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FIRST DIVISION

[G.R. No. L-58509. December 7, 1982.]


IN THE MATTER OF THE PETITION TO APPROVE THE WILL
OF RICARDO B. BONILLA, deceased,
MARCELA RODELAS, petitioner-appellant, vs. AMPAROARANZ
A, ET AL., oppositors-appellees, ATTY. LORENZO
SUMULONG, intervenor.
Luciano A. Joson for petitioner-appellant.
Cesar C. Paralejo for oppositor-appellee.
SYNOPSIS
The probate court ordered the dismissal of appellant's petition for
the allowance of the holographic will of deceased Ricardo B. Bonilla on
the ground that the alleged photostatic copy of the will which was
presented for probate, cannot stand in lieu of the lost original, for the law
regards the document itself as the material proof of the authenticity of the
said will, citing the case of Gan vs. Yap, 104 Phil. 509, 522. On appeal,
the only question is whether a holographic will which was lost or cannot
be found can be proved by means of a photostatic copy.
The Supreme Court, in setting aside the lower court's order of
dismissal, held that a photostatic or xerox copy of a lost or destroyed
holographic will may be admitted because the authenticity of the
handwriting of the deceased can he determined by the probate court, as
comparison can be made with the standard writings of the testator.
Assailed order of dismissal, set aside.

SYLLABUS
1. CIVIL LAW; SUCCESSION; HOLOGRAPHIC WILLS; PROBATE THEREOF;
DEFINITION. Pursuant to Article 811 of the Civil Code, probate of holographic
wills is the allowance of the will by the Court after its due execution has been
proved.
2. ID.; ID.; ID.; ID.; NUMBER OF WITNESSES REQUIRED. The probate of
holographic wills may be uncontested or not. If uncontested, at least one
identifying witness is required and, if no witness is available, experts may be
resorted to. If contested, at least three identifying witnesses are required.
3. ID.; ID.; ID.; ID.; NOT POSSIBLE WHERE ORIGINAL WILL HAS BEEN LOST
OR DESTROYED AND NO OTHER COPY IS AVAILABLE; REASON. If the
holographic will has been lost or destroyed and no other copy is available, the will
cannot be probated because the best and only evidence is the handwriting of the
testator in said will. It is necessary that there be a comparison between sample
handwritten statements of the testator and the handwritten will.
4. ID.; ID.; ID.; ID.; ID.; PHOTOSTATIC COPY OR XEROX COPY MAY BE
ALLOWED; CASE AT BAR. A photostatic copy or xerox copy of the
holographic will may be allowed because comparison can be made with the
standard writings of the testator. In the case of Gan vs. Yap, 104 Phil. 509, the
Court ruled that "the execution and the contents of a lost or destroyed
holographic will may not be proved by the bare testimony of witnesses who have
seen and/or read such will. The will itself must be presented; otherwise, it shall
produce no effect. The law regards the document itself as material proof of
authenticity." But, in Footnote 8 of said decision, it says that "Perhaps it may be
proved by a photographic or photostatic copy. Even a mimeographed or carbon
copy; or by other similar means, if any, whereby the authenticity of the
handwriting of the deceased may be exhibited and tested before the probate
court." Evidently, the photostatic or xerox copy of the lost or destroyed
holographic will may be admitted because then the authenticity of the handwriting
of the deceased can be determined by the probate court.

DECISION

RELOVA, J :
p

This case was certified to this Tribunal by the Court of Appeals for
final determination pursuant to Section 3, Rule 50 of the Rules of Court.
As found by the Court of Appeals:
". . . On January 11, 1977, appellant filed a petition with the
Court of First Instance of Rizal for the probate of the holographic
will of Ricardo B. Bonilla and the issuance of letters testamentary in
her favor. The petition, docketed as Sp. Proc. No. 8432, was
opposed by the appellees Amparo Aranza Bonilla, Wilferine Bonilla
Treyes, Expedita Bonilla Frias and Ephraim Bonilla on the following
grounds:
"(1) Appellant was estopped from claiming that the deceased
left a will by failing to produce the will within twenty days of the
death of the testator as required by Rule 75, section 2 of the Rules
of Court:
"(2) The alleged copy of the alleged holographic will did not
contain a disposition of property after death and was not intended
to take effect after death, and therefore it was not a will;
"(3) The alleged holographic will itself, and not an alleged
copy thereof, must be produced, otherwise it would produce no
effect, as held in Gan v. Yap, 104 Phil. 509; and
"(4) The deceased did not leave any will, holographic or
otherwise, executed and attested as required by law.
"The appellees likewise moved for the consolidation of the
case with another case (Sp. Proc. No. 8275). Their motion was
granted by the court in an order dated April 4, 1977.

"On November 13, 1978, following the consolidation of the


cases, the appellees moved again to dismiss the petition for the
probate of the will. They argued that:
"(1) The alleged holographic was not a last will but merely an
instruction as to the management and improvement of the schools
and colleges founded by decedent Ricardo B. Bonilla; and
"(2) Lost or destroyed holographic wills cannot be proved by
secondary evidence unlike ordinary wills.
"Upon opposition of the appellant, the motion to dismiss was
denied by the court in its order of February 23, 1979.
"The appellees then filed a motion for reconsideration on the
ground that the order was contrary to law and settled
pronouncements and rulings of the Supreme Court, to which the
appellant in turn filed an opposition. On July 23, 1979, the court set
aside its order of February 23, 1979 and dismissed the petition for
the probate of the will of Ricardo B. Bonilla. The court said:
'. . . It is our considered opinion that once the original
copy of the holographic will is lost, a copy thereof cannot
stand in lieu of the original.
'In the case of Gan vs. Yap, 104 Phil. 509, 522, the
Supreme Court held that 'in the matter of holographic wills
the law, it is reasonable to suppose, regards the document
itself as the material proof of authenticity of said wills.
'MOREOVER, this Court notes that the alleged
holographic will was executed on January 25, 1962 while
Ricardo B. Bonilla died on May 13, 1976. In view of the
lapse of more than 14 years from the time of the execution of
the will to the death of the decedent, the fact that the original
of the will could not be located shows to our mind that the

decedent had discarded before his death his allegedly


missing Holographic Will.

Appellant's motion for reconsideration was denied. Hence, an


appeal to the Court of Appeals in which it is contended that the dismissal
of appellant's petition is contrary to law and well-settled jurisprudence.
On July 7, 1980, appellees moved to forward the case to this Court
on the ground that the appeal does not involve question of fact and
alleged that the trial court committed the following assigned errors:
"I. THE LOWER COURT ERRED IN HOLDING THAT A
LOST HOLOGRAPHIC WILL MAY NOT BE PROVED BY A COPY
THEREOF;
"II. THE LOWER COURT ERRED IN HOLDING THAT THE
DECEDENT HAS DISCARDED BEFORE HIS DEATH THE
MISSING HOLOGRAPHIC WILL;
"III. THE LOWER COURT ERRED IN DISMISSING
APPELLANT'S WILL."

The only question here is whether a holographic will which was lost
or can not be found can be proved by means of a photostatic copy.
Pursuant to Article 811 of the Civil Code, probate of holographic wills is
the allowance of the will by the court after its due execution has been
proved. The probate may be uncontested or not. If uncontested, at least
one identifying witness is required and, if no witness is available, experts
may be resorted to. If contested, at least three identifying witnesses are
required. However, if the holographic will has been lost or destroyed and
no other copy is available, the will can not be probated because the best
and only evidence is the handwriting of the testator in said will. It is
necessary that there be a comparison between sample handwritten
statements of the testator and the handwritten will. But, a photostatic
copy or xerox copy of the holographic will may be allowed because
comparison can be made with the standard writings of the testator. In the

case of Gan vs. Yap, 104 Phil. 509, the Court ruled that "the execution
and the contents of a lost or destroyed holographic will may not be
proved by the bare testimony of witnesses who have seen and/or read
such will. The will itself must be presented; otherwise, it shall produce no
effect. The law regards the document itself as material proof of
authenticity." But, in Footnote 8 of said decision, it says that "Perhaps it
may be proved by a photographic or photostatic copy. Even a
mimeographed or carbon copy; or by other similar means, if any, whereby
the authenticity of the handwriting of the deceased may be exhibited and
tested before the probate court." Evidently, the photostatic or xerox copy
of the lost or destroyed holographic will may be admitted because then
the authenticity of the handwriting of the deceased can be determined by
the probate court.
WHEREFORE, the order of the lower court dated October 3, 1979,
denying appellant's motion for reconsideration dated August 9, 1979, of
the Order dated July 23, 1979, dismissing her petition to approve the will
of the late Ricardo B. Bonilla, is hereby SET ASIDE.
SO ORDERED.
Teehankee, Actg. C.J., Melencio-Herrera, Plana,
Vasquez and Gutierrez, Jr., JJ., concur.
|||

(In Re: Bonilla v. Aranza, G.R. No. L-58509, [December 7, 1982], 204 PHIL 402-

407)

SECOND DIVISION
[G.R. No. 106720. September 15, 1994.]
SPOUSES ROBERTO AND
THELMA AJERO, petitioners, vs. THE COURT OF APPEALS AN
D CLEMENTE SAND, respondents.

DECISION

PUNO, J :
p

This is an appeal by certiorari from the Decision of the Court of Appeals 1 in CAG.R. CV No. 22840, dated March 30, 1992, the dispositive portion of which
reads:
"PREMISES CONSIDERED, the questioned decision of November 19,
1988 of the trial court is hereby REVERSED and SET ASIDE, and the
petition for probate is hereby DISMISSED. No costs."

The earlier Decision was rendered by the RTC of Quezon City, Branch 94, 2 in
Sp. Proc. No. Q-37171, and the instrument submitted for probate is the
holographic willof the late Annie Sand, who died on November 25, 1982.
In the will, decedent named as devisees, the following: petitioners Roberto and
Thelma Ajero, private respondent Clemente Sand, Meriam S. Arong, Leah Sand,
Lilia Sand, Edgar Sand, Fe Sand, Lisa S. Sand, and Dr. Jose Ajero, Sr., and their
children.

prLL

On January 20, 1983, petitioners instituted Sp. Proc. No. Q-37171, for
allowance of decedent's holographic will. They alleged that at the time of its
execution, she was ofsound and disposing mind, not acting under duress, fraud

or undue influence, and was in every respect capacitated to dispose of her estate
by will.
Private respondent opposed the petition on the grounds that: neither the
testament's body nor the signature therein was in decedent's handwriting; it
contained alterations and corrections which were not duly signed by decedent;
and, the will was procured by petitioners through improper pressure and undue
influence. The petition was likewise opposed by Dr. Jose Ajero. He contested the
disposition in the will of a house and lot located in Cabadbaran, Agusan Del
Norte. He claimed that said property could not be conveyed by decedent in its
entirety, as she was not its sole owner.
Notwithstanding the oppositions, the trial court admitted the decedent's
holographic will to probate. It found, inter alia:
"Considering then that the probate proceedings herein must decide only
the question of identity of the will, its due execution and the testamentary
capacity of the testatrix, this probate court finds no reason at all for the
disallowance of the will for its failure to comply with the formalities
prescribed by law nor for lack oftestamentary capacity of the testatrix.
"For one, no evidence was presented to show that the will in question is
different from the will actually executed by the testatrix. The only
objections raised by the oppositors . . . are that the will was not written in
the handwriting of the testatrix which properly refers to the question of its
due execution, and not to the question ofidentity of will. No other will was
alleged to have been executed by the testatrix other than the will herein
presented. Hence, in the light of the evidence adduced, the
identity of the will presented for probate must be accepted, i.e., the will
submitted in Court must be deemed to be the will actually executed by
the testatrix.
"xxx xxx xxx
"While the fact that it was entirely written, dated and signed in the
handwriting of the testatrix has been disputed, the petitioners, however,

have satisfactorily shown in Court that the holographic will in question


was indeed written entirely, dated and signed in the handwriting of the
testatrix. Three (3) witnesses who have convincingly shown
knowledge of the handwriting of the testatrix have been presented and
have explicitly and categorically identified the handwriting with which the
holographic will in question was written to be the genuine handwriting
and signature of the testatrix. Given then the aforesaid evidence, the
requirement of the law that the holographic will be entirely written, dated
and signed in the handwriting of the testatrix has been complied with.
"xxx xxx xxx
"As to the question of the testamentary capacity of the testatrix, (private
respondent) Clemente Sand himself has testified in Court that the
testatrix was completely in her sound mind when he visited her during
her birthday celebration in 1981, at or around which time the holographic
will in question was executed by the testatrix. To be of sound mind, it is
sufficient that the testatrix, at the time of making the will, knew the
value of the estate to be disposed of, the proper object of her bounty,
and the character of the testamentary act . . . The will itself shows that
the testatrix even had detailed knowledge of the nature of her estate.
She even identified the lot number and square meters of the lots she had
conveyed by will. The objects of her bounty were likewise identified
explicitly. And considering that she had even written a nursing book
which contained the law and jurisprudence on will and succession, there
is more than sufficient showing that she knows the character of the
testamentary act.
"In this wise, the question of identity of the will, its due execution and the
testamentary capacity of the testatrix has to be resolved in favor of the
allowance of probateof the will submitted herein.
"Likewise, no evidence was presented to show sufficient reason for the
disallowance of herein holographic will. While it was alleged that the said

will was procured by undue and improper pressure and influence on the
part of the beneficiary or of some other person, the evidence adduced
have not shown any instance where improper pressure or influence was
exerted on the testatrix. (Private respondent) Clemente Sand has
testified that the testatrix was still alert at the time of the execution of the
will, i.e., at or around the time of her birth anniversary celebration in
1981. It was also established that she is a very intelligent person and
has a mindof her own. Her independence of character and to some
extent, her sense of superiority, which has been testified to in Court, all
show the unlikelihood of her being unduly influenced or improperly
pressured to make the aforesaid will. It must be noted that the undue
influence or improper pressure in question herein only refer to the
making of a will and not as to the specific testamentary provisions
therein which is the proper subject of another proceeding. Hence, under
the circumstances, thisCourt cannot find convincing reason for the
disallowance of the will herein.
"Considering then that it is a well-established doctrine in the law on
succession that in case of doubt, testate succession should be preferred
over intestate succession, and the fact that no convincing grounds were
presented and proven for the disallowance of the holographic will of the
late Annie Sand, the aforesaid will submitted herein must be admitted to
probate." 3 (Emphasis omitted.)

On appeal, said Decision was reversed, and the petition for probate of decedent's
will was dismissed. The Court of Appeals found that, "the holographic will fails to
meet the requirements for its validity." 4 It held that the decedent did not comply
with Articles 813 and 814 of the New Civil Code, which read, as follows:
"Article 813: When a number of dispositions appearing in a holographic
will are signed without being dated, and the last disposition has a
signature and date, such date validates the dispositions preceding it,
whatever be the time of prior dispositions."

"Article 814: In case of insertion, cancellation, erasure or alteration in a


holographic will, the testator must authenticate the same by his full
signature."

It alluded to certain dispositions in the will which were either unsigned and
undated, or signed but not dated. It also found that the erasures, alterations
and cancellations made thereon had not been authenticated by decedent.

llcd

Thus, this appeal which is impressed with merit.


Section 9, Rule 76 of the Rules of Court provides that wills shall be disallowed in
any of the following cases:
"(a) If not executed and attested as required by law;
(b) If the testator was insane, or otherwise mentally incapable to make a
will, at the time of its execution;
(c) If it was executed under duress, or the influence of fear, or threats;
(d) If it was procured by undue and improper pressure and influence, on
the part of the beneficiary, or of some other person for his benefit;
(e) If the signature of the testator was procured by fraud or trick, and he
did not intend that the instrument should be his will at the time of fixing
his signature thereto."

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

(5) If the signature of the testator was procured by fraud;


(6) If the testator acted by mistake or did not intend that the instrument
he signed should be his will at the time of affixing his signature thereto."

These lists are exclusive; no other grounds can serve to disallow a will. 5 Thus, in
a petition to admit a holographic will to probate, the only issues to be resolved
are: (1) whether the instrument submitted is, indeed, the decedent's last will and
testament; (2) whether said will was executed in accordance with the formalities
prescribed by law; (3) whether the decedent had the necessary testamentary
capacity at the time the will was executed; and, (4) whether the execution of the
will and its signing were the voluntary acts of the decedents. 6
In the case at bench, respondent court held that the holographic will of Anne
Sand was not executed in accordance with the formalities prescribed by law. It
held that Articles 813 and 814 of the New Civil Code, ante, were not complied
with, hence, it disallowed the probate of said will. This is erroneous.

cdrep

We reiterate what we held in Abangan vs. Abangan, 40 Phil. 476, 479 (1919),
that:
"The object of the solemnities surrounding the execution of wills is to
close the door against bad faith and fraud, to avoid substitution of wills
and testaments and to guaranty their truth and authenticity. Therefore,
the laws on this subject should be interpreted in such a way as to attain
these primordial ends. But, on the other hand, also one must not lose
sight of the fact that it is not the object of the law to restrain and curtail
the exercise of the right to make a will. So when an interpretation already
given assures such ends, any other interpretation whatsoever, that adds
nothing but demands more requisites entirely unnecessary, useless and
frustrative ofthe testator's last will, must be disregarded."

For purposes of probating non-holographic wills, these formal solemnities


include the subscription, attestation, and acknowledgment requirements
under Articles 805 and 806 of the New Civil Code.
In the case of holographic wills, on the other hand, what assures authenticity is
the requirement that they be totally autographic or handwritten by the testator
himself,7 as provided under Article 810 of the New Civil Code, thus:
"A person may execute a holographic will which must be entirely written,
dated, and signed by the hand of the testator himself. It is subject to no
other form, and may be made in or out of the Philippines, and need not
be witnessed." (Emphasis supplied.)

Failure to strictly observe other formalities will not result in the


disallowance of a holographic will that is unquestionably handwritten by the
testator.
A reading of Article 813 of the New Civil Code shows that its requirement affects
the validity of the dispositions contained in the holographic will, but not its
probate. If the testator fails to sign and date some of the dispositions, the result is
that these dispositions cannot be effectuated. Such failure, however, does not
render the whole testament void.
Likewise, a holographic will can still be admitted to probate, notwithstanding noncompliance with the provisions of Article 814. In the case of Kalaw vs.
Relova, 132 SCRA 237, 242 (1984), this Court held:

cdrep

"Ordinarily, when a number of erasures, corrections, and interlineations


made by the testator in a holographic Will have not been noted under his
signature, . . . the Will is not thereby invalidated as a whole, but at most
only as respects the particular words erased, corrected or interlined.
Manresa gave an identical commentary when he said 'la omision de la
salvedad no anula el testamento, segun la regla de jurisprudencia
establecida en la sentencia de 4 de Abril de 1895.'" 8 (Emphasis
omitted.)

Thus, unless the unauthenticated alterations, cancellations or insertions were


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

This separation and distinction adds support to the interpretation that only the
requirements of Article 810 of the New Civil Code and not those found in
Articles 813 and 814 of the same Code are essential to the probate of a
holographic will.
The Court of Appeals further held that decedent Annie Sand could not validly
dispose of the house and lot located in Cabadbaran, Agusan del Norte, in its
entirety. This is correct and must be affirmed.

LexLib

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

LexLib

SO ORDERED.
Narvasa, C.J., Padilla, Regalado and Mendoza, JJ., concur
|||

(Spouses Ajero v. Court of Appeals, G.R. No. 106720, [September 15, 1994])

FIRST DIVISION
[G.R. No. L-62952. October 9, 1985.]
SOFIA J. NEPOMUCENO, petitioner, vs. THE
HONORABLE COURT OF APPEALS, RUFINA GOMEZ, OSCAR
JUGO ANG CARMELITA JUGO, respondents.

DECISION

GUTIERREZ, JR., J :
p

This is a petition for certiorari to set aside that portion of the decision of the
respondent Court of Appeals (now Intermediate Appellate Court) dated June 3,
1982, as amended by the resolution dated August 10, 1982, declaring as null and
void the devise in favor of the petitioner and the resolution dated December 28,
1982 denying petitioner's motion for reconsideration.
Martin Jugo died on July 16, 1974 in Malabon, Rizal. He left a last Will and
Testament duly signed by him at the end of the Will on page three and on the left
margin ofpages 1, 2 and 4 thereof in the presence of Celestina Alejandro, Myrna
C. Cortez, and Leandro Leao, who in turn, affixed their signatures below the
attestation clause and on the left margin of pages 1, 2 and 4 of the Will in the
presence of the testator and of each other and the Notary Public. The Will was
acknowledged before the Notary Public Romeo Escareal by the testator and his
three attesting witnesses.
In the said Will, the testator named and appointed herein petitioner Sofia
J. Nepomuceno as his sole and only executor of his estate. It is clearly stated in
the Will that the testator was legally married to a certain Rufina Gomez by whom
he had two legitimate children, Oscar and Carmelita, but since 1952, he had

been estranged from his lawfully wedded wife and had been living with petitioner
as husband and wife. In fact, on December 5, 1952, the testator Martin Jugo and
the petitioner herein, Sofia J. Nepomuceno were married in Victoria, Tarlac before
the Justice of the Peace. The testator devised to his forced heirs, namely, his
legal wife Rufina Gomez and his children Oscar and Carmelita his entire estate
and the free portion thereof to herein petitioner. The Will reads in part:

LibLex

"Art. III. That I have the following legal heirs, namely: my aforementioned
legal wife, Rufina Gomez, and our son, Oscar, and daughter Carmelita,
both surnamed Jugo, whom I declare and admit to be legally and
properly entitled to inherit from me; that while I have been estranged
from my above-named wife for so many years, I cannot deny that I was
legally married to her or that we have been separated up to the present
for reasons and justifications known fully well by them;
"Art IV. That since 1952, I have been living, as man and wife, with one
Sofia J. Nepomuceno, whom I declare and avow to be entitled to may
love and affection, for all the things which she has done for me, now and
in the past; that while Sofia J. Nepomuceno has with my full knowledge
and consent, did comport and represent myself as her own husband, in
truth and in fact, as well as in the eyes of the law, I could not bind her to
me in the holy bonds of matrimony because of my aforementioned
previous marriage;"

On August 21, 1974, the petitioner filed a petition for the probate of the last Will
and Testament of the deceased Martin Jugo in the Court of First
Instance of Rizal, Branch XXXIV, Caloocan City and asked for the issuance to
her of letters testamentary.
On May 13, 1975, the legal wife of the testator, Rufina Gomez and her children
filed an opposition alleging inter alia that the execution of the Will was procured
by undue and improper influence on the part of the petitioner; that at the
time of the execution of the Will, the testator was already very sick and that

petitioner having admitted her living in concubinage with the testator, she is
wanting in integrity and thus letters testamentary should not be issued to her.
On January 6, 1976, the lower court denied the probate of the Will on the ground
that as the testator admitted in his Will to cohabiting with the petitioner from
December 1952 until his death on July 16, 1974, the Will's admission to probate
will be an idle exercise because on the face of the Will, the invalidity of its intrinsic
provisions is evident.
The petitioner appealed to the respondent-appellate court.
On June 2, 1982, the respondent court set aside the decision of the Court of First
Instance of Rizal denying the probate of the Will. The respondent court declared
the Will to be valid except that the devise in favor of the petitioner is null and void
pursuant to Article 739 in relation with Article 1028 of the Civil Code of the
Philippines. The dispositive portion of the decision reads:
"WHEREFORE, the decision a quo is hereby set aside, the will in
question declared valid except the devise in favor of the appellant which
is declared null and void. The properties so devised are instead passed
on in intestacy to the appellant in equal shares, without pronouncement
as to costs."

On June 15, 1982, oppositors Rufina Gomez and her children filed a "Motion for
Correction of Clerical Error" praying that the word "appellant" in the last
sentence ofthe dispositive portion of the decision be changed to "appellees" so
as to read: "The properties so devised are instead passed on intestacy to
the appellees in equal shares, without pronouncement as to costs." The motion
was granted by the respondent court on August 10, 1982.
On August 23, 1982, the petitioner filed a motion for reconsideration. This was
denied by the respondent court in a resolution dated December 28, 1982.

Cdpr

The main issue raised by the petitioner is whether or not the


respondent court acted in excess of its jurisdiction when after declaring the last
Will and Testament of the deceased Martin Jugo validly drawn, it went on to pass

upon the intrinsic validity of the testamentary provision in favor of herein


petitioner.
The petitioner submits that the validity of the testamentary provision in her favor
cannot be passed upon and decided in the probate proceedings but in some
other proceedings because the only purpose of the probate of a Will is to
establish conclusively as against everyone that a Will was executed with the
formalities required by law and that the testator has the mental capacity to
execute the same. The petitioner further contends that even if the
provisions of paragraph 1 of Article 739 of the Civil Code of the Philippines were
applicable, the declaration of its nullity could only be made by the proper court in
a separate action brought by the legal wife for the specific purpose of obtaining a
declaration of the nullity of the testamentary provision in the Will in favor of the
person with whom the testator was allegedly guilty ofadultery or concubinage.
The respondents on the other hand contend that the fact that the last Will and
Testament itself expressly admits indubitably on its face the meretricious
relationship between the testator and the petitioner and the fact that petitioner
herself initiated the presentation of evidence on her alleged ignorance of the true
civil status of the testator, which led private respondents to present contrary
evidence, merits the application of the doctrine enunciated in Nuguid v. Felix
Nuguid, et al. (17 SCRA 449) and Felix Balanay, Jr. v. Hon. Antonio Martinez, et
al (G.R. No. L-39247, June 27, 1975). Respondents also submit that the
admission of the testator of the illicit relationship between him and the petitioner
put in issue the legality of the devise.
We agree with the respondents.
The respondent court acted within its jurisdiction when after declaring the Will to
be validly drawn, it went on to pass upon the intrinsic validity of the Will and
declared the devise in favor of the petitioner null and void.
The general rule is that in probate proceedings, the court's area of inquiry is
limited to an examination and resolution of the extrinsic validity of the Will. The
rule is expressed thus:

LLphil

xxx xxx xxx


". . . It is elementary that a probate decree finally and definitively settles
all questions concerning capacity of the testator and the proper
execution and witnessing ofhis last Will and testament,
irrespective of whether its provisions are valid and enforceable or
otherwise." (Fernandez v. Dimagiba, 21 SCRA 428).
"The petition below being for the probate of a Will, the court's
area of inquiry is limited to the extrinsic validity thereof. The testator's
testamentary capacity and the compliance with the formal requisites or
solemnities prescribed by law are the only questions presented for the
resolution of the court. Any inquiry into the intrinsicvalidity or
efficacy of the provisions of the will or the legality of any devise or legacy
is premature.
xxx xxx xxx
"True or not, the alleged sale is no ground for the dismissal of the petition
for probate. Probate is one thing; the validity of the testamentary
provisions is another. The first decides the execution of the document
and the testamentary capacity of the testator; the second relates to
descent and distribution." (Sumilang v. Ramagosa 21 SCRA 1369).
xxx xxx xxx
"To establish conclusively as against everyone, and once for all, the facts
that a will was executed with the formalities required by law and that the
testator was in a condition to make a will, is the only purpose of the
proceedings under the new code for the probate of a will. (Sec. 625).
The judgment in such proceedings determines and can determine
nothing more. In them the court has no power to pass upon the
validity of any provisions made in the will. It can not decide, for example,
that a certain legacy is void and another one valid. . . ." (Castaeda v.
Alemany, 3 Phil. 426)

The rule, however, is not inflexible and absolute. Given exceptional


circumstances, the probate court is not powerless to do what the situation
constrains it to do and pass upon certain provisions of the Will.
In Nuguid v. Nuguid (17 SCRA 449) cited by the trial court, the testator instituted
the petitioner as universal heir and completely preterited her surviving forced
heirs. A will of this nature, no matter how valid it may appear extrinsically, would
be null and void. Separate or latter proceedings to determine the intrinsic
validity of the testamentary provisions would be superfluous.

Even before establishing the formal validity of the will, the Court in Balanay, Jr. v.
Martinez (64 SCRA 452) passed upon the validity of its intrinsic provisions.
Invoking "practical considerations", we stated:
"The basic issue is whether the probate court erred in passing upon the
intrinsic validity of the will, before ruling on its allowance or formal
validity, and in declaring it void.
"We are of the opinion that in view of certain unusual provisions of the
will, which are of dubious legality, and because of the motion to withdraw
the petition for probate (which the lower court assumed to have been
filed with the petitioner's authorization), the trial court acted correctly in
passing upon the will's intrinsic validity even before its formal validity had
been established. The probate of a will might become an idle ceremony
if on its face it appears to be intrinsically void. Where practical
considerations demand that the intrinsic validity of the will be passed
upon, even before it is probated, the court should meet the issue
(Nuguid v. Nuguid, 64 O.G. 1527, 17 SCRA 449. Compare with
Sumilang v. Ramagosa, L-23135, December 26, 1967, 21 SCRA 1369;
Cacho v. Udan, L-19996, April 30, 1965, 13 SCRA 693).

There appears to be no more dispute at this time over the extrinsic validity of the
Will. Both parties are agreed that the Will of Martin Jugo was executed with all

the formalities required by law and that the testator had the mental capacity to
execute his Will. The petitioner states that she completely agrees with the
respondent courtwhen in resolving the question of whether or not the
probate court correctly denied the probate of Martin Jugo's last Will and
Testament, it ruled:
"This being so, the will is declared validly drawn." (Page 4, Decision,
Annex A of Petition.)

On the other hand the respondents pray for the


affirmance of the Court of Appeals' decision in toto.
The only issue, therefore, is the jurisdiction of the respondent court to declare the
testamentary provision in favor of the petitioner as null and void.
We sustain the respondent court's jurisdiction. As stated in Nuguid v. Nuguid,
(supra):
"We pause to reflect. If the case were to be remanded for probate of the
will, nothing will be gained. On the contrary, this litigation will be
protracted. And for aught that appears in the record, in the
event of probate or if the court rejects the will, probability exists that the
case will come up once again before us on the same issue ofthe intrinsic
validity or nullity of the will. Result. waste of time, effort, expense, plus
added anxiety. These are the practical considerations that induce us to a
belief that we might as well meet head-on the issue of the validity of the
provisions of the will in question. (Section 2, Rule 1, Rules of Court.
Case, et al. v. Jugo, et al., 77 Phil. 517, 522). After all, there exists a
justiciable controversy crying for solution.

We see no useful purpose that would be served if we remand the nullified


provision to the proper court in a separate action for that purpose simply
because, in the probate of a will, the court does not ordinarily look into the
intrinsic validity of its provisions.

cdphil

Article 739 of the Civil Code provides:

"The following donations shall be void:


(1) Those made between persons who were guilty of adultery or
concubinage at the time of the donation;
(2) Those made between persons found guilty of the same criminal
offense, in consideration thereof;
(3) Those made to a public officer or his wife, descendants and
ascendants, by reason of his office.
"In the case referred to in No. 1, the action for declaration of nullity may
be brought by the spouse of the donor or donee; and the guilt of the
donor and donee may be proved by preponderance of evidence in the
same action.

Article 1028 of the Civil Code provides:


"The prohibitions mentioned in Article 739, concerning donations inter
vivos shall apply to testamentary provisions."

In Article III of the disputed Will, executed on August 15, 1968, or almost six
years before the testator's death on July 16, 1974, Martin Jugo stated that
respondent Rufina Gomez was his legal wife from whom he had been estranged
"for so many years." He also declared that respondents Carmelita Jugo and
Oscar Jugo were his legitimate children. In Article IV, he stated that he had been
living as man and wife with the petitioner since 1952. Testator Jugo declared that
the petitioner was entitled to his love and affection. He stated
that Nepomuceno represented Jugo as her own husband but "in truth and in fact,
as well as in the eyes of the law, I could not bind her to me in the holy
bonds of matrimony because of my aforementioned previous marriage."
There is no question from the records about the fact of a prior existing marriage
when Martin Jugo executed his Will. There is also no dispute that the petitioner
and Mr. Jugo lived together in an ostensible marital relationship for 22 years until
his death.

