioner which,
absent any showing that it had knowledge or participation in the irregularity, is
considered a purchaser in good faith and for value.[8]
The remedy of an owner alleged to have been prejudiced or fraudulently deprived of
property that was subsequently sold to an innocent purchaser for value is an action for
damages against the person or persons who perpetrated the fraud.[9]

Second Issue: Limitations on Reconveyance

The law recognizes the right of a person, who, by adjudication or confirmation of
title obtained by actual fraud, is deprived of an estate or an interest therein.[10]
Although a review of the decree of registration is no longer possible after the one-year
period from its entry expires, still available is an equitable remedy to compel the
reconveyance of property to those who may have been wrongfully deprived of it.[11]
This equitable remedy afforded by law is not without limitations, however.
An action for reconveyance resulting from fraud prescribes four years from the
discovery of the fraud; such discovery is deemed to have taken place upon the issuance of
the certificate of title over the property. Registration of real property is considered a
constructive notice to all persons and, thus, the four-year period shall be counted
therefrom.[12] Clearly then, private respondents action for reconveyance based on fraud
has already prescribed, considering that title to said property had been issued way back
on August 11, 1982, while the reivindicatory suit was instituted only on July 29, 1996.
Even an action for reconveyance based on an implied or a constructive trust would
have already prescribed just the same, because such action prescribes ten (10) years from
the alleged fraudulent registration or date of issuance of the certificate of title over the
property.[13] The imprescriptibility of an action for reconveyance based on implied or
constructive trust applies only when the plaintiff or the person enforcing the trust is in

possession of the property. In effect, the action for reconveyance is an action to quiet the
property title, which does not prescribe.[14] Undisputedly, private respondents are not in
possession of the disputed property. In fact, they do not even claim to be in possession of
it, even if to do so would enable them to justify the imprescriptibility of their action.
Accordingly, the CA Decisions reliance on Juan v. Zuiga,[15] as regards the
imprescriptibility of an action for reconveyance based on implied or constructive trust, is
utterly misplaced in the light of the foregoing rulings of the Court declaring a ten-year
period of prescription for such action. Moreover, the principle enunciated therein has no
application to the instant case, considering that the supposed trustee herein has effectively
repudiated the so-called trust by directly performing an act of ownership; that is, by
conveying the property to the government through expropriation. An action to compel,
for the benefit of the cestui que trust, the conveyance of property registered in the trustees
name does not prescribe unless the trustee repudiates the trust.[16] Thus, private
respondents cannot invoke the imprescriptibility of their action for reconveyance,
irrespective of their basis for it.
Finally, it must be remembered that reconveyance is a remedy of those whose
property has been wrongfully or erroneously registered in the name of another. Such
recourse, however, cannot be availed of once the property has passed to an innocent
purchaser for value. For an action for reconveyance to prosper, the property should not
have passed into the hands of an innocent purchaser for value.[17]
Indubitably, we find that the property has already been conveyed to the government
in appropriate expropriation proceedings, the regularity or validity of which has not been
questioned. Petitioner should, therefore, enjoy the security afforded to innocent third
persons under our registration laws. Equally important, its title to the property must be
rightfully preserved.
Hence, private respondents action to recover the subject property from the
government cannot be maintained, not only because of the prescription of the action, but
on account of the protection given to innocent purchasers for value granted under our
land registration laws. Indeed, the inevitable consequences of the Torrens system of land
registration must be upheld in order to give stability to it and provide finality to land
disputes.
This ruling notwithstanding, private respondents are not without recourse. They may
sue for damages their co-heirs who have allegedly perpetrated fraud in Civil Case No.
4534-L pending before the RTC. The right and the extent of damages to be awarded to
private respondents shall be determined by the trial court, subject to the evidence duly
established during the proceedings.
WHEREFORE, the Petition is hereby GRANTED and the assailed Decision of the
Court of Appeals REVERSED. The Orders of the Regional Trial Court of Lapu-Lapu

City (Branch 54) in Civil Case No. 4534-L, dated January 12, 1998 and March 31, 1998,
are SET ASIDEand the said Civil Case, as against petitioner, is DISMISSED. No costs.
SO ORDERED.
Melo, (Chairman), Vitug, Gonzaga-Reyes, and Sandoval-Gutierrez, JJ., concur.

4. Pedrosa v. CA, G.R. No. 118680, March 5, 2001

Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 118680

March 5, 2001

MARIA ELENA RODRIGUEZ PEDROSA, petitioner,

vs.
THE HON. COURT OF APPEALS, JOSE, CARMEN, MERCEDES & RAMON, all
surnamed RODRIGUEZ, ROSALINA RODRIGUEZ, CHAN LUNG FAI, MATEO TAN
TE, TE ENG SUY, LORETA TE, VICTORIO S. DETALIA, JEROME DEIPARINE,
PETRONILO S. DETALIA, HUBERT CHIU YULO, PATERIO N. LAO, LORENSITA
M. PADILLA, IMMACULATE CONCEPCION COLLEGE AND LILIAN EXPRESS,
INC. and TIO TUAN, respondents.
QUISUMBING, J.:
This petition assails the decision of the Court of Appeals dated May 23, 1994 which
affirmed the judgment of the Regional Trial Court, Branch 15, of Ozamiz City in Civil
Case No. OZ-1397.
The facts of this case are as follows:
On April 8, 1946, the spouses Miguel Rodriguez and Rosalina J. de Rodriguez initiated
proceedings before the CFI of Ozamiz City for the legal adoption of herein petitioner,
Maria Elena Rodriguez Pedrosa. On August 1, 1946, the CFI granted the petition and
declared petitioner Pedrosa the adopted child of Miguel and Rosalina.
On April 29, 1972, Miguel died intestate. Thereafter, petitioner and Rosalina entered into
an extrajudicial settlement of Miguel's estate, adjudicating between themselves in equal
proportion the estate of Miguel.
On November 21, 1972, private respondents filed an action to annul the adoption of
petitioner before the CFI of Ozamiz City, with petitioner and herein respondent Rosalina
as defendants docketed as OZ 349.

On August 28, 1974, the CFI denied the petition and upheld the validity of the adoption.
Thereafter, the private respondents appealed said decision to the Court of Appeals.
On March 11, 1983, while said appeal was pending, the Rodriguezes entered into an
extrajudicial settlement with respondent Rosalina for the partition of the estate of Miguel
and of another sister, Pilar. Rosalina acted as the representative of the heirs of Miguel
Rodriguez. Pilar had no heirs except his brothers and sisters.
The Deed of Extrajudicial Settlement and Partition covered fourteen parcels of land
covering a total area of 224,883 square meters. These properties were divided among
Jose, Carmen, Mercedes, Ramon and the heirs of Miguel, represented solely by Rosalina.
The heirs of Miguel were given 226 square meters of parcel 2, and 9,567 square meters
and 24,457 square meters of parcels 7 and 9, respectively.1 The total land area allocated
to the heirs of Miguel was 34,250 square meters.
Armed with the Deed of Extrajudicial Settlement and Partition, respondents Rodriguezes
were able to secure new Transfer Certificates of Title (TCTs) and were able to transfer
some parcels to the other respondents herein.2
Lots 504-A-6, 504-B-3 and 504-C-4, portions of Parcel 3, designated as Lot 504, were
transferred to respondents Chuan Lung Fai,3 but not included in the Deed of Settlement
and Partition, were transferred to respondent Lilian Express, Inc. and are now registered
under TCT No. T-11337. Parcel 6, Lot 560, was subdivided among Ramon, Jose, Carmen
and Mercedes and was designated as Lots 560-A, 560-B, 560-C, 560-D and 560-E. Lot
560-A covering 500 square meters was transferred to respondent Victorino Detall4 and
was subsequently transferred to Jerome Deiparine who registered it under his name under
TCT No. T-10706. Lot 560-B with 500 square meters was transferred to respondent
Petronilo Detalla5 and was later transferred to respondent Hubert Chiu Yulo who
registered it under his name under TCT No. T-11305. Lot 560-C was transferred and
registered under the name of respondent Paterio Lao with TCT No. T-10206. Lot 560-D
was sold to and subsequently registered in the name of Lorensita M. Padilla under TCT
No. T-10207. The remaining portion, Lot 560-E consisting of 43,608 square meters was
bought by respondent Immaculate Concepcion College and was registered in its name
under TCT No. T-10208.6
On June 19, 1986, the parties in the appeal which sought to annul the adoption of
petitioner Pedrosa filed a joint Motion to Dismiss. On June 25, 1986, the Court of
Appeals dismissed the appeal but upheld the validity of the adoption of petitioner.
Thereafter, petitioner sent her daughter, Loreto Jocelyn, to claim their share of the
properties from the Rodriguezes. The latter refused saying that Maria Elena and Loreto
were not heirs since they were not their blood relatives.
Petitioner, then, filed a complaint to annul the 1983 partition. The said complaint was
filed on January 28, 1987. Said complaint was later amended on March 25, 1987 to

include the allegation "that earnest efforts toward a compromise were made between the
plaintiffs and the defendants, but the same failed."7
The Regional Trial Court dismissed the complaint.
Petitioner appealed to the Court of Appeals. The appellate court affirmed the decision of
the trial court. Its ruling was premised on the following grounds:8
1) that the participation of Rosalina has already estopped her from questioning the
validity of the partition, and since she is already estopped, it naturally follows that Maria
Elena, her successor-in-interest, is likewise estopped, applying Article 1439 of the Civil
Code;
2) that the appeal of Maria Elena and her claim that the partition is null and void is
weakened by her inconsistent claim that the partition would have been alright had she
been given a more equitable share;
3) the action is essentially an action for rescission and had been filed late considering that
it was filed beyond the 4 year period provided for in Article 1100 of the Civil Code;9
4) that fraud and/or bad faith was never established.
Petitioner filed a Motion for Reconsideration, which was denied by the Court of Appeals
in a Resolution dated December 20, 1994.10
Hence, this petition wherein the petitioner asserts that the following errors were allegedly
committed by the Court of Appeals in I. FINDING THAT THE EXTRAJUDICIAL SETTLEMENT AND PARTITION
ENTERED INTO BY DEFENDANT JUREDINI AND DEFENDANTS-APPELLANTS
RODRIGUEZES WAS VALID AND BINDING UPON THE PLAINTIFF-APPELLANT
WHO DID NOT PARTICIPATE IN SAID TRANSACTION
II. CONCLUDING THAT THE CLAIM OF PLAINTIFF-APPELLANT HAVE
ALREADY PRESCRIBED TWO (2) YEARS AFTER PUBLICATION OF THE
EXTRAJUDICIAL SETTLEMENT AND PARTITION IN THE NEWSPAPER OF
GENERAL CIRCULATION
III. ...CONCLUDING THAT THE CLAIM OF PLAINTIFF-APPELLANT IS
BARRED OR ESTOPPED IN FILING THIS CASE (sic) IN VIEW OF THE
DISMISSAL OF THE APPEAL IN CIVIL CASE NO. OZ 349 INTERPOSED BY
HEREIN DEFENDANTS-APPELLEES WHO WERE THEN PLAINTIFFSAPPELLANTS IN AC [C]-G.R. NO. SP-00208
IV. SUSTAINING THE DEFENDANT-APPELLEES' CLAIM THAT AS THEY
HAVE NOT AS YET RECOGNIZED PLAINTIFF-APPELLANT AS AN ADOPTED
DAUGHTER OF MIGUEL RODRIGUEZ IT WAS NOT NECESSARY FOR THEM TO

HAVE HER PARTICIPATE IN THE EXTRAJUDICIAL SETTLEMENT, EXHIBITS

"S" AND "I"
V. CONCLUDING THAT THE PLAINTIFF-APPELLANT HAD NOT
CONCLUSIVELY SHOWN THAT MIGUEL RODRIGUEZ WAS A CO-OWNER OF
THE LANDS SOLD AND HENCE IT FOLLOWS THAT SHE HAS NO RIGHT OF
REDEMPTION OF THOSE LANDS
VI. FINDING THAT PORTION OF LOTS NOS. 504 AND 560 SOLD TO THE
OTHER DEFENDANTSAPPELLEES WERE CLEAN AND FREE FROM
ENCUMBRANCES OR ANY FLAWS HENCE WERE VALID
VII. FINDING THAT THE PLANTIFFAPPELLANT NEVER APPEARED IN
COURT TO TESTIFY OR REBUT THE ASSERTIONS OF THE DEFENDANTS
APPELLANTS THAT THERE WAS A VALID PARTITION
VIII. AWARDING PLAINTIFFAPPELLANT DAMAGES FOR THE INCOME
OF HER SHARE IN THE PROPERTIES IN QUESTION11
In sum, the issues to be resolved in our view are (1) whether or not the complaint for
annulment of the "Deed of Extrajudicial Settlement and Partition" had already prescribed;
(2) whether or not said deed is valid; and (3) whether or not the petitioner is entitled to
recover the lots which had already been transferred to the respondent buyers.
Petitioner argues that the complaint for annulment of the extrajudicial partition has not
yet prescribed since the prescriptive period which should be applied is four years
following the case of Beltran vs. Ayson, 4 SCRA 69 (1962). She also avers that Sec. 4,
Rule 74 which provides for a two-year prescriptive period needs two requirements. One,
the party assailing the partition must have been given notice, and two, the party assailing
the partition must have participated therein. Petitioner insists these requirements are not
present in her case,12 since she did not participate in the "Deed of Extrajudicial
Settlement and Partition." She cites Villaluz vs. Neme, 7 SCRA 27, 30 (1963), where we
held that a deed of extrajudicial partition executed without including some of the heirs,
who had no knowledge and consent to the same, is fraudulent. She asserts that she is an
adoptive daughter and thus an heir of Miguel.13
Petitioner also contends that the respondent buyers were buyers in bad faith since they
failed to exercise the necessary due diligence required before purchasing the lots in
question.14 In the alternative, petitioner wants to redeem the said lots as a co-owner of
respondent Rodriguezes under the provisions of Article 1620 of the New Civil Code.15
Lastly, petitioner asserts that she will suffer lesion if the partition would be allowed. She
asks for the rescission of the said partitioning under Articles 165-175 of the Civil
Code.16
Respondents, in response, claim that the action of petitioner had already prescribed. In
addition, they argue that petitioner, Maria Elena, and Rosalina already have their shares

in the estate of Miguel Rodriguez reflected in the compromise agreement they entered
into with the respondent Rodriguezes in AC- G.R. SP 00208. Finally, respondents aver
that the non-participation of Maria Elena in the extrajudicial partition was understandable
since her status as an adopted child was then under litigation. In any case, they assert that
the shares of Miguel's heirs were adequately protected in the said partition.17
Section 4, Rule 7418 provides for a two year prescriptive period (1) to persons who have
participated or taken part or had notice of the extrajudicial partition, and in addition (2)
when the provisions of Section 119 of Rule 74 have been strictly complied with, i.e., that
all the persons or heirs of the decedent have taken part in the extrajudicial settlement or
are represented by themselves or through guardians.20
Petitioner, as the records confirm, did not participate in the extrajudicial partition.
Patently then, the two-year prescriptive period is not applicable in her case.
The applicable prescriptive period here is four (4) years as provided in Gerona vs. De
Guzman, 11 SCRA 153 (1964), which held that:
[The action to annul] a deed of "extrajudicial settlement" upon the ground of fraud...may
be filed within four years from the discovery of the fraud. Such discovery is deemed to
have taken place when said instrument was filed with the Register of Deeds and new
certificates of title were issued in the name of respondents exclusively.21
Considering that the complaint of the petitioner was filed on January 28, 1987, or three
years and ten months after the questioned extrajudicial settlement dated March 11, 1983,
was executed, we hold that her action against the respondents on the basis of fraud has
not yet prescribed.
Section 1 of Rule 74 of the Rules of Court is the applicable rule on publication of
extrajudicial settlement. It states:
The fact of the extrajudicial settlement or administration shall be published in a
newspaper of general circulation in the manner provided in the next succeeding section;
but no extrajudicial settlement shall be binding upon any person who has not participated
therein or had no notice thereof.22
Under said provision, without the participation of all persons involved in the proceedings,
the extrajudicial settlement cannot be binding on said persons. The rule contemplates a
notice which must be sent out or issued before the Deed of Settlement and/or Partition is
agreed upon, i.e., a notice calling all interested parties to participate in the said deed of
extrajudicial settlement and partition, not after, which was when publication was done in
the instant case. Following Rule 74 and the ruling in Beltran vs. Ayson, since Maria Elena
did not participate in the said partition, the settlement is not binding on her.
The provision of Section 4, Rule 74 will also not apply when the deed of extrajudicial
partition is sought to be annulled on the ground of fraud. A deed of extrajudicial partition
executed without including some of the heirs, who had no knowledge of and consent to

the same, is fraudulent and vicious.23 Maria Elena is an heir of Miguel together with her
adopting mother, Rosalina. Being the lone descendant of Miguel, she excludes the
collateral relatives of Miguel from participating in his estate, following the provisions of
Article 1003 of the Civil Code.24 The private respondent Rodriguezes cannot claim that
they were not aware of Maria Elena's adoption since they even filed an action to annul the
decree of adoption. Neither can they claim that their actions were valid since the adoption
of Maria Elena was still being questioned at the time they executed the deed of partition.
The complaint seeking to annul the adoption was filed only twenty six (26) years after the
decree of adoption, patently a much delayed response to prevent Maria Elena from
inheriting from her adoptive parents. The decree of adoption was valid and existing. With
this factual setting, it is patent that private respondents executed the deed of partition in
bad faith with intent to defraud Maria Elena.
In the case of Segura vs. Segura, the Court held:
This section [referring to section 4, Rule 74] provides in gist that a person who has been
deprived of his lawful participation in the estate of the decedent, whether as heir or as
creditor, must assert his claim within two years after the extrajudicial or summary
settlement of such estate under Sections 1 and 2 respectively of the same Rule 74.
Thereafter, he will be precluded from doing so as the right will have prescribed.
It is clear that Section 1 of Rule 74 does not apply to the partition in question which was
null and void as far as the plaintiffs were concerned. The rule covers only valid partitions.
The partition in the present case was invalid because it excluded six of the nine heirs who
were entitled to equal shares in the partitioned property. Under the rule, "no extrajudicial
settlement shall be binding upon any person who has not participated therein or had no
notice thereof." As the partition was a total nullity and did not affect the excluded heirs, it
was not correct for the trial court to hold that their right to challenge the partition had
prescribed after two years from its execution in 1941.25
To say that Maria Elena was represented by Rosalina in the partitioning is imprecise.
Maria Elena, the adopted child, was no longer a minor at the time Miguel died. Rosalina,
only represented her own interests and not those of Maria Elena. Since Miguel
predeceased Pilar, a sister, his estate automatically vested to his child and widow, in equal
shares. Respondent Rodriguezes' interests did not include Miguel's estate but only Pilar's
estate.
Could petitioner still redeem the properties from buyers? Given the circumstances in this
case, we are constrained to hold that this is not the proper forum to decide this issue. The
properties sought to be recovered by the petitioner are now all registered under the name
of third parties. Well settled is the doctrine that a Torrens Title cannot be collaterally
attacked. The validity of the title can only be raised in an action expressly instituted for
such purpose.26

Petitioner asks for the award of damages. No receipts, agreements or any other
documentary evidence was presented to justify such claim for damages. Actual damages,
to be recoverable, must be proved with a reasonable degree of certainty. Courts cannot
simply rely on speculation, conjecture or guesswork in determining the fact and amount
of damages.27 The same is true for moral damages. These cannot be awarded in the
absence of any factual basis.28 The unsubstantiated testimony of Loreto Jocelyn Pedrosa
is hearsay and has no probative value. It is settled in jurisprudence that damages may not
be awarded on the basis of hearsay evidence.29 Nonetheless, the failure of the petitioner
to substantiate her claims for damages does not mean that she will be totally deprived of
any damages. Under the law, nominal damages are awarded, so that a plaintiff's right,
which has been invaded or violated by defendants may be vindicated and recognized.30
Considering that (1) technically, petitioner sustained injury but which, unfortunately, was
not adequately and properly proved, (2) petitioner was unlawfully deprived of her legal
participation in the partition of the estate of Miguel, her adoptive father, (3) respondents
had transferred portions of the properties involved to third parties, and (4) this case has
dragged on for more than a decade, we find it reasonable to grant in petitioner's favor
nominal damages in recognition of the existence of a technical injury.31 The amount to
be awarded as such damages should at least commensurate to the injury sustained by the
petitioner considering the concept and purpose of said damages.32 Such award is given in
view of the peculiar circumstances cited and the special reasons extant in this case.33
Thus, the grant of ONE HUNDRED THOUSAND (P100,000.00) PESOS to petitioner as
damages is proper in view of the technical injury she has suffered.
WHEREFORE, the petition is GRANTED. The assailed decision of the Court of Appeals
is hereby REVERSED and SET ASIDE. The "Deed of Extrajudicial Settlement and
Partition" executed by private respondents on March 11, 1983 is declared invalid. The
amount of P100,000.00 is hereby awarded to petitioner as damages to be paid by private
respondents, who are also ordered to pay the costs.
SO ORDERED.
Bellosillo, Mendoza, Buena, and De Leon, Jr., JJ., concur.

Sec. 5
1. In Re:Francisco v. Carreon, G.R. No. L-5033, June 23, 1954
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-5033

June 28, 1954

In the matter of the Summary Settlement of the intestate estate of the deceased
JOSE M. FRANCISCO, TIBURCIA M. VDA. DE FRANCISCO, administratrixappellees,
vs.
FAUSTA CARREON and CATALINA CARREON, oppositors-appellants.
Celestino L. de Dios for appellants.
Pedro Magsalin for appellee.
BENGZON, J.:
September 2, 1947, Rosa Aldana Francisco petitioned the Court of First Instance of Rizal
summarily to settle the estate of her husband Jose M. Francisco who had died in 1944.
Alleging under oath that they had three minor children who were his legal heirs, and that
the deceased left a parcel of land with house thereon, and no creditors, she asked for
declaration that the persons entitled to share in his estate are the said three minor
children, with herself as usufructuary.
In connection with her petition she requested for appointment as guardian ad item of her
three minor children, and her request was granted in due course.
After the requisite publication, the petition was heard, and later approved by an order
dated November 29, 1947, declaring "the petitioner Rosa Aldana Francisco, and her
children Jose Francisco Jr., Thelma Francisco and Aurelio Francisco as the only heirs of
the deceased" and adjudicating unto the said heirs the above-mentioned property in the
proportion of one-half undivided share to the widow, and the other half in equal parts, to
the said children.
This order was registered in the office of the Register of Deeds, who issued thereafter
(January 15, 1948) a new certificate of title in the names and in the proportion already
stated.
August 4, 1948, Rosa Aldana Francisco mortgaged her share of the realty to the sisters
Fausta Carreon and Catalina Carreon for the sum of P13,000, and the deed of mortgage
was duly registered August 16, 1948. Afterwards, on January 19, 1950 she conveyed by
absolute deed of sale, to the aforesaid creditors, her interest and participation in the land.
This sale was likewise inscribed in the office of the Register of Deeds.
However, in a motion of March 14, 1950, Tiburcia Magsalin Vda. de Francisco, mother
of the deceased Jose M. Francisco, allegedly in representation of the minor Jose
Francisco y Palumpon, seventeen, averred that this minor was a recognized natural son of
the deceased, with legal right to participate in his estate, that the previous proceedings
were void because Rosa Aldana Francisco had concealed such fact, and because she had
interests in conflict with those of her three sons, the truth being that the land was private
property of Jose M. Francisco of which she could not have been awarded a portion in fee
simple.

Tiburcia prayed specifically for the following remedies:

(a) Her appointment as guardian ad item of Jose Francisco y Palumpon; (b) her
appointment as guardian ad item of the three legitimate children Jose, Thelma and
Aurelio, in place of Rosa Aldana Francisco; (c) declaration that Jose Francisco y
Palumpon was a recognized natural child of the deceased with the right to inherit; (d)
annulment of the order of November 29, 1947, with the adjudication that the only heirs of
the deceased are the four children already named, the widow being entitled to usufruct
only; (e) annulment of the mortgage and sale executed by Rosa Aldana Francisco in favor
of the Carreon sisters; and (f) appropriate instruction to the Register of Deeds.
Oppositions to the motion were presented by Rosa Aldana Francisco and by the two
sisters Fausta and Catalina Carreon.
One of the objectors pointed out that Tiburcia Magsalin could not be named guardian of
the natural and the legitimate children, because she would then be representing interests
in conflict. Wherefore the court chose to appoint, and did appoint, the natural mother of
Jose Francisco y Palumpon (Macaria Palumpon) as his guardian ad item even as it named
Tiburcia Magsalin Vda. de Francisco the guardian ad item of the minors, legitimate
children Jose Thelma and Aurelio.
Now, when the motion to annul or reopen was called for hearing, Macaria Palumpon
requested in open court the dismissal, without prejudice, of Jose Francisco y Palumpon's
demand for recognition. Her request was granted; but the court announced that the three
minor children's petition for reopening of the order adjudicating one-half to Rosa Aldana
Francisco, with all consequent effects upon the mortgage and sale, will be taken up later,
i.e., on May 5, 1950.
Both Rosa Aldana and the Carreons moved for reconsideration, contending that,
inasmuch as Jose Francisco y Palumpon had withdrawn, there was no authority to
continue, for the matter became a closed incident.
Thereafter, and probably to meet objections, Tiburcia Magsalin Vda. de Francisco, as
guardian ad item of the three legitimate, submitted an "amended motion" wherein she
made practically the same allegations of her previous motion and prayed for identical
remedies except those touching the recognition of Jose Francisco y Palumpon.
Overruling objections, the court admitted the amended motion, heard it granting the
interested parties opportunity to present their evidence and arguments, and rendered
judgment holding the realty was private property of the deceased Jose Francisco, who had
acquired it four years before his marriage to Rosa Aldana. Wherefore it revoked the order
of November 29, 1947; it held that the whole property passed to the ownership of the
three legitimate children of the deceased, subject to usufructuary rights of the widow; it
annulled the mortgage and the sale executed by Rosa Aldana in favor of the Carreon
sisters, and then issued other appropriate instructions to the Register of Deeds.

Rosa Aldana acquiesced in the resolution. Not the Carreon sisters, who appealed in due
time, asserting the court erred: (1) in continuing to hear the motion for reopening, even
after the natural child had withdrawn from the litigation and (2) in taking cognizance of
the annulment of the mortgage and sale, which it could validly consider as a probate
court.
Arguing their first assignment of error, the appellants assert that Jose Francisco y
Palumpon was the only one applying for positive relief recognition as natural child
and that once his petition for recognition had been withdrawn, the court had no
jurisdiction in ordering the continuance of the hearing in so far as the other heirs were
concerned. The "amended motion", appellants add, could serve no purpose, because the
motion was not susceptible to any amendment, for it had ceased to exist. Strictly
speaking, and at first blush, appellants seem to be correct. Yet inasmuch as the original
order granting the widow Rosa Aldana one-half of the property was entirely erroneous,
and she apparently failed to fully protect her children's right, their point results in pure
technicality on which "scant consideration" is ordinarily bestowed.1 All the more when it
serves to promote unfair advantage.
Nevertheless, let us carefully examine the motion of March 14, 1950. It is signed by
Tiburcia Magsalin. In it she asked for appointment as guardian ad item for the natural
child and for the three legitimate children. She asked for remedial measures beneficial to
the four children. Hence, the motion may be regarded in a spirit of liberality, as
interposed on behalf of the said four children not only a motion of the natural child. It
is true that the motion begins, "Comparece el menor Jose Francisco y Palumpon, quien en
este case sera representado por su curadura-ad-litem etc."; but that did not necessarily
exclude the other children for whom relief was prayed. Precisely, because the complaint
also prayed for relief beneficial to the three legitimate children contrary to the interests
of the natural child as hereinbefore related the court declined to permit Tiburcia
Magsalin to represent the four children, but allowed her to act for three only. At any rate
"parties may be dropped or added by order of the court on motion of any party or of its
own initiatives at any stage of the action and on such terms as are just".2 And in line with
this receipt, the court's position may equitably be upheld.
Again, supposing the original motion of March 14 did not afford legal standing to the
three legitimate children, and that it could not be "amended", as contended by appellants,
we perceive no reason to prevent the court below from considering such amended motion
as a new and independent petition in the expediente, filed expressly on behalf of the three
minor children.3 The matter of time might conceivably be material in regard in
considering the "amended" motion as "original" motion; but in this case it happens to be
immaterial, because under section 5 of Rule 74 such motion may be lodged with the court
within one year after the minors have reached majority; and they are still minors now.
Incidentally this section 5 fully answers appellants' contention that Tiburcia's moves
should have been initiated within two years after November 8, 1947.

Appellants may not justly complain that they thought such petition for readjustment or
reopening could take place only within two years as prescribed by section 4 of Rule 74
and as annotated in the certificate of title; because they are conclusively presumed to
know the existence and provisions of section 5, Rule 74. As the trial judge correctly
observed:
But the whole trouble is that they accepted the mortgage with the encumbrance
annotated; and while it referred to Rule 74, Section 4, and did not specifically mention
section 5, the fact that section 4, Rule 74 was therein noted should have been sufficient
warning to them that the title was subject to the interest of persons unduly prejudiced
hereby. We take judicial notice of the fact that in the adjudication in summary settlements
more often that not, the order merely says that the sale shall be subject to the provisions
of section 4, Rule 74. This is the case because the Court can not foresee whether the
movant would be affected; but section 5 being an imposition of the law, and being a mere
sequence to the provisions of Section 4; we hold that where the title on its face shows that
it was subject to the provisions of Rule 74, section 4, a third person who accepts it must
take notice that he is running the risk of interferring with the rights of minors as provided
under section 5, Rule 74.
Contrary to appellants' claim, relief for the minors cannot be directed against the bond
which, according to appellants, should have been demanded under section 3, Rule 74,
because that section applies where personal property is distributed not where, as here,
realty is the subject of partition.
Last stand of appellants is the proposition that the court of first instance of Rizal, acting
as probate court, had no jurisdiction to act on the petition, which should have been the
subject of a separate action. And the case of Mendiola vs. Mendiola 7 Phil., p. 7 is cited;
but such precedent is inapplicable, because there a partition by contract was signed by the
parties who were all of age.
Of course, several decisions hold that "If during the summary proceeding some of the
heirs claim, by title adverse to that of the decedent, some parcels of land, the probate
court has no jurisdiction to pass upon the issue which must be decided in a separate
suit".4 But here there is no question that the realty belonged to the decedent; and a
separate suit was unnecessary, specially remembering that in these summary settlements
the judge is expected to "proceed summarily" and "without delay" "to determine who are
the persons legally entitled to participate in the estate, and to apportion and divide it
among them."5
The resolution under review apportions property admittedly belonging to the decedent
among his legal heirs. It is no objection that it affects the herein appellants. They knew or
ought to know the rule permitting such to reapportionment even after two years, and they
have been given every chance to be heard, having been by their own petition, regarded as
parties to the entire proceedings. And section 4, Rule 74 (which must be deemed
extensible to situations covered by section 5, Rule 74) expressly authorizes the court to

give to every heir his lawful participation in the real estate "notwithstanding any transfers
of such real estate" and to "issue execution" thereon. All this implies that, when within
the amendatory period the realty has been alienated, the court in re-dividing it among the
heirs has authority to direct cancellation of such alienation in the same estate
proceedings, whenever it becomes necessary to do so. To require the institution of a
separate action for such annulment would run counter to the letter of the above rule and
the spirit of these summary settlements.
From the foregoing, the conclusion follows that no prejudicial error was committed by
the lower court, whose order is, consequently, affirmed with costs.
Paras, C. J., Pablo, Padilla, Montemayor, Reyes, A., Jugo, Bautista Angelo, Labrador and
Concepcion, JJ., concur.

Rule 75
Sec.1
1. Pastor Jr. v. CA, 207 Phil. 758 (1983)
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-56340 June 24, 1983
SPOUSES ALVARO PASTOR, JR. and MA. ELENA ACHAVAL DE PASTOR,
petitioners,
vs.
THE COURT OF APPEALS, JUAN Y. REYES, JUDGE OF BRANCH I, COURT OF
FIRST INSTANCE OF CEBU and LEWELLYN BARLITO QUEMADA, respondents.
Pelaez, Pelaez, & Pelaez Law Office for petitioners.
Ceniza, Rama & Associates for private respondents.

PLANA, J.:
I. FACTS:
This is a case of hereditary succession.

Alvaro Pastor, Sr. (PASTOR, SR.), a Spanish subject, died in Cebu City on June 5, 1966,
survived by his Spanish wife Sofia Bossio (who also died on October 21, 1966), their two
legitimate children Alvaro Pastor, Jr. (PASTOR, JR.) and Sofia Pastor de Midgely
(SOFIA), and an illegitimate child, not natural, by the name of Lewellyn Barlito
Quemada QUEMADA PASTOR, JR. is a Philippine citizen, having been naturalized in
1936. SOFIA is a Spanish subject. QUEMADA is a Filipino by his mother's citizenship.
On November 13, 1970, QUEMADA filed a petition for the probate and allowance of an
alleged holographic will of PASTOR, SR. with the Court of First Instance of Cebu,
Branch I (PROBATE COURT), docketed as SP No. 3128-R. The will contained only one
testamentary disposition: a legacy in favor of QUEMADA consisting of 30% of
PASTOR, SR.'s 42% share in the operation by Atlas Consolidated Mining and
Development Corporation (ATLAS) of some mining claims in Pina-Barot, Cebu.
On November 21, 1970, the PROBATE COURT, upon motion of QUEMADA and after
an ex parte hearing, appointed him special administrator of the entire estate of PASTOR,
SR., whether or not covered or affected by the holographic will. He assumed office as
such on December 4, 1970 after filing a bond of P 5,000.00.
On December 7, 1970, QUEMADA as special administrator, instituted against PASTOR,
JR. and his wife an action for reconveyance of alleged properties of the estate, which
included the properties subject of the legacy and which were in the names of the spouses
PASTOR, JR. and his wife, Maria Elena Achaval de Pastor, who claimed to be the owners
thereof in their own rights, and not by inheritance. The action, docketed as Civil Case No.
274-R, was filed with the Court of First Instance of Cebu, Branch IX.
On February 2, 1971, PASTOR, JR. and his sister SOFIA filed their opposition to the
petition for probate and the order appointing QUEMADA as special administrator.
On December 5, 1972, the PROBATE COURT issued an order allowing the will to
probate. Appealed to the Court of Appeals in CA-G.R. No. 52961- R, the order was
affirmed in a decision dated May 9, 1977. On petition for review, the Supreme Court in
G.R. No. L-46645 dismissed the petition in a minute resolution dated November 1, 1977
and remanded the same to the PROBATE COURT after denying reconsideration on
January 11, 1978.
For two years after remand of the case to the PROBATE COURT, QUEMADA filed
pleading after pleading asking for payment of his legacy and seizure of the properties
subject of said legacy. PASTOR, JR. and SOFIA opposed these pleadings on the ground
of pendency of the reconveyance suit with another branch of the Cebu Court of First
Instance. All pleadings remained unacted upon by the PROBATE COURT.
On March 5, 1980, the PROBATE COURT set the hearing on the intrinsic validity of the
will for March 25, 1980, but upon objection of PASTOR, JR. and SOFIA on the e ground
of pendency of the reconveyance suit, no hearing was held on March 25. Instead, the
PROBATE COURT required the parties to submit their respective position papers as to

how much inheritance QUEMADA was entitled to receive under the wig. Pursuant
thereto, PASTOR. JR. and SOFIA submitted their Memorandum of authorities dated
April 10, which in effect showed that determination of how much QUEMADA should
receive was still premature. QUEMADA submitted his Position paper dated April 20,
1980. ATLAS, upon order of the Court, submitted a sworn statement of royalties paid to
the Pastor Group of tsn from June 1966 (when Pastor, Sr. died) to February 1980. The
statement revealed that of the mining claims being operated by ATLAS, 60% pertained to
the Pastor Group distributed as follows:
1. A. Pastor, Jr. ...................................40.5%
2. E. Pelaez, Sr. ...................................15.0%
3. B. Quemada .......................................4.5%
On August 20, 1980, while the reconveyance suit was still being litigated in Branch IX of
the Court of First Instance of Cebu, the PROBATE COURT issued the now assailed
Order of Execution and Garnishment, resolving the question of ownership of the royalties
payable by ATLAS and ruling in effect that the legacy to QUEMADA was not
inofficious. [There was absolutely no statement or claim in the Order that the Probate
Order of December 5, 1972 had previously resolved the issue of ownership of the mining
rights of royalties thereon, nor the intrinsic validity of the holographic will.]
The order of August 20, 1980 found that as per the holographic will and a written
acknowledgment of PASTOR, JR. dated June 17, 1962, of the above 60% interest in the
mining claims belonging to the Pastor Group, 42% belonged to PASTOR, SR. and only
33% belonged to PASTOR, JR. The remaining 25% belonged to E. Pelaez, also of the
Pastor Group. The PROBATE COURT thus directed ATLAS to remit directly to
QUEMADA the 42% royalties due decedent's estate, of which QUEMADA was
authorized to retain 75% for himself as legatee and to deposit 25% with a reputable
banking institution for payment of the estate taxes and other obligations of the estate. The
33% share of PASTOR, JR. and/or his assignees was ordered garnished to answer for the
accumulated legacy of QUEMADA from the time of PASTOR, SR.'s death, which
amounted to over two million pesos.
The order being "immediately executory", QUEMADA succeeded in obtaining a Writ of
Execution and Garnishment on September 4, 1980, and in serving the same on ATLAS on
the same day. Notified of the Order on September 6, 1980, the oppositors sought
reconsideration thereof on the same date primarily on the ground that the PROBATE
COURT gravely abused its discretion when it resolved the question of ownership of the
royalties and ordered the payment of QUEMADA's legacy after prematurely passing
upon the intrinsic validity of the will. In the meantime, the PROBATE COURT ordered
suspension of payment of all royalties due PASTOR, JR. and/or his assignees until after
resolution of oppositors' motion for reconsideration.

Before the Motion for Reconsideration could be resolved, however, PASTOR, JR., this
time joined by his wife Ma. ELENA ACHAVAL DE PASTOR, filed with the Court of
Appeals a Petition for certiorari and Prohibition with a prayer for writ of preliminary
injunction (CA-G.R. No. SP- 11373-R). They assailed the Order dated August 20, 1980
and the writ of execution and garnishment issued pursuant thereto. The petition was
denied on November 18, 1980 on the grounds (1) that its filing was premature because
the Motion for Reconsideration of the questioned Order was still pending determination
by the PROBATE COURT; and (2) that although "the rule that a motion for
reconsideration is prerequisite for an action for certiorari is never an absolute rule," the
Order assailed is "legally valid. "
On December 9, 1980, PASTOR, JR. and his wife moved for reconsideration of the Court
of Appeal's decision of November 18, 1980, calling the attention of the appellate court to
another order of the Probate Court dated November 11, 1980 (i.e., while their petition for
certiorari was pending decision in the appellate court), by which the oppositors' motion
for reconsideration of the Probate Court's Order of August 20, 1980 was denied. [The
November 11 Order declared that the questions of intrinsic validity of the will and of
ownership over the mining claims (not the royalties alone) had been finally adjudicated
by the final and executory Order of December 5, 1972, as affirmed by the Court of
Appeals and the Supreme Court, thereby rendering moot and academic the suit for
reconveyance then pending in the Court of First Instance of Cebu, Branch IX. It clarified
that only the 33% share of PASTOR, JR. in the royalties (less than 7.5% share which he
had assigned to QUEMADA before PASTOR, SR. died) was to be garnished and that as
regards PASTOR, SR.'s 42% share, what was ordered was just the transfer of its
possession to the custody of the PROBATE COURT through the special administrator.
Further, the Order granted QUEMADA 6% interest on his unpaid legacy from August
1980 until fully paid.] Nonetheless, the Court of Appeals denied reconsideration.
Hence, this Petition for Review by certiorari with prayer for a writ of pre y injunction,
assailing the decision of the Court of Appeals dated November 18, 1980 as well as the
orders of the Probate Court dated August 20, 1980, November 11, 1980 and December
17, 1980, Med by petitioners on March 26, 1981, followed by a Supplemental Petition
with Urgent Prayer for Restraining Order.
In April 1981, the Court (First Division) issued a writ of preliminary injunction, the
lifting of which was denied in the Resolution of the same Division dated October 18,
1982, although the bond of petitioners was increased from P50,000.00 to P100,000.00.
Between December 21, 1981 and October 12, 1982, private respondent filed seven
successive motions for early resolution. Five of these motions expressly prayed for the
resolution of the question as to whether or not the petition should be given due course.
On October 18, 1982, the Court (First Division) adopted a resolution stating that "the
petition in fact and in effect was given due course when this case was heard on the merits
on September 7, (should be October 21, 1981) and concise memoranda in amplification

of their oral arguments on the merits of the case were filed by the parties pursuant to the
resolution of October 21, 1981 . . . " and denied in a resolution dated December 13, 1982,
private respondent's "Omnibus motion to set aside resolution dated October 18, 1982 and
to submit the matter of due course to the present membership of the Division; and to
reassign the case to another ponente."
Upon Motion for Reconsideration of the October 18, 1982 and December 13, 1982
Resolutions, the Court en banc resolved to CONFIRM the questioned resolutions insofar
as hey resolved that the petition in fact and in effect had been given due course.
II. ISSUES:
Assailed by the petitioners in these proceedings is the validity of the Order of execution
and garnishment dated August 20, 1980 as well as the Orders subsequently issued
allegedly to implement the Probate Order of December 5, 1972, to wit: the Order of
November 11, 1980 declaring that the Probate Order of 1972 indeed resolved the issues
of ownership and intrinsic validity of the will, and reiterating the Order of Execution
dated August 20, 1980; and the Order of December 17, 1980 reducing to P2,251,516.74
the amount payable to QUEMADA representing the royalties he should have received
from the death of PASTOR, SR. in 1966 up to February 1980.
The Probate Order itself, insofar as it merely allowed the holographic will in probate, is
not questioned. But petitioners denounce the Probate Court for having acted beyond its
jurisdiction or with grave abuse of discretion when it issued the assailed Orders. Their
argument runs this way: Before the provisions of the holographic win can be
implemented, the questions of ownership of the mining properties and the intrinsic
validity of the holographic will must first be resolved with finality. Now, contrary to the
position taken by the Probate Court in 1980 i.e., almost eight years after the probate of
the will in 1972 the Probate Order did not resolve the two said issues. Therefore, the
Probate Order could not have resolved and actually did not decide QUEMADA's
entitlement to the legacy. This being so, the Orders for the payment of the legacy in
alleged implementation of the Probate Order of 1972 are unwarranted for lack of basis.
Closely related to the foregoing is the issue raised by QUEMADA The Probate Order of
1972 having become final and executory, how can its implementation (payment of
legacy) be restrained? Of course, the question assumes that QUEMADA's entitlement to
the legacy was finally adjudged in the Probate Order.
On the merits, therefore, the basic issue is whether the Probate Order of December 5,
1972 resolved with finality the questions of ownership and intrinsic validity. A negative
finding will necessarily render moot and academic the other issues raised by the parties,
such as the jurisdiction of the Probate Court to conclusively resolve title to property, and
the constitutionality and repercussions of a ruling that the mining properties in dispute,
although in the name of PASTOR, JR. and his wife, really belonged to the decedent
despite the latter's constitutional disqualification as an alien.

On the procedural aspect, placed in issue is the propriety of certiorari as a means to assail
the validity of the order of execution and the implementing writ.
III. DISCUSSION:
1. Issue of Ownership
(a) In a special proceeding for the probate of a will, the issue by and large is restricted to
the extrinsic validity of the will, i.e., whether the testator, being of sound mind, freely
executed the will in accordance with the formalities prescribed by law. (Rules of Court,
Rule 75, Section 1; Rule 76, Section 9.) As a rule, the question of ownership is an
extraneous matter which the Probate Court cannot resolve with finality. Thus, for the
purpose of determining whether a certain property should or should not be included in the
inventory of estate properties, the Probate Court may pass upon the title thereto, but such
determination is provisional, not conclusive, and is subject to the final decision in a
separate action to resolve title. [3 Moran, Comments on the Rules of Court (1980 ed.), p.
458; Valero Vda. de Rodriguez vs. Court of Appeals, 91 SCRA 540.]
(b) The rule is that execution of a judgment must conform to that decreed in the
dispositive part of the decision. (Philippine-American Insurance Co. vs. Honorable
Flores, 97 SCRA 811.) However, in case of ambiguity or uncertainty, the body of the
decision may be scanned for guidance in construing the judgment. (Heirs of Presto vs.
Galang, 78 SCRA 534; Fabular vs. Court of Appeals, 119 SCRA 329; Robles vs. Timario.
107 Phil. 809.)
The Order sought to be executed by the assailed Order of execution is the Probate Order
of December 5, 1972 which allegedly resolved the question of ownership of the disputed
mining properties. The said Probate Order enumerated the issues before the Probate
Court, thus:
Unmistakably, there are three aspects in these proceedings: (1) the probate of the
holographic will (2) the intestate estate aspect; and (3) the administration proceedings for
the purported estate of the decedent in the Philippines.
In its broad and total perspective the whole proceedings are being impugned by the
oppositors on jurisdictional grounds, i.e., that the fact of the decedent's residence and
existence of properties in the Philippines have not been established.
Specifically placed in issue with respect to the probate proceedings are: (a) whether or
not the holographic will (Exhibit "J") has lost its efficacy as the last will and testament
upon the death of Alvaro Pastor, Sr. on June 5, 1966, in Cebu City, Philippines; (b)
Whether or not the said will has been executed with all the formalities required by law;
and (c) Did the late presentation of the holographic will affect the validity of the same?
Issues In the Administration Proceedings are as follows: (1) Was the ex- parte
appointment of the petitioner as special administrator valid and proper? (2) Is there any
indispensable necessity for the estate of the decedent to be placed under administration?

(3) Whether or not petition is qualified to be a special administrator of the estate; and (4)
Whether or not the properties listed in the inventory (submitted by the special
administrator but not approved by the Probate Court) are to be excluded.
Then came what purports to be the dispositive portion:
Upon the foregoing premises, this Court rules on and resolves some of the problems and
issues presented in these proceedings, as follows:
(a) The Court has acquired jurisdiction over the probate proceedings as it hereby allows
and approves the so-called holographic will of testator Alvaro Pastor, Sr., executed on
July 31, 1961 with respect to its extrinsic validity, the same having been duly
authenticated pursuant to the requisites or solemnities prescribed by law. Let, therefore, a
certificate of its allowance be prepared by the Branch Clerk of this Court to be signed by
this Presiding Judge, and attested by the seal of the Court, and thereafter attached to the
will, and the will and certificate filed and recorded by the clerk. Let attested copies of the
will and of the certificate of allowance thereof be sent to Atlas Consolidated Mining &
Development Corporation, Goodrich Bldg., Cebu City, and the Register of Deeds of Cebu
or of Toledo City, as the case may be, for recording.
(b) There was a delay in the granting of the letters testamentary or of administration for
as a matter of fact, no regular executor and/or administrator has been appointed up to this
time and - the appointment of a special administrator was, and still is, justified under the
circumstances to take possession and charge of the estate of the deceased in the
Philippines (particularly in Cebu) until the problems causing the delay are decided and
the regular executor and/or administrator appointed.
(c) There is a necessity and propriety of a special administrator and later on an executor
and/or administrator in these proceedings, in spite of this Court's declaration that the
oppositors are the forced heirs and the petitioner is merely vested with the character of a
voluntary heir to the extent of the bounty given to him (under) the will insofar as the
same will not prejudice the legitimes of the oppositorfor the following reasons:
1. To submit a complete inventory of the estate of the decedent-testator Alvaro Pastor, Sr.
2. To administer and to continue to put to prolific utilization of the properties of the
decedent;
3. To keep and maintain the houses and other structures and belonging to the estate, since
the forced heirs are residing in Spain, and prepare them for delivery to the heirs in good
order after partition and when directed by the Court, but only after the payment of estate
and inheritance taxes;
(d) Subject to the outcome of the suit for reconveyance of ownership and possession of
real and personal properties in Civil Case No. 274-T before Branch IX of the Court of
First Instance of Cebu, the intestate estate administration aspect must proceed, unless,
however, it is duly proven by the oppositors that debts of the decedent have already been

paid, that there had been an extrajudicial partition or summary one between the forced
heirs, that the legacy to be given and delivered to the petitioner does not exceed the free
portion of the estate of the testator, that the respective shares of the forced heirs have
been fairly apportioned, distributed and delivered to the two forced heirs of Alvaro
Pastor, Sr., after deducting the property willed to the petitioner, and the estate and
inheritance taxes have already been paid to the Government thru the Bureau of Internal
Revenue.
The suitability and propriety of allowing petitioner to remain as special administrator or
administrator of the other properties of the estate of the decedent, which properties are
not directly or indirectly affected by the provisions of the holographic will (such as bank
deposits, land in Mactan etc.), will be resolved in another order as separate incident,
considering that this order should have been properly issued solely as a resolution on the
issue of whether or not to allow and approve the aforestated will. (Emphasis supplied.)
Nowhere in the dispositive portion is there a declaration of ownership of specific
properties. On the contrary, it is manifest therein that ownership was not resolved. For it
confined itself to the question of extrinsic validity of the win, and the need for and
propriety of appointing a special administrator. Thus it allowed and approved the
holographic win "with respect to its extrinsic validity, the same having been duly
authenticated pursuant to the requisites or solemnities prescribed by law." It declared that
the intestate estate administration aspect must proceed " subject to the outcome of the suit
for reconveyance of ownership and possession of real and personal properties in Civil
Case 274-T before Branch IX of the CFI of Cebu." [Parenthetically, although the
statement refers only to the "intestate" aspect, it defies understanding how ownership by
the estate of some properties could be deemed finally resolved for purposes of testate
administration, but not so for intestate purposes. Can the estate be the owner of a property
for testate but not for intestate purposes?] Then again, the Probate Order (while indeed it
does not direct the implementation of the legacy) conditionally stated that the intestate
administration aspect must proceed "unless . . . it is proven . . . that the legacy to be given
and delivered to the petitioner does not exceed the free portion of the estate of the
testator," which clearly implies that the issue of impairment of legitime (an aspect of
intrinsic validity) was in fact not resolved. Finally, the Probate Order did not rule on the
propriety of allowing QUEMADA to remain as special administrator of estate properties
not covered by the holographic will, "considering that this (Probate) Order should have
been properly issued solely as a resolution on the issue of whether or not to allow and
approve the aforestated will. "
(c) That the Probate Order did not resolve the question of ownership of the properties
listed in the estate inventory was appropriate, considering that the issue of ownership was
the very subject of controversy in the reconveyance suit that was still pending in Branch
IX of the Court of First Instance of Cebu.