It is also a fact that on December 2, 1952, Martin Jugo and Sofia


J. Nepomuceno contracted a marriage before the Justice of the Peace of Victoria,
Tarlac. The man was then 51 years old while the woman was
48. Nepomuceno now contends that she acted in good faith for 22 years in the
belief that she was legally married to the testator.

prcd

The records do not sustain a finding of innocence or good faith. As argued by the
private respondents:
"First. The last will and testament itself expressly admits indubitably on
its face the meretricious relationship between the testator and petitioner,
the devisee.
"Second. Petitioner herself initiated the presentation of evidence on her
alleged ignorance of the true civil status of the testator, which led private
respondents to present contrary evidence.
"In short, the parties themselves dueled on the intrinsic validity of the
legacy given in the will to petitioner by the deceased testator at the
start of the proceedings.
"Whether or not petitioner knew that testator Martin Jugo, the man he
had lived with as man and wife, as already married was an important
and specific issue brought by the parties before the trial court, and
passed upon by the Court of Appeals.
"Instead of limiting herself to proving the extrinsic validity of the will, it
was petitioner who opted to present evidence on her alleged good faith
in marrying the testator. (Testimony of Petitioner, TSN of August 1, 1982,
pp. 56-57 and pp. 62-64).
"Private respondents, naturally, presented evidence that would refute the
testimony of petitioner on the point.
"Sebastian Jugo, younger brother of the deceased testator, testified at
length on the meretricious relationship of his brother and petitioner.
(TSN of August 18, 1975).

"Clearly, the good faith of petitioner was by option of the parties made a
decisive issue right at the inception of the case.
"Confronted by the situation, the trial court had to make a ruling on the
question.
"When the court a quo held that the testator Martin Jugo and petitioner
'were deemed guilty of adultery or concubinage', it was a finding that
petitioner was not the innocent woman she pretended to be."
xxx xxx xxx
"3' If a review of the evidence must be made nonetheless, then private
respondents respectfully offer the following analysis:
"FIRST: The secrecy of the marriage of petitioner with
the deceased testator in a town in Tarlac where
neither she nor the testator ever resided. If there was
nothing to hide from, why the concealment? Of course,
it maybe argued that the marriage of the deceased
with private respondent Rufina Gomez was likewise
done in secrecy. But it should be remembered that
Rufina Gomez was already in the family way at that
time and it would seem that the parents of Martin
Jugo were not in favor of the marriage so much so that
an action incourt was brought concerning the
marriage. (Testimony of Sebastian Jugo,
TSN of August 18, 1975, pp. 29-30).
"SECOND: Petitioner was a sweetheart of the deceased
testator when they were still both single. That would be
in 1922 as Martin Jugo married respondent
Rufina Gomez on November 29, 1923 (Exh. 3).
Petitioner married the testator only on December 5,
1952. There was a spaceof about 30 years inbetween. During those 30 years, could it be believed

that she did not even wonder why Martin Jugo did not
marry her nor contact her anymore after November,
1923 facts that should impel her to ask her
groom before she married him in secrecy, especially
so when she was already about 50 years old at the
time of marriage.
"THIRD: The fact that petitioner broke off from Martin Jugo
in 1923 is by itself conclusive demonstration that
she knew that the man she had openly lived for 22
years as man and wife was a married man with
already two children.
"FOURTH: Having admitted that she knew the
children of respondent Rufina Gomez, is it possible
that she would not have asked Martin Jugo whether or
not they were ms illegitimate or legitimate children
and by whom? That is un-Filipino.
"FIFTH: Having often gone to Pasig to the
residence of the parents of the deceased testator, is it
possible that she would not have known that the
mother of private respondent Oscar Jugo and
Carmelita Jugo was respondent Rufina Gomez,
considering that the houses of the parents of Martin
Jugo (where he had lived for many years) and
that of respondent Rufina Gomez were just a few
meters away?
"Such pretentions of petitioner Sofia Nepomuceno are unbelievable.
They are, to say the least, inherently improbable, for they are against the
experience in common life and the ordinary instincts and
promptings of human nature that a woman would not bother at all to ask
the man she was going to marry whether or not he was already married
to another, knowing that her groom had children. It would be a story that

would strain human credulity to the limit if petitioner did not know that
Martin Jugo was already a married man in view of the irrefutable fact that
it was precisely his marriage to respondent Rufina Gomez that led
petitioner to break off with the deceased during their younger years."

Moreover, the prohibition in Article 739 of the Civil Code is against the
making of a donation between persons who are living in adultery or concubinage.
It is the donation which becomes void. The giver cannot give even assuming that
the recipient may receive. The very wordings of the Will invalidate the legacy
because the testator admitted he was disposing the properties to a person with
whom he had been living in concubinage.

prcd

WHEREFORE, the petition is DISMISSED for lack of merit. The


decision of the Court of Appeals, now Intermediate Appellate Court, is
AFFIRMED. No costs.
SO ORDERED.
|||

(Nepomuceno v. Court of Appeals, G.R. No. L-62952, [October 9, 1985], 223

PHIL 418-429)

EN BANC
[G.R. No. L-2538. September 21, 1951.]
Testate Estate of the Deceased MARIANO MOLO Y LEGASPI.
JUANA

JUAN VDA. DE MOLO, petitioner-appellee, vs.

LUZ,

GLICERIA and CORNELIOMOLO, oppositor-appellants.


Claro M. Recto and Serafin C. Dizon, for appellants.
Delgado & Flores, for appellee.
SYLLABUS
1. WILLS; REVOCATION BY SUBSEQUENT WILL; EFFECT OF VOID
REVOCATORY CLAUSE. A subsequent will containing a clause revoking a
previous will, having been disallowed for the reason that it was not executed in
conformity with the provisions of section 618 of the Code of Civil Procedure as
to the making of wills, cannot produce the effect of annuling the previous will,
inasmuch as said revocatory clause is void (Samson vs. Naval, 41 Phil., 838).
2. ID.; PROBATE; DEPENDENT RELATIVE REVOCATION. Even in
the supposition that the destruction of the original will by the testator could be
presumed from the failure of the petitioner to produce it in court, such
destruction cannot have the effect of defeating the prior will where it is
founded on the mistaken belief that the later will has been validly executed
and would be given due effect. The earlier will can still be admitted to probate
under the principle of "dependent relative revocation". The theory on which
this principle is predicated is that the testator did not intend to die intestate.
And this intention is clearly manifest where he executed two wills on two
different occasions and instituted his wife as his universal heir.

DECISION

BAUTISTA ANGELO, J :
p

This is an appeal from an order of the Court of First Instance of Rizal


admitting to probate the last will and testament of the deceased
Mariano Molo y Legaspi executed on August 17, 1918. The oppositorsappellants brought the case on appeal to this Court for the reason that the
value of the properties involved exceeds P50,000.
Mariano Molo y Legaspi died on January 24, 1941, in the municipality of
Pasay, province of Rizal, without leaving any forced heir either in the
descending or ascending line. He was survived, however, by his wife, the
herein petitioner Juana Juan Vda. de Molo, and by his nieces and nephew,
the oppositors-appellants, Luz, Gliceria and Cornelio, all surnamed Molo, who
were the legitimate children of Candido Molo y Legaspi, deceased brother of
the testator. Mariano Molo y Legaspi left two wills, one executed on August 17,
1918, (Exhibit A) and another executed on June 20, 1939, (Exhibit I). The
latter will contains a clause which expressly revokes the will executed in 1918.
On February 7, 1941, Juana Juan Vda. de Molo filed in the Court of
First Instance of Rizal a petition, which was docketed as special proceeding
No. 8022, seeking the probate of the will executed by the deceased on June
20, 1939. There being no opposition, the will was probated. However, upon
petition filed by the herein oppositors, the order of the court admitting the will
to probate was set aside and the case was reopened. After hearing, at which
both parties presented their evidence, the court rendered decision denying the
probate of said will on the ground that the petitioner failed to prove that the
same was executed in accordance with law.
In view of the disallowance of the will executed on June 20, 1939, the
widow on February 24, 1944, filed another petition for the probate of the will
executed by the deceased on August 17, 1918, which was docketed as
special proceeding No. 56, in the same court. Again, the same oppositors filed

an opposition to the petition based on three grounds: (1) that petitioner is now
estopped from seeking the probate of the will of 1918; (2) that said will has not
been executed in the manner required by law and (3) that the will has been
subsequently revoked. But before the second petition could be heard, the
battle for liberation came and the records of the case were destroyed.
Consequently, a petition for reconstitution was filed, but the same was found
to be impossible because neither petitioner nor oppositors could produce the
copies required for its reconstitution. As a result, petitioner filed a new petition
on September 14, 1946, similar to the one destroyed, to which the oppositors
filed an opposition based on the same grounds as those contained in their
former opposition. Then, the case was set for trial, and on May 28, 1948, the
court issued an order admitting the will to probate as already stated in the
early part of this decision. From this order the oppositors appealed assigning
six errors, to wit:
"I. The probate court erred in not holding that the present
petitioner voluntarily and deliberately frustrated the probate of the will
dated June 20, 1939, in special proceeding No. 8022, in order to enable
her to obtain the probate of another alleged will of Molo dated 1918.
"II. The court a quo erred in not holding that the petitioner is now
estopped from seeking the probate of Molo's alleged will of 1918.
"III. The lower court erred in not holding that petitioner herein has
come to court with 'unclean hands' and as such is not entitled to relief.
"IV. The probate court erred in not holding that Molo's alleged will
of August 17, 1918 was not executed in the manner required by law.
"V. The probate court erred in not holding that the alleged will of
1918 was deliberately revoked by Molo himself.
"VI. The lower court erred in not holding that Molo's will of 1918
was subsequently revoked by the decedent's will of 1939."

In their first assignment of error, counsel for oppositors contend that the
probate court erred in not holding that the petitioner voluntarily and

deliberately frustrated the probate of the will dated June 20, 1939, in order to
enable her to obtain the probate of the will executed by the deceased on
August 17, 1918, pointing out certain facts and circumstances which in their
opinion indicate that petitioner connived with witness Canuto Perez in an effort
to defeat and frustrate the probate of the 1939 will because of her knowledge
that said will was intrinsically defective in that "the one and only testamentary
disposition thereof was a 'disposicin captatoria'". These circumstances,
counsel for the appellants contend, constitute a series of steps deliberately
taken by petitioner with a view to insuring the realization of her plan of
securing the probate of the 1918 will which she believed would better
safeguard her right to inherit from the deceased.
These imputations of fraud and bad faith allegedly committed in
connection with special proceedings No. 8022, now closed and terminated,
are vigorously met by counsel for petitioner who contends that to raise them in
these proceedings which are entirely new and distinct and completely
independent from the other is improper and unfair as they find no support
whatsoever in any evidence submitted by the parties in this case. They are
merely based on presumptions and conjectures not supported by any proof.
For this reason, counsel contends, the lower court was justified in disregarding
them and in passing them sub silentio in its decision.
A careful examination of the evidence available in this case seems to
justify this contention. There is indeed no evidence which may justify the
insinuation that petitioner had deliberately intended to frustrate the probate of
the 1939 will of the deceased to enable her to seek the probate of another will
other than a mere conjecture drawn from the apparently unexpected testimony
of Canuto Perez that he went out of the room to answer an urgent call of
nature when Artemio Reyes was signing the will and the failure of petitioner
later to impeach the character of said witness in spite of the opportunity given
her by the court to do so. Apart from this insufficiency of evidence, the record
discloses that this failure has been explained by petitioner when she informed
the court that she was unable to impeach the character of her witness Canuto

Perez because of her inability to find witnesses who may impeach him, and
this explanation stands uncontradicted. Whether this explanation is
satisfactory or not, it is not now for us to determine. It is an incident that
comes within the province of the former case. The failure of petitioner to
present the testimony of Artemio Reyes at the rehearing has also been
explained, and it appears that petitioner has failed because his whereabouts
could not be found. Whether this is true or not is not also for this Court to
determine. It is likewise within the province and function of the court in the
former case. And the unfairness of this imputation becomes more glaring
when we take stock of the developments that had taken place in these
proceedings which show in bold relief the true nature of the conduct, behavior
and character of the petitioner so bitterly assailed and held in disrepute by the
oppositors.
It should be recalled that the first petition for the probate of the will
executed on June 20, 1939, was filed on February 7, 1941, by the petitioner.
There being no opposition, the will was probated. Subsequently, however,
upon petition of the herein oppositors, the order of the court admitting said will
to probate was set aside, over the vigorous opposition of the herein petitioner,
and the case was reopened. The reopening was ordered because of the
strong opposition of the oppositors who contended that the will had not been
executed as required by law. After the evidence of both parties had been
presented, the oppositors filed an extensive memorandum wherein they
reiterated their view that the will should be denied probate. And on the
strength of this opposition, the court disallowed the will.
If petitioner then knew that the 1939 will was inherently defective and
would make the testamentary disposition in her favor invalid and ineffective,
because it is a "disposicin captatoria", which knowledge she may easily
acquire through consultation with a lawyer, there was no need for her to go
through the ordeal of filing the petition for the probate of the will. She could
accomplish her desire by merely suppressing the will or tearing or destroying
it, and then take steps leading to the probate of the will executed in 1918. But

her conscience was clear and bade her to take the only proper step possible
under the circumstances, which is to institute the necessary proceedings for
the probate of the 1939 will. This she did and the will was admitted to probate.
But then the unexpected happened. Over her vigorous opposition, the herein
appellants filed a petition for reopening, and over her vigorous objection, the
same was granted and the case was reopened. Her motion for
reconsideration was denied. Is it her fault that the case was reopened? Is it
her fault that the order admitting the will to probate was set aside? That was a
contingency which petitioner never expected. Had appellants not filed their
opposition to the probate of the will and had they limited their objection to the
intrinsic validity of said will, their plan to defeat the will and secure the
intestacy of the deceased would have perhaps been accomplished. But they
failed in their strategy. If said will was denied probate it is due to their own
effort. It is now unfair to impute bad faith to petitioner simply because she
exerted every effort to protect her own interest and prevent the intestacy of the
deceased to happen.
Having reached the foregoing conclusions, it is obvious that the court
did not commit the second and third errors imputed to it by the counsel for
appellants. Indeed, petitioner cannot be considered guilty of estoppel which
would prevent her from seeking the probate of the 1918 will simply because
her effort to obtain the allowance of the 1939 will has failed considering that in
both the 1918 and 1939 wills she was instituted by her husband as his
universal heir. Nor can she be charged with bad faith far having done so
because of her desire to prevent the intestacy of her husband. She cannot be
blamed for being zealous in protecting her interest.
The next contention of appellants refers to the revocatory clause
contained in the 1939 will of the deceased which was denied probate. They
contend that, notwithstanding the disallowance of said will, the revocatory
clause is valid and still has the effect of nullifying the prior will of 1918.

Counsel for petitioner meets this argument by invoking the doctrine laid
down in the case of Samson vs. Naval, (41 Phil., 838). He contends that the
facts involved in that case are on all fours with the facts of this case. Hence,
the doctrine in that case is here controlling.
There is merit in this contention. We have carefully read the facts
involved in the Samson case and we are indeed impressed by their striking
similarity with the facts of this case. We do not need to recite here what those
facts are; it is enough to point out that they contain many points and
circumstances in common. No reason, therefore, is seen why the doctrine laid
down in that case (which we quote hereunder) should not apply and control
the present case.
"A subsequent will, containing a clause revoking a previous will,
having been disallowed, for the reason that it was not executed in
conformity with the provisions of section 618 of the Code of Civil
Procedure as to the making of wills, cannot produce the effect of
annulling the previous will, inasmuch as said revocatory clause is void."
(41 Phil., 838.)

Apropos of this question, counsel for oppositors make the remark that,
while they do not disagree with the soundness of the ruling laid down in the
Samson case, there is reason to abandon said ruling because it is archaic or
antiquated and runs counter to the modern trend prevailing in American
jurisprudence. They maintain that said ruling is no longer controlling but
merely represents the point of view of the minority and should, therefore, be
abandoned, more so if we consider the fact that section 623 of our Code of
Civil Procedure, which governs the revocation of wills, is of American origin
and as such should follow the prevailing trend of the majority view in the
United States. A long line of authorities is cited in support of this contention.
And these authorities hold the view, that "an express revocation is immediately
effective upon the execution of the subsequent will, and does not require that
it first undergo the formality of a probate proceeding". (p 63, appellants' brief).

While there are many cases which uphold the view entertained by
counsel for oppositors, and that view appears to be controlling in the states
where the decisions had been promulgated, however, we are reluctant to fall
in line with the assertion that is now the prevailing view in the United States. In
the search we have made of American authorities on the subject, we found
ourselves in a pool of conflicting opinions perhaps because of the peculiar
provisions contained in the statutes adopted by each State on the subject of
revocation of wills. But the impression we gathered from a review and study of
the pertinent authorities is that the doctrine laid down in the Samson case is
still a good law. On page 328 of the American Jurisprudence, Vol. 57, which is
a revision published in 1948, we found the following passages which in our
opinion truly reflect the present trend of American jurisprudence on this matter
affecting the revocation of prior wills:
"SEC.

471. Observance

of

Formalities

in

Execution

of

Instrument. Ordinarily, statutes which permit the revocation of a will by


another writing provide that to be effective as a revocation, the writing
must be executed with the same formalities which are required to be
observed in the execution of a will. Accordingly, where, under the
statutes, attestation is necessary to the making of a valid will, an
unattested nontestamentary writing is not effective to revoke a prior will.
It has been held that a writing fails as a revoking instrument where it is
not executed with the formalities requisite for the execution of a will, even
though it is inscribed on the will itself, although it may effect a revocation
by cancellation or obliteration of the words of the will. A testator cannot
reserve to himself the power to modify a will by a written instrument
subsequently prepared but not executed in the manner required for a
will.
"SEC. 472. Subsequent Unexecuted, Invalid, or Ineffective Will or
Codicil. A will which is invalid because of the incapacity of the testator
or of undue influence can have no effect whatever as a revoking will.
Moreover, a will is not revoked by the unexecuted draft of a later one. Nor

is a will revoked by a defectively executed will or codicil, even though the


latter contains a clause expressly revoking the former will, in a
jurisdiction where it is provided by a controlling statute that no writing
other than a testamentary instrument is sufficient to revoke a will, for the
simple reason that there is no revoking will. Similarly where the statute
provides that a will may be revoked by a subsequent will or other writing
executed with the same formalities as are required in the execution of
wills, a defectively executed will does not revoke a prior will, since it
cannot be said that there is a writing which complies with the statute.
Moreover, a will or codicil which, on account of the manner in which it is
executed, is sufficient to pass only personally does not affect dispositions
of real estate made by a former will, even though it may expressly
purport to do so. The intent of the testator to revoke is immaterial, if he
has not complied with the statute." (57 Am. Jur., 328, 329.)

We find the same opinion in the American Law Reports, Annotated,


edited in 1939. On page 1400, Volume 123, there appear many authorities on
the "application of rules where second will is invalid", among which a typical
one is the following:
"It is universally agreed that where the second will is invalid on
account of not being executed in accordance with the provisions of the
statute, or where the testator has not sufficient mental capacity to make
a will or the will is procured through undue influence, or the such, in
other words, where the second will is really no will, it does not revoke the
first will or affect it in any manner." Mort vs. Baker University (1935) 229
Mo. App., 632, 78 S. W. (2d), 498."

These treaties cannot be mistaken. They uphold the view on which the
ruling in the Samson case is predicated. They reflect the opinion that this
ruling is sound and good and for this reason we see no justification for
abandoning it as now suggested by counsel for the oppositors.
It is true that our law on the matter (sec. 623, Code of Civil Procedure)
provides that a will may be revoked "by some will, codicil, or other writing

executed as provided in case of wills"; but it cannot be said that the 1939 will
should be regarded, not as a will within the meaning of said word, but as
"other writing executed as provided in the case of wills", simply because it was
denied probate. And even if it be regarded as any other writing within the
meaning of said clause, there is authority for holding that unless said writing is
admitted to probate, it cannot have the effect of revocation. (See 57 Am. Jur.
pp. 329-330).
But counsel for oppositors contend that, regardless of said revocatory
clause, said will of 1918 cannot still be given effect because of the
presumption that it was deliberately revoked by the testator himself. The
oppositors contend that the testator, after executing the 1939 will, and with full
knowledge of the revocatory clause contained in said will, himself deliberately
destroyed the original of the 1918 will, and that for this reason the will
submitted by petitioner for probate in these proceedings is only a duplicate of
said original.
There is no evidence which may directly indicate that the testator
deliberately destroyed the original of the 1918 will because of his knowledge
of the revocatory clause contained in the will he executed in 1939. The only
evidence we have is that when the first will was executed in 1918, Juan
Salcedo, who prepared it, gave the original and copies to the testator himself
and apparently they remained in his possession until he executed his second
will in 1939. And when the 1939 will was denied probate on November 29,
1943, and petitioner was asked by her attorney to look for another will, she
found the duplicate copy (Exhibit A) among the papers or files of the testator.
She did not find the original.
If it can be inferred that the testator deliberately destroyed the 1918 will
because of his knowledge of the revocatory clause of the 1939 will, and it is
true that he gave a duplicate copy thereof to his wife, the herein petitioner, the
most logical step for the testator to take is to recall said duplicate copy in order
that it may likewise be destroyed. But this was not done as shown by the fact
that said duplicate copy remained in the possession of petitioner. It is possible

that because of the long lapse of twenty-one (21) years since the first will was
executed, the original of the will had been misplaced or lost, and forgetting
that there was a copy, the testator deemed it wise to execute another will
containing exactly the same testamentary dispositions. Whatever may be the
conclusion we may draw from this chain of circumstances, the stubborn fact is
that there is no direct evidence of voluntary or deliberate destruction of the
first will by the testator. This matter cannot be left to mere inference or
conjecture.
Granting for the sake of argument that the earlier will was voluntarily
destroyed by the testator after the execution of the second will, which revoked
the first, could there be any doubt, under this theory, that said earlier will was
destroyed by the testator in the honest belief that it was no longer necessary
because he had expressly revoked it in his will of 1939? In other words, can
we not say that the destruction of the earlier will was but the necessary
consequence of the testator's belief that the revocatory clause contained in
the subsequent will was valid and the latter would be given effect? If such is
the case, then it is our opinion that the earlier will can still be admitted to
probate under the principle of "dependent relative revocation".
"This doctrine is known as that of dependent relative revocation,
and is usually applied where the testator cancels or destroys a will or
executes an instrument intended to revoke a will with a present intention
to make a new testamentary disposition as a substitute for the old, and
the new disposition is not made or, if made, fails of effect for some
reason. The doctrine is not limited to the existence of some other
document, however, and has been applied where a will was destroyed as
a consequence of a mistake of law . . .." (68 C. J. p. 799).
"The rule is established that where the act of destruction is
connected with the making of another will so as fairly to raise the
inference that the testator meant the revocation of the old to depend
upon the efficacy of the new disposition intended to be substituted, the

revocation will be conditional and dependent upon the efficacy of the


new disposition; and if, for any reason, the new will intended to be made
as a substitute is inoperative, the revocation fails and the original will
remains in full force." (Gardner, pp. 232, 233.)
"This is the doctrine of dependent relative revocation. The failure
of the new testamentary disposition, upon whose validity the revocation
depends, is equivalent to the non-fulfillment of a suspensive condition,
and hence prevents the revocation of the original will. But a mere intent
to make at some time a will in place of that destroyed will not render the
destruction conditional. It must appear that the revocation is dependent
upon the valid execution of a new will." (1 Alexander, p. 751; Gardner, p.
233.)

We hold, therefore, that even in the supposition that the destruction of


the original will by the testator could be presumed from the failure of the
petitioner to produce it in court, such destruction cannot have the effect of
defeating the prior will of 1918 because of the fact that it is founded on the
mistaken belief that the will of 1939 has been validly executed and would be
given due effect. The theory on which this principle is predicated is that the
testator did not intend to die intestate. And this intention is clearly manifest
when he executed two wills on two different occasions and instituted his wife
as his universal heir. There can therefore be no mistake as to his intention of
dying testate.
The remaining question to be determined refers to the sufficiency of the
evidence to prove the due execution of the will.
The will in question was attested, as required by law, by three
witnesses, Lorenzo Morales, Rufino Enriquez, and Angel Cuenca. The first
two witnesses died before the commencement of the present proceedings. So
the only instrumental witness available was Angel Cuenca and under our law
and precedents, his testimony is sufficient to prove the due execution of the
will. However, petitioner presented not only the testimony of Cuenca but
placed on the witness stand Juan Salcedo, the notary public who prepared

and notarized the will upon the express desire and instruction of the testator.
The testimony of these witnesses shows that the will had been executed in the
manner required by law. We have read their testimony and we were impressed
by their readiness and sincerity. We are convinced that they told the truth.
Wherefore, the order appealed from is hereby affirmed, with costs
against the appellants.
Paras, C.J., Feria, Pablo, Bengzon, Tuason and Jugo, JJ., concur.
Reyes, J., concurs in the result.

|||

(Vda. de Molo v. Molo, G.R. No. L-2538, [September 21, 1951], 90 PHIL 37-49)

THIRD DIVISION
[G.R. No. 53546. June 25, 1992.]
THE HEIRS OF THE LATE JESUS FRAN and CARMEN MEJIA
RODRIGUEZ, petitioner, vs. HON. BERNARDO LL. SALAS,
CONCEPCION MEJIA ESPINA and MARIA MEJIA
GANDIONGCO, respondents.
SYLLABUS
1. REMEDIAL LAW; SPECIAL PROCEEDINGS; RESPONDENT JUDGE
COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO
LACK OF JURISDICTION WHEN HE GRANTED THE OMNIBUS MOTION FOR
RECONSIDERATION. We do not hesitate to rule that the respondent Judge
committed grave abuse of discretion amounting to lack of jurisdiction when he
granted the Omnibus Motion for Reconsideration and thereafter set
aside the probate judgment of 13 November 1972 in Sp. Proc. No. 3309-R,
declared the subject will of the testatrix a forgery, nullified the testamentary
dispositions therein and ordered the conversion of the testate proceedings into
one of intestacy. It is not disputed that private respondents filed
on the date of the initial hearing of the petition their "Withdrawal of Opposition To
Allowance ofProbate (sic) Will" wherein they unequivocally state that they have
no objection to the allowance of the will. For all legal intents and purposes, they
became proponentsof the same. After the probate court rendered its decision on
13 November 1972, and there having been no claim presented despite
publication of notice to creditors, petitioner Fran submitted a Project of Partition
which private respondent Maria M. Vda. de Gandiongco voluntarily signed and to
which private respondent Espina expressed her conformity through a certification
filed with the probate court. Assuming for the sake of argument that private
respondents did not receive a formal notice of the decision as they claim in their

Omnibus Motion for Reconsideration, these acts nevertheless constitute


indubitable proof of their prior actual knowledge ofthe same.
2. RECEPTION OF EVIDENCE BY THE CLERK OF COURT UPHELD;
DOCTRINE LAID DOWN IN LIM TANHU V. RAMOLETE NOT APPLICABLE;
NEW DOCTRINE SHOULD BE APPLIED PROSPECTIVELY. Neither do We
give any weight to the contention that the reception of evidence
by the Clerk of Court is null and void per the doctrine laid down in Lim
Tanhu v. Ramolete. In the first place, Lim Tanhu was decided on 29 August 1975,
nearly four (4) years after the probate court authorized the Clerk of Court to
receive the evidence for the petitioner in this case. A month prior to Lim Tanhu, or
on 30 July 1975, this Court, in Laluan vs. Malpaya, recognized and
upheld thepractice of delegating the reception of evidence to Clerks of Court.
Thus: "No provision of law or principle of public policy prohibits a court from
authorizing its clerk ofcourt to receive the evidence of a party litigant. After
all, the reception of evidence by the clerk of court constitutes but a ministerial
task the taking down of thetestimony of the witnesses
and the marking of the pieces of documentary evidence, if any, adduced
by the party present. This task of receiving evidence precludes,
onthe part of the clerk of court, the exercise of judicial discretion usually called for
when the other party who is present objects to questions propounded and
to theadmission of the documentary evidence proffered. More
importantly, the duty to render judgment on the merits of the case still rests
with the judge who is obliged to personally and directly prepare the decision
based upon the evidence reported. But where the proceedings
before the clerk of court and the concomitant result thereof, i.e., the judgment
rendered by the court based on the evidence presented in such limited
proceedings, prejudice the substantial rights of the aggrieved party, then there
exists sufficient justification to grant the latter complete opportunity to thresh out
his case in court." Monserrate vs. Court of Appeals, decided on 29 September
1989, reiterated this rule. Lim Tanhu then cannot be used as authority to
nullify the order of the probate court authorizing the Clerk of Court to
receive theevidence for the rule is settled that "when a doctrine of this Court is

overruled and a different view is adopted, the new doctrine should be applied
prospectively, and should not apply to parties who had relied on the old doctrine
and acted on the faith thereof."
3. CLERK OF COURT NEED NOT TAKE ANOTHER OATH OF OFFICE TO
RECEIVE EVIDENCE. The alternative claim that the proceedings
before the Clerk of Court were likewise void because said official did not take an
oath is likewise untenable. The Clerk of Court acted as such when he
performed the delegated task of receiving evidence. It was not necessary for him
to take an oath for that purpose; he was bound by his oath of office as a
Clerk of Court. Private respondents are obviously of theimpression that
by the delegation of the reception of evidence to the Clerk of Court, the latter
became a commissioner as defined under Rule 33 of the Rules of Court entitled
Trial by Commissioner. This is not correct; as this Court said in Laluan:
"The provisions of Rule 33 of the Rules of Court invoked by both parties properly
relate to the reference by a court of any or all of the issues in a case to a person
so commissioned to act or report thereon. These provisions explicitly spell
out the rules governing the conduct of the court, the commissioner,
and the parties before, during, and after the reference proceedings. Compliance
with these rules of conduct becomes imperative only when the court formally
orders a reference of the case to a commissioner. Strictly speaking
then, the provisions of Rule 33 find no application to the case at bar
where the court a quo merely directed the clerk of court to take
down the testimony of the witnesses presented and the mark the documentary
evidence proffered on a date previously set for hearing."
4. ANNEXING OF THE ORIGINAL WILL TO THE PETITION NOT A
JURISDICTIONAL REQUIREMENT.
In Santos vs. Castillo and Salazar vs. Court of First Instance ofLaguna, decided
six (6) months apart in 1937, this Court already ruled that it is not necessary
that the original of the will be attached to the petition. In the first, it ruled:
"The original of said document [the will] must be presented or sufficient reasons
given to justify the nonpresentation of said original

and the acceptance of the copy or duplicate thereof." In the second case, this
Court was more emphatic in holding that: "The law is silent as to the specific
manner of bringing the jurisdictional allegations before the court, by
practice the jurisprudence have established that they should be made
in the form of an application and filed with the original of the will attached
thereto. It has been the practice in some courts to permit attachment of a mere
copy of the will to the application, without prejudice to producing the original
thereof at the hearing or when the court so requires. This precaution has been
adopted by some attorneys to forestall its disappearance, which has taken place
in certain cases." That the annexing of the original will to the petition is not a
jurisdictional requirement is clearly evident in Section 1, Rule
76 of the Rules of Court which allows the filing of a petition for probate
by the person named therein regardless of whether or not he is in
possession of the will, or the same is lost or destroyed.
5. COURSES OF ACTION OPENED TO AN AGGRIEVED PARTY TO ATTACK A
FINAL JUDGMENT; PRIVATE RESPONDENTS HAD LOST THE RIGHT TO FILE
A PETITION FOR RELIEF FROM JUDGMENT; REASON. In Our
jurisdiction, the following courses of action are open to an aggrieved party to set
aside or attack the validity of a final judgment: (1) Petition for relief under Rule
38 of the Rules of Court which must be filed within sixty (60) days after
learning of the decision, but not more than six (6) months after such decision is
entered; (2) By direct action, via a special civil action for certiorari, or by collateral
attack, assuming that the decision is void for want ofjurisdiction; (3) By an
independent civil action under Article 1114 of the Civil Code, assuming
that the decision was obtained through fraud and Rule 38 can not be applied. It is
not difficult to see that private respondents had lost their right to file a petition for
relief from judgment, it appearing that their omnibus motion for reconsideration
was filed exactly six (6) years, ten (10) months and twenty-two (22) days
after the rendition of the decision, and six (6) years, one (1) month and thirteen
(13) days after the court issued the order approving the Project of Partition, to
which they voluntarily expressed their conformity through their respective
certifications, and closing the testate proceedings.