(d) What, therefore, the Court of Appeals and, in effect, the Supreme Court affirmed en
toto when they reviewed the Probable Order were only the matters properly adjudged in
the said Order.
(e) In an attempt to justify the issuance of the Order of execution dated August 20, 1980,
the Probate Court in its Order of November 11, 1980 explained that the basis for its
conclusion that the question of ownership had been formally resolved by the Probate
Order of 1972 are the findings in the latter Order that (1) during the lifetime of the
decedent, he was receiving royalties from ATLAS; (2) he had resided in the Philippines
since pre-war days and was engaged in the mine prospecting business since 1937
particularly in the City of Toledo; and (3) PASTOR, JR. was only acting as dummy for
his father because the latter was a Spaniard.
Based on the premises laid, the conclusion is obviously far-fetched.
(f) It was, therefore, error for the assailed implementing Orders to conclude that the
Probate Order adjudged with finality the question of ownership of the mining properties
and royalties, and that, premised on this conclusion, the dispositive portion of the said
Probate Order directed the special administrator to pay the legacy in dispute.
2. Issue of Intrinsic Validity of the Holographic Will (a) When PASTOR, SR. died in 1966, he was survived by his wife, aside from his two
legitimate children and one illegitimate son. There is therefore a need to liquidate the
conjugal partnership and set apart the share of PASTOR, SR.'s wife in the conjugal
partnership preparatory to the administration and liquidation of the estate of PASTOR,
SR. which will include, among others, the determination of the extent of the statutory
usufructuary right of his wife until her death. * When the disputed Probate order was
issued on December 5, 1972, there had been no liquidation of the community properties
of PASTOR, SR. and his wife.
(b) So, also, as of the same date, there had been no prior definitive determination of the
assets of the estate of PASTOR, SR. There was an inventory of his properties presumably
prepared by the special administrator, but it does not appear that it was ever the subject of
a hearing or that it was judicially approved. The reconveyance or recovery of properties
allegedly owned but not in the name of PASTOR, SR. was still being litigated in another
court.
(c) There was no appropriate determination, much less payment, of the debts of the
decedent and his estate. Indeed, it was only in the Probate Order of December 5, 1972
where the Probate Court ordered that... a notice be issued and published pursuant to the provisions of Rule 86 of the Rules of
Court, requiring all persons having money claims against the decedent to file them in the
office of the Branch Clerk of this Court."

(d) Nor had the estate tax been determined and paid, or at least provided for, as of
December 5, 1972.
(e) The net assets of the estate not having been determined, the legitime of the forced
heirs in concrete figures could not be ascertained.
(f) All the foregoing deficiencies considered, it was not possible to determine whether the
legacy of QUEMADA - a fixed share in a specific property rather than an aliquot part of
the entire net estate of the deceased - would produce an impairment of the legitime of the
compulsory heirs.
(g) Finally, there actually was no determination of the intrinsic validity of the will in
other respects. It was obviously for this reason that as late as March 5, 1980 - more than 7
years after the Probate Order was issued the Probate Court scheduled on March 25, 1980
a hearing on the intrinsic validity of the will.
3. Propriety of certiorari
Private respondent challenges the propriety of certiorari as a means to assail the validity
of the disputed Order of execution. He contends that the error, if any, is one of judgment,
not jurisdiction, and properly correctible only by appeal, not certiorari.
Under the circumstances of the case at bar, the challenge must be rejected. Grave abuse
of discretion amounting to lack of jurisdiction is much too evident in the actuations of the
probate court to be overlooked or condoned.
(a) Without a final, authoritative adjudication of the issue as to what properties compose
the estate of PASTOR, SR. in the face of conflicting claims made by heirs and a non-heir
(MA. ELENA ACHAVAL DE PASTOR) involving properties not in the name of the
decedent, and in the absence of a resolution on the intrinsic validity of the will here in
question, there was no basis for the Probate Court to hold in its Probate Order of 1972,
which it did not, that private respondent is entitled to the payment of the questioned
legacy. Therefore, the Order of Execution of August 20, 1980 and the subsequent
implementing orders for the payment of QUEMADA's legacy, in alleged implementation
of the dispositive part of the Probate Order of December 5, 1972, must fall for lack of
basis.
(b) The ordered payment of legacy would be violative of the rule requiring prior
liquidation of the estate of the deceased, i.e., the determination of the assets of the estate
and payment of all debts and expenses, before apportionment and distribution of the
residue among the heirs and legatees. (Bernardo vs. Court of Appeals, 7 SCRA 367.)
(c) Neither has the estate tax been paid on the estate of PASTOR, SR. Payment therefore
of the legacy to QUEMADA would collide with the provision of the National Internal
Revenue Code requiring payment of estate tax before delivery to any beneficiary of his
distributive share of the estate (Section 107 [c])

(d) The assailed order of execution was unauthorized, having been issued purportedly
under Rule 88, Section 6 of the Rules of Court which reads:
Sec. 6. Court to fix contributive shares where devisees, legatees, or heirs have been in
possession. Where devisees, legatees, or heirs have entered into possession of portions
of the estate before thedebts and expenses have been settled and paid and have become
liable to contribute for the payment of such debts and expenses, the court having
jurisdiction of the estate may, by order for that purpose, after hearing, settle the amount of
their several liabilities, and order how much and in what manner each person shall
contribute, and may issue execution as circumstances require.
The above provision clearly authorizes execution to enforce payment of debts of estate. A
legacy is not a debt of the estate; indeed, legatees are among those against whom
execution is authorized to be issued.
... there is merit in the petitioners' contention that the probate court generally cannot issue
a writ of execution. It is not supposed to issue a writ of execution because its orders
usually refer to the adjudication of claims against the estate which the executor or
administrator may satisfy without the necessity of resorting to a writ of execution. The
probate court, as such, does not render any judgment enforceable by execution.
The circumstances that the Rules of Court expressly specifies that the probate court may
issue execution (a) to satisfy (debts of the estate out of) the contributive shares of
devisees, legatees and heirs in possession of the decedent's assets (Sec. 6. Rule 88), (b) to
enforce payment of the expenses of partition (Sec. 3, Rule 90), and (c) to satisfy the costs
when a person is cited for examination in probate proceedings (Sec. 13, Rule 142) may
mean, under the rule of inclusion unius est exclusion alterius, that those are the only
instances when it can issue a writ of execution. (Vda. de Valera vs. Ofilada, 59 SCRA 96,
108.)
(d) It is within a court's competence to order the execution of a final judgment; but to
order the execution of a final order (which is not even meant to be executed) by reading
into it terms that are not there and in utter disregard of existing rules and law, is manifest
grave abuse of discretion tantamount to lack of jurisdiction. Consequently, the rule that
certiorari may not be invoked to defeat the right of a prevailing party to the execution of a
valid and final judgment, is inapplicable. For when an order of execution is issued with
grave abuse of discretion or is at variance with the judgment sought to be enforced
(PVTA vs. Honorable Gonzales, 92 SCRA 172), certiorari will lie to abate the order of
execution.
(e) Aside from the propriety of resorting to certiorari to assail an order of execution
which varies the terms of the judgment sought to be executed or does not find support in
the dispositive part of the latter, there are circumstances in the instant case which justify
the remedy applied for.

Petitioner MA. ELENA ACHAVAL DE PASTOR, wife of PASTOR, JR., is the holder in
her own right of three mining claims which are one of the objects of conflicting claims of
ownership. She is not an heir of PASTOR, SR. and was not a party to the probate
proceedings. Therefore, she could not appeal from the Order of execution issued by the
Probate Court. On the other hand, after the issuance of the execution order, the urgency of
the relief she and her co-petitioner husband seek in the petition for certiorari states
against requiring her to go through the cumbersome procedure of asking for leave to
intervene in the probate proceedings to enable her, if leave is granted, to appeal from the
challenged order of execution which has ordered the immediate transfer and/or
garnishment of the royalties derived from mineral properties of which she is the duly
registered owner and/or grantee together with her husband. She could not have intervened
before the issuance of the assailed orders because she had no valid ground to intervene.
The matter of ownership over the properties subject of the execution was then still being
litigated in another court in a reconveyance suit filed by the special administrator of the
estate of PASTOR, SR.
Likewise, at the time petitioner PASTOR, JR. Med the petition for certiorari with the
Court of Appeals, appeal was not available to him since his motion for reconsideration of
the execution order was still pending resolution by the Probate Court. But in the face of
actual garnishment of their major source of income, petitioners could no longer wait for
the resolution of their motion for reconsideration. They needed prompt relief from the
injurious effects of the execution order. Under the circumstances, recourse to certiorari
was the feasible remedy.
WHEREFORE, the decision of the Court of Appeals in CA G.R. No. SP-11373-R is
reversed. The Order of execution issued by the probate Court dated August 20, 1980, as
well as all the Orders issued subsequent thereto in alleged implementation of the Probate
Order dated December 5, 1972, particularly the Orders dated November 11, 1980 and
December 17, 1980, are hereby set aside; and this case is remanded to the appropriate
Regional Trial Court for proper proceedings, subject to the judgment to be rendered in
Civil Case No. 274-R.
SO ORDERED.

2. Baltazar v. Laxa, G.R. No. 174489, April 11, 2012

Republic of the Philippines
SUPREME COURT
Baguio
FIRST DIVISION
G.R. No. 174489

April 11, 2012

ANTONIO B. BALTAZAR, SEBASTIAN M. BALTAZAR, ANTONIO L.

MANGALINDAN, ROSIE M. MATEO, NENITA A. PACHECO, VIRGILIO REGALA,
JR., and RAFAEL TITCO, Petitioners,
vs.
LORENZO LAXA, Respondent.
DECISION
DEL CASTILLO, J.:
It is incumbent upon those who oppose the probate of a will to clearly establish that the
decedent was not of sound and disposing mind at the time of the execution of said will.
Otherwise, the state is duty-bound to give full effect to the wishes of the testator to
distribute his estate in the manner provided in his will so long as it is legally tenable.1
Before us is a Petition for Review on Certiorari2 of the June 15, 2006 Decision3 of the
Court of Appeals (CA) in CA-G.R. CV No. 80979 which reversed the September 30,
2003 Decision4 of the Regional Trial Court (RTC), Branch 52, Guagua, Pampanga in
Special Proceedings No. G-1186. The assailed CA Decision granted the petition for
probate of the notarial will of Paciencia Regala (Paciencia), to wit:
WHEREFORE, premises considered, finding the appeal to be impressed with merit, the
decision in SP. PROC. NO. G-1186 dated 30 September 2003, is hereby SET ASIDE and
a new one entered GRANTING the petition for the probate of the will of PACIENCIA
REGALA.
SO ORDERED.5
Also assailed herein is the August 31, 2006 CA Resolution6 which denied the Motion for
Reconsideration thereto.
Petitioners call us to reverse the CAs assailed Decision and instead affirm the Decision
of the RTC which disallowed the notarial will of Paciencia.
Factual Antecedents
Paciencia was a 78 year old spinster when she made her last will and testament entitled
"Tauli Nang Bilin o Testamento Miss Paciencia Regala"7 (Will) in the Pampango dialect
on September 13, 1981. The Will, executed in the house of retired Judge Ernestino G.
Limpin (Judge Limpin), was read to Paciencia twice. After which, Paciencia expressed in
the presence of the instrumental witnesses that the document is her last will and
testament. She thereafter affixed her signature at the end of the said document on page 38
and then on the left margin of pages 1, 2 and 4 thereof.9
The witnesses to the Will were Dra. Maria Lioba A. Limpin (Dra. Limpin), Francisco
Garcia (Francisco) and Faustino R. Mercado (Faustino). The three attested to the Wills
due execution by affixing their signatures below its attestation clause10 and on the left

margin of pages 1, 2 and 4 thereof,11 in the presence of Paciencia and of one another and
of Judge Limpin who acted as notary public.
Childless and without any brothers or sisters, Paciencia bequeathed all her properties to
respondent Lorenzo R. Laxa (Lorenzo) and his wife Corazon F. Laxa and their children
Luna Lorella Laxa and Katherine Ross Laxa, thus:
xxxx
Fourth - In consideration of their valuable services to me since then up to the present by
the spouses LORENZO LAXA and CORAZON F. LAXA, I hereby BEQUEATH,
CONVEY and GIVE all my properties enumerated in parcels 1 to 5 unto the spouses
LORENZO R. LAXA and CORAZON F. LAXA and their children, LUNA LORELLA
LAXA and KATHERINE LAXA, and the spouses Lorenzo R. Laxa and Corazon F. Laxa
both of legal age, Filipinos, presently residing at Barrio Sta. Monica, [Sasmuan],
Pampanga and their children, LUNA LORELLA and KATHERINE ROSS LAXA, who
are still not of legal age and living with their parents who would decide to bequeath since
they are the children of the spouses;
xxxx
[Sixth] - Should other properties of mine may be discovered aside from the properties
mentioned in this last will and testament, I am also bequeathing and giving the same to
the spouses Lorenzo R. Laxa and Corazon F. Laxa and their two children and I also
command them to offer masses yearly for the repose of my soul and that of D[]a
Nicomeda Regala, Epifania Regala and their spouses and with respect to the fishpond
situated at San Antonio, I likewise command to fulfill the wishes of D[]a Nicomeda
Regala in accordance with her testament as stated in my testament. x x x12
The filial relationship of Lorenzo with Paciencia remains undisputed. Lorenzo is
Paciencias nephew whom she treated as her own son. Conversely, Lorenzo came to
know and treated Paciencia as his own mother.13 Paciencia lived with Lorenzos family
in Sasmuan, Pampanga and it was she who raised and cared for Lorenzo since his birth.
Six days after the execution of the Will or on September 19, 1981, Paciencia left for the
United States of America (USA). There, she resided with Lorenzo and his family until her
death on January 4, 1996.
In the interim, the Will remained in the custody of Judge Limpin.
More than four years after the death of Paciencia or on April 27, 2000, Lorenzo filed a
petition14 with the RTC of Guagua, Pampanga for the probate of the Will of Paciencia
and for the issuance of Letters of Administration in his favor, docketed as Special
Proceedings No. G-1186.
There being no opposition to the petition after its due publication, the RTC issued an
Order on June 13, 200015allowing Lorenzo to present evidence on June 22, 2000. On
said date, Dra. Limpin testified that she was one of the instrumental witnesses in the

execution of the last will and testament of Paciencia on September 13, 1981.16 The Will
was executed in her fathers (Judge Limpin) home office, in her presence and of two
other witnesses, Francisco and Faustino.17 Dra. Limpin positively identified the Will and
her signatures on all its four pages.18 She likewise positively identified the signature of
her father appearing thereon.19 Questioned by the prosecutor regarding Judge Limpins
present mental fitness, Dra. Limpin testified that her father had a stroke in 1991 and had
to undergo brain surgery.20 The judge can walk but can no longer talk and remember her
name. Because of this, Dra. Limpin stated that her father can no longer testify in court.21
The following day or on June 23, 2000, petitioner Antonio Baltazar (Antonio) filed an
opposition22 to Lorenzos petition. Antonio averred that the properties subject of
Paciencias Will belong to Nicomeda Regala Mangalindan, his predecessor-in-interest;
hence, Paciencia had no right to bequeath them to Lorenzo.23
Barely a month after or on July 20, 2000, Antonio, now joined by petitioners Sebastian
M. Baltazar, Virgilio Regala, Jr., Nenita A. Pacheco, Felix B. Flores, Rafael Titco, Rosie
M. Mateo (Rosie) and Antonio L. Mangalindan filed a Supplemental Opposition24
contending that Paciencias Will was null and void because ownership of the properties
had not been transferred and/or titled to Paciencia before her death pursuant to Article
1049, paragraph 3 of the Civil Code.25 Petitioners also opposed the issuance of Letters of
Administration in Lorenzos favor arguing that Lorenzo was disqualified to be appointed
as such, he being a citizen and resident of the USA.26 Petitioners prayed that Letters of
Administration be instead issued in favor of Antonio.27
Later still on September 26, 2000, petitioners filed an Amended Opposition28 asking the
RTC to deny the probate of Paciencias Will on the following grounds: the Will was not
executed and attested to in accordance with the requirements of the law; that Paciencia
was mentally incapable to make a Will at the time of its execution; that she was forced to
execute the Will under duress or influence of fear or threats; that the execution of the Will
had been procured by undue and improper pressure and influence by Lorenzo or by some
other persons for his benefit; that the signature of Paciencia on the Will was forged; that
assuming the signature to be genuine, it was obtained through fraud or trickery; and, that
Paciencia did not intend the document to be her Will. Simultaneously, petitioners filed an
Opposition and Recommendation29 reiterating their opposition to the appointment of
Lorenzo as administrator of the properties and requesting for the appointment of Antonio
in his stead.
On January 29, 2001, the RTC issued an Order30 denying the requests of both Lorenzo
and Antonio to be appointed administrator since the former is a citizen and resident of the
USA while the latters claim as a co-owner of the properties subject of the Will has not
yet been established.
Meanwhile, proceedings on the petition for the probate of the Will continued. Dra.
Limpin was recalled for cross-examination by the petitioners. She testified as to the age
of her father at the time the latter notarized the Will of Paciencia; the living arrangements

of Paciencia at the time of the execution of the Will; and the lack of photographs when
the event took place. 31
Aside from Dra. Limpin, Lorenzo and Monico Mercado (Monico) also took the witness
stand. Monico, son of Faustino, testified on his fathers condition. According to him his
father can no longer talk and express himself due to brain damage. A medical certificate
was presented to the court to support this allegation. 32
For his part, Lorenzo testified that: from 1944 until his departure for the USA in April
1980, he lived in Sasmuan, Pampanga with his family and his aunt, Paciencia; in 1981
Paciencia went to the USA and lived with him and his family until her death in January
1996; the relationship between him and Paciencia was like that of a mother and child
since Paciencia took care of him since birth and took him in as an adopted son; Paciencia
was a spinster without children, and without brothers and sisters; at the time of
Paciencias death, she did not suffer from any mental disorder and was of sound mind,
was not blind, deaf or mute; the Will was in the custody of Judge Limpin and was only
given to him after Paciencias death through Faustino; and he was already residing in the
USA when the Will was executed.33 Lorenzo positively identified the signature of
Paciencia in three different documents and in the Will itself and stated that he was
familiar with Paciencias signature because he accompanied her in her transactions.34
Further, Lorenzo belied and denied having used force, intimidation, violence, coercion or
trickery upon Paciencia to execute the Will as he was not in the Philippines when the
same was executed.35 On cross-examination, Lorenzo clarified that Paciencia informed
him about the Will shortly after her arrival in the USA but that he saw a copy of the Will
only after her death.36
As to Francisco, he could no longer be presented in court as he already died on May 21,
2000.
For petitioners, Rosie testified that her mother and Paciencia were first cousins.37 She
claimed to have helped in the household chores in the house of Paciencia thereby
allowing her to stay therein from morning until evening and that during the period of her
service in the said household, Lorenzos wife and his children were staying in the same
house.38 She served in the said household from 1980 until Paciencias departure for the
USA on September 19, 1981.39
On September 13, 1981, Rosie claimed that she saw Faustino bring "something" for
Paciencia to sign at the latters house.40 Rosie admitted, though, that she did not see what
that "something" was as same was placed inside an envelope.41 However, she
remembered Paciencia instructing Faustino to first look for money before she signs
them.42 A few days after or on September 16, 1981, Paciencia went to the house of
Antonios mother and brought with her the said envelope.43 Upon going home, however,
the envelope was no longer with Paciencia.44 Rosie further testified that Paciencia was
referred to as "magulyan" or "forgetful" because she would sometimes leave her wallet in
the kitchen then start looking for it moments later.45 On cross examination, it was

established that Rosie was neither a doctor nor a psychiatrist, that her conclusion that
Paciencia was "magulyan" was based on her personal assessment,46 and that it was
Antonio who requested her to testify in court.47
In his direct examination, Antonio stated that Paciencia was his aunt.48 He identified the
Will and testified that he had seen the said document before because Paciencia brought
the same to his mothers house and showed it to him along with another document on
September 16, 1981.49 Antonio alleged that when the documents were shown to him, the
same were still unsigned.50 According to him, Paciencia thought that the documents
pertained to a lease of one of her rice lands,51 and it was he who explained that the
documents were actually a special power of attorney to lease and sell her fishpond and
other properties upon her departure for the USA, and a Will which would transfer her
properties to Lorenzo and his family upon her death.52 Upon hearing this, Paciencia
allegedly uttered the following words: "Why will I never [return], why will I sell all my
properties?" Who is Lorenzo? Is he the only [son] of God? I have other relatives [who
should] benefit from my properties. Why should I die already?"53 Thereafter, Antonio
advised Paciencia not to sign the documents if she does not want to, to which the latter
purportedly replied, "I know nothing about those, throw them away or it is up to you. The
more I will not sign them."54 After which, Paciencia left the documents with Antonio.
Antonio kept the unsigned documents
and eventually turned them over to Faustino on September 18, 1981.55
Ruling of the Regional Trial Court
On September 30, 2003, the RTC rendered its Decision56 denying the petition thus:
WHEREFORE, this court hereby (a) denies the petition dated April 24, 2000; and (b)
disallows the notarized will dated September 13, 1981 of Paciencia Regala.
SO ORDERED.57
The trial court gave considerable weight to the testimony of Rosie and concluded that at
the time Paciencia signed the Will, she was no longer possessed of sufficient reason or
strength of mind to have testamentary capacity.58
Ruling of the Court of Appeals
On appeal, the CA reversed the RTC Decision and granted the probate of the Will of
Paciencia. The appellate court did not agree with the RTCs conclusion that Paciencia
was of unsound mind when she executed the Will. It ratiocinated that "the state of being
magulyan does not make a person mentally unsound so [as] to render [Paciencia] unfit
for executing a Will."59 Moreover, the oppositors in the probate proceedings were not
able to overcome the presumption that every person is of sound mind. Further, no
concrete circumstances or events were given to prove the allegation that Paciencia was
tricked or forced into signing the Will.60

Petitioners moved for reconsideration61 but the motion was denied by the CA in its
Resolution62 dated August 31, 2006.
Hence, this petition.
Issues
Petitioners come before this Court by way of Petition for Review on Certiorari ascribing
upon the CA the following errors:
I.
THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED WHEN IT
ALLOWED THE PROBATE OF PACIENCIAS WILL DESPITE RESPONDENTS
UTTER FAILURE TO COMPLY WITH SECTION 11, RULE 76 OF THE RULES OF
COURT;
II.
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN MAKING
CONCLUSIONS NOT IN ACCORDANCE WITH THE EVIDENCE ON RECORD;
III.
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN RULING THAT
PETITIONERS FAILED TO PROVE THAT PACIENCIA WAS NOT OF SOUND
MIND AT THE TIME THE WILL WAS ALLEGEDLY EXECUTED63
The pivotal issue is whether the authenticity and due execution of the notarial Will was
sufficiently established to warrant its allowance for probate.
Our Ruling
We deny the petition.
Faithful compliance with the formalities laid down by law is apparent from the face of
the Will.
Courts are tasked to determine nothing more than the extrinsic validity of a Will in
probate proceedings.64 This is expressly provided for in Rule 75, Section 1 of the Rules
of Court, which states:
Rule 75
Production of Will. Allowance of Will Necessary.
Section 1. Allowance necessary. Conclusive as to execution. No will shall pass either
real or personal estate unless it is proved and allowed in the proper court. Subject to the
right of appeal, such allowance of the will shall be conclusive as to its due execution.

Due execution of the will or its extrinsic validity pertains to whether the testator, being of
sound mind, freely executed the will in accordance with the formalities prescribed by
law.65 These formalities are enshrined in Articles 805 and 806 of the New Civil Code, to
wit:
Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof
by the testator himself or by the testator's name written by some other person in his
presence, and by his express direction, and attested and subscribed by three or more
credible witnesses in the presence of the testator and of one another.
The testator or the person requested by him to write his name and the instrumental
witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the
last, on the left margin, and all the pages shall be numbered correlatively in letters placed
on the upper part of each page.
The attestation shall state the number of pages used upon which the will is written, and
the fact that the testator signed the will and every page thereof, or caused some other
person to write his name, under his express direction, in the presence of the instrumental
witnesses, and that the latter witnessed and signed the will and all the pages thereof in the
presence of the testator and of one another.
If the attestation clause is in a language not known to the witnesses, it shall be interpreted
to them.
Art. 806. Every will must be acknowledged before a notary public by the testator and the
witnesses. The notary public shall not be required to retain a copy of the will, or file
another with the Office of the Clerk of Court.
Here, a careful examination of the face of the Will shows faithful compliance with the
formalities laid down by law. The signatures of the testatrix, Paciencia, her instrumental
witnesses and the notary public, are all present and evident on the Will. Further, the
attestation clause explicitly states the critical requirement that the testatrix and her
instrumental witnesses signed the Will in the presence of one another and that the
witnesses attested and subscribed to the Will in the presence of the testator and of one
another. In fact, even the petitioners acceded that the signature of Paciencia in the Will
may be authentic although they question her state of mind when she signed the same as
well as the voluntary nature of said act.
The burden to prove that Paciencia was of unsound mind at the time of the execution of
the will lies on the shoulders of the petitioners.
Petitioners, through their witness Rosie, claim that Paciencia was "magulyan" or forgetful
so much so that it effectively stripped her of testamentary capacity. They likewise
claimed in their Motion for Reconsideration66 filed with the CA that Paciencia was not
only "magulyan" but was actually suffering from paranoia.67
We are not convinced.