6. DECREE OF PROBATE IS CONCLUSIVE AS TO DUE


EXECUTION OF THE WILL; CAN BE IMPUGNED ONLY ON
GROUNDS OF FRAUD. The probate judgment of 13 November 1972, long
final and undistributed by any attempt to unsettle it, had inevitably passed
beyond the reach of the court below to annul or set the same aside, by mere
motion, on the ground that the will is a forgery. Settled in the rule
that the decree of probate is conclusive with respect to the due
execution of the will and it cannot be impugned on any of the grounds authorized
by law, except that of fraud, in any separate or independent action or proceeding.
We wish also to advert to therelated doctrine which holds that final judgments are
entitled to respect and should not be disturbed; otherwise, there would be a
wavering of trust in the courts. InLee Bun Ting vs. Aligaen, this Court
had the occasion to state the rationale of this doctrine, thus: "Reasons of public
policy, judicial orderliness, economy and judicial time and the interests of litigants,
as well as the peace and order of society, all require that stability be
accorded the solemn and final judgments of the courts or tribunals of competent
jurisdiction."
7. NON-DISTRIBUTION OF THE ESTATE NOT A GROUND FOR THE REOPENING OF THE TESTATE PROCEEDINGS. The nondistribution of the estate, which is vigorously denied by the petitioners, is not a
ground for the re-opening of the testate proceedings. A seasonable motion for
execution should have been filed. In DeJesus vs. Daza, this Court ruled that
if the executor or administrator has possession of the share to be
delivered, the probate court would have jurisdiction within thesame estate
proceeding to order him to transfer that possession to the person entitled thereto.
This is authorized under Section 1, Rule 90 of the Rules of Court. However,
under Section 1, Rule 90 of the Rules of Court. However, if no motion for
execution is filed within the reglementary period, a separate action
for the recoveryof the shares would be in order. As We see it, the attack of 10
September 1973 on the Order was just a clever ploy to give a
semblance of strength and substance to theOmnibus Motion for Reconsideration

by depicting therein a probate court committing a series of fatal, substantive and


procedural blunders, which We find to be imaginary, if not deliberately fabricated.

DECISION

DAVIDE, JR., J :
p

This is a petition for certiorari and prohibition under Rule 65 of the Revised
Rules of Court, with payer for a writ of preliminary injunction, to annul and set
aside, for having been issued without jurisdiction or with grave
abuse of discretion amounting to lack of jurisdiction, the following
Orders of the respondent Judge in Special Proceedings No. 3309-R of Branch
VIII of the then Court of First Instance (now Regional Trial Court) of Cebu entitled
"In The Matter of the Petition for Probate of theLast Will and
Testament of Remedios Mejia Vda. de Tiosejo:"
1. The Order of 26 February 1980 setting for hearing private
respondents' Omnibus Motion for Reconsideration

which was filed six

(6) years, ten (10) months and eighteen (18) days after the probate
judgment was rendered and six (6) years and twenty-one (21) days
after the testate proceedings was declared closed and terminated; and
2. The Order of 2 June 1980 finding the signature of the testatrix
in the last will and testament to be a forgery and (a)
declaring the testatrix as having died intestate; (b)
declaring the testamentary dispositions in said last will and testament as
null and void; (c) setting aside the order dated 10 September 1973
declaring thetestate proceedings closed and terminated; (d)
revoking the appointment of Jesus Fran as executor while appointing
respondent Concepcion M. Espina as administratrix; and (e)
ordering the conversion of the proceedings to one of intestacy. 2 This

Order effectively annulled and set aside the probate judgment of 13


November 1972.

Petitioners would also have this Court nullify all other actions of respondent
Judge in said Sp. Proc. No. 3309-R; restore the status quo therein prior
to the issuanceof the foregoing orders; and permanently enjoin respondent
Judge from reopening said proceedings.
The following facts are not controverted:
Remedios M. Vda. de Tiosejo, a widow, died on 10 July 1972 in Cebu City with
neither descendants nor ascendants; she left real and personal properties
located in Cebu City, Ormoc City and Puerto Bello, Merida, Leyte. Earlier, on 23
April 1972, she executed a last will and testament 3 wherein she bequeathed to
her collateral relatives (brothers, sisters, nephews and nieces) all her properties,
and designated Rosario Tan or, upon the latter's death, Jesus Fran, as executor
to serve without bond. Instrumental witnesses to the will were Nazario Pacquiao,
Alcio Demerre and Primo Miro.

LLpr

On 15 July 1972, Jesus Fran filed a petition with the Court of First
Instance of Cebu for the probate of Remedios' last will and testament. 4 The case
was raffled to theoriginal Branch VIII thereof which was then presided over by
Judge Antonio D. Cinco. The petition alleged that Rosario Tan is not physically
well and, therefore, will not be assuming the position of administratix. Tan signed
a waiver in favor of Jesus Fran on the third page of the said petition. The probate
court issued an order settingthe petition for hearing on 18 September 1972.
Meanwhile, on 31 July 1972, the court appointed petitioner Jesus Fran as special
administrator.
On 10 August 1972, the private respondents, who are sisters to the deceased,
filed a manifestation 5 alleging that they needed time to study the petition
because someheirs who are entitled to receive their respective shares have been
intentionally omitted therein, and praying that they be given ample time to file
their opposition, after which the hearing be reset to another date.

Private respondents did not file any opposition. Instead, they filed on 18
September 1972 a "Withdrawal of Opposition to the Allowance of Probate
(sic) of the Will" wherein they expressly manifested, with their "full knowledge and
consent that . . . they have no objection of (sic) the allowance of the . . .
will of the late Remedios Mejia Vda. de Tiosejo," and that they have "no objection
to the issuance of letters testamentary in favor of petitioner, Dr. Jesus Fran." 6
No other party filed an opposition. The petition thus became uncontested.
During the initial hearing, petitioner Fran introduced the requisite evidence to
establish the jurisdictional facts.
Upon a determination that the court had duly acquired jurisdiction
over the uncontested petition for probate, Judge Cinco issued in open court an
order directing counsel for petitioner to present evidence proving the authenticity
and due execution of the will before the Clerk of Court who was, accordingly, so
authorized to receive the same.
The reception of evidence by the Clerk of Court immediately followed.
Petition Fran's first witness was Atty. Nazario R. Pacquiao, one of the subscribing
witnesses to thewill. The original of the will, marked as Exhibit "F", and its English
translation, marked as Exhibit "F-Translation", were submitted
to the Clerk of Court. 7 Petition Franwas the second and also the last witness. He
enumerated the names of the surviving heirs of the deceased.
On 13 November 1972, the probate court rendered a decision admitting to
probate the will of the testatrix, Remedios Mejia Vda. de Tiosejo, and appointing
petitionerFran as executor thereof. 8 The dispositive portion of the decision reads:
"WHEREFORE, in view of all the foregoing, judgment is hereby rendered
declaring the last will and testament of the deceased Remedios Mejia
Vda. de Tiosejo marked as Exhibit F as admitted to probate.
Dr. Jesus Fran is hereby appointed as executor of the will. Let letters
testamentary be issued in favor of Dr. Jesus Fran. The special
administrator's bond put up by Dr. Jesus Fran as special administrator
duly approved by this Court shall serve and be considered

as the executor's bond considering that the special administrator and


executor are one and the same person."

The requisite notice to creditors was issued, but


despite the expiration of the period therein fixed, no claim was presented
against the estate.
On 4 January 1973, petitioner Fran filed an Inventory of the Estate; 9 copies
thereof were furnished each of the private respondents.
Subsequently, a Project of Partition based on the dispositions made in the will
and signed by all the devisees and legatees, with the exception of Luis Fran,
Remedios C. Mejia and respondent Concepcion M. Espina, was submitted
by the executor for the court's approval. 10 Said legatees and devisees submitted
certificates wherein they admit receipt of a copy of the Project of Partition
together with the notice of hearing, and state that they had no objection to its
approval. 11
The notice of hearing referred to in these certifications is the 6 August 1973
notice issued by the Clerk of Court setting the hearing on the Project of Partition
for 29 August 1973. 12
After the hearing on the Project of Partition, the court issued its Order of 10
September 1973 13 approving the same, declaring the parties therein
as the only heirsentitled to the estate of Remedios Mejia Vda. de Tiosejo,
directing the administrator to deliver to the said parties their respective shares
and decreeing the proceedings closed. The dispositive portion thereof reads:
"WHEREFORE, the signers (sic) to the project of partition are
declared the only heirs entitled to the estate; the project of partition
submitted is ordered approved andthe administrator is ordered to deliver
to each one of them their respective aliquot parts as distributed
in the said project of partition. It is understood that if there are expenses
incurred or to be incurred as expenses of partition, Section 3 of Rule 90
shall be followed.

Let this proceedings be now declared closed.


SO ORDERED."

Thereafter, the aforesaid Branch VIII of the Court of First Instance of Cebu was
converted to a Juvenile and Domestic Relations Court. On November 1978, by
virtue ofPresidential Decree No. 1439, Branch XVII (Danao
City) of the Court of First Instance of Cebu, presided over by herein respondent
Judge, was officially transferred to Cebu City and renumbered as Branch VIII.
On 1 October 1979, private respondents filed with the new Branch VIII an
Omnibus Motion for Reconsideration of the probate judgment of 13 November
1972 and onthe Order of partition of 10 September 1973; in said motion, they
ask the court to declare the proceedings still open and admit their opposition
to the allowance of thewill, 14 which they filed on 1 October 1979. They allege
that: (a) they were not furnished with a copy of the will; (b) the will is a forgery; (c)
they were not notified of any resolution or order on their manifestation requesting
time within which to file their opposition, or of the order
authorizing the clerk of court to receive the evidence forthe petitioner,
or of the order closing the proceedings; (d) the reception of evidence
by the clerk of court was void per the ruling in Lim
Tanhu vs. Ramolete; 15 (e) theproject of partition contains no notice of hearing
and they were not notified thereof; (f) the petitioner signed the project of partition
as administrator and not as executor, thereby proving that the decedent died
intestate; (g) the petitioner did not submit any accounting as required by law; and
(h) the petitioner never distributedthe estate to the devisees and legatees.
In a detailed opposition 16 to the above Omnibus Motion for Reconsideration,
petitioner Fran refuted all the protestations of private respondents. Among other
reasons, he stresses therein that: (a) private respondents are in estoppel to
question the will because they filed their Withdrawal Of Opposition
To The Allowance ofWill which states that after thoroughly studying the petition,
to which was attached a copy of the English translation of the will, they have no
objection to its allowance;the order directing the clerk of court to

receive the evidence was dictated in open court in the presence of private
respondents; private respondent Maria M. Gandiongco
signed the Project of Partition and private respondent Concepcion M. Espina
submitted a certification stating therein that she received the notice ofhearing
therefore and has no objection to its approval; (b) except for some properties,
either covered by a usufruct under the will or agreed upon by the parties to be
held in common by reason of its special circumstance, there was an actual
distribution of the estate in accordance with the Project of Partition; insofar as
private respondents are concerned, they not only received their respective
shares, they even purchased the shares of the other devisees. To top it all,
private respondents' children, namely Rodrigo M. Gandiongco, Jr. and Victor
Espina, mortgaged their respective shares in favor of a bank.

Notwithstanding petitioners' objections, respondent Judge issued on 26 February


1980 an Order setting for hearing the said Omnibut Motion for Reconsideration
on 8 April 1980 so that "the witnesses and the exhibits (may be) properly
ventilated." 17
On 25 March 1980, petitioners filed a Motion to Dismiss the Omnibus Motion and
to Reconsider the 26 February 1980 Order setting it for hearing on 17 April
1980, 18but the respondent Judge prematurely denied it for lack of merit in his
Order of 31 March 1980. 19
Consequently, on 8 April 1980, the instant petition was filed
challenging the jurisdiction of the lower court in taking
cognizance of the Omnibus Motion for Reconsideration considering
that the probate judgment and the order approving the Project of Partition and
terminating the proceedings had long become final and had in fact been
executed. Private respondents had long lost their right to appeal
therefrom. The Omnibus Motion for Reconsideration cannot likewise be treated
as a petition for relief from judgment for under Rule 38 of the Revised
Rules of Court, the same must be filed within sixty (60) days from

receipt of notice of thejudgment/order and within six (6) months


from the date of said judgment. Therefore, this remedy can no longer be
availed of.

LexLib

On 8 April 1980, the date the instant petition was filed, respondent Judge
proceeded with the hearing of the Omnibus Motion for Reconsideration. He
received thetestimonies of private respondents and one Romeo O. Varena, an
alleged handwriting expert fro the Philippine Constabulary, who averred
that the signature of thetestatrix on the will is a forgery. The respondent Judge
likewise issued an Order on the same date stating that unless he received a
restraining order from this Court within twenty (20) days therefrom, he will reopen
Sp. Proc. No. 3309-R.
On 14 April 1980, petitioners filed a Supplemental Petition asking this Court to
restrain respondent Judge from reopening the case. 20
In their voluminous Comments and Opposition to the petition and Supplemental
Petition, 21 private respondents not only amplify in great detail the grounds raised
in their Omnibus Motion for Reconsideration, they also squarely raise for the first
time the following issues:
(a) The probate court never acquired jurisdiction over the case since
petitioner Jesus Fran failed to submit to the court the original of the will.
(b) They were deprived of the opportunity to examine the will as
petitioner Jesus Fran did not attach it to the petition; what was attached
was only the English translation of the will.
(c) Even assuming that the probate judge could validly
delegate the reception of evidence to the Clerk of Court, the proceeding
before the latter would sill be void as he failed to take an oath of office
before entering upon his duties as commissioner and failed to render a
report on the matters submitted to him.
(d) Respondent Maria M. Vda. de Gandiongco was defrauded into (sic)
signing the Project of Partition and respondent Concepcion M. Espina,

her certification, when they were misled by petitioner Fran into believing
that the Agreement of Partition to be submitted to the court is the Extra
Judicial Patrician they signed on 7 May 1973.
(e) Petitioner Fran is guilty of fraud in
undervaluing the estate of the late Remedios Media Vda. de Tiosejo by
reporting properties worth only P400,000.00 when in truth and in
fact the estate has an aggregate value of P2,094,333.00.

In the Resolution dated 2 June 1980, We issued a restraining order enjoining


respondent Judge from reopening Sp. Proc. No. 3309-R. 22
However, on the same date, before the restraining order was served on him,
respondent Judge issued the impugned order declaring the testamentary
dispositions ofthe will void, finding the signature of the late Remedios Media Vda.
de Tiosejo to be a forgery, decreeing the reopening of Sp. Proc. No. 3309-R and
converting the same into an intestate proceeding. 23
Hence, on 6 June 1980, petitioners filed their Second Supplemental
Petition 24 asking this Court to declare as null and void the Order of 2 June 1980
and, pending such declaration, to restrain respondent Judge from
enforcing the same. Private respondents filed their Comment and Opposition
to the Second Supplemental Petition on 9 July 1980.
Thereafter, as mandated in the resolution of 30 June 1980, 25 this Court gave due
course to this case and required the parties to file their respective Memoranda,
which private respondents complied with on 16 August 1980; 26 petitioners filed
theirs on 27 August 1980. 27 Consequently, the parties continued to file several
pleadings reiterating substantially the same allegations and arguments earlier
submitted to this Court.
On 22 March 1984, counsel for petitioners filed a manifestation informing this
Court of the death of petitioner Fran on 29 February 1984 and enumerating
therein his surviving heirs. On 2 April 1984, this Court resolved to have
said heirs substitute him in this case.

Over a year later, respondent Maria M. Vda. de Gandiongco filed an


affidavit, 28 sworn to before the acting Clerk of Court of the Regional Trial Court in
Cebu City, disclosing the following material facts: (a) she signed the Omnibus
Motion for Reconsideration dated 1 October 1979 without knowing or
reading the contents thereof; (b) she saw the will of the late Remedios Media
Vda. de Tiosejo written in the Cebuano dialect after the same was executed
by the latter; the said will bearing theauthentic signature of Remedios
was the very one presented to the probate court by petitioner's counsel; (c) she
received the notice of hearing of the petition for probate and because she was
convinced that the signature of the testatrix was genuine, she, together with
Concepcion M. Espina, withdrew her opposition; (d) she received her
share of the estate of the late Remedios Media Vda. de Tiosejo which was
distributed in accordance with the provisions of the latter's will; and (e) she did
not authorize Atty. Numeriano Estenzo or other lawyers to present a motion to
this Court after 25 February 1981 when Estenzo withdrew as counsel for private
respondents. She then asks this Court to consider as withdrawn her Opposition
to the Allowance of the Will, her participation in the Omnibus Motion for
Reconsideration and her Opposition to this petition.
Due to the development, We required private respondent Concepcion M. Espina
to comment on the affidavit of private respondent Maria M. Vda. de Gandiongco.
On 17 August 1985, private respondents filed a joint manifestation 29 wherein
they claim that Maria M. Vda. de Gandiongco does not remember
executing the affidavit. A few weeks before the affidavit was filed, particularly on
17 June 1985, Maria M. Vda. de Gandiongco was confined in the hospital; she
could not recall having signed, during this period, any affidavit or recognized her
sisters and other relatives.
On 19 September 1985, respondent Maria M. Vda. de Gandiongco, through
special counsel, filed a Manifestation/Motion with a second Affidavit attached
thereto 30 confessing that she signed the Joint Manifestation dated 16 August
1985 "without knowing or being informed of its contents, and only upon Mrs.
Concepcion Espina's request." She reiterated her desire to withdraw

from the Omnibus Motion for Reconsideration filed in Sp. Proc. No. 3309-R as
well as from the instant petition.
Despite the valiant attempt of private respondent Concepcion M. Espina to
influence and control the action of Maria Gandiongco, there is nothing
in the records that would cast any doubt on the irrevocability of the latter's
decision to withdraw her participation in the Omnibus Motion for Reconsideration
and Opposition to this case. That decision, however, is not a ground for dropping
her as a private respondent as the respondent Judge had already
issued the abovementioned Order of 2 June 1980.
The petition and the supplemental petitions are impressed with merit.
We do not hesitate to rule that the respondent Judge committed grave
abuse of discretion amounting to lack of jurisdiction when he
granted the Omnibus Motion for Reconsideration and thereafter set
aside the probate judgment of 13 November 1972 in Sp. Proc. No. 3309-R,
declared the subject will of the testatrix a forgery, nullified the testamentary
dispositions therein and ordered the conversion of the testate proceedings into
one of intestacy.
It is not disputed that private respondents filed on the date of the initial
hearing of the petition their "Withdrawal of Opposition To Allowance of Probate
(sic) Will" wherein they unequivocally state that they have no objection
to the allowance of the will. For all legal intents and purposes, they became
proponents of the same.
After the probate court rendered its decision on 13 November 1972, and there
having been no claim presented despite publication of notice to creditors,
petitionerFran submitted a Project of Partition which private respondent Maria M.
Vda. de Gandiongco voluntarily signed and to which private respondent Espina
expressed her conformity through a certification filed with the probate court.
Assuming for the sake of argument that private respondents did not receive a
formal notice of thedecision as they claim in their Omnibus Motion for
Reconsideration, these acts nevertheless constitute indubitable proof of their

prior actual knowledge of the same. A formal notice would have been an idle
ceremony. In testate proceedings, a decision logically
precedes the project of partition, which is normally an implementation ofthe will
and is among the last operative acts to terminate the proceedings. If private
respondents did not have actual knowledge of the decision, they should have
desisted from performing the above acts and instead demanded from
petitioner Fran the fulfillment of his alleged promise to show
them the will. The same conclusion refutes and defeats the plea that they were
not notified of the order authorizing the Clerk of Court to receive the evidence and
that the Clerk of Court did not notify
them of the date of the reception of evidence. Besides, such plea must fail
because private respondents were present when the court dictated the said
order.

Neither do We give any weight to the contention that the reception of evidence
by the Clerk of Court is null and void per the doctrine laid down in Lim
Tanhu v.Ramolete. 31 In the first place, Lim Tanhu was decided on 29 August
1975, nearly four (4) years after the probate court authorized the Clerk of Court to
receive theevidence for the petitioner in this case. A month prior to Lim Tanhu, or
on 30 July 1975, this Court, in Laluan vs. Malpaya, 32 recognized and
upheld the practice ofdelegating the reception of evidence to Clerks of Court.
Thus:
"No provision of law or principle of public policy prohibits a court from
authorizing its clerk of court to receive the evidence of a party litigant.
After all, the reception ofevidence by the clerk of court constitutes but a
ministerial task the taking down of the testimony of the witnesses
and the marking of the pieces of documentary evidence, if any, adduced
by the party present. This task of receiving evidence precludes,
on the part of the clerk of court, the exercise of judicial discretion usually
called for when the other party who is present objects to questions
propounded and to the admission of the documentary evidence

proffered. 33 More importantly,the duty to render judgment


on the merits of the case still rests with the judge who is obliged to
personally and directly prepare the decision based upon the evidence
reported. 34
But where the proceedings before the clerk of court and the concomitant
result thereof, i.e., the judgment rendered by the court based
on the evidence presented in such limited proceedings,
prejudice the substantial rights of the aggrieved party, then there exists
sufficient justification to grant the latter complete opportunity to thresh
out his case in court." 35

Monserrate vs. Court of Appeals, 36 decided on 29 September 1989, reiterated


this rule. Lim Tanhu then cannot be used as authority to
nullify the order of theprobate court authorizing the Clerk of Court to
receive the evidence for the rule is settled that "when a doctrine of this Court
is overruled and a different view is adopted, the new doctrine should be
applied prospectively, and should not apply to parties who had relied
on the old doctrine and acted on the faith thereof." 37 It may also be
emphasized in this connection that Lim Tanhu did not live long; it was
subsequently overruled in Gochangco vs. Court of First Instance of Negros
Occidental, 38 wherein this Court, en banc, through Justice, now Chief Justice,
Andres R. Narvasa, in reference to what the trial court termed as "the doctrinal
rule laid down in the recent case in Lim Tan Hu (sic) vs. Ramolete," ruled:
"Now, that declaration does not reflect long observed and established
judicial practice with respect to default cases. It is not quite consistent,
too, with the several explicitly authorized instances under the Rules
where the function of receiving evidence and even of making
recommendatory findings of facts on the basis thereof may be delegated
to commissioners, inclusive of the Clerk of Court. These instances are
set out in Rule 33, . . .; Rules 67 and 69, . . .; Rule 86, . . .; Rule 136, . . .
In all these instances, the competence of the clerk of court is assumed.
Indeed, there would seem, to be sure, nothing intrinsically wrong in

allowing presentation ofevidence ex parte before a Clerk of Court. Such


a procedure certainly does not foreclose relief to the party adversely
affected who, for valid cause and upon appropriate and seasonable
application, may bring about the undoing thereof
or the elimination of prejudice thereby caused to him; and it is, after
all, the Court itself which is duty bound and has the ultimate
responsibility to pass upon the evidence received in this manner,
discarding in the process such proofs as are incompetent and then
declare what facts have thereby been established. In considering and
analyzing the evidence preparatory to rendition of judgment
on the merits, it may not unreasonably be assumed that any serious
error in the ex-parte presentation of evidence, prejudicial to any absent
party, will be detected and duly remedied by theCourt, and/or may
always, in any event, be drawn to its attention by any interested party.
xxx xxx xxx
It was therefore error for the Court a quo to have declared the judgment
by default to be fatally flawed by the fact that the plaintiff's evidence had
been received not by the Judge himself but by the clerk of court."

The alternative claim that the proceedings before the Clerk of Court were likewise
void because said official did not take an oath is likewise
untenable. The Clerk ofCourt acted as such when he performed the delegated
task of receiving evidence. It was not necessary for him to take an oath for that
purpose; he was bound by his oath of office as a Clerk of Court. Private
respondents are obviously of the impression that
by the delegation of the reception of evidence to the Clerk of Court, thelatter
became a commissioner as defined under Rule 33 of the Rules of Court entitled
Trial by Commissioner. This is not correct; as this Court said in Laluan:
"The provisions of Rule 33 of the Rules of Court invoked by both parties
properly relate to the reference by a court of any or all of the issues in a
case to a person so commissioned to act or report thereon. These

provisions explicitly spell out the rules


governing the conduct of the court, the commissioner, and the parties
before, during, and after the reference proceedings. Compliance with
these rules of conduct becomes imperative only when the court formally
orders a reference of the case to a commissioner. Strictly speaking
then, the provisions of Rule 33 find no application to the case at bar
where the court a quo merely directed the clerk of court to take
down the testimony of the witnesses presented and to
mark the documentary evidence proffered on a date previously set for
hearing."

Belatedly realizing the absence of substance of the above grounds, private


respondents now claim in their Comments to the Petition and the Supplemental
Petition that the trial court never acquired jurisdiction over the petition because
only the English translation of the will and not a copy of the same was
attached to thepetition; the will was not even submitted to the court for their
examination within twenty (20) days after the death of the testatrix; and that there
was fraud in theprocurement of the probate judgment principally because they
were not given any chance to examine the signature of the testatrix and were
misled into signing thewithdrawal of their opposition
on the assurance of petitioner Fran and their sister, Rosario M. Tan, that the will
would be shown to them during the trial. These two grounds easily serve
as the bases for the postulation that the decision is null and void and so,
therefore, their omnibus motion became all the more timely and proper.
The contentions do not impress this Court.
In Santos vs. Castillo 39 and Salazar vs. Court of First
Instance of Laguna, 40 decided six (6) months apart in 1937, this Court already
ruled that it is not necessary that theoriginal of the will be attached to the petition.
In the first, it ruled: "The original of said document [the will] must be presented or
sufficient reasons given to justify thenonpresentation of said original
and the acceptance of the copy or duplicate thereof ." 41 In the second case, this
Court was more emphatic in holding that:

"The law is silent as to the specific manner of bringing the jurisdictional


allegations before the court, but through practice the jurisprudence have
established that they should be made in the form of an application and
filed with the original of the will attached thereto. It has been the practice
in some courts to permit attachment of a mere copy of the will
to the application, without prejudice to producing the original thereof
at the hearing or when the court so requires. This precaution has been
adopted by some attorneys to forestall its disappearance, which has
taken place in certain cases."

42

That the annexing of the original will to the petition is not a jurisdictional
requirement is clearly evident in Section 1, Rule 76 of the Rules of Court which
allows the filingof a petition for probate by the person named therein
regardless of whether or not he is in possession of the will, or the same is lost or
destroyed. The section reads in full as follows:
"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."

In the instant case, a copy of the original will and its English translation were
attached to the petition as Annex "A" and Annex "A-1", respectively, and made
integral partof the same. It is to be presumed that
upon the filing of the petition the Clerk of Court, or his duly authorized
subordinate, examined the petition and found that theannexes mentioned were in
fact attached thereto. If they were not, the petition cannot be said to have been
properly presented and the Clerk of Court would not have accepted it for
docketing. Under Section 6, Rule 136 of the Rules of Court, the Clerk of Court
shall receive and file all pleadings and other papers properly presented,
endorsing on each such paper the time when it was
filed. The presumption of regularity in the performance of official duty militates

against private respondents' claim that Annex "A" of the petition was not in fact
attached thereto.
The certification of the Assistant Clerk of Court issued on 8 April 1980, 43 or SIX
(6) months after the filing of the motion for reconsideration, to the effect that as
per examination of the records of Sp. Proc. No. 3309-R, "the copy of the Will
mentioned in the petition as Annex "A" is not found to be attached as of this date
in the said petition; only the English Translation of said Will is attached thereof
(sic) as Annex "A-1" does not even save the day for private respondents. It is not
conclusive because it fails to state the fact that as hereafter
shown, the pages of the records which correspond to the four (4) pages of Annex
"A" were missing or were detached therefrom. As emphatically asserted
by the petitioners in their Reply to the Comments of private respondents, 44 duly
supported by a certification of the former Clerk ofCourt of the original Branch
VIII of the court below, 45 and which private respondents merely generally denied
in their motion for reconsideration with comments and opposition to consolidated
reply, 46 the four-page xerox copy of the will, marked as Annex "A" of the petition,
became, as properly marked by the personnel of theoriginal Branch
VIII of the court below upon the filing of the petition, pages 5, 6, 7 and 8
while the translation thereof, marked as Annex "A-1", became pages 9, 10, 11
and 12 of the records. The markings were done in long
hand. The records of the case were thereafter sent to the Clerk of Court, 14th
Judicial District, Cebu City on 9 February 1978. These records, now
in the possession of the respondent Judge, show that said pages 5, 6, 7 and 8 in
long hand are missing. As a consequence thereof, petitioners filed
with the Executive Judge of the court below an administrative complaint.

It is not likewise disputed that the original of the will was submitted in evidence
and marked as Exhibit "F". It forms part of the records of the special proceedings
a fact which private respondents admit in their Omnibus Motion for
Reconsideration, thus:

"9. That an examination of the alleged will of our deceased sister has
revealed that the signatures at the left hand margin of Exhibit "F", are
written by (sic) different person than the signature appearing
at the bottom of said alleged will . . ." 47

The availability of the will since 18 September 1972 for their examination renders
completely baseless the private respondents' claim of fraud on petitioner Fran's
part in securing the withdrawal of their opposition to the probate of the will. If
indeed such withdrawal was conditioned upon Fran's promise that the private
respondents would be shown the will during the trial, why weren't the appropriate
steps taken by the latter to confront Fran about this promise before
certifications of conformity to the project of partition were filed?
Granting for the sake of argument that the non-fulfillment of said promise
constitutes fraud, such fraud is not of the kind which provides sufficient
justification for a motion for reconsideration or a petition for relief from judgment
under Rule 37 and Rule 38, respectively, of the Rules of Court, or even a
separate action for annulment of judgment. It is settled that for fraud to be
invested with such sufficiency, it must be extrinsic or collateral to the matters
involved in the issues raised during the trial which resulted in such judgment. 48
In Our jurisdiction, the following courses of action are open to an aggrieved party
to set aside or attack the validity of a final judgment:
(1) Petition for relief under Rule 38 of the Rules of Court which must be
filed within sixty (60) days after learning of the decision, but not more
than six (6) months after such decision is entered;
(2) By direct action, via a special civil action for certiorari, or by collateral
attack, assuming that the decision is void for want of jurisdiction;
(3) By an independent civil action under Article 1114 of the Civil Code,
assuming that the decision was obtained through fraud and Rule 38 can
not be applied. 49

It is not difficult to see that private respondents had lost their right to file a petition
for relief from judgment, it appearing that their omnibus motion for
reconsideration was filed exactly six (6) years, ten (10) months and twenty-two
(22) days after the rendition of the decision, and six (6) years, one (1) month and
thirteen (13) days after the court issued the order
approving the Project of Partition, to which they voluntarily expressed their
conformity through their respective certifications, and closing the testate
proceedings.
Private respondents did not avail of the other two (2) modes of attack.
The probate judgment of 13 November 1972, long final and undistributed by any
attempt to unsettle it, had inevitably passed beyond the reach of the court below
to annul or set the same aside, by mere motion, on the ground that the will is a
forgery. Settled in the rule that the decree of probate is conclusive with respect
to the due execution of the will and it cannot be impugned on any of the grounds
authorized by law, except that of fraud, in any separate or independent action or
proceeding. 50We wish also to advert to the related doctrine which holds that final
judgments are entitled to respect and should not be disturbed; otherwise, there
would be a wavering of trust in the courts. 51 In Lee Bun Ting vs. Aligaen, 52 this
Court had the occasion to state the rationale of this doctrine, thus:
"Reasons of public policy, judicial orderliness, economy and judicial time
and the interests of litigants, as well as the peace and order of society,
all require that stability be accorded the solemn and final
judgments of the courts or tribunals of competent jurisdiction."

This is so even if the decision is incorrect 53 or, in criminal case, the penalty
imposed is erroneous. 54
Equally baseless and unmeritorious is private respondents' contention
that the order approving the Project of Partition and closing the proceedings is
null and void because the Project of Partition did not contain a notice of hearing
and that they were not notified of the hearing thereon. In truth, in her own
certification 55 dated 5 September 1973, private respondent Concepcion M.

Espina admitted that she "received a copy of the Project of Partition


and the Notice of Hearing in the above-entitled proceeding, and that she has no
objection to the approval of the said Project of Partition." The notice of hearing
she referred to is the Notice of Hearing For Approval of Project of Partition issued
on 6 August 1973 by the Clerk of Court. 56 Private respondent Espina was lying
through her teeth when she claimed otherwise.
The non-distribution of the estate, which is vigorously denied by the petitioners, is
not a ground for the re-opening of the testate proceedings. A seasonable motion
for execution should have been filed. In De Jesus vs. Daza, 57 this Court ruled
that if the executor or administrator has possession of the share to be
delivered, the probate court would have jurisdiction within the same estate
proceeding to order him to transfer that possession to the person entitled thereto.
This is authorized under Section 1, Rule 90 of the Rules of Court. However,
under Section 1, Rule 90 of the Rules of Court. However, if no motion for
execution is filed within the reglementary period, a separate action
for the recovery of the shares would be in order. As We see it, the attack of 10
September 1973 on the Order was just a clever ploy to give a
semblance of strength and substance to the Omnibus Motion for Reconsideration
by depicting therein a probate court committing a series of fatal, substantive and
procedural blunders, which We find to be imaginary, if not deliberately fabricated.
WHEREFORE, the instant petition and supplemental petitions are
GRANTED. The Order of respondent Judge of 2 June 1980 and all other orders
issued by him in Sp. Proc. No. 3309-R, as well as all other proceedings had
therein in connection with or in relation to the Omnibus Motion for
Reconsideration, are hereby ANNULLED and SET ASIDE.
The restraining order issued on 2 June 1980 is hereby made PERMANENT.
Costs against private respondent Concepcion M. Espina.
SO ORDERED.
Gutierrez, Jr., Bidin and Romero, JJ ., concur.

Feliciano, J ., took no part.


|||

(Heirs of Fran v. Salas, G.R. No. 53546, [June 25, 1992])

SECOND DIVISION
[G.R. No. 103554. May 28, 1993.]
TEODORO CANEDA, LORENZA CANEDA, TERESA CANEDA,
JUAN CABALLERO, AUREA CABALLERO, OSCAR LAROSA,
HELEN CABALLERO, SANTOS CABALLERO, PABLO
CABALLERO, VICTOR RAGA, MAURICIA RAGA, QUIRICA
RAGA, RUPERTO ABAPO, represented herein by his Attorneyin-Fact, ARMSTICIA * ABAPO VELANO, and
CONSESO CANEDA, represented herein by his heirs,
JESUS CANEDA, NATIVIDAD CANEDA and
ARTURO CANEDA,petitioners, vs. HON. COURT OF APPEALS a
nd WILLIAM CABRERA, as Special Administrator of the
Estate of Mateo Caballero, respondents.
Palma, Palma & Associates for petitioners.
Emilio Lumontad, Jr. for private respondent.
SYLLABUS
1. CIVIL LAW; SUCCESSION; WILL; DEFINED. A will has been defined as a
species of conveyance whereby a person is permitted, with the formalities
prescribed by law, to control to a certain degree the disposition of his estate after
his death (Rivera vs. Palmanori, 40 Phil. 116 (1919); Art. 810, Civil Code).
2. ID.; ID.; ID.; KINDS; REQUIREMENTS FOR EACH. Under the Civil Code,
there are two kinds of wills which a testator may execute. The first kind is the
ordinary or attested will, the execution of which is governed by Articles 804 to
809 of the Code. In addition to the requirements under Article 805, the ordinary
will must be acknowledged before a notary public by the testator and the attesting

witnesses (Art. 806, Civil Code), hence it is likewise known as a notarial will.
Where the testator is deaf or a deaf-mute, Article 807 requires that he must
personally read the will, if able to do so. Otherwise, he should designate two
persons who will read the will and communicate its contents to him in a
practicable manner. On the other hand, if the testator is blind, the will should be
read to him twice; once, by anyone of the witnesses thereto, and then again, by
the notary public before whom it is acknowledged (Art. 808, Civil Code). The
other kind of will is the holographic will, which Article 810 defines as one that is
entirely written, dated, and signed by the hand of the testator himself. This
kind of will, unlike the ordinary type, requires no attestation by witnesses. A
common requirement in both kinds of wills is that they should be in writing and
must have been executed in a language or dialect known to the testator (Art. 804,
Civil Code).
3. ID.; ID.; ID.; ATTESTATION CLAUSE; CONSTRUED. An attestation clause
refers to that part of an ordinary will whereby the attesting witnesses certify that
the instrument has been executed before them and to the manner of the
execution of the same (Testate Estate of Paula Toray, 87 Phil. 139 [1950]). It is a
separate memorandum or record of the facts surrounding the
conduct of execution and once signed by the witnesses, it gives affirmation to the
fact that compliance with the essential formalities required by law has been
observed. (Vda. de Ramos, et al. vs. Court of Appeals, et. al., 81 SCRA 393
[1978]). It is made for the purpose of preserving in a permanent form a
record of the facts that attended the execution of a particular will, so that in
case of failure of the memory of the attesting witnesses, or other casualty, such
facts may still be proved (Leynez vs. Leynez, 68 Phil. 745 [1939]).
4. ID.; ID.; ID.; ID.; ATTESTATION AND SUBSCRIPTION, DIFFERENTIATED.
It will be noted that Article 805 requires that the witnesses should both attest and
subscribe to the will in the presence of the testator and of one another.
"Attestation" and "subscription" differ in meaning. Attestation is that act of the
senses, while subscription is the act of the hand. The former is mental, the latter
mechanical, and to attest a will is to know that it was published as such, and to

certify the facts required to constitute an actual and legal publication; but to
subscribe a paper published as a will is only to write on the same paper the
names of the witnesses, for the sole purpose of identification (Hill vs. Davis, 167
P. 465, 466, 64 Okl. 253, L.R.A. 1918 B 687).
5. ID.; ID.; ID.; ID.; REQUIREMENTS; PURPOSES THEREOF. Under the
third paragraph of Article 805, such a clause, the complete lack of which would
result in the invalidity of the will, should state (1) the number of pages used upon
which the will is written; (2) that the testator signed, or expressly caused another
to sign, the will and every page thereof in the presence of the attesting witnesses;
and (3) that the attesting witnesses witnessed the signing by the testator of the
will and all its pages,and that said witnesses also signed the will and every page
thereof in the presence of the testator and of one another. The purpose of the law
in requiring the clause to state the number of pages on which the will is written is
to safeguard against possible interpolation or omission of one or some of its
pages and to prevent any increase or decrease in the pages; (In the matter of the
Estate of Sanguinsin, 41 Phil. 875 [1920]; In re Will of Andrada, 42 Phil. 180
[1921]) whereas the subscription ofthe signatures of the testator and the attesting
witnesses is made for the purpose of authentication and identification, and thus
indicates that the will is the very same instrument executed by the testator and
attested to by the witnesses. (Testate Estate of Paula Toray, 87 Phil. 611 [1938]).
Further, by attesting and subscribing to the will, the witnesses thereby declare the
due execution of the will as embodied in the attestation clause. (Gonzales vs.
Gonzales de Carungcong, 90 Phil. 444 [1951]). The attestation clause, therefore,
provides strong legal guaranties for the due execution of a will and to insure the
authenticity thereof ( Echevarria vs. Sarmiento, 66 Phil. 611 [1938]). As it
appertains only to the witnesses and not to the testator, it need be signed only by
them (Abangan vs. Abangan, 40 Phil. 476 [1919]). Where it is left unsigned, it
would result in the invalidation of the will as it would be possible and easy to add
the clause on a subsequent occasion in the absence of the testator and the
witnesses. (Cagro vs. Cagro, 92 Phil. 1032 [1953]). In Taboada vs. Rosal, (118
SCRA 195 [1982]), we clarified that attestation consists in witnessing the
testator's execution of the will in order to see and take note mentally that those

things are done which the statute requires for the execution of a will and that the
signature ofthe testator exists as a fact. On the other hand, subscription is the
signing of the witnesses' names upon the same paper for the
purpose of identification of such paper as the will which was executed by the
testator. As it involves a mental act, there would be no means,
therefore, of ascertaining by a physical examination of the will whether the
witnesses had indeed signed in the presence of the testator and of each other
unless this is substantially expressed in the attestation.
6. ID.; ID.; ID.; ID.; ID.; NOT SATISFIED IN CASE AT BAR. What is fairly
apparent upon a careful reading of the attestation clause herein assailed is the
fact that while it recites that the testator indeed signed the will and all its pages in
the presence of the three attesting witnesses and states as well the
number of pages that were used, the same does not expressly state therein the
circumstance that said witnesses subscribed their respective signatures to the
will in the presence of the testator and of each other. The phrase "and he has
signed the same and every page thereof, on the spaces provided for his
signature and on the left hand margin," obviously refers to the testator and not
the instrumental witnesses as it is immediately preceded by the words "as his
Last Will and Testament." On the other hand, although the words "in the
presence of the testator and in the presence of each and all of us" may, at first
blush, appear to likewise signify and refer to the witnesses, it must however, be
interpreted as referring only to the testator signing in the presence of the
witnesses since said phrase immediately follows the words "he has signed the
same and every page thereof, on the spaces provided for his signature and on
the left hand margin." What is then clearly lacking, in the final logical analysis,
is the statement that the witnesses signed the will and every page thereof in the
presence of the testator and of one another. It is our considered view that the
absence ofthat statement required by law is a fatal defect or imperfection which
must necessarily result in the disallowance of the will that is here sought to be
admitted to probate. Petitioners are correct in pointing out that the aforestated
defect in the attestation clause obviously cannot be characterized as merely
involving the form ofthe will or the language used therein which would warrant the

application of the substantial compliance rule, as contemplated in Article


809 of the Civil Code. Where the attestation clause totally omits the fact that the
attesting witnesses signed each and every page of the will in the presence of the
testator and of each other, the defect is not only in the form or the language of the
attestation clause but the total absence of a specific element required by Article
805 to be specifically stated in the attestation clause of a will. That is precisely
the defect complained of in the present case since there is no plausible way by
which we can read into the questioned attestation clause any statement, or an
implication thereof, that the attesting witnesses did actually bear witness to the
signing by the testator of the will and all its pages and that said instrumental
witnesses also signed the will and every page thereof in the presence of the
testator and of one another.
7. ID.; ID.; ID.; ID.; ID.; RULE ON SUBSTANTIAL COMPLIANCE UNDER ART.
809 OF THE CIVIL CODE; NOT APPLICABLE IN CASE AT BAR. The rule on
substantial compliance in Article 809 cannot be invoked or relied on by
respondents since it presupposes that the defects in the attestation clause can be
cured or supplied by the text of the will or a consideration of matters apparent
therefrom which would provide the data not expressed in the attestation clause or
from which it may necessarily be gleaned or clearly inferred that the acts not
stated in the omitted textual requirements were actually complied with in the
execution of the will. In other words, the defects must be remedied by intrinsic
evidence supplied by the will itself. In the case at bar, contrarily, proof of the acts
required to have been performed by the attesting witnesses can be supplied only
by extrinsic evidence thereof, since an overall appreciation of the contents of the
will yields no basis whatsoever from which such facts may be plausibly deduced.
What private respondent insists on are the testimonies of his witnesses alleging
that they saw the compliance with such requirements by the instrumental
witnesses, oblivious of the fact that he is thereby resorting to extrinsic evidence to
prove the same and would accordingly be doing by indirection what in law he
cannot do directly. It may thus be stated that the rule, as it now stands, is that
omissions which can be supplied by an examination of the will itself, without the
need of resorting to extrinsic evidence, will not be fatal and, correspondingly,

would not obstruct the allowance to probate of the will being assailed. However,
those omissions which cannot be supplied except by evidence aliunde would
result in the invalidation of the attestation clause and ultimately, of the will itself.

DECISION

REGALADO, J :
p

Presented for resolution by this Court in the present petition for review on
certiorari is the issue of whether or not the attestation clause contained in the last
will and testament of the late Mateo Caballero complies with the
requirements of Article 805, in relation to Article 809, of the Civil Code.
The records show that on December 5, 1978, Mateo Caballero, a widower
without any children and already in the twilight years of his life, executed a last
will and testament at his residence in Talisay, Cebu before three attesting
witnesses, namely, Cipriano Labuca, Gregorio Cabando and Flaviano Toregosa.
The said testator was duly assisted by his lawyer, Atty. Emilio Lumontad, and a
notary public, Atty. Filoteo Manigos, in the preparation of that last will. 1 It was
declared therein, among other things, that the testator was leaving by
way of legacies and devises his real and personal properties to Presentacion
Gaviola, Angel Abatayo, Rogelio Abatayo, Isabelito Abatayo, Benoni G. Cabrera
and Marcosa Alcantara, all of whom do not appear to be related to the testator. 2
Four months later, or on April 4, 1979, Mateo Caballero himself filed a petition
docketed as Special Proceeding No. 3899-R before Branch II of the
then Court of First Instance of Cebu seeking the probate of his last will and
testament. The probate court set the petition for hearing on August 20, 1979 but
the same and subsequent scheduled hearings were postponed for one reason or
another. On May 29, 1980, the testator passed away before his petition could
finally be heard by the probatecourt. 3 On February 25, 1981, Benoni Cabrera,

one of the legatees named in the will, sought his appointment as special
administrator of the testator's estate, the estimated value of which was
P24,000.00, and he was so appointed by the probate court in its order of March
6, 1981. 4
Thereafter, herein petitioners, claiming to be nephews and nieces of the testator,
instituted a second petition, entitled "In the Matter of the Intestate Estate of Mateo
Caballero" and docketed as Special Proceeding No. 3965-R, before Branch
IX of the aforesaid Court of First Instance of Cebu. On October 18, 1982, herein
petitioners had their said petition for intestate proceedings consolidated with
Special Proceeding No. 3899-R in Branch II of the Court of First
Instance of Cebu and opposed thereat the probate of the testator's will and the
appointment of a special administrator for his estate. 5
Benoni Cabrera died on February 8, 1982 hence the probate court, now known
as Branch XV of the Regional Trial Court of Cebu, appointed William Cabrera as
special administrator on June 21, 1983. Thereafter, on July 20, 1983, it issued an
order for the return of the records of Special Proceeding No. 3965-R to the
archives since the testate proceedings for the probate of the will had to be heard
and resolved first. On March 26, 1984 the case was reraffled and eventually
assigned to Branch XII of the Regional Trial Court of Cebu where it remained
until the conclusion of the probate proceedings. 6
In the course of the hearing in Special Proceeding No. 3899-R, herein petitioners
appeared as oppositors and objected to the allowance of the testator's will on the
ground that on the alleged date of its execution, the testator was already in a poor
state of health such that he could not have possibly executed the same.
Petitioners likewise reiterated the issue as to the genuineness of the
signature of the testator therein. 7
On the other hand, one of the attesting witnesses, Cipriano Labuca, and the
notary public, Atty. Filoteo Manigos, testified that the testator executed the will in
question in their presence while he was of sound and disposing mind and that,
contrary to the assertions of the oppositors, Mateo Caballero was in good health

and was not unduly influenced in any way in the execution of his will. Labuca also
testified that he and the other witnesses attested and signed the will in the
presence of the testator and of each other. The other two attesting witnesses
were not presented in the probate hearing as they had died by then. 8
On April 5, 1988, the probate court rendered a decision declaring the will in
question as the last will and testament of the late Mateo Caballero, on the
ratiocination that:
". . . The self-serving testimony of the two witnesses of the oppositors
cannot overcome the positive testimonies of Atty. Filoteo Manigos and
Cipriano Labuca who clearly told the Court that indeed Mateo Caballero
executed this Last Will and Testament now marked Exhibit 'C' on
December 5, 1978. Moreover, the fact that it was Mateo Caballero who
initiated the probate of his Will during his lifetime when he caused the
filing of the original petition now marked Exhibit 'D' clearly underscores
the fact that this was indeed his Last Will. At the start, counsel for the
oppositors manifested that he would want the signature of Mateo
Caballero in Exhibit 'C' examined by a handwriting expert of the NBI but
it would seem that despite their avowal and intention for the
examination of this signature of Mateo Caballero in Exhibit 'C', nothing
came out of it because they abandoned the idea and instead presented
Aurea Caballero and Helen Caballero Campo as witnesses for the
oppositors.
"All told, it is the finding of this Court that Exhibit `C' is the Last Will and
Testament of Mateo Caballero and that it was executed in accordance
with all the requisites oflaw." 9

Undaunted by said judgment of the probate court, petitioners elevated the case to
the Court of Appeals in CA-G.R. CV No. 19669. They asserted therein that the
will in question is null and void for the reason that its attestation clause is fatally
defective since it fails to specifically state that the instrumental witnesses to the
will witnessed the testator signing the will in their presence and that they also

signed the will and all the pages thereof in the presence of the testator and of one
another.
On October 15, 1991, respondent court promulgated its decision 10 affirming
that of the trial court, and ruling that the attestation clause in the last will of Mateo
Caballero substantially complies with Article 805 of the Civil Code, thus:
"The question therefore is whether the attestation clause in question may
be considered as having substantially complied with the
requirements of Art. 805 of the Civil Code. What appears in the
attestation clause which the oppositors claim to be defective is `we do
certify that the testament was read by him and the testator, Mateo
Caballero, has published unto us the foregoing will consisting of THREE
PAGES, including the acknowledgment, each page numbered
correlatively in letters on the upper part of each page, as his Last Will
and Testament, and he has signed the same and every page thereof, on
the spaces provided for his signature and on the left hand margin in the
presence of the said testator and in the presence of each and
all of us' (emphasis supplied).
"To our thinking, this is sufficient compliance and no evidence need be
presented to indicate the meaning that the said will was signed by the
testator and by them (the witnesses) in the presence of all of them
and of one another. Or as the language of the law would have it that the
testator signed the will '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 not completely or
ideally perfect in accordance with the wordings of Art. 805 but (sic) the
phrase as formulated is in substantial compliance with the
requirement of the law." 11

Petitioners moved for the reconsideration of said ruling of respondent court, but
the same was denied in the latter's resolution of January 14, 1992, 12 hence this
appeal now before us. Petitioners assert that respondent court has ruled upon

said issue in a manner not in accord with the law and the settled jurisprudence on
the matter and are now questioning once more, on the same ground as that
raised before respondent court, the validity of the attestation clause in the last
will of Mateo Caballero.
We find the present petition to be meritorious, as we shall shortly hereafter
explain, after some prefatory observations which we feel should be made in
aid of the rationale for our resolution of the controversy.
1. A will has been defined as a species of conveyance whereby a person is
permitted, with the formalities prescribed by law, to control to a certain degree the
disposition of his estate after his death. 13 Under the Civil Code, there are two
kinds of wills which a testator may execute. 14 The first kind is the ordinary or
attested will, the execution of which is governed by Articles 804 to 809 of the
Code. Article 805 requires that:
"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.

LLphil

If the attestation clause is in a language not known to the witnesses, it


shall be interpreted to them."

In addition, the ordinary will must be acknowledged before a notary public by the
testator and the attesting witnesses, 15 hence it is likewise known as a notarial
will. Where the testator is deaf or a deaf-mute, Article 807 requires that he must
personally read the will, if able to do so. Otherwise, he should designate two
persons who will read the will and communicate its contents to him in a
practicable manner. On the other hand, if the testator is blind, the will should be
read to him twice; once, by anyone of the witnesses thereto, and then again, by
the notary public before whom it is acknowledged. 16
The other kind of will is the holographic will, which Article 810 defines as one that
is entirely written, dated, and signed by the hand of the testator himself. This
kind ofwill, unlike the ordinary type, requires no attestation by witnesses. A
common requirement in both kinds of wills is that they should be in writing and
must have been executed in a language or dialect known to the testator. 17
However, in the case of an ordinary or attested will, its attestation clause need
not be written in a language or dialect known to the testator since it does not form
partof the testamentary disposition. Furthermore, the language used in the
attestation clause likewise need not even be known to the attesting witnesses. 18
The last paragraph of Article 805 merely requires that, in such a case, the
attestation clause shall be interpreted to said witnesses.
An attestation clause refers to that part of an ordinary will whereby the attesting
witnesses certify that the instrument has been executed before them and to the
manner of the execution of the same. 19 It is a separate memorandum or
record of the facts surrounding the conduct of execution and once signed by the
witnesses, it gives affirmation to the fact that compliance with the essential
formalities required by law has been observed. 20 It is made for the
purpose of preserving in a permanent form a record of the facts that attended the

execution of a particular will, so that in case of failure of the memory of the


attesting witnesses, or other casualty, such facts may still be proved. 21
Under the third paragraph of Article 805, such a clause, the complete
lack of which would result in the invalidity of the will, 22 should state (1) the
number of pages usedupon which the will is written; (2) that the testator signed,
or expressly caused another to sign, the will and every page thereof in the
presence of the attesting witnesses; and (3) that the attesting witnesses
witnessed the signing by the testator of the will and all its pages, and that said
witnesses also signed the will and every page thereof in the presence of the
testator and of one another.
The purpose of the law in requiring the clause to state the number of pages on
which the will is written is to safeguard against possible interpolation or
omission ofone or some of its pages and to prevent any increase or decrease in
the pages; 23 whereas the subscription of the signatures of the testator and the
attesting witnesses is made for the purpose of authentication and identification,
and thus indicates that the will is the very same instrument executed by the
testator and attested to by the witnesses. 24
Further, by attesting and subscribing to the will, the witnesses thereby declare the
due execution of the will as embodied in the attestation clause. 25 The attestation
clause, therefore, provides strong legal guaranties for the due execution of a will
and to insure the authenticity thereof. 26 As it appertains only to the witnesses
and not to the testator, it need be signed only by them. 27 Where it is left
unsigned, it would result in the invalidation of the will as it would be possible and
easy to add the clause on a subsequent occasion in the absence of the testator
and the witnesses. 28
In its report, the Code Commission commented on the reasons of the law for
requiring the formalities to be followed in the execution of wills, in the following
manner:

cdll

"The underlying and fundamental objectives permeating the provisions


on the law on wills in this Project consists in the liberalization of the

manner of their execution with the end in view of giving the testator more
freedom in expressing his last wishes, but with sufficient safeguards and
restrictions to prevent the commission offraud and the exercise of undue
and improper pressure and influence upon the testator.
"This objective is in accord with the modern tendency with respect to the
formalities in the execution of wills. . . ." 29

2. An examination of the last will and testament of Mateo Caballero shows that it
is comprised of three sheets all of which have been numbered correlatively, with
the left margin of each page thereof bearing the respective signatures of the
testator and the three attesting witnesses. The part of the will containing the
testamentary dispositions is expressed in the Cebuano-Visayan dialect and is
signed at the foot thereof by the testator. The attestation clause in question, on
the other hand, is recited in the English language and is likewise signed at the
end thereof by the three attesting witnesses thereto. 3 0 Since it is the proverbial
bone of contention, we reproduce it again for facility of reference:
"We, the undersigned attesting Witnesses, whose Residences and
postal addresses appear on the Opposite of our respective names, we
do hereby certify that the Testament was read by him and the testator,
MATEO CABALLERO, has published unto us the foregoing Will
consisting of THREE PAGES, including the Acknowledgment, each page
numbered correlatively in letters on the upper part of each page, as his
Last Will and Testament and he has signed the same and every page
thereof, on the spaces provided for his signature and on the left hand
margin, in the presence of the said testator and in the presence of each
and all of us."

It will be noted that Article 805 requires that the witnesses should both attest and
subscribe to the will in the presence of the testator and of one another.
"Attestation" and "subscription" differ in meaning. Attestation is that act of the
senses, while subscription is the act of the hand. The former is mental, the latter
mechanical, and to attest a will is to know that it was published as such, and to

certify the facts required to constitute an actual and legal publication; but to
subscribe a paper published as a will is only to write on the same paper the
names of the witnesses, for the sole purpose of identification. 31
In Taboada vs. Rosal, 32 we clarified that attestation consists in witnessing the
testator's execution of the will in order to see and take note mentally that those
things are done which the statute requires for the execution of a will and that the
signature of the testator exists as a fact. On the other hand, subscription is the
signing ofthe witnesses' names upon the same paper for the
purpose of identification of such paper as the will which was executed by the
testator. As it involves a mental act, there would be no means,
therefore, of ascertaining by a physical examination of the will whether the
witnesses had indeed signed in the presence of the testator andof each other
unless this is substantially expressed in the attestation.
It is contended by petitioners that the aforequoted attestation clause, in
contravention of the express requirements of the third paragraph of Article
805 of the Civil Code for attestation clauses, fails to specifically state the fact that
the attesting witnesses witnessed the testator sign the will and all its pages in
their presence and that they, the witnesses, likewise signed the will and every
page thereof in the presence of the testator and of each other. We agree.
What is fairly apparent upon a careful reading of the attestation clause herein
assailed is the fact that while it recites that the testator indeed signed the will and
all its pages in the presence of the three attesting witnesses and states as well
the number of pages that were used, the same does not expressly state therein
the circumstance that said witnesses subscribed their respective signatures to
the will in the presence of the testator and of each other.
The phrase "and he has signed the same and every page thereof, on the spaces
provided for his signature and on the left hand margin," obviously refers to the
testator and not the instrumental witnesses as it is immediately preceded by the
words "as his Last Will and Testament." On the other hand, although the words
"in the presence of the testator and in the presence of each and all of us" may, at

first blush, appear to likewise signify and refer to the witnesses, it must however,
be interpreted as referring only to the testator signing in the presence of the
witnesses since said phrase immediately follows the words "he has signed the
same and every page thereof, on the spaces provided for his signature and on
the left hand margin." What is then clearly lacking, in the final logical analysis,
is the statement that the witnesses signed the will and every page thereof in the
presence of the testator and of one another.

cdll

It is our considered view that the absence of that statement required by law is a
fatal defect or imperfection which must necessarily result in the
disallowance of the will that is here sought to be admitted to probate. Petitioners
are correct in pointing out that the aforestated defect in the attestation clause
obviously cannot be characterized as merely involving the form of the will or the
language used therein which would warrant the application of the substantial
compliance rule, as contemplated in the pertinent provision thereon in the Civil
Code, to wit:
"Art. 809. In the absence of bad faith, forgery, or fraud, or undue and
improper pressure and influence, defects and imperfections in
the form of attestation or inthe language used therein shall not render the
will invalid if it is proved that the will was in fact executed and attested in
substantial compliance with all the requirements of article 805"
(Emphasis supplied.)

While it may be true that the attestation clause is indeed subscribed at the end
thereof and at the left margin of each page by the three, attesting witnesses, it
certainly cannot be conclusively inferred therefrom that the said witnesses affixed
their respective signatures in the presence of the testator and of each other
since, as petitioners correctly observed, the presence of said signatures only
establishes the fact that it was indeed signed, but it does not prove that the
attesting witnesses did subscribe to the will in the presence of the testator
and of each other. The execution of a will is supposed to be one act so that

where the testator and the witnesses sign on various days or occasions and in
various combinations, the will cannot be stamped with the
imprimatur of effectivity. 33
We believe that the following comment of former Justice J.B.L.
Reyes 34 regarding Article 809, wherein he urged caution in the application of the
substantial compliance rule therein, is correct and should be applied in the case
under consideration, as well as to future cases with similar questions:
". . . The rule must be limited to disregarding those defects that can be
supplied by an examination of the will itself: whether all the pages are
consecutively numbered; whether the signatures appear in each and
every page; whether the subscribing witnesses are three or the will was
notarized. All these are facts that the will itself can reveal, and defects or
even omissions concerning them in the attestation clause can be safely
disregarded. But the total number of pages, and whether all persons
required to sign did so in the presence of each other must substantially
appear in the attestation clause, being the only check against perjury in
the probate proceedings." (Emphasis ours.)

3. We stress once more that under Article 809, the defects or imperfections must
only be with respect to the form of the attestation or the language employed
therein. Such defects or imperfections would not render a will invalid should it be
proved that the will was really executed and attested in compliance with Article
805. In this regard, however, the manner of proving the due execution and
attestation has been held to be limited to merely an examination of the will itself
without resorting to evidence aliunde, whether oral or written.
The foregoing considerations do not apply where the attestation
clause totally omits the fact that the attesting witnesses signed each and every
page of the will in the presence of the testator and of each other. 35 In such a
situation, the defect is not only in the form or the language of the attestation
clause but the total absence of a specific element required by Article 805 to be
specifically stated in the attestation clause of a will. That is precisely the defect

complained of in the present case since there is no plausible way by which we


can read into the questioned attestation clause any statement, or an implication
thereof, that the attesting witnesses did actually bear witness to the signing by
the testator of the will and all its pages and that said instrumental witnesses also
signed the will and every page thereof in the presenceof the testator and of one
another.

cdphil

Furthermore, the rule on substantial compliance in Article 809 cannot be invoked


or relied on by respondents since it presupposes that the defects in the
attestation clause can be cured or supplied by the text of the will or a
consideration of matters apparent therefrom which would provide the data not
expressed in the attestation clause or from which it may necessarily be gleaned
or clearly inferred that the acts not stated in the omitted textual requirements
were actually complied with in the execution of the will. In other words, the
defects must be remedied by intrinsic evidence supplied by the will itself.
In the case at bar, contrarily, proof of the acts required to have been performed by
the attesting witnesses can be supplied only by extrinsic evidence thereof, since
an overall appreciation of the contents of the will yields no basis whatsoever from
which such facts may be plausibly deduced. What private respondent insists on
are the testimonies of his witnesses alleging that they saw the compliance with
such requirements by the instrumental witnesses, oblivious of the fact that he is
thereby resorting to extrinsic evidence to prove the same and would accordingly
be doing by indirection what in law he cannot do directly.
4. Prior to the advent of the Civil Code on August 30, 1950, there was a
divergence of views as to which manner of interpretation should be followed in
resolving issues centering on compliance with the legal formalities required in the
execution of wills. The formal requirements were at that time embodied primarily
in Section 618 of Act No. 190, the Code of Civil Procedure. Said section was later
amended by Act No. 2645, but the provisions respecting said formalities found
in Act No. 190 and the amendment thereto were practically reproduced and
adopted in the Civil Code.

One view advanced the liberal or substantial compliance rule. This was first laid
down in the case of Abangan vs. Abangan, 36 where it was held that the
object of the solemnities surrounding the execution of wills is to close the door
against bad faith and fraud, to avoid substitution of wills and testaments and to
guarantee their truth and authenticity. Therefore, the laws on this subject should
be interpreted in such a way as to attain these primordial ends. Nonetheless, it
was also emphasized that one must not lose sight of the fact that it is not the
object of the law to restrain and curtail the exercise of the right to make a will,
hence when an interpretation already given assures such ends, any other
interpretation whatsoever that adds nothing but demands more requisites entirely
unnecessary, useless and frustrative of the testator's last will, must be
disregarded. The subsequent cases of Avera vs. Garcia, 37 Aldaba vs. Roque,
38 Unson vs. Abella, 39 Pecson vs. Coronel, 40 Fernandez vs. Vergel de Dios, et
al., 41 and Nayve vs. Mojal, et al., 42 all adhered to this position.
The other view which advocated the rule that statutes which prescribe the
formalities that should be observed in the execution of wills are mandatory in
nature and are to be strictly construed was followed in the subsequent
cases of In the Matter of the Estate of Saguinsin, 43 In re Will of Andrada, 44 Uy
Coque vs. Sioca, 45 In re Estate of Neumark, 46 and Sano vs. Quintana. 47
Gumban vs. Gorecho, et al., 48 provided the Court with the occasion to clarify the
seemingly conflicting decisions in the aforementioned cases. In said
case of Gumban, the attestation clause had failed to state that the witnesses
signed the will and each and every page thereof on the left margin in the
presence of the testator. The will in question was disallowed, with these reasons
therefor:

LLjur

"In support of their argument on the assignment of error abovementioned, appellants rely on a series of cases of this court beginning
with (I)n the Matter of the (E)state of Saguinsin ([1920], 41 Phil., 875),
continuing with In re Will of Andrada [1921], 42 Phil., 180), Uy Coque vs.
Navas L. Sioca [1922], 43 Phil. 405), and In re Estateof Neumark
([1923], 46 Phil., 841), and ending with Sano vs. Quintana ([1925], 48

Phil., 506). Appellee counters with the citation of a series of cases


beginning with Abangan vs. Abangan ([1919], 40 Phil., 476), continuing
through Aldaba vs. Roque ([1922], 43 Phil., 378), and Fernandez vs.
Vergel de Dios ([1924], 46 Phil., 922), and culminating in Nayve vs. Mojal
and Aguilar ([1924], 47 Phil., 152). In its last analysis, our task is to
contrast and, if possible, conciliate, the last two decisions cited by
opposing counsel, namely, those of Sano vs. Quintana, supra, and
Nayve vs. Mojal and Aguilar, supra.
"In the case of Sano vs. Quintana, supra, it was decided that an
attestation clause which does not recite that the witnesses signed the will
and each and every page thereof on the left margin in the
presence of the testator is defective, and such a defect annuls the will.
The case of Uy Coque vs. Sioca, supra, was cited, but the
caseof Nayve vs. Mojal and Aguilar, supra, was not mentioned. In
contrast, is the decision in Nayve vs. Mojal and Aguilar, supra, wherein it
was held that the attestation clause must state the fact that the testator
and the witnesses reciprocally saw the signing of the will, for such
an act cannot be proved by the mere exhibition of the will, if it is not
stated therein. It was also held that the fact that the testator and the
witnesses signed each and every page of the will can be proved also by
the mere examination of the signatures appearing on the document
itself, and the omission to state such evident facts does not invalidate the
will.
"It is a habit of courts to reaffirm or distinguish previous cases; seldom
do they admit inconsistency in doctrine. Yet here, unless aided by
casuistry of the extreme type, it would be impossible to reconcile the
Mojal and Quintana decisions. They are fundamentally at variance. If we
rely on one, we affirm. If we rely on the other, we reverse.
"In resolving this puzzling question of authority, three outstanding points
may be mentioned. In the first place, the Mojal decision was concurred in
by only four members of the court, less than a majority, with two strong

dissenting opinions; the Quintana decision was concurred in by seven


members of the court, a clear majority, with one formal dissent. In the
second place, the Mojal decision was promulgated in December, 1924,
while the Quintana decision was promulgated in December 1925; the
Quintana decision was thus subsequent in point of time. And in the third
place, the Quintana decision is believed more nearly to conform to the
applicable provisions of the law.