We agree with the position of the CA that the state of being forgetful does not necessarily
make a person mentally unsound so as to render him unfit to execute a Will.68
Forgetfulness is not equivalent to being of unsound mind. Besides, Article 799 of the
New Civil Code states:
Art. 799. To be of sound mind, it is not necessary that the testator be in full possession of
all his reasoning faculties, or that his mind be wholly unbroken, unimpaired, or
unshattered by disease, injury or other cause.
It shall be sufficient if the testator was able at the time of making the will to know the
nature of the estate to be disposed of, the proper objects of his bounty, and the character
of the testamentary act.
In this case, apart from the testimony of Rosie pertaining to Paciencias forgetfulness,
there is no substantial evidence, medical or otherwise, that would show that Paciencia
was of unsound mind at the time of the execution of the Will. On the other hand, we find
more worthy of credence Dra. Limpins testimony as to the soundness of mind of
Paciencia when the latter went to Judge Limpins house and voluntarily executed the
Will. "The testimony of subscribing witnesses to a Will concerning the testators mental
condition is entitled to great weight where they are truthful and intelligent."69 More
importantly, a testator is presumed to be of sound mind at the time of the execution of the
Will and the burden to prove otherwise lies on the oppositor. Article 800 of the New Civil
Code states:
Art. 800. The law presumes that every person is of sound mind, in the absence of proof to
the contrary.
The burden of proof that the testator was not of sound mind at the time of making his
dispositions is on the person who opposes the probate of the will; but if the testator, one
month, or less, before making his will was publicly known to be insane, the person who
maintains the validity of the will must prove that the testator made it during a lucid
interval.
Here, there was no showing that Paciencia was publicly known to be insane one month or
less before the making of the Will. Clearly, thus, the burden to prove that Paciencia was
of unsound mind lies upon the shoulders of petitioners. However and as earlier
mentioned, no substantial evidence was presented by them to prove the same, thereby
warranting the CAs finding that petitioners failed to discharge such burden.
Furthermore, we are convinced that Paciencia was aware of the nature of her estate to be
disposed of, the proper objects of her bounty and the character of the testamentary act. As
aptly pointed out by the CA:
A scrutiny of the Will discloses that [Paciencia] was aware of the nature of the document
she executed. She specially requested that the customs of her faith be observed upon her
death. She was well aware of how she acquired the properties from her parents and the

properties she is bequeathing to LORENZO, to his wife CORAZON and to his two (2)
children. A third child was born after the execution of the will and was not included
therein as devisee.70
Bare allegations of duress or influence of fear or threats, undue and improper influence
and pressure, fraud and trickery cannot be used as basis to deny the probate of a will.
An essential element of the validity of the Will is the willingness of the testator or
testatrix to execute the document that will distribute his/her earthly possessions upon
his/her death. Petitioners claim that Paciencia was forced to execute the Will under duress
or influence of fear or threats; that the execution of the Will had been procured by undue
and improper pressure and influence by Lorenzo or by some other persons for his benefit;
and that assuming Paciencias signature to be genuine, it was obtained through fraud or
trickery. These are grounded on the alleged conversation between Paciencia and Antonio
on September 16, 1981 wherein the former purportedly repudiated the Will and left it
unsigned.
We are not persuaded.
We take into consideration the unrebutted fact that Paciencia loved and treated Lorenzo
as her own son and that love even extended to Lorenzos wife and children. This kind of
relationship is not unusual. It is in fact not unheard of in our culture for old maids or
spinsters to care for and raise their nephews and nieces and treat them as their own
children. Such is a prevalent and accepted cultural practice that has resulted in many
family discords between those favored by the testamentary disposition of a testator and
those who stand to benefit in case of intestacy.
In this case, evidence shows the acknowledged fact that Paciencias relationship with
Lorenzo and his family is different from her relationship with petitioners. The very fact
that she cared for and raised Lorenzo and lived with him both here and abroad, even if the
latter was already married and already has children, highlights the special bond between
them. This unquestioned relationship between Paciencia and the devisees tends to support
the authenticity of the said document as against petitioners allegations of duress,
influence of fear or threats, undue and improper influence, pressure, fraud, and trickery
which, aside from being factual in nature, are not supported by concrete, substantial and
credible evidence on record. It is worth stressing that bare arguments, no matter how
forceful, if not based on concrete and substantial evidence cannot suffice to move the
Court to uphold said allegations.71Furthermore, "a purported will is not [to be] denied
legalization on dubious grounds. Otherwise, the very institution of testamentary
succession will be shaken to its foundation, for even if a will has been duly executed in
fact, whether x x x it will be probated would have to depend largely on the attitude of
those interested in [the estate of the deceased]."72
Court should be convinced by the evidence presented before it that the Will was duly
executed.

Petitioners dispute the authenticity of Paciencias Will on the ground that Section 11 of
Rule 76 of the Rules of Court was not complied with. It provides:
RULE 76
Allowance or Disallowance of Will
Section 11. Subscribing witnesses produced or accounted for where will contested. If
the will is contested, all the subscribing witnesses, and the notary in the case of wills
executed under the Civil Code of the Philippines, if present in the Philippines and not
insane, must be produced and examined, and the death, absence, or insanity of any of
them must be satisfactorily shown to the court. If all or some of such witnesses are
present in the Philippines but outside the province where the will has been filed, their
deposition must be taken. If any or all of them testify against the due execution of the
will, or do not remember having attested to it, or are otherwise of doubtful credibility, the
will may nevertheless, be allowed if the court is satisfied from the testimony of other
witnesses and from all the evidence presented that the will was executed and attested in
the manner required by law.
If a holographic will is contested, the same shall be allowed if at least three (3) witnesses
who know the handwriting of the testator explicitly declare that the will and the signature
are in the handwriting of the testator; in the absence of any competent witnesses, and if
the court deem it necessary, expert testimony may be resorted to. (Emphasis supplied.)
They insist that all subscribing witnesses and the notary public should have been
presented in court since all but one witness, Francisco, are still living.
We cannot agree with petitioners.
We note that the inability of Faustino and Judge Limpin to appear and testify before the
court was satisfactorily explained during the probate proceedings. As testified to by his
son, Faustino had a heart attack, was already bedridden and could no longer talk and
express himself due to brain damage. To prove this, said witness presented the
corresponding medical certificate. For her part, Dra. Limpin testified that her father,
Judge Limpin, suffered a stroke in 1991 and had to undergo brain surgery. At that time,
Judge Limpin could no longer talk and could not even remember his daughters name so
that Dra. Limpin stated that given such condition, her father could no longer testify. It is
well to note that at that point, despite ample opportunity, petitioners neither interposed
any objections to the testimonies of said witnesses nor challenged the same on cross
examination. We thus hold that for all intents and purposes, Lorenzo was able to
satisfactorily account for the incapacity and failure of the said subscribing witness and of
the notary public to testify in court. Because of this the probate of Paciencias Will may
be allowed on the basis of Dra. Limpins testimony proving her sanity and the due
execution of the Will, as well as on the proof of her handwriting. It is an established rule
that "[a] testament may not be disallowed just because the attesting witnesses declare
against its due execution; neither does it have to be necessarily allowed just because all

the attesting witnesses declare in favor of its legalization; what is decisive is that the
court is convinced by evidence before it, not necessarily from the attesting witnesses,
although they must testify, that the will was or was not duly executed in the manner
required by law."731wphi1
Moreover, it bears stressing that "[i]rrespective x x x of the posture of any of the parties
as regards the authenticity and due execution of the will x x x in question, it is the
mandate of the law that it is the evidence before the court and/or [evidence that] ought to
be before it that is controlling."74 "The very existence of [the Will] is in itself prima facie
proof that the supposed [testatrix] has willed that [her] estate be distributed in the manner
therein provided, and it is incumbent upon the state that, if legally tenable, such desire be
given full effect independent of the attitude of the parties affected thereby."75 This,
coupled with Lorenzos established relationship with Paciencia, the evidence and the
testimonies of disinterested witnesses, as opposed to the total lack of evidence presented
by petitioners apart from their self-serving testimonies, constrain us to tilt the balance in
favor of the authenticity of the Will and its allowance for probate.
WHEREFORE, the petition is DENIED. The Decision dated June 15, 2006 and the
Resolution dated August 31, 2006 of the Court of Appeals in CA-G.R. CV No. 80979 are
AFFIRMED.
SO ORDERED.

3. Marcos II v. CA, 393 Phil. 253 (1977)

[G.R. No. 120880. June 5, 1997]

FERDINAND R. MARCOS II, petitioner, vs. COURT OF APPEALS, THE

COMMISSIONER OF THE BUREAU OF INTERNAL REVENUE and
HERMINIA D. DE GUZMAN, respondents.
DECISION
TORRES, JR., J.:
In this Petition for Review on Certiorari, Government action is once again assailed as
precipitate and unfair, suffering the basic and oftly implored requisites of due process of
law. Specifically, the petition assails the Decision[1] of the Court of Appeals dated
November 29, 1994 in CA-G.R. SP No. 31363, where the said court held:

"In view of all the foregoing, we rule that the deficiency income tax assessments and
estate tax assessment, are already final and (u)nappealable -and- the subsequent levy of
real properties is a tax remedy resorted to by the government, sanctioned by Section 213
and 218 of the National Internal Revenue Code. This summary tax remedy is distinct and
separate from the other tax remedies (such as Judicial Civil actions and Criminal actions),
and is not affected or precluded by the pendency of any other tax remedies instituted by
the government.
WHEREFORE, premises considered, judgment is hereby rendered DISMISSING the
petition for certiorari with prayer for Restraining Order and Injunction.
No pronouncements as to costs.
SO ORDERED."
More than seven years since the demise of the late Ferdinand E. Marcos, the former
President of the Republic of the Philippines, the matter of the settlement of his estate, and
its dues to the government in estate taxes, are still unresolved, the latter issue being now
before this Court for resolution. Specifically, petitioner Ferdinand R. Marcos II, the eldest
son of the decedent, questions the actuations of the respondent Commissioner of Internal
Revenue in assessing, and collecting through the summary remedy of Levy on Real
Properties, estate and income tax delinquencies upon the estate and properties of his
father, despite the pendency of the proceedings on probate of the will of the late
president, which is docketed as Sp. Proc. No. 10279 in the Regional Trial Court of Pasig,
Branch 156.
Petitioner had filed with the respondent Court of Appeals a Petition for Certiorari and
Prohibition with an application for writ of preliminary injunction and/or temporary
restraining order on June 28, 1993, seeking to I. Annul and set aside the Notices of Levy on real property dated February 22, 1993 and
May 20, 1993, issued by respondent Commissioner of Internal Revenue;
II. Annul and set aside the Notices of Sale dated May 26, 1993;
III. Enjoin the Head Revenue Executive Assistant Director II (Collection Service), from
proceeding with the Auction of the real properties covered by Notices of Sale.
After the parties had pleaded their case, the Court of Appeals rendered its
Decision[2] on November 29, 1994, ruling that the deficiency assessments for estate and
income tax made upon the petitioner and the estate of the deceased President Marcos
have already become final and unappealable, and may thus be enforced by the summary
remedy of levying upon the properties of the late President, as was done by the
respondent Commissioner of Internal Revenue.
"WHEREFORE, premises considered judgment is hereby rendered DISMISSING the
petition for Certiorari with prayer for Restraining Order and Injunction.

No pronouncements as to cost.
SO ORDERED."
Unperturbed, petitioner is now before us assailing the validity of the appellate court's
decision, assigning the following as errors:
A. RESPONDENT COURT MANIFESTLY ERRED IN RULING THAT THE
SUMMARY TAX REMEDIES RESORTED TO BY THE GOVERNMENT ARE NOT
AFFECTED AND PRECLUDED BY THE PENDENCY OF THE SPECIAL
PROCEEDING FOR THE ALLOWANCE OF THE LATE PRESIDENT'S ALLEGED
WILL. TO THE CONTRARY, THIS PROBATE PROCEEDING PRECISELY PLACED
ALL PROPERTIES WHICH FORM PART OF THE LATE PRESIDENT'S ESTATE IN
CUSTODIA LEGIS OF THE PROBATE COURT TO THE EXCLUSION OF ALL
OTHER COURTS AND ADMINISTRATIVE AGENCIES.
B. RESPONDENT COURT ARBITRARILY ERRED IN SWEEPINGLY
DECIDING THAT SINCE THE TAX ASSESSMENTS OF PETITIONER AND HIS
PARENTS HAD ALREADY BECOME FINAL AND UNAPPEALABLE, THERE WAS
NO NEED TO GO INTO THE MERITS OF THE GROUNDS CITED IN THE
PETITION. INDEPENDENT OF WHETHER THE TAX ASSESSMENTS HAD
ALREADY BECOME FINAL, HOWEVER, PETITIONER HAS THE RIGHT TO
QUESTION THE UNLAWFUL MANNER AND METHOD IN WHICH TAX
COLLECTION IS SOUGHT TO BE ENFORCED BY RESPONDENTS
COMMISSIONER AND DE GUZMAN. THUS, RESPONDENT COURT SHOULD
HAVE FAVORABLY CONSIDERED THE MERITS OF THE FOLLOWING
GROUNDS IN THE PETITION:
(1) The Notices of Levy on Real Property were issued beyond the period provided in
the Revenue Memorandum Circular No. 38-68.
(2) [a] The numerous pending court cases questioning the late President's ownership
or interests in several properties (both personal and real) make the total value of his
estate, and the consequent estate tax due, incapable of exact pecuniary determination
at this time. Thus, respondents assessment of the estate tax and their issuance of the
Notices of Levy and Sale are premature, confiscatory and oppressive.
[b] Petitioner, as one of the late President's compulsory heirs, was never notified,
much less served with copies of the Notices of Levy, contrary to the mandate of
Section 213 of the NIRC. As such, petitioner was never given an opportunity to
contest the Notices in violation of his right to due process of law.
C. ON ACCOUNT OF THE CLEAR MERIT OF THE PETITION, RESPONDENT
COURT MANIFESTLY ERRED IN RULING THAT IT HAD NO POWER TO GRANT
INJUNCTIVE RELIEF TO PETITIONER. SECTION 219 OF THE NIRC
NOTWITHSTANDING, COURTS POSSESS THE POWER TO ISSUE A WRIT OF

PRELIMINARY INJUNCTION TO RESTRAIN RESPONDENTS COMMISSIONER'S

AND DE GUZMAN'S ARBITRARY METHOD OF COLLECTING THE ALLEGED
DEFICIENCY ESTATE AND INCOME TAXES BY MEANS OF LEVY.
The facts as found by the appellate court are undisputed, and are hereby adopted:
"On September 29, 1989, former President Ferdinand Marcos died in Honolulu, Hawaii,
USA.
On June 27, 1990, a Special Tax Audit Team was created to conduct investigations and
examinations of the tax liabilities and obligations of the late president, as well as that of
his family, associates and "cronies". Said audit team concluded its investigation with a
Memorandum dated July 26, 1991. The investigation disclosed that the Marcoses failed
to file a written notice of the death of the decedent, an estate tax returns [sic], as well as
several income tax returns covering the years 1982 to 1986, -all in violation of the
National Internal Revenue Code (NIRC).
Subsequently, criminal charges were filed against Mrs. Imelda R. Marcos before the
Regional Trial of Quezon City for violations of Sections 82, 83 and 84 (has penalized
under Sections 253 and 254 in relation to Section 252- a & b) of the National Internal
Revenue Code (NIRC).
The Commissioner of Internal Revenue thereby caused the preparation and filing of the
Estate Tax Return for the estate of the late president, the Income Tax Returns of the
Spouses Marcos for the years 1985 to 1986, and the Income Tax Returns of petitioner
Ferdinand 'Bongbong' Marcos II for the years 1982 to 1985.
On July 26, 1991, the BIR issued the following: (1) Deficiency estate tax assessment no.
FAC-2-89-91-002464 (against the estate of the late president Ferdinand Marcos in the
amount of P23,293,607,638.00 Pesos); (2) Deficiency income tax assessment no. FAC-185-91-002452 and Deficiency income tax assessment no. FAC-1-86-91-002451 (against
the Spouses Ferdinand and Imelda Marcos in the amounts of P149,551.70 and
P184,009,737.40 representing deficiency income tax for the years 1985 and 1986); (3)
Deficiency income tax assessment nos. FAC-1-82-91-002460 to FAC-1-85-91-002463
(against petitioner Ferdinand 'Bongbong' Marcos II in the amounts of P258.70 pesos;
P9,386.40 Pesos; P4,388.30 Pesos; and P6,376.60 Pesos representing his deficiency
income taxes for the years 1982 to 1985).
The Commissioner of Internal Revenue avers that copies of the deficiency estate and
income tax assessments were all personally and constructively served on August 26, 1991
and September 12, 1991 upon Mrs. Imelda Marcos (through her caretaker Mr. Martinez)
at her last known address at No. 204 Ortega St., San Juan, M.M. (Annexes 'D' and 'E' of
the Petition). Likewise, copies of the deficiency tax assessments issued against petitioner
Ferdinand 'Bongbong' Marcos II were also personally and constructively served upon him
(through his caretaker) on September 12, 1991, at his last known address at Don Mariano
Marcos St. corner P. Guevarra St., San Juan, M.M. (Annexes 'J' and 'J-1' of the Petition).

Thereafter, Formal Assessment notices were served on October 20, 1992, upon Mrs.
Marcos c/o petitioner, at his office, House of Representatives, Batasan Pambansa,
Quezon City. Moreover, a notice to Taxpayer inviting Mrs. Marcos (or her duly
authorized representative or counsel), to a conference, was furnished the counsel of Mrs.
Marcos, Dean Antonio Coronel - but to no avail.
The deficiency tax assessments were not protested administratively, by Mrs. Marcos and
the other heirs of the late president, within 30 days from service of said assessments.
On February 22, 1993, the BIR Commissioner issued twenty-two notices of levy on real
property against certain parcels of land owned by the Marcoses - to satisfy the alleged
estate tax and deficiency income taxes of Spouses Marcos.
On May 20, 1993, four more Notices of Levy on real property were issued for the
purpose of satisfying the deficiency income taxes.
On May 26, 1993, additional four (4) notices of Levy on real property were again issued.
The foregoing tax remedies were resorted to pursuant to Sections 205 and 213 of the
National Internal Revenue Code (NIRC).
In response to a letter dated March 12, 1993 sent by Atty. Loreto Ata (counsel of herein
petitioner) calling the attention of the BIR and requesting that they be duly notified of
any action taken by the BIR affecting the interest of their client Ferdinand 'Bongbong
Marcos II, as well as the interest of the late president - copies of the aforesaid notices
were served on April 7, 1993 and on June 10, 1993, upon Mrs. Imelda Marcos, the
petitioner, and their counsel of record, 'De Borja, Medialdea, Ata, Bello, Guevarra and
Serapio Law Office'.
Notices of sale at public auction were posted on May 26, 1993, at the lobby of the City
Hall of Tacloban City. The public auction for the sale of the eleven (11) parcels of land
took place on July 5, 1993. There being no bidder, the lots were declared forfeited in
favor of the government.
On June 25, 1993, petitioner Ferdinand 'Bongbong' Marcos II filed the instant petition for
certiorari and prohibition under Rule 65 of the Rules of Court, with prayer for temporary
restraining order and/or writ of preliminary injunction."
It has been repeatedly observed, and not without merit, that the enforcement of tax
laws and the collection of taxes, is of paramount importance for the sustenance of
government. Taxes are the lifeblood of the government and should be collected without
unnecessary hindrance. However, such collection should be made in accordance with law
as any arbitrariness will negate the very reason for government itself. It is therefore
necessary to reconcile the apparently conflicting interests of the authorities and the
taxpayers so that the real purpose of taxation, which is the promotion of the common
good, may be achieved."[3]

Whether or not the proper avenues of assessment and collection of the said tax
obligations were taken by the respondent Bureau is now the subject of the Court's inquiry.
Petitioner posits that notices of levy, notices of sale, and subsequent sale of
properties of the late President Marcos effected by the BIR are null and void for
disregarding the established procedure for the enforcement of taxes due upon the estate of
the deceased. The case of Domingo vs. Garlitos[4] is specifically cited to bolster the
argument that "the ordinary procedure by which to settle claims of indebtedness against
the estate of a deceased, person, as in an inheritance (estate) tax, is for the claimant to
present a claim before the probate court so that said court may order the administrator to
pay the amount therefor." This remedy is allegedly, exclusive, and cannot be effected
through any other means.
Petitioner goes further, submitting that the probate court is not precluded from
denying a request by the government for the immediate payment of taxes, and should
order the payment of the same only within the period fixed by the probate court for the
payment of all the debts of the decedent. In this regard, petitioner cites the case of
Collector of Internal Revenue vs. The Administratrix of the Estate of Echarri (67 Phil
502), where it was held that:
"The case of Pineda vs. Court of First Instance of Tayabas and Collector of Internal
Revenue (52 Phil 803), relied upon by the petitioner-appellant is good authority on the
proposition that the court having control over the administration proceedings has
jurisdiction to entertain the claim presented by the government for taxes due and to order
the administrator to pay the tax should it find that the assessment was proper, and that the
tax was legal, due and collectible. And the rule laid down in that case must be understood
in relation to the case of Collector of Customs vs. Haygood, supra., as to the procedure to
be followed in a given case by the government to effectuate the collection of the tax.
Categorically stated, where during the pendency of judicial administration over the estate
of a deceased person a claim for taxes is presented by the government, the court has the
authority to order payment by the administrator; but, in the same way that it has authority
to order payment or satisfaction, it also has the negative authority to deny the same.
While there are cases where courts are required to perform certain duties mandatory and
ministerial in character, the function of the court in a case of the present character is not
one of them; and here, the court cannot be an organism endowed with latitude of
judgment in one direction, and converted into a mere mechanical contrivance in another
direction."
On the other hand, it is argued by the BIR, that the state's authority to collect internal
revenue taxes is paramount. Thus, the pendency of probate proceedings over the estate of
the deceased does not preclude the assessment and collection, through summary
remedies, of estate taxes over the same. According to the respondent, claims for payment
of estate and income taxes due and assessed after the death of the decedent need not be
presented in the form of a claim against the estate. These can and should be paid

immediately. The probate court is not the government agency to decide whether an estate
is liable for payment of estate of income taxes. Well-settled is the rule that the probate
court is a court with special and limited jurisdiction.
Concededly, the authority of the Regional Trial Court, sitting, albeit with limited
jurisdiction, as a probate court over estate of deceased individual, is not a trifling thing.
The court's jurisdiction, once invoked, and made effective, cannot be treated with
indifference nor should it be ignored with impunity by the very parties invoking its
authority.
In testament to this, it has been held that it is within the jurisdiction of the probate
court to approve the sale of properties of a deceased person by his prospective heirs
before final adjudication;[5] to determine who are the heirs of the decedent;[6] the
recognition of a natural child;[7] the status of a woman claiming to be the legal wife of
the decedent;[8] the legality of disinheritance of an heir by the testator;[9] and to pass
upon the validity of a waiver of hereditary rights.[10]
The pivotal question the court is tasked to resolve refers to the authority of the
Bureau of Internal Revenue to collect by the summary remedy of levying upon, and sale
of real properties of the decedent, estate tax deficiencies, without the cognition and
authority of the court sitting in probate over the supposed will of the deceased.
The nature of the process of estate tax collection has been described as follows:
"Strictly speaking, the assessment of an inheritance tax does not directly involve the
administration of a decedent's estate, although it may be viewed as an incident to the
complete settlement of an estate, and, under some statutes, it is made the duty of the
probate court to make the amount of the inheritance tax a part of the final decree of
distribution of the estate. It is not against the property of decedent, nor is it a claim
against the estate as such, but it is against the interest or property right which the heir,
legatee, devisee, etc., has in the property formerly held by decedent. Further, under some
statutes, it has been held that it is not a suit or controversy between the parties, nor is it an
adversary proceeding between the state and the person who owes the tax on the
inheritance. However, under other statutes it has been held that the hearing and
determination of the cash value of the assets and the determination of the tax are
adversary proceedings. The proceeding has been held to be necessarily a proceeding in
rem.[11]
In the Philippine experience, the enforcement and collection of estate tax, is
executive in character, as the legislature has seen it fit to ascribe this task to the Bureau of
Internal Revenue. Section 3 of the National Internal Revenue Code attests to this:
"Sec. 3. Powers and duties of the Bureau.-The powers and duties of the Bureau of
Internal Revenue shall comprehend the assessment and collection of all national internal
revenue taxes, fees, and charges, and the enforcement of all forfeitures, penalties, and
fines connected therewith, including the execution of judgments in all cases decided in its