"The right to dispose of property by will is governed entirely by statute.


The law of the case is here found in section 61 of the Code of Civil
Procedure, as amended byAct No. 2645, and in section 634 of the same
Code, as unamended. It is in part provided in section 61, as amended
that 'No will . . . shall be valid . . . unless . . . .' It is further provided in the
same section that `The attestation shall state the number of sheets or
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 three
witnesses, and the latter witnessed and signed the will and all pages
thereof in the presence of the testator and of each other.' Codal section
634 provides that 'The will shall be disallowed in either of the following
cases: 1. If not executed and attested as in this Act provided.' The law
not alone carefully makes use of the imperative, but cautiously goes
further and makes use of the negative, to enforce legislative intention. It
is not within the province of the courts to disregard the legislative
purpose so emphatically and clearly expressed.
"We adopt and reaffirm the decision in the case of Sano vs.
Quintana, supra, and, to the extent necessary, modify the decision in the
case of Nayve vs. Mojal and Aguilar, supra." (Emphases in the original
text).

But after the Gumbanclarificatory pronouncement, there were


decisions of the Court that once more appeared to revive the seeming
diversity of view that was earlier threshed out therein. The cases of Quinto vs.
Morata, 49 Rodriguez vs. Alcala, 50 Echevarria vs. Sarmiento, 51 and Testate
Estate of Toray 52 went the way of the ruling as restated in Gumban. But De
Gala vs. Gonzales, et al., 53 Rey vs. Cartagena, 54 De Ticson vs. De
Gorostiza, 55 Sebastian vs. Panganiban, 56 Rodriguez vs. Yap, 57 Grey vs.
Fabia, 58 Leynez vs. Leynez, 59 Martir vs. Martir, 60 Alcala vs. De
Villa, 61 Sabado vs. Fernandez, 62 Mendoza vs. Pilapil, 63 and Lopez vs.
Liboro, 64 veered away from the strict interpretation rule and established a trend
toward an application of the liberal view.
The Code Commission, cognizant of such a conflicting welter of views and of the
undeniable inclination towards a liberal construction, recommended the
codificationof the substantial compliance rule, as it believed this rule to be in
accord with the modern tendency to give a liberal approach to the
interpretation of wills. Said rule thus became what is now Article 809 of the Civil
Code, with this explanation of the Code Commission:
"The present law provides for only one form of executing a will, and that
is, in accordance with the formalities prescribed by Section
618 of the Code of Civil Procedureas amended by Act No. 2645. The
Supreme Court of the Philippines had previously upheld the strict
compliance with the legal formalities and had even said that the
provisions of Section 618 of the Code of Civil Procedure, as amended
regarding the contents of the attestation clause were mandatory, and
non-compliance therewith invalidated the will (Uy Coque vs. Sioca, 43
Phil. 405). These decisions necessarily restrained the freedom of the
testator in disposing of his property.
"However, in recent years the Supreme Court changed its attitude and
has become more liberal in the interpretation of the formalities in the
execution of wills. This liberal view is enunciated in the
cases of Rodriguez vs. Yap, G.R. No. 45924, May 18, 1939; Leynez vs.

Leynez, G.R. No. 46097, October 18, 1939; Martir vs. Martir, G.R. No.
46995, June 21, 1940; and Alcala vs. Villa, G.R. No. 47351, April 18,
1941.
"In the above mentioned decisions of our Supreme Court, it has
practically gone back to the original provisions of Section
618 of the Code of Civil Procedure before its amendment by Act No.
2645 in the year 1916. To turn this attitude into a legislative declaration
and to attain the main objective of the proposed Code in the
liberalization of the manner of executing wills, article 829 of the Project is
recommended, which reads:
'ART. 829. In the absence of bad faith, forgery, or fraud, or undue
and improper pressure and influence, defects and imperfections
in the form of attestation or in the language used therein shall not
render the will invalid if it is proved that the will was in fact
executed and attested in substantial compliance with all the
requirements of article 829.'" 65

The so-called liberal rule, the Court said in Gil vs. Murciano, 66 "does not offer
any puzzle or difficulty, nor does it open the door to serious consequences. The
later decisions do tell us when and where to stop; they draw the dividing line with
precision. They do not allow evidence aliunde to fill a void in any part of the
document or supply missing details that should appear in the will itself. They only
permit a probe into the will, an exploration into its confines, to ascertain its
meaning or to determine the existence or absence of the requisite
formalities of law. This clear, sharp limitation eliminates uncertainty and ought to
banish any fear of dire results."
It may thus be stated that the rule, as it now stands, is that omissions which can
be supplied by an examination of the will itself, without the need of resorting to
extrinsic evidence, will not be fatal and, correspondingly, would not obstruct the
allowance to probate of the will being assailed. However, those omissions which

cannot be supplied except by evidence aliunde would result in the


invalidation of the attestation clause and ultimately, of the will itself. 67
WHEREFORE, the petition is hereby GRANTED and the impugned
decision of respondent court is hereby REVERSED and SET ASIDE. The court a
quo is accordingly directed to forthwith DISMISS its Special Proceeding No.
3899-R (Petition for the Probate of the Last Will and Testament of Mateo
Caballero) and to REVIVE Special Proceeding No. 3965-R (In the Matter of the
Intestate Estate of Mateo Caballero) as an active case and thereafter duly
proceed with the settlement of the estate of the said decedent.
SO ORDERED.
|||

(Caneda v. Court of Appeals, G.R. No. 103554, [May 28, 1993])

SECOND DIVISION
[G.R. No. 116668. July 28, 1997.]
ERLINDA A. AGAPAY, petitioner, vs. CARLINA
(CORNELIA) V. PALANG and HERMINIA P. DELA
CRUZ, respondent.
Simplicio M. Sevilleja for petitioner.
Ray L. Basbas & Fe Fernandez-Bautista for respondents.
SYNOPSIS
Miguel Palang married on July 16, 1949. It was his first marriage. Their only child,
Herminia, was born on May 12, 1950.
On July 15, 1973, Miguel, then 63 years old, contracted his second marriage with
Erlinda Agapay, 19, herein petitioner. Two months earlier, Miguel and Erlinda
purchased a piece of riceland. Transfer Certificate of Title No. 101736 was issued
in their names.
On September 23, 1975, a house and lot was purchased allegedly by Erlinda as
the sole vendee. TCT No. 143120 was later issued in her name.
Miguel and Erlinda's cohabitation produced a son, Kristoper A. Palang, born on
December 6, 1977. In 1979, Miguel and Erlinda were convicted of concubinage
upon Carlina' s complaint. Two years later, Miguel died.
On July 11, 1981, Carlina Palang and her daughter Herminia Palang de la Cruz,
herein private respondents, instituted an action for recovery of ownership and
possession with damages against petitioner. Private respondents sought to get
back the riceland and the house and lot allegedly purchased by Miguel during his
cohabitation with petitioner.

After trial on the merits, the lower court dismissed the complaint declaring that
there was little evidence to prove that the subject properties pertained to the
conjugal property of Carlina and Miguel Palang.
On appeal, the Court of Appeals reversed the trial court's decision. Hence, this
petition.
The sale of the riceland was made in favor of Miguel and Erlinda. The application
law is Art. 148 of the Family Code on the cohabitation of a man and a woman
under a void marriage or without the benefit of marriage. The marriage of Miguel
and Erlinda was patently void because the earlier marriage of Miguel and Carlina
was still subsisting. Under Art. 148, only the properties acquired by both of the
parties through their actual joint contribution of money, property or industry shall
be owned by them in common in proportion to their respective contributions.
Actual contribution is required by this provision, in contrast to Art. 147. If the
actual contribution of the party is not proved, there will be no co-ownership and
no presumption of equal shares. Since petitioner failed to prove that she
contributed money to the purchase price ,of the riceland, we find no basis to
justify her co-ownership with Miguel over the same. Consequently, the riceland
should revert to the conjugal partnership property of the deceased Miguel and
private respondent Carlina Palang.
As regards Kristopher Palang's heirship and filiation, the same should be
ventilated in the proper probate court or in a special proceeding instituted for the
purpose, and cannot be adjudicated in an ordinary civil action for recovery of
ownership and possession.
The decision of the Court of Appeals is affirmed.
SYLLABUS
1. CIVIL LAW; FAMILY CODE; PROPERTY REGIME OF UNIONS WITHOUT
MARRIAGE; PROOF OF ACTUAL CONTRIBUTION BY BOTH PARTIES,
REQUIRED; ABSENCE THEREOF IN CASE AT BAR. The provision of law

applicable here is Article 148 of the Family Code providing for cases of
cohabitation when a man and a woman who are not capacitated to marry each
other live exclusively with each other as husband and wife without the benefit of
marriage or under a void marriage. While Miguel and Erlinda contracted marriage
on July 15, 1973, said union was patently void because the earlier marriage of
Miguel and Carlina was still subsisting and unaffected by the latter's de
facto separation. Under Article 148, only the properties acquired by both of the
parties through their actual joint contribution of money, property or industry shall
be owned by them in common in proportion to their respective contributions. It
must be stressed that actual contribution is required by this provision, in contrast
to Article 147 which states that efforts in the care and maintenance of the family
and household, are regarded as contributions to the acquisition of common
property by one who has no salary or income or work or industry. If the actual
contribution of the party is not proved, there will be no co-ownership and no
presumption of equal shares. Even assuming that the subject property was
bought before cohabitation, the rules of co-ownership would still apply and proof
of actual contribution would still be essential. Since petitioner failed to prove that
she contributed money to the purchase price of the riceland in Binalonan,
Pangasinan, we find no basis to justify her co-ownership with Miguel over the
same. Consequently, the riceland should, as correctly held by the Court of
Appeals, revert to the conjugal partnership property of the deceased Miguel and
private respondent Carlina Palang.
2. ID.; ID.; SEPARATION OF PROPERTY OF THE SPOUSES DURING
MARRIAGE; JUDICIAL ORDER, REQUIRED. Separation of property between
spouses during the marriage shall not take place except by judicial order or
without judicial conferment when there is an express stipulation in the marriage
settlements. [Article 134 of the Family Code] The judgment which resulted from
the parties' compromise was not specifically and expressly for separation of
property and should not be so inferred.
3. ID.; ID.; DONATION; BETWEEN PERSONS GUILTY OF ADULTERY OR
CONCUBINAGE; VOID; RATIONALE; CASE AT BAR. With respect to the

house and lot, Erlinda allegedly bought the same for P20,000.00 on September
23, 1975 when she was only 22 years old. The testimony of the notary public who
prepared the deed of conveyance for the property reveals the falsehood of this
claim. Atty. Constantino Sagun testified that Miguel Palang provided the money
for the purchase price and directed that Erlinda's name alone be placed as the
vendee. The transaction was properly a donation made by Miguel to Erlinda, but
one which was clearly void and inexistent by express provision of law because it
was made between persons guilty of adultery or concubinage at the time of the
donation, under Article 739 of the Civil Code. Moreover, Article 87 of the Family
Code expressly provides that the prohibition against donations between spouses
now applies to donations between persons living together as husband and wife
without a valid marriage, for otherwise, the condition of those who incurred guilt
would turn out to be better than those in legal union.
4. ID.; ID.; HEIRSHIP AND FILIATION; CANNOT BE ADJUDICATED IN AN
ORDINARY CIVIL ACTION FOR RECOVERY OF OWNERSHIP; CASE AT BAR.
The issue concerning Kristopher Palang's status and claim as an illegitimate
son and heir to Miguel's estate is here resolved in favor of respondent court's
correct assessment that the trial court erred in making pronouncements
regarding Kristopher's heirship and filiation "inasmuch as questions as to who are
the heirs of the decedent, proof of filiation of illegitimate children and the
determination of the estate of the latter and claims thereto should be ventilated in
the proper probate court or in a special proceeding instituted for the purpose and
cannot be adjudicated in the instant ordinary civil action which is for recovery of
ownership and possession." Kristopher, not having been impleaded, was not a
party to the case at bar. His mother, Erlinda, cannot be called his guardian ad
litem for he was not involved in the case at bar.

DECISION

ROMERO, J :
p

Before us is a petition for review of the decision of the Court of Appeals in CAG.R. CV No. 24199 entitled "Erlinda Agapay v. Carlina (Cornelia) Palang and
Herminia P. Dela Cruz" dated June 22, 1994 involving the ownership of two
parcels of land acquired during the cohabitation of petitioner and private
respondent's legitimate spouse.
Miguel Palang contracted his first marriage on July 16, 1949 when he took private
respondent Carlina (or Cornelia) Vallesterol as a wife at the Pozorrubio Roman
Catholic Church in Pangasinan. A few months after the wedding, in October
1949, he left to work in Hawaii. Miguel and Carlina's only child, Herminia Palang,
was born on May 12, 1950.
Miguel returned in 1954 for a year. His next visit to the Philippines was in 1964
and during the entire duration of his year-long sojourn he stayed in Zambales with
his brother, not in Pangasinan with his wife and child. The trial court found
evidence that as early as 1957, Miguel had attempted to divorced Carlina in
Hawaii. 1 When he returned for good in 1972, he refused to live with private
respondents, but stayed alone in a house in Pozorrubio, Pangasinan.
On July 15, 1973, the then sixty-three-year-old Miguel contracted his second
marriage with nineteen-year-old Erlinda Agapay, herein petitioner. 2 Two months
earlier, on May 17, 1973, Miguel and Erlinda, as evidenced by the Deed of Sale,
jointly purchased a parcel of agricultural land located at San Felipe, Binalonan,
Pangasinan with an area of 10,080 square meters. Consequently, Transfer
Certificate of Title No. 101736 covering said rice land was issued in their names.
A house and lot in Binalonan, Pangasinan was likewise purchased on September
23, 1975, allegedly by Erlinda as the sole vendee. TCT No. 143120 covering said
property was later issued in her name.
On October 30, 1975, Miguel and Cornelia Palang executed a Deed of Donation
as a form of compromise agreement to settle and end a case filed by the
latter. 3 The parties therein agreed to donate their conjugal property consisting of
six parcels of land to their only child, Herminia Palang. 4

Miguel and Erlinda's cohabitation produced a son, Kristopher A. Palang, born on


December 6, 1977. In 1979, Miguel and Erlinda were convicted of concubinage
upon Carlina's complaint. 5 Two years later, on February 15, 1981, Miguel died.
On July 11, 1981, Carlina Palang and her daughter Herminia Palang de la Cruz,
herein private respondents, instituted the case at bar, an action for recovery of
ownership and possession with damages against petitioner before the Regional
Trial Court in Urdaneta, Pangasinan (Civil Case No. U-4265). Private
respondents sought to get back the riceland and the house and lot both located
at Binalonan, Pangasinan allegedly purchased by Miguel during his cohabitation
with petitioner.

Petitioner, as defendant below, contented that while the riceland covered by TCT
No. 101736 is registered in their names (Miguel and Erlinda), she had already
given her half of the property to their son Kristopher Palang. She added that the
house and lot covered by TCT No. 143120 is her sole property, having bought the
same with her own money. Erlinda added that Carlina is precluded from claiming
aforesaid properties since the latter had already donated their conjugal estate to
Herminia.
After trial on the merits, the lower court rendered its decision on June 30, 1989
dismissing the complaint after declaring that there was little evidence to prove
that the subject properties pertained to the conjugal property of Carlina and
Miguel Palang. The lower court went on to provide for the intestate shares of the
parties, particularly of Kristopher Palang, Miguel's illegitimate son. The dispositive
portion of the decision reads:
"WHEREFORE, premises considered, judgment is hereby rendered
1) Dismissing the complaint, with cost against plaintiffs;
2) Confirming the ownership of defendant Erlinda Agapay of the
residential lot located at Poblacion, Binalonan, Pangasinan, as

evidenced by TCT No. 143120, Lot 290-B including the old house
standing therein;
3) Confirming the ownership of one half (1/2) portion of that piece of
agricultural land situated at Balisa, San Felipe, Binalonan, Pangasinan,
consisting of 10,080 square meters and as evidenced by TCT No.
101736, Lot 1123-A to Erlinda Agapay;
4) Adjudicating to Kristopher Palang as his inheritance from his
deceased father, Miguel Palang, the one-half (1/2) of the Agricultural
land situated at Balisa, San Felipe, Binalonan, Pangasinan, under TCT
No. 101736 in the name of Miguel Palang, provided that the former
(Kristopher) executes, within 15 days after this decision becomes final
and executory, a quit-claim forever renouncing any claims to
annul/reduce the donation to Herminia Palang de la Cruz of all conjugal
properties of her parents, Miguel Palang and Carlina Vallesterol Palang,
dated October 30, 1975, otherwise, the state of deceased
Miguel Palang will have to be settled in another separate action;
5) No pronouncement as to damages and attorney's fees.
SO ORDERED." 6

On appeal, respondent court reversed the trial court's decision. The Court of
Appeals rendered its decision on July 22, 1994 within the following dispositive
portion:
"WHEREFORE, PREMISES CONSIDERED, the appealed decision is
hereby REVERSED and another one entered:
1. Declaring plaintiffs-appellants the owner of the properties in question;
2. Ordering defendant-appellee to vacate and deliver the properties in
question to herein plaintiffs-appellants;
3. Ordering the Register of Deeds of Pangasinan to cancel Transfer
Certificate of Title Nos. 143120 and 101736 and to issue in lieu thereof
another certificate of title in the name of the plaintiffs-appellants.

No pronouncement as to costs."

Hence, this petition.


Petitioner claims that the Court of Appeals erred in not sustaining the validity of
two deeds of absolute sale covering the riceland and the house and lot, the first
in favor of Miguel Palang and Erlinda Agapay and the second, in favor of
Erlinda Agapay alone. Second, petitioner contends that respondent appellate
court erred in not declaring Kristopher A. Palang as Miguel Palang's illegitimate
son and thus entitled to inherit from Miguel's estate. Third, respondent court
erred, according to petitioner, "in not finding that there is a sufficient pleading and
evidence that Kristoffer A. Palang or Christopher A. Palang should be considered
as party defendant in Civil Case No. U-4625 before the trial court and in CA-G.R.
No. 24199. 8
After studying the merits of the instant case, as well as the pertinent provision of
law and jurisprudence, the Court denies the petition and affirms the questioned
decision of the Court of Appeals.
The first and principal issue is the ownership of the two pieces of property subject
of this action. Petitioner assails the validity of the deeds of conveyance over the
same parcels of land. There is no dispute that the transfer of ownership from the
original owners of the riceland and the house and lot, Corazon Ilomin and the
spouses Cespedes, respectively, were valid.
The sale of the riceland on May 17, 1973, was made in favor of Miguel and
Erlinda. The provision of law applicable here is Article 148 of the Family Code
providing for cases of cohabitation when a man or woman who
are not capacitated to marry each other live exclusively with each other as
husband and wife without the benefit of marriage or under a void marriage. While
Miguel and Erlinda contracted marriage on July 15, 1973, said union was patently
void because the earlier marriage of Miguel and Carlina was still subsisting and
unaffected by the latter's de facto separation.
Under Article 148, only the properties acquired by both of the parties through
their actual joint contribution of money, property or industry shall be owned by

them in common in proportion to their respective contributions. It must be


stressed that actual contribution is required by this provision, in contrast to Article
147 which states that efforts in the care and maintenance of the family and
household, are regarded as contributions to the acquisition of common property
by one who has no salary or income or work or industry. If the actual contribution
of the party is not proved, there will be no co-ownership and no presumption of
equal shares. 9

cda

In the case at bar, Erlinda tried to establish by her testimony that she is engaged
in the business of buy and sell and had a sari-sari store 10 but failed to persuade
to us that she actually contributed money to buy the subject riceland. Worth
noting is the fact that on the date of the conveyance, May 17, 1973, petitioner
was only around twenty years of age and Miguel Palang was already sixty-four
and a pensioner of the U.S. Government. Considering her youthfulness, it is
unrealistic to conclude that in 1973 she contributed P3,750.00 as her share in the
purchase price of subject property, 11 there being no proof of the same.
Petitioner now claims that the riceland was bought two months before Miguel and
Erlinda actually cohabited. In the nature of an afterthought, said added assertion
was intended to exclude their case from operation of Article 148 of the Family
Code. Proof of the precise date when they commenced their adulterous
cohabitation not having been adduced, we cannot state definitively that the
riceland was purchased even before they started living together. In any case,
even assuming that the subject property was bought before cohabitation, the
rules of co-ownership would still apply and proof of actual contribution would still
be essential.
Since petitioner failed to prove that she contributed money to the purchase price
of the riceland in Binalonan, Pangasinan, we find no basis to justify her coownership with Miguel over the same. Consequently, the riceland should, as
correctly held by the Court of Appeals, revert to the conjugal partnership property
of the deceased Miguel and private respondent Carlina Palang.

Furthermore, it is immaterial that Miguel and Carlina previously agreed to donate


their conjugal property in favor of their daughter Herminia in 1975. The trial court
erred in holding that the decision adopting their compromise agreement "in effect
partakes the nature of judicial confirmation of the separation of property between
spouses and the termination of the conjugal partnership." 12 Separation of
property between spouse during the marriage shall not take place except by
judicial order or without judicial conferment when there is an express stipulation
in the marriage settlements. 13 The judgment which resulted from the parties'
compromise was not specifically and expressly for separation of property and
should not be so inferred.
With respect to the house and lot, Erlinda allegedly bought the same for
P20,000.00 on September 23, 1975 when she was only 22 years old. The
testimony of the notary public who prepared the deed of conveyance for the
property reveals the falsehood of this claim. Atty. Constantino Sagun testified that
Miguel Palang provided the money for the purchase price and directed that
Erlinda's name alone be placed as the vendee. 14
The transaction was properly a donation made by Miguel to Erlinda, but one
which was clearly void and inexistent by express provision of law because it was
made between persons guilty of adultery or concubinage at the time of the
donation, under Article 739 of the Civil Code. Moreover, Article 87 of the Family
Code expressly provides that the prohibition against donation between spouses
now applies to donations between persons living together as husband and wife
without a valid marriage, 15 for otherwise, the condition of those who incurred
guilt would turn out to be better than those in legal union. 16
The second issue concerning Kristopher Palang's status and claim as an
illegitimate son and heir to Miguel's estate is here resolved in favor of respondent
court's correct assessment that the trial court erred in making pronouncements
regarding Kristopher's heirship and filiation "inasmuch as questions as to who are
the heirs of the decedent, proof of filiation of illegitimate children and the
determination of the estate of the latter and claims thereto should be ventilated in
the proper probate court or in a special proceeding instituted for the purpose and

cannot be adjudicated in the instant ordinary civil action which is for recovery of
ownership and possession." 17
As regards the third issue, petitioner contends that Kristopher Palang should be
considered as party-defendant in the case at bar following the trial court's
decision which expressly found that Kristopher had not been impleaded as party
defendant but theorized that he had submitted to the court's jurisdiction through
his mother/guardian ad litem. 18 The trial court erred gravely. Kristopher, not
having been impleaded, was therefore, not a party to the case at bar. His mother,
Erlinda, cannot be called his guardian ad litem for he was not involved in the case
at bar. Petitioner adds that there is no need for Kristopher to file another action to
prove that he is the illegitimate son of Miguel, in order to avoid multiplicity of
suits. 19 Petitioner's grave error has been discussed in the preceding paragraph
where the need for probate proceedings to resolve the settlement of Miguel's
estate and Kristopher's successional rights has been pointed out.

WHEREFORE, the instant petition is hereby DENIED. The questioned decision of


the Court of Appeals is AFFIRMED. Costs against petitioner.
SO ORDERED.
Regalado, Puno and Mendoza, JJ ., concur.
Torres, Jr., J ., is on leave.
|||

(Agapay v. Palang, G.R. No. 116668, [July 28, 1997], 342 PHIL 302-314)

SECOND DIVISION
[G.R. No. 124099. October 30, 1997.]
MANUEL G. REYES, MILA G. REYES, DANILO G. REYES,
LYN AGAPE, MARITES AGAPE, ESTEBANA GALOLO, and
CELSA AGAPE, petitioners, vs. COURTOF APPEALS AND
JULIO VIVARES, respondents.
Quimpo Willkom Borja Neri Galejesan Oclarit Law Offices for petitioners.
Algarra Mutia and Trinidad Law Offices for private respondents.
SYNOPSIS
Torcuato Reyes executed a last will and testament wherein he stated that he was
bequeathing some of his personal and real properties to his wife, Asuncion
"Oning"Reyes, and designating private respondent as executor. After his death,
private respondent filed a petition for the probate of the will which was opposed
by petitioners, Torcuato's natural children, and their mothers claiming, among
others, that Asuncion Reyes was never married to the testator because she was
already married to Lupo Ebarle and that their marriage was not annulled. The will
was admitted to probate but the disposition to Asuncion Reyes was declared by
the trial court as null and void for being contrary to law and morals. On appeal,
the Court of Appeals modified the trial court's decision declaring valid the
assailed disposition on the ground that the oppositors failed to present competent
evidence that Asuncion Reyes was legally married to another. Hence, this
recourse of petitioners who belatedly presented a copy of the marriage
certificate of Asuncion Reyes and Lupo Abarle.
As a general rule, courts in probate proceedings are limited to pass upon only the
extrinsic validity of wills and without jurisdiction to determine validity or

efficacy ofthe will's provisions. The propriety of the institution of Oning Reyes as
one of the devisees/legatees already involved inquiry on the will's intrinsic validity
and which need not be inquired upon by the probate court.
Their failure to present the said certificate before the probate court to support
their position that Asuncion Reyes had an existing marriage with Ebarle
constituted a waiver and the same evidence can no longer be entertained on
appeal, much less in this petition for review.