favor by the Court of Tax Appeals and the ordinary courts. Said Bureau shall also give
effect to and administer the supervisory and police power conferred to it by this Code or
other laws."
Thus, it was in Vera vs. Fernandez[12] that the court recognized the liberal
treatment of claims for taxes charged against the estate of the decedent. Such taxes, we
said, were exempted from the application of the statute of non-claims, and this is justified
by the necessity of government funding, immortalized in the maxim that taxes are the
lifeblood of the government. Vectigalia nervi sunt rei publicae - taxes are the sinews of
the state.
"Taxes assessed against the estate of a deceased person, after administration is opened,
need not be submitted to the committee on claims in the ordinary course of
administration. In the exercise of its control over the administrator, the court may direct
the payment of such taxes upon motion showing that the taxes have been assessed against
the estate."
Such liberal treatment of internal revenue taxes in the probate proceedings extends
so far, even to allowing the enforcement of tax obligations against the heirs of the
decedent, even after distribution of the estate's properties.
"Claims for taxes, whether assessed before or after the death of the deceased, can be
collected from the heirs even after the distribution of the properties of the decedent. They
are exempted from the application of the statute of non-claims. The heirs shall be liable
therefor, in proportion to their share in the inheritance."[13]
"Thus, the Government has two ways of collecting the taxes in question. One, by going
after all the heirs and collecting from each one of them the amount of the tax
proportionate to the inheritance received. Another remedy, pursuant to the lien created by
Section 315 of the Tax Code upon all property and rights to property belong to the
taxpayer for unpaid income tax, is by subjecting said property of the estate which is in the
hands of an heir or transferee to the payment of the tax due the estate. (Commissioner of
Internal Revenue vs. Pineda, 21 SCRA 105, September 15, 1967.)
From the foregoing, it is discernible that the approval of the court, sitting in probate,
or as a settlement tribunal over the deceased is not a mandatory requirement in the
collection of estate taxes. It cannot therefore be argued that the Tax Bureau erred in
proceeding with the levying and sale of the properties allegedly owned by the late
President, on the ground that it was required to seek first the probate court's sanction.
There is nothing in the Tax Code, and in the pertinent remedial laws that implies the
necessity of the probate or estate settlement court's approval of the state's claim for estate
taxes, before the same can be enforced and collected.
On the contrary, under Section 87 of the NIRC, it is the probate or settlement court
which is bidden not to authorize the executor or judicial administrator of the decedent's
estate to deliver any distributive share to any party interested in the estate, unless it is

shown a Certification by the Commissioner of Internal Revenue that the estate taxes have
been paid. This provision disproves the petitioner's contention that it is the probate court
which approves the assessment and collection of the estate tax.
If there is any issue as to the validity of the BIR's decision to assess the estate taxes,
this should have been pursued through the proper administrative and judicial avenues
provided for by law.
Section 229 of the NIRC tells us how:
"Sec. 229. Protesting of assessment.-When the Commissioner of Internal Revenue or his
duly authorized representative finds that proper taxes should be assessed, he shall first
notify the taxpayer of his findings. Within a period to be prescribed by implementing
regulations, the taxpayer shall be required to respond to said notice. If the taxpayer fails
to respond, the Commissioner shall issue an assessment based on his findings.
Such assessment may be protested administratively by filing a request for reconsideration
or reinvestigation in such form and manner as may be prescribed by implementing
regulations within (30) days from receipt of the assessment; otherwise, the assessment
shall become final and unappealable.
If the protest is denied in whole or in part, the individual, association or corporation
adversely affected by the decision on the protest may appeal to the Court of Tax Appeals
within thirty (30) days from receipt of said decision; otherwise, the decision shall become
final, executory and demandable. (As inserted by P.D. 1773)"
Apart from failing to file the required estate tax return within the time required for
the filing of the same, petitioner, and the other heirs never questioned the assessments
served upon them, allowing the same to lapse into finality, and prompting the BIR to
collect the said taxes by levying upon the properties left by President Marcos.
Petitioner submits, however, that "while the assessment of taxes may have been
validly undertaken by the Government, collection thereof may have been done in
violation of the law. Thus, the manner and method in which the latter is enforced may be
questioned separately, and irrespective of the finality of the former, because the
Government does not have the unbridled discretion to enforce collection without regard
to the clear provision of law."[14]
Petitioner specifically points out that applying Memorandum Circular No. 38-68,
implementing Sections 318 and 324 of the old tax code (Republic Act 5203), the BIR's
Notices of Levy on the Marcos properties, were issued beyond the allowed period, and
are therefore null and void:
"...the Notices of Levy on Real Property (Annexes 0 to NN of Annex C of this Petition)
in satisfaction of said assessments were still issued by respondents well beyond the
period mandated in Revenue Memorandum Circular No. 38-68. These Notices of Levy
were issued only on 22 February 1993 and 20 May 1993 when at least seventeen (17)

months had already lapsed from the last service of tax assessment on 12 September 1991.
As no notices of distraint of personal property were first issued by respondents, the latter
should have complied with Revenue Memorandum Circular No. 38-68 and issued these
Notices of Levy not earlier than three (3) months nor later than six (6) months from 12
September 1991. In accordance with the Circular, respondents only had until 12 March
1992 (the last day of the sixth month) within which to issue these Notices of Levy. The
Notices of Levy, having been issued beyond the period allowed by law, are thus void and
of no effect."[15]
We hold otherwise. The Notices of Levy upon real property were issued within the
prescriptive period and in accordance with the provisions of the present Tax Code. The
deficiency tax assessment, having already become final, executory, and demandable, the
same can now be collected through the summary remedy of distraint or levy pursuant to
Section 205 of the NIRC.
The applicable provision in regard to the prescriptive period for the assessment and
collection of tax deficiency in this instance is Article 223 of the NIRC, which pertinently
provides:
"Sec. 223. Exceptions as to a period of limitation of assessment and collection of taxes.(a) In the case of a false or fraudulent return with intent to evade tax or of a failure to file
a return, the tax may be assessed, or a proceeding in court for the collection of such tax
may be begun without assessment, at any time within ten (10) years after the discovery of
the falsity, fraud, or omission: Provided, That, in a fraud assessment which has become
final and executory, the fact of fraud shall be judicially taken cognizance of in the civil or
criminal action for the collection thereof.
xxx
(c) Any internal revenue tax which has been assessed within the period of limitation
above prescribed, may be collected by distraint or levy or by a proceeding in court within
three years following the assessment of the tax.
xxx
The omission to file an estate tax return, and the subsequent failure to contest or
appeal the assessment made by the BIR is fatal to the petitioner's cause, as under the
above-cited provision, in case of failure to file a return, the tax may be assessed at any
time within ten years after the omission, and any tax so assessed may be collected by levy
upon real property within three years following the assessment of the tax. Since the estate
tax assessment had become final and unappealable by the petitioner's default as regards
protesting the validity of the said assessment, there is now no reason why the BIR cannot
continue with the collection of the said tax. Any objection against the assessment should
have been pursued following the avenue paved in Section 229 of the NIRC on protests on
assessments of internal revenue taxes.

Petitioner further argues that "the numerous pending court cases questioning the late
president's ownership or interests in several properties (both real and personal) make the
total value of his estate, and the consequent estate tax due, incapable of exact pecuniary
determination at this time. Thus, respondents' assessment of the estate tax and their
issuance of the Notices of Levy and sale are premature and oppressive." He points out the
pendency of Sandiganbayan Civil Case Nos. 0001-0034 and 0141, which were filed by
the government to question the ownership and interests of the late President in real and
personal properties located within and outside the Philippines. Petitioner, however, omits
to allege whether the properties levied upon by the BIR in the collection of estate taxes
upon the decedent's estate were among those involved in the said cases pending in the
Sandiganbayan. Indeed, the court is at a loss as to how these cases are relevant to the
matter at issue. The mere fact that the decedent has pending cases involving ill-gotten
wealth does not affect the enforcement of tax assessments over the properties indubitably
included in his estate.
Petitioner also expresses his reservation as to the propriety of the BIR's total
assessment of P23,292,607,638.00, stating that this amount deviates from the findings of
the Department of Justice's Panel of Prosecutors as per its resolution of 20 September
1991. Allegedly, this is clear evidence of the uncertainty on the part of the Government as
to the total value of the estate of the late President.
This is, to our mind, the petitioner's last ditch effort to assail the assessment of estate
tax which had already become final and unappealable.
It is not the Department of Justice which is the government agency tasked to
determine the amount of taxes due upon the subject estate, but the Bureau of Internal
Revenue[16] whose determinations and assessments are presumed correct and made in
good faith.[17] The taxpayer has the duty of proving otherwise. In the absence of proof
of any irregularities in the performance of official duties, an assessment will not be
disturbed. Even an assessment based on estimates is prima facie valid and lawful where it
does not appear to have been arrived at arbitrarily or capriciously. The burden of proof is
upon the complaining party to show clearly that the assessment is erroneous. Failure to
present proof of error in the assessment will justify the judicial affirmance of said
assessment.[18] In this instance, petitioner has not pointed out one single provision in
the Memorandum of the Special Audit Team which gave rise to the questioned
assessment, which bears a trace of falsity. Indeed, the petitioner's attack on the
assessment bears mainly on the alleged improbable and unconscionable amount of the
taxes charged. But mere rhetoric cannot supply the basis for the charge of impropriety of
the assessments made.
Moreover, these objections to the assessments should have been raised, considering
the ample remedies afforded the taxpayer by the Tax Code, with the Bureau of Internal
Revenue and the Court of Tax Appeals, as described earlier, and cannot be raised now via
Petition for Certiorari, under the pretext of grave abuse of discretion. The course of action

taken by the petitioner reflects his disregard or even repugnance of the established
institutions for governance in the scheme of a well-ordered society. The subject tax
assessments having become final, executory and enforceable, the same can no longer be
contested by means of a disguised protest. In the main, Certiorari may not be used as a
substitute for a lost appeal or remedy.[19] This judicial policy becomes more
pronounced in view of the absence of sufficient attack against the actuations of
government.
On the matter of sufficiency of service of Notices of Assessment to the petitioner, we
find the respondent appellate court's pronouncements sound and resilient to petitioner's
attacks.
"Anent grounds 3(b) and (B) - both alleging/claiming lack of notice - We find, after
considering the facts and circumstances, as well as evidences, that there was sufficient,
constructive and/or actual notice of assessments, levy and sale, sent to herein petitioner
Ferdinand "Bongbong"Marcos as well as to his mother Mrs. Imelda Marcos.
Even if we are to rule out the notices of assessments personally given to the caretaker of
Mrs. Marcos at the latter's last known address, on August 26, 1991 and September 12,
1991, as well as the notices of assessment personally given to the caretaker of petitioner
also at his last known address on September 12, 1991 - the subsequent notices given
thereafter could no longer be ignored as they were sent at a time when petitioner was
already here in the Philippines, and at a place where said notices would surely be called
to petitioner's attention, and received by responsible persons of sufficient age and
discretion.
Thus, on October 20, 1992, formal assessment notices were served upon Mrs. Marcos c/o
the petitioner, at his office, House of Representatives, Batasan Pambansa, Q.C. (Annexes
"A", "A-1", "A-2", "A-3"; pp. 207-210, Comment/Memorandum of OSG). Moreover, a
notice to taxpayer dated October 8, 1992 inviting Mrs. Marcos to a conference relative to
her tax liabilities, was furnished the counsel of Mrs. Marcos - Dean Antonio Coronel
(Annex "B", p. 211, ibid). Thereafter, copies of Notices were also served upon Mrs.
Imelda Marcos, the petitioner and their counsel "De Borja, Medialdea, Ata, Bello,
Guevarra and Serapio Law Office", on April 7, 1993 and June 10, 1993. Despite all of
these Notices, petitioner never lifted a finger to protest the assessments, (upon which the
Levy and sale of properties were based), nor appealed the same to the Court of Tax
Appeals.
There being sufficient service of Notices to herein petitioner (and his mother) and it
appearing that petitioner continuously ignored said Notices despite several opportunities
given him to file a protest and to thereafter appeal to the Court of Tax Appeals, - the tax
assessments subject of this case, upon which the levy and sale of properties were based,
could no longer be contested (directly or indirectly) via this instant petition for
certiorari."[20]

Petitioner argues that all the questioned Notices of Levy, however, must be nullified
for having been issued without validly serving copies thereof to the petitioner. As a
mandatory heir of the decedent, petitioner avers that he has an interest in the subject
estate, and notices of levy upon its properties should have been served upon him.
We do not agree. In the case of notices of levy issued to satisfy the delinquent estate
tax, the delinquent taxpayer is the Estate of the decedent, and not necessarily, and
exclusively, the petitioner as heir of the deceased. In the same vein, in the matter of
income tax delinquency of the late president and his spouse, petitioner is not the taxpayer
liable. Thus, it follows that service of notices of levy in satisfaction of these tax
delinquencies upon the petitioner is not required by law, as under Section 213 of the
NIRC, which pertinently states:
"xxx
...Levy shall be effected by writing upon said certificate a description of the property
upon which levy is made. At the same time, written notice of the levy shall be mailed to
or served upon the Register of Deeds of the province or city where the property is located
and upon the delinquent taxpayer, or if he be absent from the Philippines, to his agent or
the manager of the business in respect to which the liability arose, or if there be none, to
the occupant of the property in question.
xxx"
The foregoing notwithstanding, the record shows that notices of warrants of distraint
and levy of sale were furnished the counsel of petitioner on April 7, 1993, and June 10,
1993, and the petitioner himself on April 12, 1993 at his office at the Batasang Pambansa.
[21] We cannot therefore, countenance petitioner's insistence that he was denied due
process. Where there was an opportunity to raise objections to government action, and
such opportunity was disregarded, for no justifiable reason, the party claiming oppression
then becomes the oppressor of the orderly functions of government. He who comes to
court must come with clean hands. Otherwise, he not only taints his name, but ridicules
the very structure of established authority.
IN VIEW WHEREOF, the Court RESOLVED to DENY the present petition. The
Decision of the Court of Appeals dated November 29, 1994 is hereby AFFIRMED in all
respects.
SO ORDERED.
Regalado, (Chairman), Romero, Puno, and Mendoza, JJ., concur.

Sec. 2
1. Uy Kiao Eng v. Lee, G.R. No. 176831, January 15, 2010

THIRD DIVISION

UY KIAO ENG,

G.R. No. 176831

Petitioner,
Present:

CORONA, J.,
Chairperson,
VELASCO, JR.,
- versus -

NACHURA,
PERALTA, and
MENDOZA, JJ.

Promulgated:
NIXON LEE,
Respondent.

January 15, 2010

x------------------------------------------------------------------------------------x

DECISION

NACHURA, J.:

Before the Court is a petition for review on certiorari under Rule 45 of the Rules of
Court, assailing the August 23, 2006 Amended Decision[1] of the Court of Appeals
(CA) in CA-G.R. SP No. 91725 and the February 23, 2007 Resolution,[2] denying the
motion for reconsideration thereof.

The relevant facts and proceedings follow.

Alleging that his father passed away on June 22, 1992 in Manila and left a holographic
will, which is now in the custody of petitioner Uy Kiao Eng, his mother, respondent
Nixon Lee filed, on May 28, 2001, a petition for mandamus with damages, docketed as
Civil Case No. 01100939, before the Regional Trial Court (RTC) of Manila, to compel
petitioner to produce the will so that probate proceedings for the allowance thereof could
be instituted. Allegedly, respondent had already requested his mother to settle and
liquidate the patriarchs estate and to deliver to the legal heirs their respective inheritance,
but petitioner refused to do so without any justifiable reason.[3]

In her answer with counterclaim, petitioner traversed the allegations in the complaint and
posited that the same be dismissed for failure to state a cause of action, for lack of cause
of action, and for non-compliance with a condition precedent for the filing thereof.
Petitioner denied that she was in custody of the original holographic will and that she
knew of its whereabouts. She, moreover, asserted that photocopies of the will were given
to respondent and to his siblings. As a matter of fact, respondent was able to introduce, as
an exhibit, a copy of the will in Civil Case No. 224-V-00 before the RTC of Valenzuela
City. Petitioner further contended that respondent should have first exerted earnest efforts
to amicably settle the controversy with her before he filed the suit.[4]

The RTC heard the case. After the presentation and formal offer of respondents evidence,
petitioner demurred, contending that her son failed to prove that she had in her custody
the original holographic will. Importantly, she asserted that the pieces of documentary
evidence presented, aside from being hearsay, were all immaterial and irrelevant to the

issue involved in the petitionthey did not prove or disprove that she unlawfully neglected
the performance of an act which the law specifically enjoined as a duty resulting from an
office, trust or station, for the court to issue the writ of mandamus.[5]

The RTC, at first, denied the demurrer to evidence.[6] In its February 4, 2005 Order,[7]
however, it granted the same on petitioners motion for reconsideration. Respondents
motion for reconsideration of this latter order was denied on September 20, 2005.[8]
Hence, the petition was dismissed.

Aggrieved, respondent sought review from the appellate court. On April 26, 2006, the CA
initially denied the appeal for lack of merit. It ruled that the writ of mandamus would
issue only in instances when no other remedy would be available and sufficient to afford
redress. Under Rule 76, in an action for the settlement of the estate of his deceased father,
respondent could ask for the presentation or production and for the approval or probate of
the holographic will. The CA further ruled that respondent, in the proceedings before the
trial court, failed to present sufficient evidence to prove that his mother had in her
custody the original copy of the will.[9]

Respondent moved for reconsideration. The appellate court, in the assailed August 23,
2006 Amended Decision,[10] granted the motion, set aside its earlier ruling, issued the
writ, and ordered the production of the will and the payment of attorneys fees. It ruled
this time that respondent was able to show by testimonial evidence that his mother had in
her possession the holographic will.

Dissatisfied with this turn of events, petitioner filed a motion for reconsideration. The
appellate court denied this motion in the further assailed February 23, 2007 Resolution.
[11]

Left with no other recourse, petitioner brought the matter before this Court, contending in
the main that the petition for mandamus is not the proper remedy and that the testimonial
evidence used by the appellate court as basis for its ruling is inadmissible.[12]

The Court cannot sustain the CAs issuance of the writ.

The first paragraph of Section 3 of Rule 65 of the Rules of Court pertinently provides that

SEC. 3. Petition for mandamus.When any tribunal, corporation, board,

officer or person unlawfully neglects the performance of an act which the
law specifically enjoins as a duty resulting from an office, trust, or station,
or unlawfully excludes another from the use and enjoyment of a right or
office to which such other is entitled, and there is no other plain, speedy
and adequate remedy in the ordinary course of law, the person aggrieved
thereby may file a verified petition in the proper court, alleging the facts
with certainty and praying that judgment be rendered commanding the
respondent, immediately or at some other time to be specified by the court,
to do the act required to be done to protect the rights of the petitioner, and
to pay the damages sustained by the petitioner by reason of the wrongful
acts of the respondent.[13]

Mandamus is a command issuing from a court of law of competent jurisdiction, in

the name of the state or the sovereign, directed to some inferior court, tribunal, or board,
or to some corporation or person requiring the performance of a particular duty therein
specified, which duty results from the official station of the party to whom the writ is
directed or from operation of law.[14] This definition recognizes the public character of
the remedy, and clearly excludes the idea that it may be resorted to for the purpose of
enforcing the performance of duties in which the public has no interest.[15] The writ is a
proper recourse for citizens who seek to enforce a public right and to compel the
performance of a public duty, most especially when the public right involved is mandated
by the Constitution.[16] As the quoted provision instructs, mandamus will lie if the

tribunal, corporation, board, officer, or person unlawfully neglects the performance of an

act which the law enjoins as a duty resulting from an office, trust or station.[17]

The writ of mandamus, however, will not issue to compel an official to do anything
which is not his duty to do or which it is his duty not to do, or to give to the applicant
anything to which he is not entitled by law.[18] Nor will mandamus issue to enforce a
right which is in substantial dispute or as to which a substantial doubt exists, although
objection raising a mere technical question will be disregarded if the right is clear and the
case is meritorious.[19] As a rule, mandamus will not lie in the absence of any of the
following grounds: [a] that the court, officer, board, or person against whom the action is
taken unlawfully neglected the performance of an act which the law specifically enjoins
as a duty resulting from office, trust, or station; or [b] that such court, officer, board, or
person has unlawfully excluded petitioner/relator from the use and enjoyment of a right
or office to which he is entitled.[20] On the part of the relator, it is essential to the
issuance of a writ of mandamus that he should have a clear legal right to the thing
demanded and it must be the imperative duty of respondent to perform the act required.
[21]

Recognized further in this jurisdiction is the principle that mandamus cannot be used to
enforce contractual obligations.[22] Generally, mandamus will not lie to enforce purely
private contract rights, and will not lie against an individualunless some obligation in the
nature of a public or quasi-public duty is imposed.[23] The writ is not appropriate to
enforce a private right against an individual.[24] The writ of mandamus lies to enforce
the execution of an act, when, otherwise, justice would be obstructed; and, regularly,
issues only in cases relating to the public and to the government; hence, it is called a
prerogative writ.[25] To preserve its prerogative character, mandamus is not used for the
redress of private wrongs, but only in matters relating to the public.[26]

Moreover, an important principle followed in the issuance of the writ is that there should
be no plain, speedy and adequate remedy in the ordinary course of law other than the
remedy of mandamus being invoked.[27] In other words, mandamus can be issued only
in cases where the usual modes of procedure and forms of remedy are powerless to afford

relief.[28] Although classified as a legal remedy, mandamus is equitable in its nature

and its issuance is generally controlled by equitable principles.[29] Indeed, the grant of
the writ of mandamus lies in the sound discretion of the court.

In the instant case, the Court, without unnecessarily ascertaining whether the obligation
involved herethe production of the original holographic willis in the nature of a public or
a private duty, rules that the remedy of mandamus cannot be availed of by respondent Lee
because there lies another plain, speedy and adequate remedy in the ordinary course of
law. Let it be noted that respondent has a photocopy of the will and that he seeks the
production of the original for purposes of probate. The Rules of Court, however, does not
prevent him from instituting probate proceedings for the allowance of the will whether
the same is in his possession or not. Rule 76, Section 1 relevantly provides:

Section 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.

An adequate remedy is further provided by Rule 75, Sections 2 to 5, for the production of
the original holographic will. Thus

SEC. 2. Custodian of will to deliver.The person who has custody of a will

shall, within twenty (20) days after he knows of the death of the testator,
deliver the will to the court having jurisdiction, or to the executor named
in the will.

SEC. 3. Executor to present will and accept or refuse trust.A person named
as executor in a will shall within twenty (20) days after he knows of the
death of the testator, or within twenty (20) days after he knows that he is
named executor if he obtained such knowledge after the death of the
testator, present such will to the court having jurisdiction, unless the will

has reached the court in any other manner, and shall, within such period,
signify to the court in writing his acceptance of the trust or his refusal to
accept it.

SEC. 4. Custodian and executor subject to fine for neglect.A person who
neglects any of the duties required in the two last preceding sections
without excuse satisfactory to the court shall be fined not exceeding two
thousand pesos.

SEC. 5. Person retaining will may be committed.A person having custody

of a will after the death of the testator who neglects without reasonable
cause to deliver the same, when ordered so to do, to the court having
jurisdiction, may be committed to prison and there kept until he delivers
the will.[30]

There being a plain, speedy and adequate remedy in the ordinary course of law for
the production of the subject will, the remedy of mandamus cannot be availed of. Suffice
it to state that respondent Lee lacks a cause of action in his petition. Thus, the Court
grants the demurrer.

WHEREFORE, premises considered, the petition for review on certiorari is

GRANTED. The August 23, 2006 Amended Decision and the February 23, 2007
Resolution of the Court of Appeals in CA-G.R. SP No. 91725 areREVERSED and SET
ASIDE. Civil Case No. 01100939 before the Regional Trial Court of Manila is
DISMISSED.

SO ORDERED.

ANTONIO EDUARDO B. NACHURA

Associate Justice

WE CONCUR:

RENATO C. CORONA
Associate Justice
Chairperson

PRESBITERO J. VELASCO, JR.

DIOSDADO M. PERALTA

Associate Justice

Associate Justice

JOSE C. MENDOZA
Associate Justice

AT T E S T AT I O N

I attest that the conclusions in the above Decision had been reached in consultation before
the case was assigned to the writer of the opinion of the Courts Division.

RENATO C. CORONA
Associate Justice
Chairperson, Third Division

C E R T I F I C AT I O N

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson's
Attestation, I certify that the conclusions in the above decision had been reached in
consultation before the case was assigned to the writer of the opinion of the Courts
Division.

REYNATO S. PUNO
Chief Justice

[1] Penned by Associate Justice Eliezer R. de Los Santos, with Associate Justices Jose
C. Reyes, Jr. and Arturo G. Tayag, concurring; rollo, pp. 26-29.
[2] Penned by Associate Justice Arturo G. Tayag, with Associate Justices Rodrigo V.
Cosico and Jose C. Reyes, Jr., concurring; rollo, pp. 31-32.
[3] Records, pp. 1-4.
[4] Id. at 14-19.
[5] Id. at 227-229.
[6] Id. at 238 and 262-263.
[7] Id. at 320-321.
[8] Id. at 399-401.