IaSAHC

This Court would not try the case anew or settle factual issues since its
jurisdiction is confined to resolving questions of law which have been passed
upon by the lower courts.
SYLLABUS
1. REMEDIAL LAW; PROBATE COURT; PROCEEDINGS LIMITED TO
EXTRINSIC VALIDITY OF WILL; EXCEPTIONS. As a general rule, courts in
probate proceedings are limited to pass only upon the extrinsic validity of the will
sought to be probated. Thus, the court merely inquires on its due execution,
whether or not it complies with the formalities prescribed by law, and the
testamentary capacity of the testator. It does not determine nor even by
implication prejudge the validity or efficacy of the will's provisions. The intrinsic
validity is not considered since the consideration thereof usually comes only after
the will has been proved and allowed. There are, however, notable circumstances
wherein the intrinsic validity was first determined as when the defect of the will is
apparent on its face and the probate of the will may become a useless ceremony
if it is intrinsically invalid. The intrinsic validity of a will may be passed upon
because "practical considerations" demanded it as when there is
preterition of heirs or the testamentary provisions are of doubtful legality. Where
the parties agree that the intrinsic validity be first determined, the
probate courtmay also do so. Parenthetically, the rule on probate is not inflexible
and absolute. Under exceptional circumstances, the probate court is not

powerless to do what the situation constrains it to do and pass upon certain


provisions of the will.

cdrep

2. ID.; ID.; ID.; CASE AT BAR. The case at bar arose from the institution of the
petition for the probate of the will of the late Torcuato Reyes. Perforce, the only
issues to be settled in the said proceeding were: (1) whether or not the testator
had animus testandi; (2) whether or not vices of consent attended the
execution of the will; and (3) whether or not the formalities of the will had been
complied with. Thus, the lower court was not asked to rule upon the intrinsic
validity or efficacy of the provisions of the will. As a result, the declaration of the
testator that Asuncion "Oming" Reyes was his wife did not have to be scrutinized
during the probate proceedings. The propriety of the institution of Oning Reyes as
one of the devisees/legatees already involved inquiry on the will's intrinsic validity
and which need not be inquired upon by the probate court.
3. ID.; ID.; ID.; DOCTRINE IN NEPOMUCENO v. COURT OF APPEALS (139
SCRA 206) NOT APPLICABLE TO CASE AT BAR. The
lower court erroneously invoked the ruling in
Nepomuceno vs. Court of Appeals (139 SCRA 206) in the instant case. In the
case aforesaid, the testator himself, acknowledged his illicit relationship with the
devisee. Thus, the very tenor of the will invalidates the legacy because the
testator admitted he was disposing of the properties to a person with whom he
had been living in concubinage. To remand the case would only be a
waste of time and money since the illegality or defect was already patent. This
case is different from the Nepomuceno case. Testator Torcuato Reyes merely
stated in his will that he was bequeathing some of his personal and real
properties to his wife, Asuncion "Oning"Reyes. There was never an open
admission of any illicit relationship. In the case of Nepomuceno, the testator
admitted that he was already previously married and that he had an adulterous
relationship with the devisee.
4. ID.; EVIDENCE; UNCORROBORATED TESTIMONIAL EVIDENCE,
HEARSAY. We agree with the Court of Appeals that the trial court relied on
uncorroborated testimonial evidence that Asuncion Reyes was still married to

another during the time she cohabited with the testator. The testimonies of the
witnesses were merely hearsay and even uncertain as to the whereabouts or
existence of Lupo Ebarle, the supposed husband of Asunsion.
5. CIVIL LAW; SUCCESSION; WILL, THE TESTATOR SPEAKING AFTER
DEATH. In the elegant language of Justice Moreland written decades ago, he
said "A will is the testator speaking after death. Its provisions have
substantially the same force and effect in the probate court as if the testator stood
before the court in full like making the declarations by word of mouth as they
appear in the will. That was the special purpose of the law in the creation of the
instrument known as the last will and testament. Men wished to speak after they
were dead and the law, by the creation of that instrument, permitted them to do
so . . . All doubts must be resolved in favor of the testator's having meant just
what he said." (Santos vs. Manarang, 27 Phil. 209).
6. REMEDIAL LAW; EVIDENCE; FAILURE TO PRESENT EVIDENCE TO
SUPPORT ALLEGATION THAT DEVISEE/LEGATEE HAD AN EXISTING
MARRIAGE WITH ANOTHER, CONSTITUTES WAIVER. Petitioner tried to
refute this conclusion of the Court of Appeals by presenting belatedly a
copy of the marriage certificate of Asuncion Reyesand Lupo Ebarle. Their failure
to present the said certificate before that pro- bate court to support their position
that Asuncion Reyes had an existing marriage with Ebarle constituted a waiver
and the same evidence can no longer be entertained on appeal, much less in this
petition for review.
7. ID.; ID.; FACTUAL FINDINGS OF THE COURT OF APPEALS, GENERALLY
NOT DISTURBED ON APPEAL. This Court would not try the case anew or
settle factual issues since its jurisdiction is confined to resolving questions of law
which have been passed upon by the lower courts. The settled rule is that the
factual findings of the appellate court will not be disturbed unless shown to be
contrary to the evidence on the record, which petitioners have not shown in this
case. Considering the foregoing premises, we sustain the findings of the
appellate court it appearing that it did not commit a reversible error in issuing the
challenged decision.

cda

DECISION
TORRES, JR., J :
p

Unless legally flawed, a testator's intention in his last will and testament is its "life
and soul" which deserves reverential observance.
The controversy before us deals with such a case.
Petitioners Manuel G. Reyes, Mila G. Reyes, Danilo G. Reyes, Lyn Agape,
Marites Agape, Estebana Galolo and Celsa Agape, the oppositors in Special
Proceedings No. 112 for the probate of the will of Torcuato J. Reyes, assail in this
petition for review the decision of the Court of Appeals 1 dated November 29,
1995, the dispositive portionof which reads:
"WHEREFORE, premises considered, the judgment appealed from
allowing or admitting the will of Torcuato J. Reyes to probate and
directing the issuance of Letters Testamentary in favor of petitioner Julio
A. Vivares as executor without bond is AFFIRMED but modified in that
the declaration that paragraph II of the Torcuato Reyes' last will and
testament, including subparagraphs (a) and (b) are null and void for
being contrary to law is hereby SET ASIDE, said paragraph II and
subparagraphs (a) and (b) are declared VALID. Except as above
modified, the judgment appealed from is AFFIRMED.
SO ORDERED." 2

The antecedent facts:


On January 3, 1992, Torcuato J. Reyes executed his last will and testament
declaring therein in part, to wit:
"xxx xxx xxx

II. I give and bequeath to my wife Asuncion "Oning" R. Reyes the following
properties to wit:

a. All my shares of our personal properties consisting among


others of jewelries, coins, antiques, statues, tablewares, furnitures,
fixtures and the building;
b. All my shares consisting of one half (1/2) or 50% of all the real
estates I own in common with my brother Jose, situated in
Municipalities of Mambajao, Mahinog, Guinsiliban, Sagay all in
Camiguin; real estates in Lunao, Gingoog, Caamulan, Sugbongcogon,
Boloc-Boloc, Kinoguitan, Balingoan, Sta. Ines, Caesta, Talisayan, all in
the province of Misamis Oriental. 3 "

The will consisted of two pages and was signed by Torcuato Reyes in the
presence of three witnesses: Antonio Veloso, Gloria Borromeo, and Soledad
Gaputan. Private respondent Julio A. Vivares was designated the executor and in
his default or incapacity, his son Roch Alan S. Vivares.
Reyes died on May 12, 1992 and on May 21, 1992, private respondent filed a
petition for probate of the will before the Regional Trial Court of Mambajao,
Camiguin. The petition was set for hearing and the order was published in the
Mindanao Daily Post, a newspaper of general circulation, once a week for three
consecutive weeks. Notices were likewise sent to all the persons named in the
petition.
On July 21, 1992, the recognized natural children of Torcuato Reyes with
Estebana Galolo, namely Manuel, Mila, and Danilo all surnamed Reyes, and the
deceased's natural children with Celsa Agape, namely Lyn and Marites Agape,
filed an opposition with the following allegations: a) that the last will and
testament of Reyes was not executed and attested in accordance with the
formalities of law; and b) that Asuncion Reyes Ebarle exerted undue and
improper influence upon the testator at the timeof the execution of the will. The
opposition further averred that Reyes was never married to and could never
marry Asuncion Reyes, the woman he claimed to be his wife in the will, because
the latter was already married to Lupo Ebarle who was still then alive and their

marriage was never annulled. Thus, Asuncion can not be a compulsory heir for
her open cohabitation with Reyes was violative of public morals.
On July 22, 1992, the trial court issued an order declaring that it had acquired
jurisdiction over the petition and, therefore, allowed the presentation of evidence.
After the presentation of evidence and submission of the respective memoranda,
the trial court issued its decision on April 23, 1993.
The trial court declared that the will was executed in accordance with the
formalities prescribed by law. It, however, ruled that Asuncion Reyes, based on
the testimonies of the witnesses, was never married to the deceased Reyes and,
therefore, their relationship was an adulterous one. Thus:
"The admission in the will by the testator to the illicit relationship between
him and ASUNCION REYES EBARLE who is somebody else's wife, is
further bolstered, strengthened, and confirmed by the direct
testimonies of the petitioner himself and his two "attesting" witnesses
during the trial.
In both cases, the common denominator is the immoral, meretricious,
adulterous and illicit relationship existing between the testator and the
devisee prior to the death of the testator, which constituted the sole and
primary consideration for the devise or legacy, thus making the will
intrinsically invalid." 4

The will of Reyes was admitted to probate except for paragraph II (a) and
(b) of the will which was declared null and void for being contrary to law and
morals. Hence, Julio Vivares filed an appeal before the Court of Appeals with the
allegation that the oppositors failed to present any competent evidence that
Asuncion Reyes was legally married to another person during the period of her
cohabitation with Torcuato Reyes.
On November 29, 1995, the Court of Appeals promulgated the assailed decision
which affirmed the trial court's decision admitting the will for probate but with the
modification that paragraph II including subparagraphs (a) and (b) were declared
valid. The appellate court stated:

"Considering that the oppositors never showed any competent evidence,


documentary or otherwise during the trial to show that Asuncion
"Oning" Reyes' marriage to the testator was inexistent or void, either
because of a pre-existing marriage or adulterous relationship, the
trial court gravely erred in striking down paragraph II (a) and (b) of the
subject Last Will and Testament, as void for being contrary to law and
morals. Said declarations are not sufficient to destroy the
presumption ofmarriage. Nor is it enough to overcome the very
declaration of the testator that Asuncion Reyes is his wife." 5

Dissatisfied with the decision of the Court of Appeals, the oppositors filed this
petition for review.
Petitioners contend that the findings and conclusion of the Court of Appeals was
contrary to law, public policy and evidence on record. Torcuato Reyes and
Asuncion "Oning" Reyes were collateral relatives up to the fourth civil degree.
Witness Gloria Borromeo testified that Oning Reyes was her cousin as her
mother and the latter's father were sister and brother. They were also
nieces of the late Torcuato Reyes. Thus, the purported marriage of the
deceased Reyes and Oning Reyes was void ab initio as it was against public
policy pursuant to Article 38 (1) of the Family Code. Petitioners further alleged
that Oning Reyes was already married to Lupo Ebarle at the time she was
cohabiting with the testator hence, she could never contract any valid marriage
with the latter. Petitioners argued that the testimonies of the witnesses as well as
the personal declaration of the testator, himself, were sufficient to destroy the
presumption of marriage. To further support their contention, petitioners attached
a copy of the marriage certificate of Asuncion Reyes and Lupo Ebarle. 6

cdasia

The petition is devoid of merit.


As a general rule, courts in probate proceedings are limited to pass only upon the
extrinsic validity of the will sought to be probated. 7 Thus, the court merely
inquires on its due execution, whether or not it complies with the formalities
prescribed by law, and the testamentary capacity of the testator. It does not

determine nor even by implication prejudge the validity or efficacy of the will's
provisions. 8 The intrinsic validity is not considered since the consideration
thereof usually comes only after the will has been proved and allowed. There are,
however, notable circumstances wherein the intrinsic validity was first determined
as when the defect of the will is apparent on its face and the probate of the will
may become a useless 9 ceremony if it is intrinsically invalid. The intrinsic
validity of a will may be passed upon because "practical considerations"
demanded it as when there is preterition of heirs or the testamentary provisions
are of doubtful legality. 10 Where the parties agree that the intrinsic validity be first
determined, the probate court may also do so. 11 Parenthetically, the rule on
probate is not inflexible and absolute. Under exceptional circumstances, the
probate court is not powerless to do what the situation constrains it to do and
pass upon certain provisions of the will. 12
The case at bar arose from the institution of the petition for the probate of the
will of the late Torcuato Reyes. Perforce, the only issues to be settled in the said
proceeding were: (1) whether or not the testator had animus testandi; (2) whether
or not vices of consent attended the execution of the will; and (3) whether or not
the formalities of the will had been complied with. Thus, the lower court was not
asked to rule upon the intrinsic validity or efficacy of the provisions of the will. As
a result, the declaration of the testator that Asuncion "Oning" Reyes was his wife
did not have to be scrutinized during the probate proceedings. The
propriety of the institutionof Oning Reyes as one of the devisees/legatees already
involved inquiry on the will's intrinsic validity and which need not be inquired upon
by the probate court.
The lower court erroneously invoked the ruling in
Nepomuceno vs. Court of Appeals (139 SCRA 206) in the instant case. In the
case aforesaid, the testator himself, acknowledged his illicit relationship with the
devisee, to wit:
"Art. IV. That since 1952, I have been living, as man and wife, with one
Sofia J. Nepomuceno, whom I declare and avow to be entitled to my love
and affection, for all the things which she has done for me, now and in

the past; that while Sofia J. Nepomuceno has with my full knowledge and
consent, did comfort and represent myself as her own husband, in truth
and in fact, as well as in the eyes of the law, I could not bind her to me in
the holy bonds of matrimony because of my aforementioned previous
marriage."

Thus, the very tenor of the will invalidates the legacy because the testator
admitted he was disposing of the properties to a person with whom he had been
living in concubinage. 13 To remand the case would only be a waste of time and
money since the illegality or defect was already patent. This case is different from
the Nepomuceno case. Testator Torcuato Reyes merely stated in his will that he
was bequeathing some of his personal and real properties to his wife, Asuncion
"Oning"Reyes. There was never an open admission of any illicit relationship. In
the case of Nepomuceno, the testator admitted that he was already previously
married and that he had an adulterous relationship with the devisee.
We agree with the Court of Appeals that the trial court relied on uncorroborated
testimonial evidence that Asuncion Reyes was still married to another during the
time she cohabited with the testator. The testimonies of the witnesses were
merely hearsay and even uncertain as to the whereabouts or existence of Lupo
Ebarle, the supposed husband of Asuncion. Thus:
"The foregoing testimony cannot go against the declaration of the
testator that Asuncion "Oning" Reyes is his wife. In Alvarado v. City
Government of Tacloban (supra) the Supreme Court stated that the
declaration of the husband is competent evidence to show the
fact of marriage.
Considering that the oppositors never showed any competent evidence, documentary or
otherwise during the trial to show that Asuncion "Oning Reyes' marriage to the testator
was inexistent or void, either because of a pre-existing marriage or adulterous
relationship, the trial court gravely erred in striking down paragraph II (a) and (b) of the
subject Last Will and Testament, as void for being contrary to law and morals. Said

declarations are not sufficient to destroy the presumption of marriage. Nor is it enough
to overcome the very declaration of the testator that Asuncion Reyes is his wife." 14

In the elegant language of Justice Moreland written decades


ago, he said
"A will is the testator speaking after death. Its provisions have
substantially the same force and effect in the probate court as if the
testator stood before the court in full life making the declarations by
word of mouth as they appear in the will. That was the special
purpose of the law in the creation of the instrument known as the last will
and testament. Men wished to speak after they were dead and the law,
by the creation of that instrument, permitted them to do so. . . . All doubts
must be resolved in favor of the testator's having meant just what he
said." (Santos vs. Manarang, 27 Phil. 209).

Petitioners tried to refute this conclusion of the Court of Appeals by presenting


belatedly a copy of the marriage certificate of Asuncion Reyes and Lupo Ebarle.
Their failure to present the said certificate before the probate court to support
their position that Asuncion Reyes had an existing marriage with Ebarle
constituted a waiver and the same evidence can no longer be entertained on
appeal, much less in this petition for review. This Court would not try the case
anew or settle factual issues since its jurisdiction is confined to resolving
questions of law which have been passed upon by the lower courts. The settled
rule is that the factual findings of the appellate court will not be disturbed unless
shown to be contrary to the evidence on the record, which petitioners have not
shown in this case. 15
Considering the foregoing premises, we sustain the findings of the
appellate court it appearing that it did not commit a reversible error in issuing the
challenged decision.

cdasia

ACCORDINGLY, decision appealed from dated November 29, 1995, is hereby


AFFIRMED and the instant petition for review is DENIED for lack of merit.

SO ORDERED.
Regalado, Romero, Puno and Mendoza, JJ ., concur.
|||

(Reyes v. Court of Appeals, G.R. No. 124099, [October 30, 1997], 346 PHIL

266-276)

THIRD DIVISION
[G.R. No. 108947. September 29, 1997.]
ROLANDO SANCHEZ, FLORIDA MIERLY SANCHEZ, ALFREDO
T. SANCHEZ and

T. SANCHEZ, petitioners, vs.

MYRNA

HONORABLE COURT OFAPPEALS,

ROSALIA

ARTURO

LUGOD-RANISES

S.

LUGOD,

EVELYN

S.

THE

LUGOD,
and

ROBERTO S. LUGOD, respondents.


Napoleon M. Malamas for petitioners.
Ramon Quisumbing, Jr. Law Office for private respondents.
SYNOPSIS
This is a petition for review on certiorari filed by petitioners Rolando Sanchez,
Florida Mierly Sanchez, Alfredo T. Sanchez and Myrna Sanchez assailing the
November 23, 1992 decision of the Court of Appeals in CA G.R. SP No. 28761
which annulled the decision of the trial court and which declared the modified
compromise agreement among the parties valid and binding even without the
trial court's

approval.

Petitioners

in

this

case

are

asserting

that

the

respondent Court of Appeals erred in granting the petition for certiorari under
Rule 65 considering that the special civil action of certiorari may not be availed as
a

substitute

for

an

appeal

and

in

annulling

the

decision of the

lower court declaring the compromise agreement executed by both parties on


October 30, 1969 void and unenforceable the same not having been approved by
the intestate court.

HSTAcI

The Supreme Court ruled that a petition for certiorari under Rule 65 of the
Rules of Court is appropriate and allowable when the following requisites concur:
(1) the writ is directed against a tribunal, board or office exercising judicial

functions; (2) such tribunal, board or officer has acted without or in


excess of jurisdiction or with grave abuse of discretion amounting to lack or
excess of jurisdiction; and (3) there is no appeal or any plain, speedy and
adequate remedy in the ordinary course of law. After a thorough review of the
case at bar, the Court is convinced that all these requirements were met and thus
hold that the questioned decision and resolutions of the trial court may be
challenged through a special civil action under Rule 65 of the Rules of Court. At
the very least, this case is a clear exception to the general rule thatcertiorari is
not a substitute for a lost appeal because the trial court's decision and resolutions
were issued without or excess of jurisdiction, which may thus be challenged or
attacked at any time.
Anent the second issue regarding the necessity of judicial approval in a
compromise agreement, the Court ruled that such contention lacks merit. Being a
consensual contract, it is perfected upon the meeting of the minds of the parties.
Judicial approval is not required for its perfection hence, the court affirmed the
validity of the parties' compromise agreement. In view of the foregoing, the
instant petition is denied and the assailed decision of the Court of Appeals is
affirmed.
SYLLABUS
1. REMEDIAL LAW; SPECIAL CIVIL ACTIONS; CERTIORARI; REQUISITES
THEREOF. A petition for certiorari under Rule 65 of the Rules of Court is
appropriate and allowable when the following requisites concur: (1) the writ is
directed against a tribunal, board or officer exercising judicial or quasi-judicial
functions; (2) such tribunal, board or officer has acted without or in
excess of jurisdiction, or with grave abuse of discretion amounting to lack or
excess of jurisdiction; and (3) there is no appeal or any plain, speedy and
adequate remedy in the ordinary course of law.
2. ID.; ID.; ID.; CERTIORARI IS NOT A SUBSTITUTE FOR A LOST APPEAL;
EXCEPTIONS THEREOF. Doctrinally entrenched is the general rule

that certiorari is not a substitute for a lost appeal. However, Justice Florenz D.
Regalado lists several exceptions to this rule, viz.: "(1) where the appeal does not
constitute a speedy and adequate remedy (Salvadades vs. Pajarillo et al. 78 Phil.
77) as where 33 appeals were involved from orders issued in a single proceeding
which will inevitably result in a proliferation of more appeals (PCIB vs. Escolin et
al. L-27860 and 27896 Mar. 29 1974); (2) where the orders were also issued
either in excess of or without jurisdiction(Aguilar vs. Tan L-23600 June 30 1970
Cf. Bautista et al. vs. Sarmiento et al. L-45137 Sept. 23 1985); (3) for certain
special consideration, as public welfare or public policy (See Jose vs. Zulueta et
al., 16598 May 31 1961 and the cases cited therein); (4) where in criminal
actions,

the court rejects

rebuttal

evidence

for

the

prosecution

as,

in

case of acquittal there could be no remedy (People vs. Abalos L-029039 Nov. 28
1968); (5) where the order is a patent nullity (Marcelo vs. De Guzman et al. L29077 June 29 1982); and (6) where the decision in the certiorari case will avoid
future litigations (St. Peter Memorial Park Inc. vs. Campos et al. L-38280 Mar. 21,
1975)." Even in a case where the remedy of appeal was lost, the Court has
issued the writ of certiorari where the lower court patently acted in excess of or
outside its jurisdiction, as in the present case.
3. ID.; ID,; ID.; AN ACT DONE BY A PROBATE COURT IN EXCESS OF ITS
JURISDICTION MAY BE CORRECTED BY CERTIORARI. The issues herein
clearly involve not only the correctness of the trial court's decision but also the
latter's jurisdiction. They encompass plain errors of jurisdiction and grave
abuse of discretion, not merely errors of judgment. Since the trial court exceeded
its jurisdiction, a petition for certiorari is certainly a proper remedy. Indeed, it is
well-settled that "(a)n act done by a probate court in excess of its jurisdiction may
be corrected by certiorari."
4. ID.;

ID.;

ID.;

FACTUAL

MATTERS,

NOT

REVIEWABLE

BY

THE COURT UNDER RULE 45. In any event, these alleged errors and
deficiencies regarding the delivery ofshares provided in the compromise,
concealment of properties and fraud in the deeds of sale are factual in nature
which, as a rule, are not reviewable by this Court in petitions under Rule 45.

5. ID.; JUDGMENT; A VOID JUDGMENT FOR WANT OF JURISDICTION IS NO


JUDGMENT AT ALL. A void judgment for want of jurisdiction is no judgment at
all. It cannot be the source of any right nor the creator of any obligation. All acts
performed pursuant to it and all claims emanating from it have no legal effect.
Hence, it can never become final and any writ of execution based on it is void; . . .
it may be said to be a lawless thing which can be treated as an outlaw and slain
at sight, or ignored wherever and whenever it exhibits its head. "
6. ID.; ID.; APPEAL; ISSUE RAISED FOR THE FIRST TIME ON APPEAL AND
NOT RAISED TIMELY IN THE PROCEEDINGS IN LOWER COURT IS BARRED
BY ESTOPPEL. The issue of minority was first raised only in petitioners'
Motion for Reconsideration of the Court of Appeals' Decision; thus, it "is as if it
was never duly raised in thatcourt at all." Hence, this Court cannot now, for the
first time on appeal, entertain this issue, for to do so would plainly violate the
basic rule of fair play, justice and due process. We take this opportunity to
reiterate and emphasize the well-settled rule that "(a)n issue raised for the first
time on appeal and not raised timely in the proceedings in the lower court is
barred by estoppel. Questions raised on appeal must be within the issues framed
by the parties and, consequently, issues not raised in the trial court cannot he
raised for the first time on appeal."
7. ID.; SPECIAL PROCEEDINGS; REQUISITES FOR A VALID PARTITION.
For a partition to be valid. Section 1, Rule 74 of the Rules of Court, requires the
concurrenceof the following conditions: (1) the decedent left no will; (2) the
decedent left no debts, or if there were debts left, all had been paid; (3) the heirs
and liquidators are allof age, or if they are minors, the latter are represented by
their judicial guardian or legal representatives, and (4) the partition was made by
means of a public instrument or affidavit duly filed with the Register of Deeds.
8. ID.;

SPECIAL

PROCEEDINGS;

JURISDICTION OF PROBATE COURT;

DOCTRINE THAT IN SPECIAL PROCEEDINGS FOR THE PROBATE OF A


WILL, THE QUESTION OFOWNERSHIP IS AN EXTRANEOUS MATTER
WHICH

THE

PROBATE COURT CANNOT

RESOLVE

WITH

FINALITY,

LIKEWISE APPLICABLE TO AN INTESTATE PROCEEDING; CASE AT BAR.

As a probate court, the trial court was exercising judicial functions when it issued
its assailed resolution. The said court had jurisdiction to act in the intestate
proceedings involved in this case with the caveat that, due to its limited
jurisdiction, it could resolve questions of title only provisionally. It is hornbook
doctrine

that

"in

special

proceeding

for

the

probate of a

will,

the

question of ownership is an extraneous matter which the probate court cannot


resolve with finality. This pronouncement no doubt applies with equal force to an
intestate proceeding as in the case at bar." In the instant case, the trial courtrendered a decision declaring as simulated and fictitious all the deeds of absolute
sale which, on July 26, 1963 and June 26, 1967, Juan C. Sanchez and Maria
Villafranca executed in favor of their daughter, Rosalia Sanchez Lugod; and
grandchildren, namely, Arturo S. Lugod, Evelyn S. Lugod and Roberto S. Lugod.
The trial court ruled further that the properties covered by the said sales must be
subject

to

collation.

lower court nullified

Citing

said

Article

deeds of sale

1409

(2) of the

Civil

Code,

the

and determined

with

finality

the

ownership of the properties subject thereof. In doing so, it clearly overstepped its
Jurisdiction as a probate court.
9. CIVIL LAW; OBLIGATIONS AND CONTRACTS; FRAUD; NOT ESTABLISHED
IN CASE AT BAR. Petitioners' allegations of fraud in the execution of the
questioned deeds of sale are bereft of substance, in view of the palpable
absence of evidence to support them. The legal presumption of validity of the
questioned deeds ofabsolute sale, being duly notarized public documents, has
not been overcome. On the other hand, fraud is not presumed. It must be proved
by clear and convincing evidence, and not by mere conjectures or speculations.
10. ID.; COMPROMISES; A FORM OF AMICABLE SETTLEMENT THAT IS NOT
ONLY

ALLOWED

BUT

ALSO

ENCOURAGED.

Compromise

is

form of amicable settlement that is not only allowed but also encouraged in civil
cases. Article 2029 of the Civil Code mandates that a "court shall endeavor to
persuade the litigants in a civil case to agree upon some fair compromise."

11. ID.; ID.; JUDICIAL APPROVAL IS NOT REQUIRED FOR THE PERFECTION
THEREOF. Article 2028 of the Civil Code defines a compromise agreement as
"a contract whereby the parties, by making reciprocal concessions, avoid a
litigation or put an end to one already commenced.'' Being a consensual contract,
it is perfected upon the meeting of the minds of the parties. Judicial approval is
not required for its perfection. Petitioners' argument that the compromise was not
valid for lack of judicial approval is not novel; the same was raised
in Mayuga vs. Court of Appeals, where the Court, through Justice Irene R.
Cortes, ruled: "It is alleged that the lack of judicial approval is fatal to the
compromise. A compromise is a consensual contract. As such, it is perfected
upon the meeting of the minds of the parties to the contract. (Hernandez v.
Barcelon 23 Phil. 599 [1912]; see also De los Reyes v. de Ugarte, 75 Phil.
505[1945]) And from that moment not only does it become binding upon the
parties (De los Reyes v. De Ugarte supra) it also has upon them the effect and
authority of res

judicata (Civil

Code,

Art.

2037), even

not

judicially

approved (Meneses v. De la Rosa, 77 Phil. 34 [1946]; Vda. De Guilas v. David,


132 Phil. 241, L-24280,2.3 SCRA 762 [May 27,1968]; Cochingyan v. Cloribel, L27070-71 [April 22, 1977], 76 SCRA. 361)."
12. ID.; ID.; A PARTY TO A COMPROMISE AGREEMENT CANNOT ASK FOR
A RESCISSION AFTER IT HAS ENJOYED ITS BENEFITS. It is also
significant

that

all

already consummated

the
and

parties,
availed

including

the

then

themselves of the

minors,

had

benefits of their

compromise. This Court has consistently ruled that a party to a compromise


cannot ask for a rescission after it has enjoyed its benefits." By their acts, the
parties are ineludibly estopped from questioning the validity oftheir compromise
agreement. Bolstering this conclusion is the fact that petitioners questioned the
compromise only nine years after its execution, when they filed with the
trial court their Motion to Defer Approval of Compromise Agreement, dated
October 26, 1979."
13. ID.; ID.; A COMPROMISE ENTERED INTO AND CARRIED OUT IN GOOD
FAITH WILL NOT BE DISCARDED EVEN IF THERE WAS A MISTAKE OF LAW

OR FACT. Courts have no jurisdiction to look into the wisdom of a compromise


or to render a decision different therefrom. It is a well-entrenched doctrine that
"the law does not relieve a party from the effects of an unwise, foolish, or
disastrous contract, entered into with all the required formalities and with full
awareness of what he was doing" and "a compromise entered into and carried
out in good faith will not be discarded even if there was a mistake of law or fact,
(McCarthy vs. Barber Steamship Lines, 45 Phil. 488) because courts have no
power to relieve parties from obligations voluntarily assumed, simply because
their contracts turned out to be disastrous deals or unwise investments. Volenti
non fit injuria.
14. ID.;

SUCCESSION;

COLLATION;

PROPERTIES

CONVEYED INTER

VIVOS BY THE DECEDENT TO AN HEIR BY WAY OF SALE, NOT SUBJECT


TO COLLATION. We stress that these deeds of sale did not involve gratuitous
transfers of future inheritance; these were contracts of sale perfected by the
decedents during their lifetime. Hence, the properties conveyed thereby are not
collationable because, essentially, collation mandated under Article 1061 of the
Civil Code contemplates properties conveyed inter vivos by the decedent to an
heir by way of donation or other gratuitous title.

HSCATc

DECISION

PANGANIBAN, J :
p

Is a petition for certiorari, in lieu of appeal, the proper remedy to correct


orders of a probate court nullifying certain deeds of sale and, thus, effectively
passing upon title to the properties subject of such deeds? Is a compromise
agreement partitioning inherited properties valid even without the approval of the
trial court hearing the intestate estate of the deceased owner?

cdasia

These questions are answered by this Court as it resolves the petition for review
on

certiorari

before

us

assailing

the

November

23,

1992

Decision 1 of the Court ofAppeals 2 in CA-G.R. SP No. 28761 which annulled the
decision 3 of the trial court 4 and which declared the compromise agreement
among the parties valid and binding even without the said trial court's approval.
The dispositive portion of the assailed Decision reads:
"WHEREFORE, for the reasons hereinabove set forth and discussed,
the instant petition is GRANTED and the challenged decision as well as
the subsequent orders ofthe respondent court are ANNULLED and SET
ASIDE. The temporary restraining order issued by this Court on October
14, 1992 is made PERMANENT. The compromise agreement dated
October 30, 1969 as modified by the memorandum of agreement of April
13, 1970 is DECLARED valid and binding upon herein parties. And
Special Proceedings No. 44-M and 1022 are deemed CLOSED and
TERMINATED.
SO ORDERED." 5

The Antecedent Facts


The facts are narrated by the Court of Appeals as follows:
"[Herein

private

respondent]

Rosalia

S.

Lugod

is

the

only

child of spouses Juan C. Sanchez and Maria Villafranca while [herein


private respondents] Arturo S. Lugod, Evelyn L. Ranises and Roberto S.
Lugod are the legitimate children of [herein private respondent] Rosalia.
[Herein petitioners] Rolando, Florida Mierly, Alfredo and Myrna, all
surnamed Sanchez, are the illegitimate children of Juan C. Sanchez.
Following the death of her mother, Maria Villafranca, on September 29,
1967, [herein private respondent] Rosalia filed on January 22, 1968, thru
counsel, a petition for letters of administration over the estate of her
mother and the estate of her father, Juan C. Sanchez, who was at the
time in state of senility (Annex 'B', Petition).
On September 30, 1968, [herein private respondent] Rosalia, as
administratrix of the

intestate

estate of her

mother,

submitted

an

inventory and appraisal of the real and personal estate of her late mother
(Annex 'C', Petition).
Before the administration proceedings in Special Proceedings No. 44-M
could formally be terminated and closed, Juan C. Sanchez, [herein
private respondent] Rosalia's father, died on October 21, 1968.
On January 14, 1969, [herein petitioners] as heirs of Juan C. Sanchez,
filed a petition for letters of administration (Special Proceedings No.
1022) over the intestate estate of Juan C. Sanchez, which petition was
opposed by (herein private respondent) Rosalia.

On October 30, 1969, however, [herein private respondent] Rosalia and


[herein petitioners] assisted by their respective counsels executed a
compromise agreement (Annex 'D', Petition) wherein they agreed to
divide the properties enumerated therein of the late Juan C. Sanchez.
On November 3, 1969, petitioner Rosalia was appointed by [the
trial court], and took her oath as the administratrix of her father's
intestate estate.
On January 19, 1970, [herein petitioners] filed a motion to require
administratrix,

[herein

private

respondent]

Rosalia,

to

deliver

deficiency of 24 hectares and or to set aside compromise agreement


(Annex 'E', Petition).
Under date of April 13, 1970, (herein private respondent) Rosalia and
[herein

petitioners]

entered

into

and

executed

memorandum of agreement which modified the compromise agreement


(Annex 'F', Petition)
On October 25, 1979, or nine years later, [herein petitioners] filed, thru
counsel, a motion to require [herein private respondent] Rosalia to
submit a new inventory and to render an accounting over properties not
included in the compromise agreement (Annex 'G', Petition). They
likewise filed a motion to defer the approval of the compromise

agreement

(Annex

'H', Ibid),

in

which

they

prayed

for

the

annulment of the compromise agreement on the ground of fraud.


On February 4, 1980, however, counsel for [herein petitioners] moved to
withdraw his appearance and the two motions he filed, Annex 'G' and 'H'
(Annex 'I', Petition).
On February 28, 1980, the [trial] court issued an order directing [herein
private respondent] Rosalia to submit a new inventory of properties
under her administration and an accounting of the fruits thereof, which
prompted [herein private respondent] Rosalia to file a rejoinder on March
31, 1980 (Annex 'K', Petition).
On May 12, 1980, [herein petitioners], thru new counsel, filed a motion to
change administratrix (Annex 'L', Petition) to which [herein private
respondent] Rosalia filed an opposition (Annex 'M', Ibid).
The parties were subsequently ordered to submit their respective
position papers, which they did (Annexes 'N' and 'O', Petition). On
September 14, 1989, former counsel of (herein petitioners) entered his
re-appearance as counsel for (herein petitioners).
On the bases of memoranda submitted by the parties, the [trial court],
this time presided by Judge Vivencio A. Galon, promulgated its decision
on June 26, 1991, the dispositive portion of which states:
'WHEREFORE,

premises

considered,

judgment

is

hereby

rendered as follows by declaring and ordering:


1. That

the

entire

Villafranca Sanchez under

intestate

Special

estate of Maria

Proceedings

No.

44-M

consists of all her paraphernal properties and one-half (1/2) of the


conjugal properties which must be divided equally between
Rosalia Sanchez de Lugod and Juan C. Sanchez;
2. That the entire intestate estate of Juan C. Sanchez under
Special

Proceedings

No.

1022

consists of all

his

capital

properties, one-half (1/2) from the conjugal partnership of gains


and one-half (1/2) of the intestate estate of Maria Villafranca
under Special Proceedings No. 44-M;
3. That

one-half

(1/2) of the

entire

intestate

estate of Juan

C. Sanchez shall be inherited by his only legitimate daughter,


Rosalia V. Sanchez de Lugod while the other one-half (1/2) shall
be inherited and be divided equally by, between and among the
six (6) illegitimate children, namely: Patricia Alburo, Maria
RamusoSanchez, Rolando Pedro T. Sanchez, Florida Mierly
T. Sanchez, Alfredo T. Sanchez and Myrna T. Sanchez;

4. That all the Deed (sic) of Absolute Sales executed by Juan


C. Sanchez and

Maria

Villafranca

in

favor of Rosalia Sanchez Lugod, Arturo S. Lugod, Evelyn S.


Lugod and Roberto S. Lugod on July 26, 1963 and June 26, 1967
are all declared simulated and fictitious and must be subject to
collation and partition among all heirs;
5. That within thirty (30) days from finality of this decision,
Rosalia Sanchez Lugod

is

project of partition of the

hereby

ordered

intestate

to

prepare

estateof Juan

C. Sanchez under Special Proceedings No. 1022 and distribute


and deliver to all heirs their corresponding shares. If she fails to
do

so

within

the

said

thirty

(30)

days,

then

Board of Commissioners is hereby constituted, who are all entitled


to honorarium and per diems and other necessary expenses
chargeable to the estate to be paid by Administratrix Rosalia S.
Lugod, appointing the Community Environment and Natural
Resources Officer (CENRO) ofGingoog City as members thereof,
with the task to prepare the project of partition and deliver to all

heirs their respective shares within ninety (90) days from the
finality of said decision;
6. That within thirty (30) days from receipt of this decision,
Administratrix Rosalia Sanchez Vda. de Lugod is hereby ordered
to submit two (2) separate certified true and correct accounting,
one for the income of all the properties of the entire intestate
estate of Maria Villafranca under Special Proceedings No. 44-M,
and

another

for

the

properties of the

entire

intestate

estate of Juan C. Sanchez under Special Proceedings No. 1022


duly both signed by her and both verified by a Certified Public
Accountant and distribute and deliver to her six (6) illegitimate
brothers and sisters in equal shares, one-half (1/2) of the net
incomeof the estate of Juan C. Sanchez from October 21, 1968
up to the finality of this decision;
7. For failure to render an accounting report and failure to give
cash

advances

to

the

illegitimate

children of Juan

C. Sanchez during their minority and hourof need from the net
income of the

estate of Juan

C. Sanchez,

which

adversely

prejudiced their social standing and pursuit of college education,


(the trial court) hereby orders Rosalia Sanchez Vda. de Lugod to
pay her six (6) illegitimate brothers and sisters the sum of Five
Hundred

Thousand

(P500,000.00)

Pesos,

as

exemplary

damages, and also the sum of One Hundred Fifty Thousand


(P150,000.00) Pesos for attorney's fees;
8. Upon release of this decision and during its pendency, should
appeal be made, the Register of Deeds and Assessors of the
Provinces

and

Cities

where

the

properties of Juan

C. Sanchez and Maria Villafranca are located, are all ordered to


register and annotate in the title and/or tax declarations, the
dispositive portion of this decision for the protection of all heirs
and all those who may be concerned.

SO ORDERED.'
[Herein private respondent] Rosalia filed a motion for reconsideration
dated July 17, 1991 (Annex 'P', Petition) on August 6, 1991.
On August 13, 1991, [herein petitioners] filed a motion for execution and
opposition

to

[herein

private

respondent]

Rosalia's

motion

for

reconsideration (Annex 'Q', Petition).


On September 3, 1991, [the trial court] issued an Omnibus Order (Annex
'S', Petition) declaring, among other things, that the decision at issue had
become final and executory.
[Herein

private

respondent]

Rosalia

then

filed

motion

for

reconsideration of said Omnibus Order (Annex 'T', Petition). Said [herein


private respondent] was allowed to file a memorandum in support of her
motion (Annex 'V', Petition).
On June 26, 1991, [the trial court] issued and Order denying petitioner
Rosalia's motion for reconsideration (Annex 'W', Petition)."

Thereafter, private respondents elevated the case to the Court of Appeals via a
petition for certiorari and contended:
"I
The [trial court] has no authority to disturb the compromise agreement.
II
The [trial court] has arbitrarily faulted [herein private respondent] Rosalia
S. Lugod for alleged failure to render an accounting which was
impossible.
III
The

[trial court]

acted

without

jurisdiction

in

derogation of the

constitutional rights of [herein private respondents] Arturo S. Lugod,


Evelyn L. Ranises and Roberto S. Lugod when [the trial court] decided to

annul the deed of sale between the said [herein private respondents] and
Juan C. Sanchez without affording them their day incourt.
IV
[The trial court judge] defied without rhyme or reason well-established
and entrenched jurisprudence when he determined facts sans any
evidence thereon.
V
[The trial court] grossly misinterpreted [herein private respondent]
Rosalia S. Lugod's right to appeal."

For clarity's sake, this Court hereby reproduces verbatim the compromise
agreement 9 of the parties:
"COMPROMISE AGREEMENT
COME NOW, the parties in the above-entitled case, motivated by their
mutual desire to preserve and maintain harmonious relations between
and among themselves, for mutual valuable consideration and in the
spirit of good will and fair play, and, for the purpose of this Compromise
Agreement, agree to the following:
1. That the deceased Juan C. Sanchez who died intestate on October
21, 1968 was legally married to Maria Villafranca de Sanchez, who
predeceased him on September 29, 1967, out of whose wedlock
Rosalia Sanchez Lugod, Oppositor herein, was born, thus making her
the sole and only surviving legitimate heir of her deceased parents;
2. That the said deceased Juan C. Sanchez, left illegitimate children,
Intervenors-Oppositors and Petitioners, respectively, herein namely;
(1) Patricio Alburo, born out of wedlock on March 17, 1926 at
Cebu City, Philippines to Emilia Alburo;

(2) Maria Ramoso Sanchez, born out of wedlock on May 9, 1937


at Gingoog, Misamis Oriental, now, Gingoog City, to
Alberta Ramoso;
(3) (a) Rolando Pedro Sanchez, born on May 19, 1947,
(b) Florida Mierly Sanchez, born on February 16, 1949,
(c) Alfredo Sanchez, born on July 21, 1950, and
(d) Myrna Sanchez,

born

on

June

16,

1952,

all

born

out of wedlock to Laureta Tampus in Gingoog City,


Philippines.
3. That the deceased Juan C. Sanchez left the following properties, to
wit:

I. SEPARATE CAPITAL OF JUAN C. SANCHEZ


NATURE, DESCRIPTION AND AREA ASSESSED VALUE
(1) Agricultural Land. Covered by Tax. Decl. No. 06458, Cad. Lot
No. 1041 C-2, located at Murallon, Gingoog City and
bounded on the North by Lot Nos. 1033, 1035, 1036, 1037,
1039, 1040, 1042 & 1043; South by Lot No. 1080, 1088,
1087 & 1084; East by Lot Nos. 1089, 1061 & 2319; West
by Lot Nos. 954, 1038, 1057 & 1056, containing an
area of ONE HUNDRED EIGHTY THREE THOUSAND
SIX HUNDRED SEVENTY TWO (183,672) sq. ms. more or
less.
P21,690.00
II.

CONJUGAL

PROPERTY OF JUAN

C. SANCHEZ AND

MARIA

VILLAFRANCA DE SANCHEZ
(1) Agricultural Land. Covered by Tax Decl. No. 06447, Cad. Lot
No. 2745, C-7 located at Agay-ayan, Gingoog City and
bounded on the North by Lot Nos. 2744, 2742, 2748; South

by Lot No. 2739; East by Lot No. 2746; West by Lot No.
2741, containing an area of FOURTEEN THOUSAND
SEVEN HUNDRED (14,700) sq. ms. more or less.
P1,900.00
(2) Agricultural Land. Covered by Tax Decl. No. 06449, Cad, Lot
No. 3271 C-7 located at Panyangan, Lanao, Gingoog City
and bounded on the North by Lot No. 3270; South by Lot
Nos. 2900 & 3462; East by Panyangan River & F.
Lumanao; and Part of Lot 3272; and West by Samay
Creek, containing an area ofONE HUNDRED FOUR
THOUSAND SIX HUNDRED (104,600) sq. ms. more or
less.
P11,580.00
(3) Agricultural Land. Covered by Tax Decl. No. 06449, Cad. Lot
No. 2319, Case 2, located at Murallon, Gingoog City and
bounded on the North by Lot No. 1061; South by
Hinopolan Creek, East by Lot No. 1044; and West by Lot
No. 1041, containing an area of THREE THOUSAND TWO
HUNDRED TWENTY FIVE (3,225) sq. ms. more or less.
(4) Agricultural Land. Covered by Tax Decl. No. 06452, Cad. Lot
No. 3272, C-7 Part 4 located at Panyangan, Lunao,
Gingoog City and bounded on the North by Lot Nos. 3270
& 3273; East by Panyangan River; South by Panyangan
River; and West by Lot Nos. 3270 & 3271, containing an
area of FIFTY FIVE THOUSAND SIX HUNDRED (55,600)
sq. ms. more or less, being claimed by Damian Querubin.
P2,370.00
(5) Agricultural Land. Covered by Tax Decl. No. 06453, Cad. Lot
No. 3270 Case 7, located at Sunog, Lunao, Gingoog City

and bounded on the North by Samay Creek & Lot 3267;


South by Lot Nos. 3271 & 3272; East by Lot Nos. 3269 &
3273;

and

West

by

Samay

Creek,

containing

an

area of FOUR HUNDRED EIGHTY THREE THOUSAND


SIX HUNDRED (483,600) sq. ms. more or less.
P61,680.00
(6) Agricultural Land. Covered by Tax Decl. No. 06457, Cad. Lot
No. 3273, C-7 Part 2 located at Panyangan, Lunao,
Gingoog City and bounded on the North by Lot No. 3269;
South by Lot No. 3272; East by Panyangan River; and
West by Lot No. 3270, containing an area of THIRTY
FOUR THOUSAND THREE HUNDRED (34,300) sq. ms.
more or less, being claimed by Miguel Tuto.

cdpr

P3,880.00
(7) Agricultural Land. Covered by Tax Decl. No. 12000, Cad. Lot
No. 2806, Case 7 located at Agayayan, Gingoog City and
bounded on the North by Agayayan River; South by
Victoriano Barbac; East by Isabelo Ramoso; and West by
Restituto Baol, containing an area of SIX THOUSAND SIX
HUNDRED SEVENTY SIX (6,676) sq. ms. more or less.
P380.00
(8) Agricultural Land. Covered by Tax Decl. No. 12924, Cad. Lot
No. 1206 C-1 located at Cahulogan, Gingoog City and
bounded on the NW., by Lot No. 1209; SW., by Lot No.
1207; East by National Highway; and West by Lot No.
1207; containing an area of FOUR THOUSAND FIVE
HUNDRED THIRTEEN (4,513) sq. ms. more or less.
P740.00

(9) Agricultural Land. Covered by Tax Decl. No. 12925, Cad. Lot
No. 5554, located at Tinaytayan, Pigsalohan, Gingoog City
and bounded on the North by Lot Nos. 5559 & 5558; South
by Lot No. 3486; East by Lot No. 5555; and West by Lot
No. 5355, containing an area of EIGHTEEN THOUSAND
FIVE HUNDRED TWENTY EIGHT (18,528) sq. ms. more
or less.

cdpr

P320.00
(10) Agricultural Land. Covered by Tax Decl. No. 12926, Cad. Lot
No. 5555 C-7 located at Tinaytayan, Pigsalojan, Gingoog
City and bounded on the North by Tinaytayan Creek & Lot
Nos. 5557 & 5558; South by Lot Nos. 3486, 3487, 3488,
3491 & 3496; East by Cr. & Lot No. 3496; and West by Lot
No.

5554,

containing

an

area of SEVENTY

SEVEN

THOUSAND SEVEN HUNDRED SEVENTY SIX (77,776)


sq. ms. more or less.

P1,350.00
(11) A Commercial Land. Covered by Tax Decl. No. 06454, Cad.
Lot No. 61-C-1 located at Guno-Condeza Sts., Gingoog
City and bounded on the North by Lot 64; South by RoadLot 613 Condeza St; East by Lot Nos. 63, and 62; West by
Road-Lot 614-Guno

St., containing

an

area of ONE

THOUSAND FORTY TWO (1,042) sq. ms. more or less.


P9,320.00
(12) A Commercial Land. Covered by Tax Decl. No. 06484, Lot
No. 5, Block 2, located at Cabuyoan, Gingoog City and
bounded on the North by Lot No. 4, block 2; South by Lot
No. 8, block 2; East by Lot No. 6, block 2, West by

Subdivision Road, containing an area of FOUR HUNDRED


(400) sq. ms. more or less.
P12,240.00
(13) A Commercial Land. Covered by Tax Decl. No. 15798, Block
No. 7-A-16-0 located at Cabuyoan, Gingoog City and
bounded on the North by Lot No. 7-A-16-0; South by Lot
No. 7-16-0; East by Lot No. 7-A-18-Road; West by Lot No.
8, PSU-120704-Julito Arengo vs. Restituto Baol, containing
an area of TWO HUNDRED SIXTEEN (216) sq. ms. more
or less.
P1,050.00
(14) Agricultural Land. Covered by Tax Decl. No. 06789, Cad. Lot
No. 5157-C-7, located at Kiogat, Agayayan, Gingoog City
and bounded on the North by Lot No. 5158, 5159, 5156;
South by SE-Steep Bank; East by NW, by Lot No. 5158,
Villafranca;

containing

an

area of NINETY

SIX

THOUSAND TWO HUNDRED (96,200) sq. ms. more or


less.
P3,370.00

III. PERSONAL ESTATE (CONJUGAL)


NATURE AND DESCRIPTION LOCATION APPRAISAL
1. Fifty (50) shares of stock
Rural Bank of Gingoog, Inc.
at P100.00 per share P5,000.00

2. Four (4) shares of Preferred Stock


with San Miguel Corporation 400.00

4. That, the parties hereto have agreed to divide the above enumerated
properties in the following manner, to wit:
(a) To Patricio Alburo, Maria Ramoso Sanchez, Roland Pedro
T. Sanchez,

Florida

Mierly Sanchez,

Alfredo

T. Sanchez and Myrna T. Sanchez, in equal pro-indiviso


shares, considering not only their respective areas but also
the improvements existing thereon, to wit:
Agricultural Land. Covered by Tax Decl. No. 06453, Cad. Lot No.
3270 Case 7, located at Sunog, Lunao, Gingoog City and
bounded on the North by Samay Creek & Lot 3267; South
by Lot Nos. 3271 and 3272; East by Lot Nos. 3269 & 3273;
and West by Samay Creek, containing an area of FOUR
HUNDRED EIGHTY THREE THOUSAND SIX HUNDRED
(483,600) sq. ms. and assessed in the sum of P61,680.00.
(b) To Rosalia Sanchez Lugod all the rest of the properties, both
real

and

personal,

enumerated

above

with

the

exception of the following:


(1) Two Preferred Shares of Stock in the San Miguel Corporation,
indicated in San Miguel Corporation Stock Certificate No.
30217, which two shares she is ceding in favor of Patricio
Alburo;
(2) The house and lot designated as Lot No. 5, Block 2 together
with the improvements thereon and identified as parcel No.
II-12, lot covered by Tax Decl. No. 15798 identified as
Parcel No. II-13 in the above enumerated, and Cad. Lot
No. 5157-C-7 together with the improvements thereon,
which is identified as parcel No. II-14 of the aboveenumeration of properties, which said Rosalia S. Lugod is
likewise ceding and renouncing in favor of Rolando Pedro,

Florida Mierly, Alfredo and Myrna, all surnamed Sanchez,


in equal pro-indiviso shares;
5. That Rolando Pedro, Florida Mierly, Alfredo and Myrna, all
surnamed Sanchez hereby acknowledge to have received jointly and
severally in form of advances after October 21, 1968 the aggregate
sum of EIGHT THOUSAND FIVE HUNDRED THIRTY-THREE PESOS
(P8,533.94) and NINETY-FOUR CENTAVOS;
6. That the parties hereto likewise acknowledge and recognize in the
indebtedness of the deceased Juan C. Sanchez and his deceased wife
Maria VillafrancaSanchez to the Lugod Enterprises, Inc. in the
sum of P43,064.99;
7. That the parties hereto shall be responsible for the payment of the
estate and inheritance taxes proportionate to the value of their respective
shares as may be determined by the Bureau of Internal Revenue and
shall

likewise

be

responsible

for

the

expenses of survey

and

segregation of their respective shares;


8. That Patricio Alburo, Maria Ramoso Sanchez, Roland Pedro Sanchez,
Florida Mierly Sanchez, Alfredo Sanchez and Myrna Sanchez hereby
waive, relinquish and renounce, jointly and individually, in a manner that
is absolute and irrevocable, all their rights and interests, share and
participation which they have or might have in all the properties, both
real and personal, known or unknown and/or which may not be listed
herein, or in excess of the areas listed or mentioned herein, and/or which
might have been, at one time or another, owned by, registered or placed
in

the

name of either of the

spouses

Juan

C. Sanchez or

Maria

Villafranca de Sanchez or both, and which either one or both might have
sold, ceded, transferred, or donated to any person or persons or entity
and which parties hereto do hereby confirm and ratify together with all
the improvements thereon, as well as all the produce and proceeds
thereof, and particularly of the properties, real and personal listed herein,

as well as demandable obligations due to the deceased spouses Juan


C. Sanchez, before and after the death of the aforementioned spouses
Juan C. Sanchezand Maria Villafranca de Sanchez, in favor of oppositor
Rosalia S. Lugod;
9. That the expenses of this litigation including attorney's fees shall be
borne respectively by the parties hereto;
10. That Laureta Tampus for herself and guardian ad litem of her minor
children,

namely:

Florida

Mierly,

Alfredo,

and

Myrna,

all

surnamed Sanchez, hereby declare that she has no right, interest, share
and

participation

whatsoever

in

the

estate

left

by

Juan

C. Sanchez and/or Maria Villafranca de Sanchez, or both, and that she


likewise waives, renounces, and relinquishes whatever rigid, share,
participation or interest therein which she has or might have in
favor of Rosalia S. Lugod;
11. That,

the

parties

hereto

mutually

waive

and

renounce

in

favor of each other any whatever claims or actions, arising from,


connected with, and as a result ofSpecial Proceedings Nos. 44-M and
1022 of the Court of First

Instance of Misamis

Oriental,

Rosalia

S.

Lugod, warranting that the parcel of land ceded to the other parties
herein contains 48 hectares and 36 ares.
12. That, Rosalia S. Lugod shall assume as she hereby assumes the
payment

to

Lugod

Enterprises,

Inc., of the

sum of P51,598.93

representing the indebtedness ofthe estate of Juan C. Sanchez and


Maria Villafranca de Sanchez and the advances made to Rolando Pedro,
Mierly, Alfredo, and Myrna all surnamed Sanchez, mentioned in
paragraphs 5 hereto agree to have letters of administration issued in
favor of Rosalia S. Lugod without any bond.
That Rosalia S. Lugod likewise agrees to deliver possession and
enjoyment of the

parcel of land

herein

ceded

to

petitioners

and

intervenors immediately after the signing of this agreement and that the

latter also mutually agree among themselves to have the said lot
subdivided and partitioned immediately in accordance with the
proportion of one sixth (1/6) part of every petitioner and intervenor and
that in the meantime that the partition and subdivision is not yet effected,
the administrations of said parcel of land shall be vested jointly with
Laureta Tampos, guardian ad litem of petitioners and Maria Ramoso,
one of the intervenors who shall see to it that each petitioner and
intervenor is given one sixth (1/6) of the net proceeds of all agricultural
harvest made thereon.
WHEREFORE, it is most respectfully prayed that the foregoing
compromise agreement be approved.
Medina, Misamis Oriental, October 30, 1969.
(Sgd.) (Sgd.)
PATRICIO ALBURO ROSALIA S. LUGOD
Intervenor-Oppositor Oppositor
(Sgd.)
MARIA RAMOSO SANCHEZ ASSISTED BY:
Intervenor-Oppositor
(Sgd.)
ASSISTED BY: PABLO S. REYES
R-101 Navarro Bldg.
(Sgd.) Don A. Velez St.
REYNALDO L. FERNANDEZ Cagayan de Oro City
Gingoog City
(Sgd.) (Sgd.)
ROLANDO PEDRO T. SANCHEZ ALFREDO T. SANCHEZ

Petitioner Petitioner
(Sgd.) (Sgd.)
FLORIDA MIERLY T. SANCHEZ MYRNA T. SANCHEZ
Petitioner Petitioner
(Sgd.)
LAURETA TAMPUS
For herself and as Guardian
Ad-Litem of the minors
Florida Mierly, Alfredo, and
Myrna, all surnamed Sanchez
ASSISTED BY:
TEOGENES VELEZ, JR.
Counsel for Petitioners
Cagayan de Oro City
The Clerk of Court
Court of First Instance
Branch III, Medina, Mis. Or.
Greetings:
Please set the foregoing compromise agreement for the approval of the
Honorable Court today, Oct. 30, 1969.
(Sgd.)
PABLO S. REYES
(Sgd.)
TEOGENES VELEZ, JR.

(Sgd.)
REYNALDO L. FERNANDEZ"

The Memorandum of Agreement dated April 13, 1970, which the parties entered
into with the assistance of their counsel, amended the above compromise. (It will
be reproduced later in our discussion of the second issue raised by the
petitioners.)
The Court of Appeals, in a Resolution 10 dated September 4, 1992, initially
dismissed private respondent's petition. Acting, however, on a motion for
reconsideration and a supplemental motion for reconsideration dated September
14, 1992 and September 25, 1992, respectively,

11

Respondent Court thereafter

reinstated private respondents' petition in a resolution 12 dated October 14, 1992.


In due course, the Court of Appeals, as earlier stated, rendered its assailed
Decision granting the petition, setting aside the trial court's decision and
declaring the modified compromise agreement valid and binding.
Hence, this appeal to this Court under Rule 45 of the Rules of Court.
The Issues
In this appeal, petitioners invite the Court's attention to the following issues:
"I
The respondent court grossly erred in granting the petition for certiorari
under Rule 65 considering that the special civil action of certiorari may
not be availed of as a substitute for an appeal and that, in any event, the
grounds invoked in the petition are merely alleged errors of judgment
which can no longer be done in view of the fact that the decision of the
lower court had long become final and executory.
II
Prescinding from the foregoing, the respondent court erred in annulling
the decision of the lower court for the reason that a compromise
agreement or partition as the court construed the same to be, executed

by the parties on October 30, 1969 was void and unenforceable the
same not having been approved by the intestatecourt and that the same
having

been

seasonably

repudiated

by

petitioners

on

the

ground of fraud.

III
The respondent court grossly erred in ignoring and disregarding
findings of facts of the lower court that the alleged conveyances of real
properties made by the spouses Juan C. Sanchez and Maria Villafranca
just before their death in favor of their daughter and grandchildren,
private respondents herein, are tainted with fraud or made in
contemplation of death, hence, collationable.
IV
In any event, the respondent court grossly erred in treating the
lower court's declaration of fictitiousness of the deeds of sale as a final
adjudication of annulment.
V
The respondent court grossly erred in declaring the termination of the
intestate proceedings even as the lower court had not made a final and
enforceable distributionof the estate of the deceased Juan C. Sanchez.
VI
Prescinding from the foregoing, the respondent court grossly erred in not
at least directing respondent Rosalia S. Lugod to deliver the
deficiency of eight (8) hectares due petitioners under the compromise
agreement and memorandum of agreement, and in not further directing
her to include in the inventory properties conveyed under the
deeds of sale found by the lower court to be part of the estate of Juan
C. Sanchez." 13

The salient aspects of some issues are closely intertwined; hence, they are
hereby consolidated into three main issues specifically dealing with the following
subjects: (1) the propriety of certiorari as a remedy before the Court of Appeals,
(2) the validity of the compromise agreement, and (3) the presence of fraud in the
execution ofthe compromise and/or collation of the properties sold.
The Court's Ruling
The petition is not meritorious.
First Issue: Propriety of Certiorari
Before the Court of Appeals
Since private respondents had neglected or failed to file an ordinary appeal within
the reglementary period, petitioners allege that the Court of Appeals erred in
allowing private respondent's recourse to Rule 65 of the Rules of Court. They
contend that private respondent's invocation of certiorari was "procedurally
defective." 14They further argue that private respondents, in their petition before
the Court of Appeals,

alleged

errors of the

trial court which,

being

merely

errors of judgment and not errors of jurisdiction, were not correctable by


certiorari. 15 This Court disagrees.
Doctrinally entrenched is the general rule that certiorari is not a substitute for a
lost appeal. However, Justice Florenz D. Regalado lists several exceptions to this
rule,viz.: "(1) where the appeal does not constitute a speedy and adequate
remedy (Salvadades vs. Pajarillo, et al., 78 Phil. 77), as where 33 appeals were
involved from orders issued in a single proceeding which will inevitably result in a
proliferation of more appeals (PCIB vs. Escolin, et al., L-27860 and 27896, Mar.
29, 1974; (2) where the orders were also issued either in excess of or without
jurisdiction (Aguilar vs. Tan, L-23600,

Jun. 30,

1970,

Cf . Bautista,

et

al. vs. Sarmiento, et al., L-45137, Sept.231985); (3) for certain special
consideration, as public welfare or public policy (See Jose vs. Zulueta, et al., L16598, May 31, 1961 and the cases cited therein); (4) where in criminal actions,
the court rejects rebuttal evidence for the prosecution as, in case of acquittal,
there could be no remedy (People vs. Abalos, L-029039, Nov. 28, 1968); (5)

where the order is a patent nullity (Marcelo vs. De Guzman, et al., L-29077, June
29, 1982); and (6) where the decision in the certiorari case will avoid future
litigations (St. Peter Memorial Park, Inc. vs. Campos, et al., L-38280, Mar. 21,
1975)." 16 Even in a case where the remedy of appeal was lost, the Court has
issued the writof certiorari where the lower court patently acted in excess of or
outside its jurisdiction, 17 as in the present case.
A petition for certiorari under Rule 65 of the Rules of Court is appropriate and
allowable when the following requisites concur: (1) the writ is directed against a
tribunal, board or officer exercising judicial or quasi-judicial functions; (2) such
tribunal, board or officer has acted without or in excess of jurisdiction, or with
grave abuse ofdiscretion amounting to lack or excess of jurisdiction; and (3) there
is no appeal or any plain, speedy and adequate remedy in the ordinary
course of law. 18 After a thorough review of the case at bar, we are convinced that
all these requirements were met.
As a probate court, the trial court was exercising judicial functions when it issued
its assailed resolution. The said court had jurisdiction to act in the intestate
proceedings involved in this case with the caveat that, due to its limited
jurisdiction, it could resolve questions of title only provisionally. 19 It is hornbook
doctrine

that

"in

special

proceeding

for

the

probate of a

will,

the

question of ownership is an extraneous matter which the probate court cannot


resolve with finality. This pronouncement no doubt applies with equal force to an
intestate proceeding as in the case at bar."

20

In the instant case, the

trial court rendered a decision declaring as simulated and fictitious all the
deeds of absolute sale which, on July 26, 1963 and June 26, 1967, Juan
C. Sanchez and

Maria

Villafranca

executed

in

favor of their

daughter,

Rosalia Sanchez Lugod; and grandchildren, namely, Arturo S. Lugod, Evelyn S.


Lugod and Roberto S. Lugod. The trial court ruled further that the properties
covered by the said sales must be subject to collation. Citing Article 1409
(2) of the Civil Code, the lower court nullified said deeds of sale and determined
with finality the ownership of the properties subject thereof. In doing so, it clearly
overstepped its jurisdiction as a probate court. Jurisprudence teaches:

"[A] probate court or one in charge of proceedings whether testate or


intestate cannot adjudicate or determine title to properties claimed to be
a part of the estate and which are claimed to belong to outside parties.
All that the said court could do as regards said properties is to determine
whether they should or should not be included in the inventory or
list of properties to be administered by the administrator. If there is not
dispute, well and good, but if there is, then the parties, the administrator,
and the opposing parties have to resort to an ordinary action for a final
determination of the

conflicting

claims of title

because

the

probate court cannot do so." 21

Furthermore, the trial court committed grave abuse of discretion when it rendered
its

decision

in

disregard of the

parties'

compromise

agreement. 22 Such

disregard, on the ground that the compromise agreement "was not approved by
the court," 23 is tantamount to "an evasion of positive duty or to a virtual refusal to
perform

the

duty

enjoined

or

to act in

contemplation

and

within

the

bounds of law." 24
The foregoing issues clearly involve not only the correctness of the
trial court's decision but also the latter's jurisdiction. They encompass plain
errors ofjurisdiction and grave abuse of discretion, not merely
errors of judgment. 25 Since the trial court exceeded its jurisdiction, a petition
for certiorari is certainly a proper remedy. Indeed, it is well-settled that
"(a)n act done by a probate court in excess of its jurisdiction may be corrected
by certiorari." 26
Consistent with the foregoing, the following disquisition by respondent
appellate court is apt:
"As a general proposition, appeal is the proper remedy of petitioner
Rosalia here under Rule 109 of the Revised Rules of Court. But the
availability of the ordinary course of appeal does not constitute sufficient
ground to [prevent] a party from making use of the extraordinary
remedy of certiorari where appeal is not an adequate remedy or equally
beneficial, speedy and sufficient (Echauz vs. Court of Appeals, 199

SCRA

381).

Here,

considering

that

the

respondent court has

disregarded the compromise agreement which has long been executed


as early as October, 1969 and declared null and void the deeds of sale
with finality, which as a probate court, it has no jurisdiction to do, We
deem

ordinary

appeal

is

inadequate.

Considering

further

the

[trial court's] granting of [herein petitioners'] motion for execution of the


assailed decision, 27 [herein private respondent] Rosalia's resort to the
instant petition [for review on certiorari] is all the more warranted under
the circumstances." 28

We thus hold that questioned decision and resolutions of the trial court may be
challenged through a special civil action for certiorari under Rule 65 of the
Rules ofCourt. At the very least, this case is a clear exception to the general rule
that certiorari is not a substitute for a lost appeal because the trial court's
decision and resolutions were issued without or in excess of jurisdiction, which
may thus be challenged or attacked at any time. "A void judgment for
want of jurisdiction is no judgment at all. It cannot be the source of any right nor
the creator of any obligation. All acts performed pursuant to it and all claims
emanating from it have no legal effect. Hence, it can never become final and any
writ of execution based on it is void; '. . . it may be said to be a lawless thing
which can be treated as an outlaw and slain at sight, or ignored wherever and
whenever it exhibits its head.' " 29
Second Issue: Validity of Compromise Agreement
Petitioners contend that, because the compromise agreement was executed
during the pendency of the probate proceedings, judicial approval is necessary to
shroud it with validity. They stress that the probate court had jurisdiction over the
properties covered by said agreement. They add that Petitioners Florida Mierly,
Alfredo and Myrna were all minors represented only by their mother/natural
guardian, Laureta Tampus. 30
These contentions lack merit. Article 2028 of the Civil Code defines a
compromise agreement as "a contract whereby the parties, by making
reciprocal concessions, avoid a litigation or put an end to one already

commenced." Being a consensual contract, it is perfected upon the


meeting of the minds of the parties. Judicial approval is not required for its
perfection. 31 Petitioners' argument that the compromise was not valid for
lack of judicial approval is not novel; the same was raised
in Mayuga vs. Court of Appeals, 32 where the Court, through Justice Irene R.
Cortes, ruled:

"It is alleged that the lack of judicial approval is fatal to the compromise. A
compromise is a consensual contract. As such, it is perfected upon the
meeting of the minds ofthe parties to the contract. (Hernandez v. Barcelon, 23 Phil.
599 [1912]; see also De los Reyes v. de Ugarte, 75 Phil. 505 [1945].) And from that
moment not only does it become binding upon the parties (De los Reyes v. De
Ugarte, supra), it also has upon them the effect and authority of res judicata (Civil
Code, Art. 2037), even if not judicially approved(Meneses v. De la Rosa, 77 Phil. 34
[1946]; Vda. De Guilas v. David, 132 Phil. 241, L-24280, 23 SCRA 762 [May 27,
1968]; Cochingyan v. Cloribel, L-27070-71 [April 22, 1977], 76 SCRA 361)."
(emphasis found in the original.)

In the case before us, it is ineludible that the parties knowingly and freely entered
into a valid compromise agreement. Adequately assisted by their respective
counsels, they each negotiated its terms and provisions for four months; in fact,
said agreement was executed only after the fourth draft. As noted by the
trial courtitself, the first and second drafts were prepared successively in July,
1969; the third draft on September 25, 1969; and the fourth draft, which was
finally signed by the parties on October 30, 1969,

33

followed. Since this

compromise agreement was the result of a long drawn out process, with all the
parties ably striving to protect their respective interests and to come out with the
best they could, there can be no doubt that the parties entered into it freely and
voluntarily. Accordingly, they should be bound thereby.