[9] CA rollo, pp. 45-51.

[10] Supra note 1.
[11] Supra note 2.
[12] Rollo, pp. 139-146.
[13] Italics supplied.
[14] Abaga v. Panes, G.R. No. 147044, August 24, 2007, 531 SCRA 56, 61-62.
[15] Segre v. Ring, 163 A.2d 4, 5 (1960).
[16] Enriquez v. Office of the Ombudsman, G.R. Nos. 174902-06, February 15, 2008,
545 SCRA 618, 625; Lumanlaw v. Peralta, Jr., G.R. No. 164953, February 13, 2006, 482
SCRA 396, 417.
[17] Mayuga v. Court of Appeals, G.R. No. 123899, August 30, 1996, 261 SCRA 309,
316-317; Reyes v. Zamora, No. L-46732, May 5, 1979, 90 SCRA 92, 112; Kapisanan ng
mga Manggagawa sa Manila Railroad Company Credit Union, Inc. v. Manila Railroad
Company, No. L-25316, February 28, 1979, 88 SCRA 616,621; Gabutas v. Castellanes,
No. L-17323, June 23, 1965, 14 SCRA 376, 379; Alzate v. Aldana, No. L-18085, May 31,
1963, 8 SCRA 219, 223; Dulay v. Merrera, No. L-17084, August 30, 1962, 5 SCRA 922,
926; Quintero v. Martinez, 84 Phil. 496, 497 (1949).
[18] Tangonan v. Pao, No. L-45157, June 27, 1985, 137 SCRA 245, 255; Gonzalez v.
Board of Pharmacy, 20 Phil. 367, 375 (1911).
[19] Palileo v. Ruiz Castro, 85 Phil. 272, 275 (1949).
[20] Samson v. Office of the Ombudsman, G.R. No. 117741, September 29, 2004, 439
SCRA 315, 325.
[21] University of San Agustin, Inc. v. Court of Appeals, G.R. No. 100588, March 7,
1994, 230 SCRA 761, 771.
[22] Manalo v. PAIC Savings Bank, G.R. No. 146531, March 18, 2005, 453 SCRA 747,
754-755; National Marketing Corporation v. Cloribel, No. L-27260, April 29, 1968, 23
SCRA 398, 403; National Marketing Corporation v. Cloribel, No. L-26585, March 13,
1968, 22 SCRA 1033, 1037-1038. See, however,Mantrade/FMMC Division Employees
and Workers Union v. Bacungan, No. L-48437, September 30, 1986, 144 SCRA 510, in
which the Court considered mandamus as an appropriate equitable remedy to compel a
corporation to grant holiday pay to its monthly salaried employees. See also Hager v.
Bryan, 19 Phil. 138 (1911), cited in Ponce v. Alsons Cement Corporation, G.R. No.
139802, December 10, 2002, 393 SCRA 602, 614-615, and in Rural Bank of Salinas, Inc.
v. Court of Appeals, G.R. No. 96674, June 26, 1992, 210 SCRA 510, 515-516, in which
the Court ruled that mandamus may be issued to compel the secretary of a corporation to

make a transfer of the stock on the books of the corporation if it affirmatively appears
that he has failed or refused so to do, upon the demand either of the person in whose
name the stock is registered, or of some person holding a power of attorney for that
purpose from the registered owner of the stock.
[23] Carroll v. American Agricultural Chemical Co., 167 S.E. 597 (1932).
[24] Crawford v. Tucker, 64 So.2d 411, 415 (1953).
[25] The American Asylum at Hartford for the education and instruction of the Deaf and
Dumb v. The President, Directors and Company of the Phoenix Bank, 4 Conn. 172, 1822
WL 12 (Conn.), 10 Am.Dec. 112 (1822). See, however, Bassett v. Atwater, 32 L.R.A.
575, 65 Conn. 355, 32 A. 937 (1895), in which the Supreme Court of Errors of
Connecticut recognized the principle that, in the issuance of the writ of mandamus, the
value of the matter, or the degree of its importance to the public police, should not be
scrupulously weighed. If there be a right, and no other specific remedy, mandamus should
not be denied.
[26] State ex rel. Moyer v. Baldwin, 83 N.E. 907, 908 (1908).
[27] Pimentel III v. Commission on Elections, G.R. No. 178413, March 13, 2008, 548
SCRA 169, 209; Balindong v. Dacalos, G.R. No. 158874, November 10, 2004, 441
SCRA 607, 612; Rodriguez v. Court of Appeals, G.R. No. 134278, August 7, 2002, 386
SCRA 492, 499; see Manalo v. Gloria, G.R. No. 106692, September 1, 1994, 236 SCRA
130, 136-137, in which the Court ruled that petitioners claim for backwages could be the
appropriate subject of an ordinary civil action and there is absolutely no showing that the
said remedy is not plain, speedy and adequate.
[28] Segre v. Ring, supra note 15.
[29] Walter Laev, Inc. v. Karns, 161 N.W.2d 227, 229 (1968).
[30] Theses rules were taken from Sections 626-629 of Act No. 190, An Act providing a
Code of Procedure in civil actions and special proceedings in the Philippine Islands,
enacted on August 9, 1901.

Sec. 4
1. Vda. de Precilla v. Narciso, G.R. No. L-27200, August 18, 1972

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-27200 August 18, 1972

TESTATE ESTATE OF GLICERIA A. DEL ROSARIO, deceased, CONSUELO S.
GONZALES VDA. DE PRECILLA, petitioner-administratrix,
vs.
SEVERINA NARCISO, ROSA NARCISO, JOSEFA NARCISO, VICENTE
MAURICIO, DELFEN MAURICIO, REMEDIOS NARCISO, ENCARNACION
NARCISO, MARIA NARCISO, EDUARDO NARCISO, FR. LUCIO V. GARCIA,
ANTONIO JESUS DE PRAGA, MARIA NATIVIDAD DE JESUS-DR. JAIME
ROSARIO, ET AL., NATIVIDAD DEL ROSARIO-SARMIENTO, and PASCUALA
NARCISO-MANAHAN, oppositors-appellants.
Antonio Enrile Inton for petitioner Rev. Father Lucio V. Garcia.
Pedro V. Garcia for petitioner Antonio Jesus de Praga, et al.
Leandro Sevilla & Ramon C. Aquino and Melquiades M. Virata, Jr. for respondent
Consuelo S. Gonzales Vda. de Precilla.
Lorenzo C. Gella for respondent Register of Deeds of Manila.
Leandro Sevilla & Ramon C. Aquino for petitioner-administratrix.
Castro, Makalintal & Associates for oppositors-appellants Encarnacion Narciso, et al. .
Pedro Garcia for oppositors-appellant Dr. Jaime Rosario et al.
Antonio Enrile Inton for oppositors-appellants Fr. Lucio V. Garcia and Antonio Jesus de
Praga.
Salonga, Ordoez, Yap, Sicat & Associates for oppositors-appellants Severina Narciso, et
al.
George G. Arbolario and Sixto R. Reyes & Vicente Redor for oppositors-appellants
Natividad del Rosario-Sarmiento, et al.
RESOLUTION

BARREDO, J.:p

Motion for reconsideration and/or new trial filed by petitioner-appellee praying that the
decision in this case promulgated on April 30, 1970 disallowing the purported will,
Exhibit D, of the deceased Gliceria A. del Rosario, be reconsidered and set aside and that

the judgment of the trial court admitting the same to probate be affirmed, or, in the
alternative, that before finally resolving the said issue of the probate of said purported
will, this case be remanded to the court a quo in order that further evidence may be
admitted relative to the factual question of whether or not the said deceased could have
read the said document on December 29, 1960, the date of the alleged execution of the
same, considering the condition of her eyes then.
The grounds alleged in support of the present motion are:
1. Article 808 of the Civil Code applies solely to a blind testator and does not include one
with a defective eyesight or one who is illiterate or cannot read;
2. The testimony of Dr. Jesus V. Tamesis, upon which the disallowance of the will was
based, has no probative value, because: (a) it is premised upon a grave factual error; (b)
such testimony is contradicted by his own clinical record; and (e) it is glaringly
superficial and evasive;
3. The testatrix, Doa Gliceria A. del Rosario, was not blind; she could read and did
actually read the will now in question, Exhibit "D"; and
4. Should this Honorable Court still believe that it is necessary to reopen the case to
admit additional evidence showing that Doa Gliceria A. del Rosario was not blind, could
read and did actually read the aforesaid will, Exhibit "D", then we respectfully move for a
new trial for the purpose of admitting such evidence.
No doubt counsel's scholarly dissertation of the above first ground both in their motion
and in their reply to appellant's opposition is impressive and, insofar as the writer of this
opinion is concerned, quite logically persuasive and plausible in many respects; but
considering the view the Court takes, as hereinunder discussed, of the main factual issue
here, on the determination of which the point discussed by counsel has to be predicated,
the more fitting occasion to resolve the question thus very ably and vigorous pressed
upon would be if and when this case comes back to this Court later, in the event that
anyone of the parties should find it necessary to submit an appeal after the court a quo
has held the further proceedings herein ordered. At the moment, consideration and
resolution of the above second ground should suffice to terminate the present proceeding
in this Court.
Under the said second ground, counsel for movant contends that the testimony of Dr.
Jesus V. Tamesis, the witness of the so-called intestate heirs, upon which the Court has
relied in disallowing the supposed testament, Exhibit D, in its decision now under review,
has no probative value. In other words, it is argued that said testimony should no have
been believed.
In this connection, it should not, of course, be lost sight of that, as pointed out by
appellants in their opposition to the present motion, there are other considerations stated
in the decision additionally supporting the assailed conclusion of the Court that "with the

condition of her eyesight in August, 1960, and there is no evidence that it had improve by
29 December, 1960, Gliceria del Rosario was incapable of reading and could not have
read the will supposedly signed by her on 29 December, 1960." For instance, the
numerous typographical errors in the document and its in formal and untidy appearance,
considering its importance were taken into account as suggestive of the fact that the
supposed testatrix might not have been capacitated to read the same, as otherwise, it is to
be normally assumed that she would have refused or, at least, hesitated to proceed with its
execution without the proper corrections being made first.
Accordingly, for the Court now to accede to movant's prayer that it overturn its previous
findings in this case, more than mere ratiocination regarding the testimony of Dr. Tamesis
is needed. The pivotal issue here is one of fact, and bare arguments, no matter how
forceful, if not based on concrete and substantial evidence which the Court might have
overlooked and which would convincingly show that said doctor's observations and
conclusions are or might be gravely erroneous cannot suffice to move the Court to
reverse itself. Stated differently, the question that confronts Us now is this: does
appellee's motion at hand allege and demonstrate that there are factual circumstances
extant in the record, related to the doctor's testimony or forming part thereof and probably
not clearly brought out before, which if considered now would tend to show that the
judgment of this Court may be materially erroneous on account precisely of Our having
relied on said testimony?
On this score, movant points out that the testimony of Dr. Tamesis is belied by the very
records referred to by said witness himself in the material portions of his declaration in
court. Certainly, this point is serious, for if it turns out to be supported by the record, what
appears to be one of the main props of the decision would naturally fall and this may
eventually cause modification of the judgment, depending on how materially important
such discordance is in the resolution of the very issue of whether or not the deceased
could have read Exhibit D on December 29, 1960. Consequently, a second look at the
relevant evidence discussed in the motion is more than justified.
Before going, however, to the points raised by movant, it bears stating that the first thing
that would strike anyone who reviews the testimony of Dr. Tamesis is that the reason or
purpose of the so-called appellant intestate heirs in presenting the same is not clear,
considering that in none of the nine formal and detailed oppositions filed in the Court
below, sometimes individually, at other times jointly by the two groups of appellants, is
there any specific indication of the ground for disallowance now under discussion,
namely, that there was failure to comply with the requirement of Article 808 of the Civil
Code because Doa Gliceria, if she was not blind, had such a defective eyesight on
December 29, 1960 that she could not have read the will in question, Exhibit D. In other
words, judged from the grounds of disallowance alleged in their formal oppositions on
record before the witness was presented, there was nothing to indicate that the good
doctor was going to testify on the alleged totally defective reading vision of the right eye
of the deceased, which paucity, as We see it now, might account for the rather ambiguous,

or equivocal tenor of declarations regarding the most material facts in dispute. It may be
pointed out that the so-called testate heirs presented by Attys. Inton and Garcia closed
their case on February 23, 1966 without presenting any evidence of their own on such
alleged defective eyesight of Doa Gliceria; neither does the record show that they
adopted the testimony of Dr. Tamesis, offered by the so-called intestate heirs, thru Atty.
Ordoez when the latter closed his evidence at the hearing of March 2, 1966. Indeed, this
particular ground of opposition seems not to have surfaced until after Dr. Tamesis had
already testified, for it was only his memorandum submitted to the court after the trial,
that Atty. Ordoez, the counsel for oppositors Severina, Rosa and Josefa Narciso and
Vicente and Delfin Mauricio, some of the intestate heirs, discussed the same for the first
time. Even the discussions among counsel during the course of the doctor's testimony
hardly suggest such point. No wonder, in making reference to the oppositions filed with
the lower court, the learned trial Judge said in his decision:
The probate of the will has been opposed by several persons. For the purpose of
simplifying the proceedings and in order to avoid confusion, the Court divided them into
the so-called "testate" heirs and "intestate" heirs. The testate heirs are oppositors who
stand to inherit under a prior will allegedly executed by the testatrix in 1956; while the
intestate heirs are those who stand to inherit in case of intestacy. The documentary
exhibits submitted by them had been marked with the appendix "Garcia, et als." for the
testate heirs, and "Narciso, et als." for the intestate heirs. After the close of the
proceedings, memoranda were filed by the petitioner and by both the testate heirs and the
intestate heirs, while a separate memorandum was filed in behalf of oppositors Natividad
del Rosario-Sarmiento and Pascuala Narciso-Manahan:
In behalf of the intestate heirs, the probate is opposed on the following grounds:
(1) The physical appearance of the will itself reveals irregularities in its execution;
(2) There had been incontrovertible evidence presented that the testatrix did not have
testamentary capacity;
(3) The testimonies of the attesting witnesses and of the notary public show irreconcilable
inconsistencies on material matters; and
(4) The proponent and her family had been guilty of suppressing material evidence and
using perjured testimony in support of the probate of the will.
On the part of the testate heirs, it is averred that Exhibit D is not the true and authentic
will of the decedent, the true will of the deceased being one executed on June 9, 1956
(Exhibit 9-Garcia, et als.) before Notary Public Jose Ayala; the 1960 will was not
executed in accordance with law; and inconsistencies in the testimonies of the witnesses
presented by the proponent are vital to its probate.
Oppositors Natividad del Rosario-Sarmiento and Pascuala Narciso-Manahan contend that
(1) from August 30, 1960 up to December 29, 1960, the testatrix was a blind woman for

reading purposes and could not have read the will; (2) there is no evidence presented as to
who prepared or typewrote the will Exhibit D; (3) the alleged will Exhibit D was not
signed by the testatrix in the presence of the witnesses and of the notary public nor in the
presence of each other on December 29, 1960; (4) the signature of the deceased to the
document marked as Exhibit D was secured through misrepresentation; (5) the testatrix
was not possessed of a sound and disposing memory on December 29, 1960; and (6) the
testimonies of the witnesses for the petitioner, including that of the petitioner herself, are
highly incredible.
xxx xxx xxx
The oppositors do not question the authenticity of the will Exhibit D nor the genuineness
of the signature of the testatrix and of the attesting witness appearing thereon. In
synthesis, the opposition to the probate of the said will Exhibit D is centered on the
alleged lack of testamentary capacity on the part of the decedent, and the supposed
irregularities in its execution.
On the testamentary capacity of the decedent the oppositors maintain that the decedent
was no longer in a position to execute a will on December 29, 1960 because she was then
more than 91 years old; that she could not manage her own properties so much so that her
properties were under the management of Alfonso D. Precilla; that she was well on the
way to blindness due to glaucoma; that she was so weak that she had to be assisted
whenever she moved from place to place; and that as certified to by the Clerk of Court of
the Court of First Instance of Manila on July 11, 1961 in Special Proceedings No. 43871
of this Court, the decedent could hardly understand the questions pounded to her, that she
took much time to understand and answer the questions and that most of her answers
were not responsive to the questions.
xxx xxx xxx
It is noteworthy that aside from claiming that the decedent was much advanced in age
and that she suffered from weakened eyesight, the oppositors have not imputed any
infirmity which would affect the mental capacity or soundness mind of the testatrix. "To
be of sound mind, it is not necessary that the testator be in full possession of all his
reasoning faculties, or that his mind be wholly unbroken, unimpaired, or unshattered by
disease, injury or other cause. It shall be sufficient if the testator was able at the time of
making the will know the nature of the estate to be disposed of, the proper object of his
bounty, and the character of the testamentary act. The law presumes that ever person is of
sound mind, in the absence of proof to the contrary." (Articles 799, 800, Code).
We are not saying that because of these observations, the alleged blindness or incapacity
to read of the supposed testatrix and the testimony of Dr. Tamesis in regard thereto may
not be considered at this stage. Mention of the above circumstances is here made only to
stress the point that even the oppositors themselves are not unanimous as regards this
specific ground of opposition. As a matter of fact, even at the appeal level in this Court,

nowhere in the discussion of the ten errors assigned by so-called testate heirs in their
brief is mention made of this specific issue. It may, therefore, be said that subjectively
said testate heirs, who precisely would have the greater probability of benefitting the
disallowance of the will in controversy, because they appear to be testamentary heirs
under the prior will of 1956, which stands a good chance of being the one probated if the
1960 will is ultimately rejected, might not have considered said point to be factually
tenable, as may be inferred from the fact that they did not present any witness to prove
alleged deficiency of the eyesight of the deceased, nor they even adopt the evidence on
this point of the other oppositors. They limited themselves to the presentation of
documentary evidence, none of which touched on the said point. Only the intestate heirs
presented two witnesses in their attempt to substantiate this unannounced ground of their
opposition, namely, Atty. Vidal Ranoa and Dr. Tamesis, and at that, only the latter's
testimony appears to have some relevance.
It is clear, however, that whatever fault there might be in the tactics or exact position of
the testate heirs, We cannot now dodge this issue of the alleged blindness or incapacity to
read of the deceased. Even the failure of appellee's counsel to properly object to evidence
on said issue, for not being directly relevant to the grounds of opposition alleged by
appellants, or the apparent waiver of such possible objection as a consequence of his act
of cross-examining the doctor are of no consequence. In Guevara v. Guevara, 74 Phil.
479, this Court postulated:
... . We hold that under section I of Rule 74, in relation to Rule 76, if the decedent left a
will and no debts and the heirs and legatees desire to make an extra-judicial partition of
the estate, they must first present that will to the court for probate and divide the estate in
accordance with the will. They may not disregard the provision of the will unless those
provisions are contrary to law. Neither they may do away with the presentation of the will
to the court for probate, because such suppression of the will is contrary to law and public
policy. The law enjoins the probate of the will and public policy requires it, because
unless the will is probated and notice thereof given to the whole world, the right of a
person to dispose of his property by will may be rendered nugatory, as is attempted to be
done in the instant case. Absent legatees and devisees, or such of them as may have no
knowledge of the will, could be cheated of their inheritance thru the collusion of some of
the heirs who might agree to the partition of the estate among themselves to the exclusion
of others.
xxx xxx xxx
Even if the decedent left no debts and nobody raises any question as to the authenticity
and due execution of the will, none of the heirs may sue for the partition of the estate in
accordance with that will without first securing it's allowance or probate by the court,
first, because the law expressly provides that "no will shall pass either real or personal
estate unless it is proved and allowed in the proper court"; and, second, because the
probate of a will, which is a proceeding in rem, cannot be dispensed with and substituted

by any other proceeding, judicial or extrajudicial, without offending against public policy
designed to effectuate the testator's right to dispose of his property by will in accordance
with law and to protect the rights of the heirs and legatees under the will thru the means
provided by law, among which are the publication and the personal notices to each and all
of said heirs and legatees. (Emphasis supplied)
So much is the concern of the law for the indispensability of probating a will that Section
4 of Rule 75 penalizes a fine not exceeding two thousand pesos the failure of custodian of
a will to deliver the same to the court or the executor named therein, as also the failure of
the executor to present the will to the proper court for probate; and under Section 5 of the
same rule, such custodian may be detained by order of the court until he makes the
required delivery of the will. The court has to be convinced on authenticity and due
execution of the will even if its allowance is not opposed and the rule requires in such a
situation that, at least, one attesting witness must testify. (Sec. 5 Rule 76). A testament
may not be disallowed just because the attesting witnesses declare against its due
execution; neither does it have to be necessarily allowed just because all the attesting
witnesses declare in favor of its legalization; what is decisive is that the court is
convinced by evidence before, it is not necessarily from the attesting witnesses although
they must testify, that the will was or was not duly executed in the manner required by
law (Section 11, Rule 72; Unson v. Abella, 43 Phil. 494; Fernandez v. Tantoco, 49 Phil.
380; Tolentino v. Francisco, 57 Phil. 742; Ramirez v. Butte, 100 Phil. 635) because the
proponent is not concluded by the testimonies of the attesting witnesses. (Fernandez v.
Tantoco, supra). Withal, the dismissal of a petition for probate for non-appearance of
petition counsel does not constitute res adjudicata (Arroyo v. Albay, L-15814, Feb. 28,
1962, 4 SCRA 555), and the presentation for authentication of a will does not prescribe.
(Guevara v. Guevara, supra.) Irrespective, therefore, of posture of any of the parties as
regards the authenticity and due execution of the will here in question, it is the mandate
of the law that it is the evidence before the Court and/or ought to be before it that is
controlling.
In the case at bar, the evidence before Us with respect to the capacity of Doa Gliceria to
read on December 29, 1960, which appears on its face to be the date of the controverted
execution of the will in question boils down to this: on the part of the appellee, direct
evidence consisting of the testimonies of the three attesting witnesses, Francisco Decena,
Francisco Lopez and Vicente Rosales, who uniformly declared that the testatrix read the
will silently in their presence before signing the same and, in addition, the records of
court proceedings more or less attesting to her capacity to read and some sworn
certifications as well as checks signed by her; on the part of the intestate heirs, only the
testimonies of their two witnesses, Atty. Vidal Ranoa and Dr. Jesus Tamesis, but actually,
it was only the latter who gave what might be considered as evidence related to the
eyesight of Doa Gliceria. In other words, the evidence of appellee consisted of the direct
evidence of three attesting witnesses as to their actual personal knowledge of the matter

in dispute, corroborated by court records and other documents, whereas the intestate
heirs-oppositors had only the testimony of Dr. Tamesis.
Referring now to said testimony of Dr. Tamesis, the record is rather vague as to whether
he was presented to testify as a professional expert or he was called for the purpose of
declaring from actual personal knowledge of the condition of the eyesight of the testatrix
on the date in question, December 29, 1960. Having been her ophthalmologist and
surgeon who operated on her left eye on August 8, 1960 and who had her "under medical
supervision up to 1963" (meaning since March 11, 1960), 1 it would indeed have been
more desirable, in Our view, if the doctor had testified more directly from personal
knowledge rather than on mere opinion, as he seems to have done, on the basis of
records, which in some vital instances were prepared, according to him, by other persons.
And, perhaps, there would have been less difficulty in arriving at a safe conclusion as
regards the vital fact now in controversy, if the doctor had only been more categorical and
definite, rather than somehow ambiguous and equivocal in his testimony. Of course, We
cannot wholly blame him alone; he might have waited for questions of counsel that were
never asked.
It is quite interesting and very revealing to follow step by step the testimony of the
doctor.
Testifying on notations made by him as to condition of the eyes of his patient (Doa
Gliceria) on March 11, 1960, the first day of consultation, he declared:
Q After the words eye grounds O.D. there appears certain writings in ink above the
two circles, will you kindly form the court the significance of these and their meaning ?
A My assistant did not draw, but I saw. However, these are my writings appearing here
and I made notations that the optic nerve manifested that senile degeneration and was
pale.
Q That is with respect to which eye?
A With respect to the right eye marked by O.D. the letters O.D.
Q And the notation on the other circle, Doctor, will you kindly inform the court the
significance?
A On the other circle there was no drawing and my remarks here were under the
substance that open the pupil for examination the optic nerve was also pale and there was
even a cupping of the optic nerve. Other details hardly noticeable.
Q When did you make these notations which appear to have been made near the
circles in Exhibit 3-A ?
A They were made on the day of consultation to me, March 11, 1960.

Q Can you inform the court, Doctor, in lay language what is the significance of the
notation that the optic nerve was pale appearing on the circle above which you have
written, the word pale, Doctor ?
ATTY. AQUINO
I object to this line of questioning, Your Honor, these questions are absolutely immaterial
in this case. The witness here, as he has said, is an ophthalmologist. He is not a
psychiatrist or a neurology surgeon.
COURT
You just enter a general and continuing objection.
ATTY. AQUINO
I would like to register a general and continuing objection to these questions.
COURT
You may proceed.
Q What does that mean, that annotation? You are asked, Doctor, to explain ...
A This "pale disc senile degenerates retina", it simply meant that the vital organs of
the eye such as the retina and optic nerve had degenerated and, therefore, function is
expected or might be below normal.
ATTY. ORDOEZ
Q On the right side of this document Exhibit 3-A under the word tension there appears
written notation or figures after the symbol O.D. and O.S. Will you inform the court the
significance of those figures?
A Tension O.D. with the eye refers to the pressure of the eye, that is, whether the eye
is soft, normal or hard.
Q In lay language, Doctor, what is the significance of this figure appearing under
tension ?
A You want me to interpret ?
Q Yes.
A The right eye to me at that moment was normal in pressure, and the left eye at that
moment was above normal.
Q Does the term "pressure" have any effect on the ability of the patient to see ?
A In fact if the pressure is above normal indicates another disease.

Q Now, in this particular document what other disease, if any, is indicated by your
notation, Doctor ?
A I have diagnosed this aside from the cataract as a possible case of glaucoma.
Q What is the effect of glaucoma on the patient?
A Glaucoma invariably possesses blindness.
Q And at that time you examined the patient will you please inform the court what
was the stage of that disease the patient examined by you ?
A Taking into consideration the findings in the eye grounds as manifested in the
notation of this big circle and there were corroborative evidences that she has been
suffering from glaucoma that time.
Q Approximately how long a time ?
A at least a year from the changes mentioned.
ATTY. AQUINO
Already answered.
COURT
Let him answer.
WITNESS
A Blindness is the ultimate result.
COURT
Q You refer only to the left eye affected in this case?
A Yes.
(pp. 14-18, t.s.n.. March 23, 1966)

So far, as may be seen, the doctor was referring principally to the left eye. As to her right
eye, his categorical declaration was:
Q Even if the left eye has glaucoma that will permit the sight of the other eye ?
A Yes, sir.
ATTY. ORDOEZ

Q From this record is there any indication of the condition of the right eye at the time
You examined the patient?
A From the meager data set down by my assistant, however, after examining her, the
right eye would be seen to be operated for cataract, that her optic nerve and retina showed
regeneration, that she was wearing lens with the grade that was noted by my assistant. 2
(p. 19 id.)

This was followed by references set down by his assistant which he called "farfetched
data":
Q From the entries appearing in this record, would you be able to form an opinion as
to the condition of the right eye of the patient ?
A As to vision, from the farfetched data here there is no evidence on the actual visual
capacity of that right eye my assistant had not noted it down. (pp. 19-20, id.)

Moving afterwards to Exhibit 3-B, because of the insistence of counsel to get more
specific information as to the "condition of the vision of the patient as to the right eye",
he declared:
Q But is there anything herein the entry appearing in the other documents Exhibits 3B, 3-C, and 3-D from which you could inform the court as to the condition of the vision
of the patient as to the right eye?
A On the underside?
Q Referring to Exhibit B-B?
A Exhibit 3-B, here ...
ATTY. ORDOEZ
WITNESS:
A Under date of August 30, 1960, is the record of refraction, that is setting of glass by
myself which showed that the right eye with my prescription of glasses had a vision of 20
over 60 (20/60) and for the left eye with her correction 20 over 300 (20/300).
ATTY. ORDOEZ
Q In layman's language, Doctor, what is the significance of that notation that the right
eye had a degree of 20 over 60 (20/60).

A It meant that the eye at least would be able to recognize objects or persons at a
minimum distance of twenty feet.
Q But would that grade enable the patient to read print ?
A Apparently that is only a record for distance vision, distance sight, not for near. (pp.
20-21)

At this juncture, two points must be elucidated. In the first place, We have re-examined
Exhibit 3-B very carefully, and We are fully convinced that movant's contention that no
such annotation of "20/60" appears in the entry therein for August 30, 1960 is well taken
because what is clearly visible therein not 20/60 but 20/4 or 20/40 is written following
the prescription of OD+15.25(L)-1.25x90 for right eye and above the prescription for the
left eye readingOS+14.25 (Lic)-300x90 followed by the visual acuity of 20/300.
In the second place, when the witness was asked, "But would that grade enable the
patient to read print?", which certainly was the pivotal and most important question,
answer was rather obscure and susceptible of misinterpretation. Instead of giving a direct,
definite and categorical, reply, he testified thus: "Apparently that is only a record for
distance vision, for distant sight, not for near." While the reference to "distance vision, for
distant sight" is apparently correct in the parlance of ophthalmologists, the last phrase
"not for near" suffers from, at least, incompleteness in the sense that, while again it
appears to be the ophthalmological expression, he thought his words convey leaves the
Court guessing as to whether or not it has same connotation as when one says "the patient
can read print", for, even casual acquaintance with ophthalmological symbols teaches that
the notation 20/60 by its alone, (assuming that such is the notation in Exhibit Balthough it
is not, as already stated above) represents visual acuity for far or distance and is not
exactly the symbols which indicates the capacity of the patient to read print.
In other words, when the good doctor said "not for near", technically, he did not refer to
the incapacity of the patient to read print. By this statement, he simply meant that the
notation "20 over 60(20/60)", is not the usual manner of indicating whether or not the
patient can read, for, indeed as all ophthalmologists know said notation refers to the
visual acuity for far or distance vision measured on the Snellen chart. To be more
specific, said notation is a clinical symbol referring to the size of the letters on the
Snellen chart that a patient can recognize at a distance of 20 feet from the chart. The sizes
of these letters on the chart vary and the measure of visual acuity for distance vision, not
for reading, is determined according to the size of the letters on the chart that the patient
can read from a distance of 20 feet. So, "20/60" means that the size of the letters on the
Snellen chart that the patient can read from a distance of 20 feet is that which according
to the Snellen test, a person with normal vision can recognize even at a distance of 60
feet. When an ophthalmologist may venture offhand an opinion on the matter of the

reading capacity of a patient on the basis of such notation of 20/60, it would be somewhat
speculative for him to specify what type of print such patient can read. Indeed, according
to the work or ocular diseases referred to in appellee's brief:
4. Near vision. The principles of visual acuity for distance apply for near,
remembering the added factor of accommodation. In young individuals or with the proper
addition of plus lens in presbyopes, visual acuity for near can be determined by suitable
charts usually at 14 in. The notations of the letter size unfortunately vary, but the
equivalents are given in Table 1. Lebensohn's chart (1) has several practical virtues,
including the uses of letter, numbers and illiterate symbols, correlation of various
designations of letter size with comparable Snellen distance acquities, a bar of music for
testing intermediate distance, the two line and duochrome tests, an attached chain
measuring 14 in. and a hard plastic surface which is easily cleaned. A normal individual
can usually detect 3 or 4 point type on testing for near vision, but larger print is required
for reading comfortably. For example, telephone directories (6 point require) 4 point
acquity, newsprint (8 point) requires 5 point magazines and books (9-10 point) require 6
point, children's textbooks (12-18 point) requires 1-12 point and sightsaving texts (24
point) require at least 16 point acquity. Although visual acuity for distance cannot be
related exactly to visual acquity near considering only the visual angle, an individual with
corrected vision of less "had 20/40 usually begins to have difficulty reading ordinary
newsprint." (W.F. Hughes, Office Management of Ocular Diseases, p. 17)
and the Table 1 mentioned gives the corresponding types of print for different acquities as
follows:
(The following page is the scanned copy of p. 18 of the work where Table 1 is found.).
VISION
LOSS OF CENTRAL VISUAL ACUITY. The usual method of recordering vision as a
fraction does not indicate the true percentage of visual efficiency; e.g., 20/40 vision is not
50% efficient visual acuity. In 1925, a standard method of relating visual acuity of a
single eye to visual efficiency (2) was approved by the Section on Ophthalmology of the
American Medical Association, a condensation of which is given in Table 1. The
percentage vision in one eye can be calculated, utilizing both rear and distance visual
acuities, according to the following method, which weights the near vision twice.
TABLE 1. ESTIMATION OF PERCENTAGE LOSS OF CENTRAL VISUAL
ACUITY IN ONE EYE
Visual Acuity Visual Acuity
Distance in

for Distance

for

Near,% Visual % Visual

Unittent

Snellen

Meters

jacget

Point

Efficiency Loss

20/20

14/14

0.35

100

20/25

14/18

0.44

96

20/30

14/21

0.59

...

91

20/40

14/28

0.71

84

16

20/50

14/35

0.88

77

23

20/60

14/42

1.08

...

9+

70

30

20/70

14/49

1.30

10

64

36

20/80

14/56

...

12

59

41

20/100

14/70

1.76

11

14

49

51

20/160

14/112

...

14

22

29

71

20/200

14/140

3.53

...

...

20

80

20/400

14/280

7.06

...

...

97

20/560

14/560

14.12

...

...

0.1

99.9

calculated utilizing both near and distance visual acuities according to the following
method, which weights the vision twice.
( % acuity distance) + (2 X % acuity for near) ________________________________ =
% visual for 1 eye
3
For example:
Visual Acuity = 20/100 for distance and 14/140 for
near
% Visual Acuity = 49% for distance and 20% for near
Combined % visual acuity for this eyes = 49 + 2 x 20
= 30%
3
LOSS OF VISUAL FIELD. AN estimation of the percentage efficiency of visual field
is determined according to the following method. The peripheral visual field (isopter) is
determined with a 1 white test object (e.g., approximately a 6 mm. object at 330 mm.
distance) for each of the eight 45 meridians. A 100% field of
PHOTOSTATE OF PAGE -18W. F. HUGHES, Office Management of Ocular Diseases
WILLIAM F. HUGHES, JR., M.D.
Professor and Head, Department of Ophthalmology, University of Illinois College of
Medicine; Ophthalmologist in Chief, Illinois Eye and Ear Infirmary and Attending
Ophthalmologist, Presbyterian Hospital, Chicago.
Copyright 1953 by The Yearbook Publishers Inc. 200 East Illinois Street, Chicago
To reiterate, Dr. Tamesis did not give any opinion, in his above answer, as to the capacity
of his patient's right eye to read any kind of print; rather, what he must be understood to
have meant is that the annotation of 20/60 referred to in the question of counsel was a
record of visual acuity for distance which is not a definite indicium of her capacity to
read print. As may be seen in the above table, it is by reference to the Jaeger figures that
the type or size of print, according to standard points, that a patient can read is usually
indicated. In the reading chart commonly used in clinics of ophthalmologists and
optometrists, the symbol used is J-1, J-2, etc. In the absence of any counter-reference in

any of the pleadings or memoranda filed With this Court by appellants, We consider the
information contained in the above reference book, which We have checked, to be
sufficiently reliable insofar as the technical aspect of the issue before Us is concerned.
The reference made by the witness to his prescription for lenses is even more relevantly
revealing. Here is positive proof of the utter lack of evidence in his testimony on the
reading capacity of his patient. As may be readily noticed, the prescription given is only
for distant vision. Putting aside for a while any reference to the left eye which had been
operated for glaucoma only three weeks before, hence normally it would not have been
tested for reading, it is obvious from the records referred to by the witness that no
prescription was given by him for reading even the right eye, the prescription pointed to
being obviously for distance vision only as indicated precisely by the visual acuity noted
therein. Anyone would know from common experience that the giving of a prescription
for distance vision does not necessarily mean that the patient can be given a prescription
for reading.
Counsel for oppositors would make much of the reference made by Dr. Tamesis to the socalled "counting fingers" method to indicate the extent of Doa Gliceria's vision, but the
record of the doctor's testimony on this point is clear to the effect that he was referring to
the left eye only of the patient, not to her right eye. This is what is in the record:
Q Will you inform the court those entries which you made after the operation in the
Lourdes Hospital?
A My record in my chart shows entries with respect to the post-operative care of the
patient until she was finally given glasses on August 30, 1960, and that she had come to
my clinic on various occasions for follow-up and other consultations.
Q During your conferences with the patient, Doctor, and after the operation did you have
any occasion to propound questions to her relating to objects which were presented to her
for identification?
A Well, naturally in the testing of sight especially with respect to fitting her glasses, we
had to rely on what she would answer.
Q Do you have any procedure or test to indicate the extent of vision which utilizes
counting of fingers of the patient?
A We utilize counting of fingers as one of the standard procedures when the vision is
actually very poor.
Q And did you employ that method on this patient?
A I believe I did.
Q Will you kindly inform the court where you entered that procedure of counting fingers?
A One such entry is here dated August 23.

ATTY. ORDOEZ
Witness pointing to entry on Exhibit 3-B.
WITNESS
A Referring to division of newly operated left eye and in spite of the glasses at that time
for reflection, her vision was only counting fingers at five feet.
ATTY. ORDOEZ
May I request to read previous to the last answer of the witness.
STENOGRAPHER
We utilize counting of fingers as one of the standard procedures when the vision is
actually very poor.
ATTY. ORDOEZ
Q What do you actually mean by the phrase "actually very poor" which justified your
method of counting fingers?
A It is manifested by the inability of the patient or the person to see clearly with curve
glasses, and when we see objectively changes on the eye which would block the passage
of the light rays towards the retina.

Thus, ended the doctor's direct testimony, and so far already explained, it cannot be said
therefrom that there is adequate basis for the conclusion that the right eye of Doa
Gliceria could or could not read on August 30, 1060. Indeed, and more importantly, it
should be noted that witness much less made any reference, as he could not have had any
safe basis to do so, to the condition of eyes of his patient on the very date in issue,
December 29, 1960.
Coming now to the cross-examination, the impression easily gets from the tendency
thereof is that counsel was more interested in extracting facts from the witness indicative
of the capacity of the patient's right eye to rather than to directly belie the points
attempted to be proven by oppositors during the direct examination, vague and equivocal
tho' they were. For example:
Q Before you performed the operation on Da. Gliceria A. del Rosario, she went to your
clinic?
A Yes, sir, for consultation.
Q And you talked with her?

A Yes, sir.
Q You propounded questions to her?
A Yes, sir.
Q And she answered your questions?
A Yes, sir.
Q What was her principal complaint?
A She was dizzy. The fact that was her main complaint that she was dizzy and she had
practically poor vision of the left eye.
Q She told you that personally?
A Yes, sir.
Q Was she walking when she went to your clinic?
A Yes, sir.

Then, when the witness was asked how successful was the operation on his patient's left
eye on August 8, 1960.
he explained:
Q The operation performed by you was successful?
A Technically successful.
Q In fact according to this Exhibit 4 Narciso, the record of the hospital, there is a
statement here "condition on discharge" with the handwritten answer "fair"?
A Yes, sir.
Q Can you elaborate on the meaning of the word "fair" here?
A Well, this was written by the resident on duty in the hospital, and that signified only
that the patient was physically healthy as far as ordinary activities are concerned. She can
walk.
Q And because her condition was fair you consented to have her discharged from the
hospital?
A Yes, sir.

Perhaps, it was because at this stage, the cross-examiner understandably avoided for
obvious reasons, asking directly the opponent's witness about the patient's capacity to
read that nothing was mentioned by the doctor on that point, but nonetheless, he later
declared more relevantly thus:
Q After she was discharged from the hospital you prescribed lenses for her, or glasses?
A After her discharge from the hospital she was coming to my clinic for further
examination and then sometimes later glasses were prescribed.
Q If I remember correctly, according to the test of August 30, 1960?
A Because here it is marked Rx prescription.
Q And the glasses prescribed by you enabled her to read, Doctor?
A As far as my record is concerned, with the glasses for the left eye which I prescribed
the eye which I operated she could see only forms but not read. That is on the left eye.
Q What about the right eye?
A The same, although the vision on the right eye is even better than the left eye.
Q After that did you Prescribe other glasses?
A No other glasses were prescribed, but subsequent visits were made to my clinic
because we gave her some vitamins and drugs to improve the vision of the eyes.

Of course, the looseness or ambiguity of this testimony is manifest. As can readily be

noted, although the doctor was testifying on a most crucial point, which, under the
circumstances, it may be presumed he should have had personal knowledge of as Doa
Gliceria's attending physician, hence he could be considered as giving direct evidence
rather than merely the opinion of one professionally engaged as an expert witness, he
based his answers neither on present nor on past recollection but simply on "as far as my
record is concerned." And then his answer to the question, "What about the right eye?"
saying "the same, although the vision on the right eye is even better than the left eye." is
as devoid of any concrete information on the point at issue as his later declaration as
follows:
Q In this certificate you stated, and I quote: "Patient was provided with aphakic lens and
she had been under medical supervision up to 1963 with apparently good condition"?
A Yes.

Q When you said that she had apparently good vision you mean that she was able to
read?
A No, not necessarily, only able to go around, take care of herself, and see. This I can tell
you, this report was made on pure recollections and I recall she was using her glasses
although I recall also that we have to give her medicines to improve her vision, some
medicines to improve her identification some more.
Q Will you kindly inform the Honorable Court what you mean by aphakic glasses?
A The cataract glasses.
Q Those lenses were used by the patients who had a cataract operation?
A Yes.

It is immediately noteworthy that to the direct question whether or not "apparently good
vision" meant that his patient "was able to read", the answer "No, not necessarily etc.,"
and, at that, based, according to the doctor himself on his "report (which) was made on
pure recollections, etc." is hardly the clear and categorical answer expected of an
attending physician having personal knowledge of the condition of his patient. Withal, the
aphakic glasses the doctor mentioned in the above testimony may not have been
prescribed by him but by Dr. Ocampo who had performed the operation on the right eye.
In any event, it is generally known that almost normal vision is usually restored after a
successful operation for cataract such as that which Doa Gliceria underwent in 1956:
There are numerous operations now developed which are relatively simple and which are
quite safe in the majority of instances. Moreover, good vision follow in 97% of the
operations for cataract. After cataract is removed, the person wears what are known as
cataract glasses. These are made so that they help in forming the image properly on the
retina. By use of a hormone called chymotrypsin the tissues surrounding the lens may be
softened and this has greatly facilitated the operation for cataract.
The person who has been unable to see for some time because of the development of
clouding, who has been unable to play golf or get about, and who then recovers his
eyesight by a simple operation that any competent specialist in diseases of the eye can
perform, is one of the most appreciative of all people benefited by the modern medical
and surgical science. When the cataract is removed, the result is like defrosting a window
or raising the window shade: the light comes in without obstruction, and the individual is
able to see. (p. 940, Illustrated Medical and Health Encyclopedia, Edited by Morris
Fishbein M.D., Vols. 3 and 4, 1966 ed.)

In other words, and as may be confirmed from anyone who has undergone an operation
for cataract, with the use of aphakic glasses, vision for reading as well as for far is
generally nearly as normal as anybody else who uses ordinary corrective eye glasses or
even one who does not have defective eyes. Testifying further, the doctor declared:
Q She was wearing eyeglasses?
A Yes, sir, she had to wear eyeglasses.
Q What about the vision in the right eye, was that corrected by the glasses?
A Yes, with the new prescription which I issued on August 30, 1960. It is in the clinical
record.
Q The vision in the right eye was corrected?
A Yes, that is the vision for distant objects.

Here again, the answer of the good doctor were as safe as any equivocal testimony can
be. Obviously, he was referring to his prescription noted on Exhibit 3-B Narciso which is
indicated thereon as having been given on August 30, 1960 and which earlier he said was
based on the visual acuity of his patient of 20/60 (which have already seen is actually
20/4 or 20/40). Evidently, therefore, the correction the doctor was talking about must
have been necessarily with reference to what is shown by the entry for September 22,
1960 on the same Exhibit 3-B Narciso indicating that, indeed, the vision of his patient's
right eye had improved its visual acuity to 20/3 or 20/30, approximating almost the
normal acuity of 20/20. Considering again that any ophthalmologist knows that 20/60
means that a person with such visual acuity can distinguish in the Snellen chart at a
distance of only 20 feet letters of the size or type that, according to the same chart, a
person with normal vision can see at 60 feet, naturally, 20/30 means that the vision had
greatly improved, such that smaller letters in the chart which can be read by the normal
eye at 30 feet distance could already be read by the patient at 20 feet. But instead of being
more categorical about what such improvement signifies, the good doctor merely made
reference to "the vision for distant objects", leaving unsaid what such notations of the
visual acuity for distance of his patient indicate regarding her capacity to read ordinary
print. As We have already discussed above, ophthalmological parlance, the capacity to
read is indicated by the Jaeger symbols, and since the doctor limited himself only to the
entries on the record regarding visual acuity for distance on the Snellen chart, his
testimony may be quite accurate but certainly, it is incomplete as to the very point at
issue. Why he did not care to testify on present or past recollection and why he did not
elucidate directly and specifically by the use of unequivocal words on whether or not his

patient could read ordinary print on any particular date are incomprehensively
unexplained.
Finally, his testimony to the following effect:
Q When you said that the operation was successful and that you provided glasses for the
patient, according to you she would be able to see?
A She would have been able to see very clearly if her retina and optic nerve were also
normal. But the operation by itself was successful in the sense that the cataract was
successfully removed and her post-operative recovery was uneventful and she was able to
be discharged without any complication.

lest it be misunderstood, refers to the left eye he operated on and not to the right eye of
Doa Gliceria.
In any event, in such state of the evidence before Us ambiguous, indefinite, equivocal
and even misleading, as to a very vital issue of fact and considering the importance of
the probate of a will, as explained above, not to mention the substantial value of the estate
herein involved, We are persuaded, in the light of the points raised by appellee in her
motion for reconsideration, that the best interests of justice will be better served by
reopening this case.
The very existence of a purported testament is in itself prima facie proof that the
supposed testator has willed that his estate be distributed in the manner therein provided,
and it is incumbent upon the state that, if legally tenable, such desire be given full effect
independent of the attitude of the parties affected thereby. No less than public policy
requires adherence to this view. While, as indicated earlier, no will may be probated
unless the court is convinced of its authenticity and due execution on the basis of the
evidence before it, it is as important a matter of public interest that a purported will is not
denied legalization on dubious grounds. Otherwise, the very institution of testamentary
succession will be shaken to its foundation, for even if a will has been duly executed in
fact, whether or not it will be probated would have to depend largely on the attitude of
those interested in his estate. All they have to do is control the available evidence make it
good or bad, depending on whether they like to follow the wishes of the testator or they
don't. We hold that the underlying principles of the law on probate dictate that subjective
considerations should not be the determinative factor as to whether a will should be
allowed or not. We are of the considered view that in probate cases, the courts should
disregard the ordinary rules of procedure and of evidence to the end that nothing less than
the evidence of which the matter is susceptible should be inquired to be presented to it
before a document purport to be legalized as a will is to be probated or to be denied

probate. Whenever the court has reasonable doubt as the material facts concerning the
proper execution of a will, it should take the initiative of requiring the parties to take the
appropriate step to erase such doubt. Unlike in adversary proceedings wherein the rule is
that the party whose favor the evidence preponderates should be awarded the palm of
victory, probate proceedings are instituted that the state may see to it that a testator's will,
if duly executed, may be legalized, and the courts, as agents of the state, should not stop
short of being fully convincing that there has been or has not been compliance with the
requirements of the formalities required by law in the execution of the testament, so
much so that if the opposing parties, for any reason, should leave material evidence
unpresented or unclarified, and from the circumstances, the court has reason to believe
that better evidence exists, the court should try to remedy the situation by calling for
more complete and clearer evidence; and so it is that when it appears to the appellate
court that the evidence is incomplete or insufficient to either establish or disprove any
essential fact in an appealed probate proceeding, it is not only within its authority, but
more of an obligation on its part to return the case for further proceedings, that the
evidence may be completed and in order that the court may be provided with adequate
and concrete basis for deciding the issues of authenticity and due execution of the will
before it with as much degree of certainty as all the attendant circumstances will permit.
Thus, in the case at bar, it is really of no moment that, as contended by appellants, the
alternative motion for new trial of appellee is not based on the ground of newly
discovered evidence within the contemplation of Section 1 of Rule 53, for, aside from
what has just been said of the nature of probate proceedings and the duties of the courts
in relation to the evidence of the parties therein, Section 3 of Rule 51 expressly and
definitely empowers this Court to order a new trial for reasons other than newly
discovered evidence, such as when the court feels that the reception of additional
evidence on some points is needed in order to clear doubts engendered by the evidence
already in the record. Indeed, when We consider again the nature of probate proceedings
and the imperativeness of attaining the most approximate certainly possible in
determining the authenticity and due execution of a purported testament, this power of
the court to order, upon its own motion, the reception of additional evidence becomes
even more handy and appropriate. Thus, in Testate Estate of Jovellana v. Jovellana, 106
Phil. 1073, the Court could not ascertain from the meager evidence on record whether or
not the testator knew the Spanish language in which the will therein in question was
written, but instead of denying probate for insufficiency of the evidence of the petitioner,
as should ordinarily be done when the plaintiff in a civil action fails to show
preponderance of the evidence in his favor, the Court ordered the remand of the case to
the trial court in order "to afford the parties an opportunity to present evidence, if they so
desire, on this controversial issue." The Court held:
But petitioner-appellees insist in their brief that the burden is on the oppositors to allege
and prove that the testator did not know the Spanish language in the face of the legal
presumptions that "the law has been obeyed," "that a will executed in the Philippines
must be presumed to have been executed in conformity with the laws of the Philippines"

and "that things have happened in accordance with the ordinary course of nature and the
ordinary habits of life," concluding that it would certainly be contrary to the ordinary
habits of life for a person to execute his will in a language unknown to him. This, we
believe, is, to use a colloquial term, begging the question. If the argument of counsel is
correct, then every unopposed will may be probated upon its mere presentation in court,
without need of producing evidence regarding its execution. Counsel' statement is its own
refutation.
We find, however, in the record some indicia, although in sufficient to give rise to the
presumption, that the testator might, in fact, have known the Spanish language. In
oppositors own Exhibit 3 (a letter admittedly written by the testator) appear the salutation
"Querido Primo" and the compliment ending "Su primo" which are Spanish terms.
Having found that all the formal requisites for the validity of the will have been
satisfactorily established, except the language requirement, we deem it in the interest of
justice to afford the parties an opportunity to present evidence, if they so desire, on this
controverted issue.
Wherefore, let the records of this case be remanded to the court of origin for further
proceedings as above indicated, without costs. It is so ordered.
Echoing the foregoing, in the case at bar, We hold, after a careful review of the entire
record and upon consideration of the points raised by counsel in the motion for
reconsideration and/or new trial now before Us, that it is but consistent with the
fundamental principles governing probate proceedings that there be more definite, clear
and unequivocal evidence, which We believe exists, as to whether or not Doa Gliceria
could read print on December 29, 1960. Without in any manner passing on their probative
weight, the Court feels that the affidavits of Dr. Gemeniano de Ocampo and Dr. Roberto
N. Sunga attached to the present motion of appellee, and against which nothing
technically authoritative has been offered by appellants in their oppositions, sufficiently
indicate that better evidence is available upon which the Court can decide the vital issue
before it with a more satisfactory degree of certainty. As already explained, the direct
evidence consisting of the unanimous testimonies of the three attesting witnesses to the
effect that the testatrix read the will, Exhibit D, silently in the presence of all three of
them stands uncontradicted by any direct evidence of the oppositors. Only the intestate
heirs have attempted to overthrow the weight of this evidence of the proponents by
presenting Dr. Tamesis, but, as already demonstrated above, the good doctor never
referred to any personal knowledge of his that Doa Gliceria could or could not have read
ordinary print on August 30, 1960. and much less did he give any direct evidence that she
could not have read Exhibit D, the testament in question, on December 29, 1960, there
being nothing either in Exhibits 3-B and 3-C Narciso or in his whole testimony indicating
that he had relevantly examined Doa Gliceria for such purpose anywhere near the latter
date. As a whole, as already demonstrated above, his testimony on the facts most vital
and material to the specific issue on hand leaves many important and decisive questions
unanswered. On the other hand, while indeed some circumstances extant on the face of

the document in controversy to lend significance to the testimony of Dr. Tamesis, it

cannot be denied that there are also in the record circumstances tending to show that it is
not improbable that Doa Gliceria could have read the said document on the day of its
execution as testified to by the attesting witnesses, such as, mainly the complete silence
of the testate heirs regarding this particular issue before Our decision of April 30, 1970
and, of course, the exhibits presented by appellee (Exhibits C to E-13, G and the two G3's as well as Exhibit I) which, taken together with the testimonies of the witnesses who
testified on them, are not entirely without probative weight in regard to the point in
dispute. What we are saying is that, all in all, in the state of the evidence before Us, the
Court does not find itself in a position to determine with fairness and justice to all
concerned the pivotal question with the condition of her eyes on December 29, 1960,
could Doa Gliceria have read the will, Exhibit D, before she signed the same on that
day? The evidence in the record is short of what the nature of probate proceedings
require. We have, therefore no other recourse than to remand this case to the court a quo
in order that the parties may present additional evidence, more definite, unequivocal and
convincing on said point in controversy.
WHEREFORE, the decision in this case of April 30, 1970 is hereby set aside, and this
case is ordered remanded to the court a quo for the purposes above indicated, after which
said court may render the appropriate decision. No costs.
Zaldivar, Fernando, Antonio and Esguerra, JJ., concur.

Separate Opinions

REYES, J.B.L., J., dissenting:

I am constrained to express my disconformity with the resolution remanding this case for
reception of further evidence on the question of whether the late Doa Gliceria del
Rosario was able to read the will, Exhibit "D", before she signed the same on 29
December 1960, for the reason that no further evidence is needed beyond that extant on
record.
The resolution of remand is predicated on the alleged ambiguity or deficiency of the
testimony of the ophthalmologist Dr. Jesus Tamesis on the visual acuity (sharpness) of
the deceased's right eye, because he made reference to his notes of her vision of her
distant objects "leaving unsaid what such notations of the visual acuity for distance of his
patient indicate regarding her capacity to read ordinary print".

I submit that the resolution, in stressing the importance of visual acuity for distant vision
and its relation to acuity of vision for near objects in the same person, completely misses
the basic fact that sharpness of vision depends upon the eyes' ability to focus at the
required distance. The resolution overlooks that both the right and the left eyes of Dona
Gliceria had been previously operated for cataract. This is clearly proved not only by the
clinical record of Dr. Tamesis but also by his transcribed testimony.
As to the right eye, the clinical record (Exhibit "3-A", Narciso) carries the following
notation:
COMPLAINTS & HISTORY: Rt eye operated by Ocampo 1954. (Emphasis supplied)
And in his testimony in Court, Dr. Tamesis clarified:
A. From the meager data set down by my assistant however, after examining her, the
right eye would be seen to be operated for cataract, that her optic nerve and retina showed
regeneration, that she was wearing lens with the grade that was noted by my assistant.
(t.s.n., page 19, Session of 23 March 1966) (Emphasis supplied)
As to Da. Gliceria's left eye, the undisputed records of Our Lady of Lourdes Hospital are
to the effect that Dr. Tamesis also operated on it for cataract (Exhibit "4-B", Narciso) on 8
August 1960 (Decision, 32 SCPA 499).
The cataract operation consists in the removal of the eye lenses that have become opaque
and useless for seeing (a matter so well known as to be of judicial notice). The removed
lenses formerly located inside the eyeball then have to be replaced by external eyeglasses.
Under these conditions the ability to read does not merely, or even largely, depend upon
visual acquity: the question becomes whether with the glasses furnished her for normal or
distant vision Da. Gliceria could adjust or accomodate for vision of near objects or for
reading. In normal eyes operation of the accommodation mechanism is described thus:
AC C O M O D AT I O N
It will be remembered that the lens is suspended by the radially directed fibers of the
suspensory ligament which join it to the rink of ciliary muscle. These fibers are under
tension, so that the lens is pulled radially outwards all round its circumference. The effect
is to flatten the curved surfaces, so making the lens thinner than when unconstrained.
Thus it must be emphasized that when no accommodative effort is made and the eye is
set for distant vision, the ciliary muscle is relaxed the suspensory ligament is tense, and
the lens is made to have less curved surfaces than when removed from the eye and left
free to assume its natural shape.
When a near object is to be viewed. the ring of ciliary muscle contracts, so shrinking into
a ring of smaller diameter. The tension is the suspensory fibers is thereby reduced; the
lens is therefore pulled less strongly outwards and accordingly the equator shrinks to a
circle of smaller diameter so that the lens itself becomes thicker, as the surfaces assume a
grater degree of curvature. The lens is now stronger, and can bend rays more, as is

required to bring the more divergent rays a point. (Harry Asher, "Experiments in Seeing",
Physiology Department, Birmingham University, December, 1960)
From this explanation, it can be readily seen that a normal eye varies the thickness of its
lens in order to achieve near vision; but it is precisely this process that was not possible
for Da. Gliceria to perform at the time her alleged will was executed. Why? Because, as
pointed out in the original decision, (page 10), both her natural eye lenses been removed
(through the cataract operations which she had undergone) and had been replaced by
external lens of glass that are rigid and not deformable at will, as they were no longer
subject to the action of the ciliary muscle and suspensory fibers of her eyeballs.
The essential fact is that, having lost the power to adjust or accommodate for near vision,
even if with the glasses prescribed and used by Da. Gliceria she had normal 20/20 vision
for distance, she would still remain unable to read due to her previous operations for
cataract on both eyes.
The correctness of the foregoing observations is attested to by the affidavit of Dr.
Geminiano de Ocampo, Annex "B" of the motion to reconsider. In paragraph 6 of
Ocampo's affidavit, he states:
6. In fact, a person with the above-stated visual acuity could read print in pica or elite
type in two ways, i.e., either with reading glasses, meaning glasses for near vision, or
even with his distance glasses, provided that it is slid down the bridge of the nose to place
it farther from the eye. This act of sliding the glasses down the bridge of the nose takes
place of automatic adjustment that the natural lenses of a normal eye make when one is
reading.
Yet no evidence exists on record that Da. Gliceria possessed reading glasses or resorted to
the maneuver scribed by Dr. Ocampo.
It is further objected that Dr. Tamesis failed to state categorically whether or not his
patient could read print with the glasses he had equipped her, or whether he prescribed
glasses for near vision. But the doctor was asked on those points, and certainly the burden
of clarifying the matter lay squarely on the shoulders of the appellees, proponents of the
will, whose duty it was to establish satisfactorily that Da. Gliceria was able to read the
same. That their cross examination of Dr. Tamesis did not touch on those basic points is
no ground for remanding the case for additional evidence, unless the doctrine is to be laid
that a party whose proof is found on appeal to be deficient must be given opportunity to
cure the deficiency. If that is the proposition, then it flies in the teeth of all precedents as
to what constitutes newly discovered evidence, and throw overboard long and well
established jurisprudence.
And this is not all. If Da. Gliceria had been prescribed glasses for near vision by any
ophthalmologist (not necessarily by Dr. Tamesis) then she must have replaced the
distance glasses she ordinarily wore when, after greeting and talking with the
instrumental witnesses, she sat down to read and sign the purported will. But no witness

ever testified about her changing eyeglasses in order to read and sign the will. None of
the witnesses asserted that in order to read and sign the paper on the table in front of her
she resorted to the unusual and extra-ordinary maneuver suggested in Dr. Gemeniano de
Ocampo's affidavit ( jam quoted) of pushing down her glasses to the tip of her nose. Such
action is so out of the ordinary that none of the witnesses would have failed to notice and
testify about it. Is the case then being remanded to enable these witnesses to bridge the
gaps in their previous testimony? I need not stress how dangerous such a policy would
be.
The best proof that Da. Gliceria could not read her purported will is the fact that the
document's extra ordinarily cramped aspect, the repeated replacement in it of the word
"and" by the sign "&" in order to save space, and the obvious typographical errors, for
example, "HULINH" for "HULING", "MERCRDAS" for "MERCEDES" etc. (See first
Decision, 32 SCPA page 501) were passed over without any comment, remark or protest
from her. She was apparently oblivious of the need for clarity in such an important
document as her last will and testament. The instrumental witnesses stated (t.s.n., pages
164-165)) that the alleged testatrix merely read the document "silently" a surmise that
reminds one of the gypsy who insisted this horse could read, only it could not pronounce
what was reading.
The resolution declares that in probate cases the court has the right to be satisfied by the
evidence. Is this not true in every case? Yet the rule is that civil cases are to be decided by
preponderance of evidence (Rule 133) and probate cases are civil cases. How often has
this court refused to reopen trial because the evidence proffered was not newly
discovered, but only forgotten evidence that did notjustify a remand?
Since the deficiencies in the technical evidence do no touch or refer to the essential facts
required for pronouncing a judgment, and the facts that served as bases for the previous
decision appear of record clear and unrebutted, I submit that the order of remand is
unnecessary, unjustified and improper.
This is particularly true when it is considered that the Del Rosario estate proceedings
were initiated in the Court of First Instance since 1960; our first decision on appeal was
arrived at in 30 April 1970. Now after two more years a remand is ordered; when will the
final decision be arrived at? Yet this Court has repeatedly held that the policy of the Rules
is to close up the estates as promptly and as economically as possible; 1 that the state fails
wretchedly in its duty to its citizens if the machinery furnished by it for the division and
distribution of the property of a decedent is so cumbersome, unwieldy and expensive that
a considerable portion of the estate is absorbed in the process of such division. 2

WHEREFORE, I dissent from the resolution, and vote to deny the motion for
reconsideration.
Concepcion, C.J., Makalintal and Castro, JJ., concur.

TEEHANKEE, J., concurring:

I concur in the resolution setting aside the decision of April 30, 1970 which reversed the
lower court's allowance to probate of the purported last will and testament of the late
Gliceria Avelino del Rosario dated 29 December 1960 and ordering the remand of the
case to the court a quo for the reception of further evidence relative to the factual
question of whether or not the said decedent had actually read or understood the said
document as her last will and testament.
I had concurred in the original decision of April 30, 1970 on the premises therein stated
that "the supposed testatrix could not have physically read or understood (her) alleged
testament" and that "for all intents and purposes of the rules on probate, the deceased
Gliceria del Rosario was, as appellant oppositors contend, not unlike a blind testator, and
the due execution of her will would have required observance of the provisions of Article
808 of the Civil Code" 1 which requisites had not been complied with.
However, upon further consideration of the record as extensively and forcefully discussed
in the resolution penned by Mr. Justice Barredo, serious doubts have arisen in my mind as
to whether Dr. Tamesis' testimony vaguely and loosely given and the vital portions
thereof as to the decedent's ability to read being inconclusively "made on pure
recollections, etc." would justify the conclusion in the original decision that the decedent
was "not unlike a blind testator" whose will must be governed not by the normal strict
requirements of Article 805 of the Civil Code but by the special and extra-strict
requirements of Article 808 of the Code, that the will be read to the testatrix service,
once, by one of the subscribing witnesses and again by the acknowledging notary public.
This is in contrast to the direct evidence of the three instrumental witnesses of the will
uniformly declaring that the testatrix read the will silently in their presence and that of the
notary public before signing the same, which direct evidence was given full credence by
the trial court. This, in turn, gives rise to another serious question of whether or not the
secondary and professional testimony of Dr. Tamesis provides sufficient basis for this
Court to overthrow the lower court's acceptance of such direct evidence.
Consequently, it cannot be said that the evidence of record is sufficiently preponderant as
to warrant setting aside such an important document as the decedent's last will and
testament which has been executed with all the formalities required by law.
Under these circumstances and even at the cost of the inevitable delay that would ensue,
since it is vital to determine whether indeed the questioned document was indeed
decedent's last will and testament so that in the affirmative case her intention and
mandate as the "life and soul of a will" may be duly obeyed and implemented by her
heirs, I believe that the best interests of justice and of the contending heirs themselves
would be subserved by ordering the remand of the case to the trial court for the purposes,
indicated in the main resolution.

Makasiar, J., concurs.

Separate Opinions

REYES, J.B.L., J., dissenting:

I am constrained to express my disconformity with the resolution remanding this case for
reception of further evidence on the question of whether the late Doa Gliceria del
Rosario was able to read the will, Exhibit "D", before she signed the same on 29
December 1960, for the reason that no further evidence is needed beyond that extant on
record.
The resolution of remand is predicated on the alleged ambiguity or deficiency of the
testimony of the ophthalmologist Dr. Jesus Tamesis on the visual acuity (sharpness) of
the deceased's right eye, because he made reference to his notes of her vision of her
distant objects "leaving unsaid what such notations of the visual acuity for distance of his
patient indicate regarding her capacity to read ordinary print".
I submit that the resolution, in stressing the importance of visual acuity for distant vision
and its relation to acuity of vision for near objects in the same person, completely misses
the basic fact that sharpness of vision depends upon the eyes' ability to focus at the
required distance. The resolution overlooks that both the right and the left eyes of Dona
Gliceria had been previously operated for cataract. This is clearly proved not only by the
clinical record of Dr. Tamesis but also by his transcribed testimony.
As to the right eye, the clinical record (Exhibit "3-A", Narciso) carries the following
notation:
COMPLAINTS & HISTORY: Rt eye operated by Ocampo 1954. (Emphasis supplied)
And in his testimony in Court, Dr. Tamesis clarified:
A. From the meager data set down by my assistant however, after examining her, the
right eye would be seen to be operated for cataract, that her optic nerve and retina showed
regeneration, that she was wearing lens with the grade that was noted by my assistant.
(t.s.n., page 19, Session of 23 March 1966) (Emphasis supplied)
As to Da. Gliceria's left eye, the undisputed records of Our Lady of Lourdes Hospital are
to the effect that Dr. Tamesis also operated on it for cataract (Exhibit "4-B", Narciso) on 8
August 1960 (Decision, 32 SCPA 499).
The cataract operation consists in the removal of the eye lenses that have become opaque
and useless for seeing (a matter so well known as to be of judicial notice). The removed
lenses formerly located inside the eyeball then have to be replaced by external eyeglasses.

Under these conditions the ability to read does not merely, or even largely, depend upon
visual acquity: the question becomes whether with the glasses furnished her for normal or
distant vision Da. Gliceria could adjust or accomodate for vision of near objects or for
reading. In normal eyes operation of the accommodation mechanism is described thus:
AC C O M O D AT I O N
It will be remembered that the lens is suspended by the radially directed fibers of the
suspensory ligament which join it to the rink of ciliary muscle. These fibers are under
tension, so that the lens is pulled radially outwards all round its circumference. The effect
is to flatten the curved surfaces, so making the lens thinner than when unconstrained.
Thus it must be emphasized that when no accommodative effort is made and the eye is
set for distant vision, the ciliary muscle is relaxed the suspensory ligament is tense, and
the lens is made to have less curved surfaces than when removed from the eye and left
free to assume its natural shape.
When a near object is to be viewed. the ring of ciliary muscle contracts, so shrinking into
a ring of smaller diameter. The tension is the suspensory fibers is thereby reduced; the
lens is therefore pulled less strongly outwards and accordingly the equator shrinks to a
circle of smaller diameter so that the lens itself becomes thicker, as the surfaces assume a
grater degree of curvature. The lens is now stronger, and can bend rays more, as is
required to bring the more divergent rays a point. (Harry Asher, "Experiments in Seeing",
Physiology Department, Birmingham University, December, 1960)
From this explanation, it can be readily seen that a normal eye varies the thickness of its
lens in order to achieve near vision; but it is precisely this process that was not possible
for Da. Gliceria to perform at the time her alleged will was executed. Why? Because, as
pointed out in the original decision, (page 10), both her natural eye lenses been removed
(through the cataract operations which she had undergone) and had been replaced by
external lens of glass that are rigid and not deformable at will, as they were no longer
subject to the action of the ciliary muscle and suspensory fibers of her eyeballs.
The essential fact is that, having lost the power to adjust or accommodate for near vision,
even if with the glasses prescribed and used by Da. Gliceria she had normal 20/20 vision
for distance, she would still remain unable to read due to her previous operations for
cataract on both eyes.
The correctness of the foregoing observations is attested to by the affidavit of Dr.
Geminiano de Ocampo, Annex "B" of the motion to reconsider. In paragraph 6 of
Ocampo's affidavit, he states:
6. In fact, a person with the above-stated visual acuity could read print in pica or elite
type in two ways, i.e., either with reading glasses, meaning glasses for near vision, or
even with his distance glasses, provided that it is slid down the bridge of the nose to place
it farther from the eye. This act of sliding the glasses down the bridge of the nose takes

place of automatic adjustment that the natural lenses of a normal eye make when one is
reading.
Yet no evidence exists on record that Da. Gliceria possessed reading glasses or resorted to
the maneuver scribed by Dr. Ocampo.
It is further objected that Dr. Tamesis failed to state categorically whether or not his
patient could read print with the glasses he had equipped her, or whether he prescribed
glasses for near vision. But the doctor was asked on those points, and certainly the burden
of clarifying the matter lay squarely on the shoulders of the appellees, proponents of the
will, whose duty it was to establish satisfactorily that Da. Gliceria was able to read the
same. That their cross examination of Dr. Tamesis did not touch on those basic points is
no ground for remanding the case for additional evidence, unless the doctrine is to be laid
that a party whose proof is found on appeal to be deficient must be given opportunity to
cure the deficiency. If that is the proposition, then it flies in the teeth of all precedents as
to what constitutes newly discovered evidence, and throw overboard long and well
established jurisprudence.
And this is not all. If Da. Gliceria had been prescribed glasses for near vision by any
ophthalmologist (not necessarily by Dr. Tamesis) then she must have replaced the
distance glasses she ordinarily wore when, after greeting and talking with the
instrumental witnesses, she sat down to read and sign the purported will. But no witness
ever testified about her changing eyeglasses in order to read and sign the will. None of
the witnesses asserted that in order to read and sign the paper on the table in front of her
she resorted to the unusual and extra-ordinary maneuver suggested in Dr. Gemeniano de
Ocampo's affidavit ( jam quoted) of pushing down her glasses to the tip of her nose. Such
action is so out of the ordinary that none of the witnesses would have failed to notice and
testify about it. Is the case then being remanded to enable these witnesses to bridge the
gaps in their previous testimony? I need not stress how dangerous such a policy would
be.
The best proof that Da. Gliceria could not read her purported will is the fact that the
document's extra ordinarily cramped aspect, the repeated replacement in it of the word
"and" by the sign "&" in order to save space, and the obvious typographical errors, for
example, "HULINH" for "HULING", "MERCRDAS" for "MERCEDES" etc. (See first
Decision, 32 SCPA page 501) were passed over without any comment, remark or protest
from her. She was apparently oblivious of the need for clarity in such an important
document as her last will and testament. The instrumental witnesses stated (t.s.n., pages
164-165)) that the alleged testatrix merely read the document "silently" a surmise that
reminds one of the gypsy who insisted this horse could read, only it could not pronounce
what was reading.
The resolution declares that in probate cases the court has the right to be satisfied by the
evidence. Is this not true in every case? Yet the rule is that civil cases are to be decided by
preponderance of evidence (Rule 133) and probate cases are civil cases. How often has

this court refused to reopen trial because the evidence proffered was not newly
discovered, but only forgotten evidence that did notjustify a remand?
Since the deficiencies in the technical evidence do no touch or refer to the essential facts
required for pronouncing a judgment, and the facts that served as bases for the previous
decision appear of record clear and unrebutted, I submit that the order of remand is
unnecessary, unjustified and improper.
This is particularly true when it is considered that the Del Rosario estate proceedings
were initiated in the Court of First Instance since 1960; our first decision on appeal was
arrived at in 30 April 1970. Now after two more years a remand is ordered; when will the
final decision be arrived at? Yet this Court has repeatedly held that the policy of the Rules
is to close up the estates as promptly and as economically as possible; 1 that the state fails
wretchedly in its duty to its citizens if the machinery furnished by it for the division and
distribution of the property of a decedent is so cumbersome, unwieldy and expensive that
a considerable portion of the estate is absorbed in the process of such division. 2

WHEREFORE, I dissent from the resolution, and vote to deny the motion for
reconsideration.
Concepcion, C.J., Makalintal and Castro, JJ., concur.

TEEHANKEE, J., concurring:

I concur in the resolution setting aside the decision of April 30, 1970 which reversed the
lower court's allowance to probate of the purported last will and testament of the late
Gliceria Avelino del Rosario dated 29 December 1960 and ordering the remand of the
case to the court a quo for the reception of further evidence relative to the factual
question of whether or not the said decedent had actually read or understood the said
document as her last will and testament.
I had concurred in the original decision of April 30, 1970 on the premises therein stated
that "the supposed testatrix could not have physically read or understood (her) alleged
testament" and that "for all intents and purposes of the rules on probate, the deceased
Gliceria del Rosario was, as appellant oppositors contend, not unlike a blind testator, and
the due execution of her will would have required observance of the provisions of Article
808 of the Civil Code" 1 which requisites had not been complied with.
However, upon further consideration of the record as extensively and forcefully discussed
in the resolution penned by Mr. Justice Barredo, serious doubts have arisen in my mind as
to whether Dr. Tamesis' testimony vaguely and loosely given and the vital portions
thereof as to the decedent's ability to read being inconclusively "made on pure
recollections, etc." would justify the conclusion in the original decision that the decedent

was "not unlike a blind testator" whose will must be governed not by the normal strict
requirements of Article 805 of the Civil Code but by the special and extra-strict
requirements of Article 808 of the Code, that the will be read to the testatrix service,
once, by one of the subscribing witnesses and again by the acknowledging notary public.
This is in contrast to the direct evidence of the three instrumental witnesses of the will
uniformly declaring that the testatrix read the will silently in their presence and that of the
notary public before signing the same, which direct evidence was given full credence by
the trial court. This, in turn, gives rise to another serious question of whether or not the
secondary and professional testimony of Dr. Tamesis provides sufficient basis for this
Court to overthrow the lower court's acceptance of such direct evidence.
Consequently, it cannot be said that the evidence of record is sufficiently preponderant as
to warrant setting aside such an important document as the decedent's last will and
testament which has been executed with all the formalities required by law.
Under these circumstances and even at the cost of the inevitable delay that would ensue,
since it is vital to determine whether indeed the questioned document was indeed
decedent's last will and testament so that in the affirmative case her intention and
mandate as the "life and soul of a will" may be duly obeyed and implemented by her
heirs, I believe that the best interests of justice and of the contending heirs themselves
would be subserved by ordering the remand of the case to the trial court for the purposes,
indicated in the main resolution.
Makasiar, J., concurs.

2. Uy Kiao Eng v. Lee, G.R. No. 176831, January 15, 2010. cf R. 75, S.2 (Custodian)