34

To be valid, it is merely

required under the law to be based on real claims and actually agreed upon in
good faith by the parties thereto. 35

cdphil

Indeed, compromise is a form of amicable settlement that is not only


allowed but also encouraged in civil cases. 36 Article 2029 of the Civil Code
mandates that a "court shall endeavor to persuade the litigants in a civil case
to agree upon some fair compromise."
In opposing the validity and enforcement of the compromise agreement,
petitioners harp on the minority of Florida Mierly, Alfredo and Myrna.
Citing Article 2032 of the Civil Code, they contend that the court's approval is
necessary in compromises entered into by guardians and parties in
behalf of their wards or children.37
However, we observe that although denominated a compromise
agreement, the document in this case is essentially a deed of partition,
pursuant to Article 1082 of the Civil Code which provides that
"[e]very act which is intended to put an end to indivision among co-heirs and
legatees or devisees is deemed to be partition, although it should purport to
be a sale, an exchange, a compromise, or any other transaction."
For a partition to be valid, Section 1, Rule 74 of the Rules of Court,
requires the concurrence of the following conditions: (1) the decedent left no
will; (2) the decedent left no debts, or if there were debts left, all had been
paid; (3) the heirs and liquidators are all of age, or if they are minors, the latter
are represented by their judicial guardian or legal representatives; and (4) the
partition was made by means of a public instrument or affidavit duly filed with
the Register of Deeds. 38We find that all the foregoing requisites are present in
this case. We therefore affirm the validity of the parties' compromise
agreement/partition in this case.
In any event, petitioners neither raised nor ventilated this issue in the
trial court. This new question or matter was manifestly beyond the pale of the
issues or questions submitted and threshed out before the lower court which
are reproduced below, viz.:
"I Are the properties which are the object of the sale by the deceased
spouses to their grandchildren collationable?

II Are the properties which are the object of the sale by the deceased
spouses to their legitimate daughter also collationable?
III The first and second issues being resolved, how much then is the
rightful share of the four (4) recognized illegitimate children?"

39

Furthermore, the 27-page Memorandum dated February 17, 1990 filed by


petitioners before the Regional Trial Court 40 readily reveals that they never
questioned

the

validity of the

compromise.

In

their

comment

before

the Court of Appeals, 41 petitioners based their objection to said compromise


agreement on the solitary "reason that it was tainted with fraud and deception,"
zeroing specifically on the alleged fraud committed by private respondent Rosalia
S. Lugod. 42 The issue of minority was first raised only in petitioners' Motion for
Reconsideration of the Court of Appeals' Decision; 43 thus, it "is as if it was never
duly raised in that court at all." 44 Hence, thisCourt cannot now, for the first time
on appeal, entertain this issue, for to do so would plainly violate the basic
rule of fair play, justice and due process.

45

We take this opportunity to reiterate

and emphasize the well-settled rule that "(a)n issue raised for the first time on
appeal and not raised timely in the proceedings in the lowercourt is barred by
estoppel. Questions raised on appeal must be within the issues framed by the
parties and, consequently, issues not raised in the trial court cannot be raised for
the first time on appeal." 46
The petitioners likewise assail as void the provision on waiver contained
in No. 8 of the aforequoted compromise, because it allegedly constitutes a
relinquishment by petitioners of "a right to properties which were not
known." 47 They argue that such waiver is contrary to law, public policy, morals
or good custom. The Court disagrees. The assailed waiver pertained to their
hereditary right to properties belonging to the decedent's estate which were
not included in the inventory of the estate's properties. It also covered their
right to other properties originally belonging to the spouses Juan Sanchez and
Maria Villafranca de Sanchezwhich have been transferred to other persons. In
addition, the parties agreed in the compromise to confirm and ratify said
transfers. The waiver is valid because, contrary to petitioner's protestation, the

parties waived a known and existing interest their hereditary right which
was already vested in them by reason of the death of their father. Article
777 of the Civil Code provides that "(t)he rights to the succession are
transmitted from the moment of death of the decedent." Hence, there is no
legal obstacle to an heir's waiver of his/her hereditary share "even if the actual
extent of such share is not determined until the subsequent liquidation ofthe
estate." 48 At any rate, such waiver is consistent with the intent and letter of the
law advocating compromise as a vehicle for the settlement of civil disputes. 49
Finally, petitioners contend that Private Respondent Rosalia T. Lugod's alleged
fraudulent

acts,

specifically

her

concealment of some of the

decedent's

properties, attended the actual execution of the compromise agreement. 50 This


argument is debunked by the absence of any substantial and convincing
evidence on record showing fraud on her part. As aptly observed by the
appellate court:
"[Herein petitioners] accuse [herein private respondent] Rosalia of fraud
or deception by alleging, inter alia, that the parcel of land given to them
never conformed to the stated area, i.e., forty-eight (48) hectares, as
stated

in

the

compromise

agreement. We

find

this argument

unconvincing and unmeritorious. [Herein petitioners'] averment of fraud


on the part of [herein private respondent] Rosalia becomes untenable
when We consider the memorandum of agreement they later executed
with [herein private respondent] Rosalia wherein said compromise
agreement was modified by correcting the actual area given to [herein
petitioners] from forty-eight (48) hectares to thirty-six (36) hectares only.
If the actual area allotted to them did not conform to the 48 hectare area
stated in the compromise agreement, then why did they agree to the
memorandum of agreement whereby their share in the estate of their
father was even reduced to just 36 hectares? Where is fraud or
deception there? Considering that [herein petitioners] were ably
represented by their lawyers in executing these documents and who
presumably had explained to them the import and consequences

thereof, it is hard to believe their charge that they were defrauded and
deceived by [herein private respondent] Rosalia.
If the parcel of land given to [herein petitioners], when actually surveyed,
happened to be different in area to the stated area of 48 hectares in the
compromise agreement, this circumstance is not enough proof of fraud
or deception on [herein private respondent] Rosalia's part. Note that Tax
Declaration No. 06453 plainly discloses that the land transferred to
[herein petitioners] pursuant to the compromise agreement contained an
area of 48 hectares (Annex 'A', Supplemental Reply). And when [herein
petitioners] discovered that the land allotted to them actually contained
only 24 hectares, a conference between the parties took place which led
to the execution and signing of the memorandum of agreement wherein
[herein petitioners'] distributive share was even reduced to 36 hectares.
In the absence ofconvincing and clear evidence to the contrary, the
allegation of fraud and deception cannot be successfully imputed to
[herein private respondent] Rosalia who must be presumed to have
acted in good faith."

51

The memorandum of agreement freely and validly entered into by the parties on
April 13, 1970 and referred to above reads:
"MEMORANDUM OF AGREEMENT
The parties assisted by their respective counsel have agreed as they
hereby agree:
1. To amend the compromise agreement executed by them on October
30, 1969 so as to include the following:
a. Correction of the actual area being given to the petitioners and
intervenors, all illegitimate children of the late Juan C. Sanchez,
forty-eight (48) hectares, thirty-six (36) ares as embodied in the
aforementioned compromise agreement to thirty-six (36) hectares
only, thus enabling each of them to get six (6) hectares each.

b. That the said 36-hectare area shall be taken from that


parcel of land which is now covered by O.C.T. No. 146 (Patent No.
30012) and the adjoining areas thereof designated as Lot A and
Lot C as reflected on the sketch plan attached to the record of this
case prepared by Geodetic Engineer Olegario E. Zalles pursuant
to the Court's commission of March 10, 1970 provided, however,
that if the said 36-hectare area could not be found after adding
thereto the areas ofsaid lots A and C, then the additional area
shall be taken from what is designated as Lot B, likewise also
reflected in the said sketch plan attached to the records;
c. That the partition among the six illegitimate children of the late
Juan C. Sanchez (petitioners and intervenors) shall be effective
among themselves in such a manner to be agreed upon by them,
each undertaking to assume redemption of whatever plants found
in their respective shares which need redemption from the tenants
thereof as well as the continuity of the tenancy agreements now
existing and covering the said shares or areas.
d. The subdivision survey shall be at the expense of the said
petitioners and intervenors prorata.
e. That

the

administratrix

agrees

to

deliver

temporary

administration of the area designated as Lot 5 of the Valles


Sketch Plan pending final survey of the said 36 hectare area.
Cagayan de Oro City, April 13, 1970.
(Sgd.)
LAURETA TAMPOS
For herself and as Guardian
ad-litem of Rolando, Mierly,

Alfredo and Myrna, all


surnamed Sanchez
Assisted by:
(Sgd.)
TEOGENES VELEZ, Jr.
Counsel for Petitioners
(Sgd.)
ROSALIA S. LUGOD
Administratrix
Assisted by:
(Sgd.)
PABLO S. REYES
Counsel for Administratrix
(Sgd.)
MARIA RABOSO SANCHEZ
Intervenor" 52

Not only did the parties knowingly enter into a valid compromise agreement; they
even amended it when they realized some errors in the original. Such correction
emphasizes the voluntariness of said deed.
It is also significant that all the parties, including the then minors, had
already consummated

and

availed

themselves of the

benefits of their

compromise. 53 This Courthas consistently ruled that "a party to a compromise


cannot ask for a rescission after it has enjoyed its benefits."

54

By their acts, the

parties are ineludibly estopped from questioning the validity of their compromise
agreement. Bolstering this conclusion is the fact that petitioners questioned the

compromise only nine years after its execution, when they filed with the
trial court their Motion to Defer Approval of Compromise Agreement, dated
October 26, 1979. 55 In hindsight, it is not at all farfetched that petitioners filed
said motion for the sole reason that they may have felt shortchanged in their
compromise agreement or partition with private respondents, which in their view
was

unwise

and

unfair.

While

we

may

sympathize

with

this

rueful

sentiment of petitioners, we can only stress that this alone is not sufficient to
nullify or disregard the legal effects of said compromise which, by its very nature
as a perfected contract, is binding on the parties. Moreover, courts have no
jurisdiction to look into the wisdom of a compromise or to render a decision
different therefrom. 56 It is a well-entrenched doctrine that "the law does not
relieve a party from the effects of an unwise, foolish, or disastrous contract,
entered into with all the required formalities and with full awareness of what he
was doing" 57 and "a compromise entered into and carried out in good faith will
not be discarded even if there was a mistake of law or fact, (McCarthy vs. Barber
Steamship Lines, 45 Phil. 488) because courts have no power to relieve parties
from obligations voluntarily assumed, simply because their contracts turned out
to be disastrous deals or unwise investments." 58 Volenti non fit injuria.
Corollarily, the petitioners contend that the Court of Appeals gravely abused its
discretion in deeming Special Proceedings Nos. 44-M and 1022 "CLOSED and
TERMINATED," arguing that there was as yet no order of distribution of the
estate pursuant to Rule 90 of the Rules of Court. They add that they had not
received their full share thereto. 59 We disagree. Under Section 1, Rule 90 of the
Rules of Court, an order for the distribution of the estate may be made when the
"debts, funeral charges, and expenses of administration, the allowance to the
widow, and inheritance tax, if any," had been paid. This order for the
distribution of the estate's residue must contain the names and shares of the
persons entitled thereto. A perusal of the whole record, particularly the
trial court's conclusion, 60 reveals that all the foregoing requirements already
concurred in this case. The payment of the indebtedness of the estates of Juan
C. Sanchez and Maria Villafranca in the amount ofP51,598.93 was shouldered by
Private Respondent Rosalia, who also absorbed or charged against her share the

advances of Rolando T. Lugod in the sum of P8,533.94, in compliance with


Article 1061 of the Civil Code on collation. 61 Furthermore, the compromise of the
parties, which is the law between them, already contains the names and
shares of the heirs to the residual estate, which shares had also been delivered.
On this point, we agree with the following discussion of the Court ofAppeals:
"But what the (trial court) obviously overlooked in its appreciation of the
facts of this case are the uncontroverted facts that (herein petitioners)
have been in possession and ownership of their respective distributive
shares as early as October 30, 1969 and they have received other
properties in addition to their distributive shares in consideration of the
compromise agreement which they now assail. Proofs thereof are Tax
Declarations No. 20984, 20985, 20986, 20987, 20988, 20989 and 20990
(Annexes

'B'

to

'H',

Supplemental

Reply)

in

the

respective

names of (herein petitioners), all for the year 1972. (Herein petitioners)
also retained a house and lot, a residential lot and a parcel of agricultural
land (Annexes 'I', 'J' and 'K', Ibid.) all of which were not considered in the
compromise

agreement

between

the

parties.

Moreover,

in

the

compromise agreement per se, it is undoubtedly stated therein that cash


advances in the aggregate sum of P8,533.94 were received by (herein
petitioners) after October 21, 1968 (Compromise Agreement, par. 5)"

62

All the foregoing show clearly that the probate court had essentially finished said
intestate proceedings which, consequently, should be deemed closed and
terminated. In view of the above discussion, the Court sees no reversible error on
the part of the Court of Appeals.
Third Issue: Fraud and Collation
Petitioners fault Respondent Court for not ordering Private Respondent Rosalia T.
Lugod to deliver to them the deficiency as allegedly provided under the
compromise agreement. They further contend that said court erred in not
directing the provisional inclusion of the alleged deficiency in the inventory for
purposes of collating

the

properties

subject of the

questioned

deeds of sale. 63 We see no such error. In the trial court, there was only one

hearing

conducted,

and

it

was

held

only

for

the

reception of the

evidence of Rosalia S. Lugod to install her as administratrix of the estate of Maria


Villafranca. There was no other evidence, whether testimonial or otherwise,
"received,

formally

offered

to,

and

subsequently

admitted

by

the

probate court below"; nor was there "a trial on the merits of the parties' conflicting
claims."64 In fact, the petitioners "moved for the deferment of the compromise
agreement on the basis of alleged fraudulent concealment of properties NOT
because of any

deficiency

in

the

land

conveyed

to

them

under

the

agreements." 65 Hence, there is no hard evidence on record to back up


petitioners' claims.
In any case, the trial court noted Private Respondent Rosalia's willingness to
reimburse any deficiency actually proven to exist. It subsequently ordered the
geodetic engineer who prepared the certification and the sketch of the lot in
question, and who could have provided evidence for the petitioners, "to bring
records of his relocation survey." 66 However, Geodetic Engineer Idulsa did not
comply with the court's subpoena duces tecum and ad testificandum. Neither did
he furnish the required relocation survey.

67

No wonder, even after a thorough

scrutiny of the records, this Court cannot find any evidence to support petitioner's
allegations of fraud against Private Respondent Rosalia.
Similarly, petitioners' allegations of fraud in the execution of the questioned
deeds of sale

are

bereft of substance,

in

view of the

palpable

absence of evidence to support them. The legal presumption of validity of the


questioned deeds of absolute sale, being duly notarized public documents, has
not been overcome. 68 On the other hand, fraud is not presumed. It must be
proved by clear and convincing evidence, and not by mere conjectures or
speculations. We stress that these deeds ofsale did not involved gratuitous
transfers of future inheritance; these were contracts of sale perfected by the
decedents during their lifetime. 69 Hence, the properties conveyed thereby are not
collationable because, essentially, collation mandated under Article 1061 of the
Civil Code contemplates properties conveyed inter vivos by the decedent to an
heir by way of donation or other gratuitous title.

In

any

event,

these

alleged

errors

and

deficiencies

regarding

the

delivery of shares provided in the compromise, concealment of properties and


fraud in the deeds ofsale are factual in nature which, as a rule, are not reviewable
by this Court in petitions under Rule 45.

70

Petitioners have failed to convince us

that this case constitutes an exception to such rule. All in all, we find that
the Court of Appeals has sufficiently addressed the issues raised by them.
Indeed, they have not persuaded us that saidCourt committed any reversible
error to warrant a grant of their petition.

WHEREFORE,

the

petition

is

liblex

hereby

DENIED

and

the

assailed

Decision of the Court of Appeals is AFFIRMED.


SO ORDERED.
Narvasa, C .J ., Romero, Melo and Francisco, JJ ., concur.

|||

(Sanchez v. Court of Appeals, G.R. No. 108947, [September 29, 1997], 345

PHIL 155-194)

THIRD DIVISION
[G.R. No. 123968. April 24, 2003.]
URSULINA GANUELAS, METODIO GANUELAS and
ANTONIO GANUELAS, petitioners, vs. HON. ROBERT
T. CAWED, Judge of the Regional Trial Court of San Fernando,
La Union (Branch 29), LEOCADIA G. FLORES, FELICITACION
G. AGTARAP, CORAZON G. SIPALAY and ESTATE OF
ROMANAGANUELAS DE LA ROSA, represented by
GREGORIO DELA ROSA, Administrator, respondents.
Taada Vivo & Tan for petitioners.
SYNOPSIS
The late Celestina Ganuelas executed a Deed of Donation of Real Property in
favor of Ursulina Ganuelas. Private respondents alleged that the deed was a void
disposition mortis causa as it lacks the legal requirement of acknowledgment by
attesting witnesses thereto before the notary public. Petitioners, however, insist
that the donation was inter vivos.
Whether the donation was inter vivos or mortis causa, the Court ruled that, it
was mortis causa. It noted that there was nothing in the Donation which indicates
that any right, title or interest in the donated properties was to be transferred to
Ursulina prior to the death of Celestina. The phrase therein "to become effective
upon the death of the DONOR" admits no other interpretation but that Celestina
intended to transfer the ownership of the properties to Ursulina on her death, not
during her lifetime. It was also provided therein that if the donee should die before
the donor, the donation shall be deemed rescinded and of no further force and
effect. The deed even contains an attestation clause expressly confirming the

donation as mortis causa. Nevertheless, as there was failure to comply with the
formalities of a will, the Court ruled that the donation was void.
SYLLABUS
1. CIVIL LAW; MODES OF ACQUIRING OWNERSHIP; DONATION INTER
VIVOS DISTINGUISHED FROM DONATION MORTIS CAUSA. Crucial in the
resolution of the issue whether the donation is inter vivos or mortis causa is the
determination of whether the donor intended to transfer the ownership over the
properties upon the execution of the deed. Donation inter vivos differs from
donation mortis causa in that in the former, the act is immediately operative even
if the actual execution may be deferred until the death of the donor, while in the
latter, nothing is conveyed to or acquired by the donee until the death of the
donor-testator. The following ruling of this Court in Alejandro v. Geraldez is
illuminating: If the donation is made in contemplation of the donor's death,
meaning that the full or naked ownership of the donated properties will pass to
the donee only because of the donor's death, then it is at that time that the
donation takes effect, and it is a donation mortis causawhich should be embodied
in a last will and testament. But if the donation takes effect during the donor's
lifetime or independently of the donor's death, meaning that the full or naked
ownership (nuda proprietas) of the donated properties passes to the donee
during the donor's lifetime, not by reason of his death but because of the deed of
donation, then the donation is inter vivos. The distinction between a transfer inter
vivos and mortis causa is important as the validity or revocation of the donation
depends upon its nature. If the donation is inter vivos, it must be executed and
accepted with the formalities prescribed by Articles 748 and 749 of the Civil
Code, except when it is onerous in which case the rules on contracts will apply. If
it is mortis causa, the donation must be in the form of a will, with all the
formalities for the validity of wills, otherwise it is void and cannot transfer
ownership.

2. ID.; ID.; SUCCESSION; DONATION MORTIS CAUSA; DISTINGUISHING


CHARACTERISTICS. The distinguishing characteristics of a donation mortis
causa are the following: 1. It conveys no title or ownership to the transferee
before the death of the transferor; or, what amounts to the same thing, that the
transferor should retain the ownership (full or naked) and control of the property
while alive; 2. That before his death, the transfer should be revocable by the
transferor at will, ad nutum; but revocability may be provided for indirectly by
means of a reserved power in the donor to dispose of the properties conveyed; 3.
That the transfer should be void if the transferor should survive the transferee.

CTAIDE

3. ID.; ID.; ID.; ID.; ID.; PRESENT IN CASE AT BAR. In the donation subject
of the present case, there is nothing therein which indicates that any right, title or
interest in the donated properties was to be transferred to Ursulina prior to the
death of Celestina. The phrase "to become effective upon the death of the
DONOR" admits of no other interpretation but that Celestina intended to transfer
the ownership of the properties to Ursulina on her death, not during her lifetime.
More importantly, the provision in the deed stating that if the donee should die
before the donor, the donation shall be deemed rescinded and of no further force
and effect shows that the donation is a postmortem disposition. As stated in a
long line of cases, one of the decisive characteristics of a donation mortis
causa is that the transfer should be considered void if the donor should survive
the donee. More. The deed contains an attestation clause expressly confirming
the donation as mortis causa.
4. ID.; ID.; ID.; ID.; MOTIVATION. To classify the donation as inter vivos simply
because it is founded on considerations of love and affection is erroneous. That
the donation was prompted by the affection of the donor for the donee and the
services rendered by the latter is of no particular significance in determining
whether the deed constitutes a transfer inter vivos or not, because a legacy may
have an identical motivation. In other words, love and affection may also
underline transfers mortis causa.
5. ID.; ID.; ID.; ID.; REQUIRES FORMALITIES OF A WILL. As the subject
deed then is in the nature of a mortis causa disposition, the formalities of a will

under Article 728 of the Civil Code should have been complied with, failing which
the donation is void and produces no effect. As noted by the trial court, the
attesting witnesses failed to acknowledge the deed before the notary public, thus
violating Article 806 of the Civil Code which provides: 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. (Italics supplied)

TcICEA

DECISION

CARPIO MORALES, J :
p

The present petition for review under Rule 45 of the Rules of Court assails, on a
question of law, the February 22, 1996 decision 1 of the Regional Trial Court of
San Fernando, La Union, Branch 29, in Civil Case No. 3947, an action for
declaration of nullity of a deed of donation.
The facts, as culled from the records of the case, are as follows:
On April 11, 1958, Celestina Ganuelas Vda. de Valin (Celestina) executed a
Deed of Donation of Real Property 2 covering seven parcels of land in favor of her
niece Ursulina Ganuelas (Ursulina), one of herein petitioners.
The pertinent provision of the deed of donation reads, quoted verbatim:
xxx xxx xxx
That, for and in consideration of the love and affection which the
DONOR has for the DONEE, and of the faithful services the latter has
rendered in the past to the former, the said DONOR does by these
presents transfer and convey, by way of DONATION, unto the DONEE
the property above, described, to become effective upon the death of the
DONOR; but in the event that the DONEE should die before the

DONOR, the present donation shall be deemed rescinded and of no


further force and effect.
xxx xxx xxx. 3

On June 10, 1967, Celestina executed a document denominated as Revocation


of Donation 4 purporting to set aside the deed of donation. More than a month
later or on August 18, 1967, Celestina died without issue and any surviving
ascendants and siblings.

cDSAEI

After Celestina's death, Ursulina had been sharing the produce of the donated
properties with private respondents Leocadia G. Flores, et al., nieces of
Celestina.
In 1982, or twenty-four years after the execution of the Deed of Donation,
Ursulina secured the corresponding tax declarations, in her name, over the
donated properties, to wit: Tax Declarations Nos. 18108, 18109, 18110, 18111,
18112, 18113 and 18114, and since then, she refused to give private
respondents any share in the produce of the properties despite repeated
demands.
Private respondents were thus prompted to file on May 26, 1986 with the RTC of
San Fernando, La Union a complaint 5 against Ursulina, along with
Metodio Ganuelasand Antonio Ganuelas who were alleged to be unwilling
plaintiffs. The complaint alleged that the Deed of Donation executed by Celestina
in favor of Ursulina was void for lack of acknowledgment by the attesting
witnesses thereto before notary public Atty. Henry Valmonte, and the donation
was a disposition mortis causa which failed to comply with the provisions of the
Civil Code regarding formalities of wills and testaments, hence, it was void. The
plaintiffs-herein private respondents thus prayed that judgment be rendered
ordering Ursulina to return to them as intestate heirs the possession and
ownership of the properties. They likewise prayed for the cancellation of the tax
declarations secured in the name of Ursulina, the partition of the properties
among the intestate heirs of Celestina, and the rendering by Ursulina of an

accounting of all the fruits of the properties since 1982 and for her to return or
pay the value of their shares.
The defendants-herein petitioners alleged in their Answer 6 that the donation in
favor of Ursulina was inter vivos as contemplated under Article 729 of the Civil
Code, 7hence, the deed did not have to comply with the requirements for the
execution of a valid will; the Revocation of Donation is null and void as the ground
mentioned therein is not among those provided by law to be the basis thereof;
and at any rate, the revocation could only be legally enforced upon filing of the
appropriate complaint in court within the prescriptive period provided by law,
which period had, at the time the complaint was filed, already lapsed.

By Decision of February 22, 1996, the trial court, holding that the provision in the
Deed of Donation that in the event that the DONEE should predecease the
DONOR, the "donation shall be deemed rescinded and of no further force and
effect" is an explicit indication that the deed is a donation mortis causa, 8 found
for the plaintiffs-herein private respondents, thus:
WHEREFORE the Court renders judgment declaring null and void the
Deed of Donation of Real Property executed by Celestina Ganuelas, and
orders the partition of the estate of Celestina among the intestate heirs.
SO ORDERED. 9

The trial court also held that the absence of a reservation clause in the deed
implied that Celestina retained complete dominion over her properties, thus
supporting the conclusion that the donation is mortis causa, 10 and that while the
deed contained an attestation clause and an acknowledgment showing the intent
of the donor to effect a postmortem disposition, the acknowledgment was
defective as only the donor and donee appear to have acknowledged the deed
before the notary public, thereby rendering the entire document void. 11
Lastly, the trial court held that the subsequent execution by Celestina of the
Revocation of Donation showed that the donor intended the revocability of the

donationad nutum, thus sustaining its finding that the conveyance was mortis
causa. 12
On herein petitioners' argument that the Revocation of Donation was void as the
ground mentioned therein is not one of those allowed by law to be a basis for
revocation, the trial court held that the legal grounds for such revocation as
provided under the Civil Code arise only in cases of donations inter vivos, but not
in donations mortis causa which are revocable at will during the lifetime of the
donor. The trial court held, in any event, that given the nullity of the
disposition mortis causa in view of a failure to comply with the formalities required
therefor, the Deed of Revocation was a superfluity. 13
Hence, the instant petition for review, petitioners contending that the trial court
erred:
I. . . . WHEN IT DECLARED NULL AND VOID THE DONATION
EXECUTED BY CELESTINA GANUELAS;
II. . . . WHEN IT UPHELD THE REVOCATION OF DONATION;
III. . . . IN RENDERING ITS DECISION ADVERSE TO PETITIONER
URSULINA GANUELAS. 14

Petitioners argue that the donation contained in the deed is inter vivos as the
main consideration for its execution was the donor's affection for the donee rather
than the donor's death; 15 that the provision on the effectivity of the donation
after the donor's death simply meant that absolute ownership would pertain to
the donee on the donor's death; 16 and that since the donation is inter vivos, it
may be revoked only for the reasons provided in Articles
760, 17 764 18 and 765 19 of the Civil Code.
In a letter of March 16, 1992, 20 private respondent Corazon Sipalay, reacting to
this Court's January 28, 1998 Resolution requiring private respondents "to
SHOW CAUSE why they should not be disciplinarily dealt with or held in
contempt" for failure to submit the name and address of their new counsel,
explains that they are no longer interested in pursuing the case and are "willing

and ready to waive whatever rights" they have over the properties subject of the
donation. Petitioners, who were required to comment on the letter, by Comment
of October 28, 1998, 21 welcome private respondents' gesture but pray that "for
the sake of enriching jurisprudence, their [p]etition be given due course and
resolved."
The issue is thus whether the donation is inter vivos or mortis causa.
Crucial in the resolution of the issue is the determination of whether the donor
intended to transfer the ownership over the properties upon the execution of the
deed.22
Donation inter vivosdiffers from donation mortis causa in that in the former, the
act is immediately operative even if the actual execution may be deferred until the
death of the donor, while in the latter, nothing is conveyed to or acquired by the
donee until the death of the donor-testator. 23 The following ruling of this Court
inAlejandro v. Geraldez is illuminating: 24
If the donation is made in contemplation of the donor's death, meaning
that the full or naked ownership of the donated properties will pass to the
donee only because of the donor's death, then it is at that time that the
donation takes effect, and it is a donation mortis causa which should be
embodied in a last will and testament.
But if the donation takes effect during the donor's lifetime or
independently of the donor's death, meaning that the full or naked
ownership (nuda proprietas) of the donated properties passes to the
donee during the donor's lifetime, not by reason of his death but because
of the deed of donation, then the donation is inter vivos.

The distinction between a transfer inter vivos and mortis causa is important as
the validity or revocation of the donation depends upon its nature. If the donation
isinter vivos, it must be executed and accepted with the formalities prescribed
by Articles 748 25 and 749 26 of the Civil Code, except when it is onerous in which
case the rules on contracts will apply. If it is mortis causa, the donation must be in

the form of a will, with all the formalities for the validity of wills, otherwise it is void
and cannot transfer ownership. 27
The distinguishing characteristics of a donation mortis causa are the following:
1. It conveys no title or ownership to the transferee before the death of
the transferor; or, what amounts to the same thing, that the transferor
should retain the ownership (full or naked) and control of the property
while alive;
2. That before his death, the transfer should be revocable by the
transferor at will, ad nutum; but revocability may be provided for indirectly
by means of a reserved power in the donor to dispose of the properties
conveyed;
3. That the transfer should be void if the transferor should survive the
transferee. 28

In the donation subject of the present case, there is nothing therein which
indicates that any right, title or interest in the donated properties was to be
transferred to Ursulina prior to the death of Celestina.

CTSDAI

The phrase "to become effective upon the death of the DONOR" admits of no
other interpretation but that Celestina intended to transfer the ownership of the
properties to Ursulina on her death, not during her lifetime. 29
More importantly, the provision in the deed stating that if the donee should die
before the donor, the donation shall be deemed rescinded and of no further force
and effect shows that the donation is a postmortem disposition.
As stated in a long line of cases, one of the decisive characteristics of a
donation mortis causa is that the transfer should be considered void if the donor
should survive the donee. 30
More. The deed contains an attestation clause expressly confirming the donation
as mortis causa:

SIGNED by the above-named donor, Celestina Ganuelas, at the foot


of this deed of donation mortis causa, consisting of two (2) pages and on
the left margin of each and every page thereof in the joint presence of all
of us who at her request and in her presence and that of each other have
in like manner subscribed our names as witnesses.

31

(Emphasis

supplied)

To classify the donation as inter vivos simply because it is founded on


considerations of love and affection is erroneous. That the donation was
prompted by the affection of the donor for the donee and the services rendered
by the latter is of no particular significance in determining whether the deed
constitutes a transfer inter vivos or not, because a legacy may have an identical
motivation. 32 In other words, love and affection may also underline
transfers mortis causa. 33
In Maglasang v. Heirs of Cabatingan, 34 the deeds of donation contained
provisions almost identical to those found in the deed subject of the present case:
That for and in consideration of the love and affection of the DONOR for
the DONEE, . . . the DONOR does hereby, by these presents, transfer,
convey, by way of donation, unto the DONEE the above-described
property, together with the buildings and all improvements existing
thereon, to become effective upon the death of the DONOR; PROVIDED,
HOWEVER, that in the event that the DONEE should die before the
DONOR, the present donation shall be deemed automatically rescinded
and of no further force and effect. (Emphasis supplied)

In that case, this Court held that the donations were mortis causa, for the
above-quoted provision conclusively establishes the donor's intention to
transfer the ownership and possession of the donated property to the donee
only after the former's death. Like in the present case, the deeds therein did
not contain any clear provision that purports to pass proprietary rights to the
donee prior to the donor's death.

CcTIDH

As the subject deed then is in the nature of a mortis causa disposition, the
formalities of a will under Article 728 of the Civil Code should have been
complied with, failing which the donation is void and produces no effect. 35
As noted by the trial court, the attesting witnesses failed to acknowledge the deed
before the notary public, thus violating Article 806 of the Civil Code which
provides:
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. (Emphasis supplied)

The trial court did not thus commit any reversible error in declaring the Deed of
Donation to be mortis causa.
WHEREFORE, the petition is hereby DENIED for lack of merit.

STECAc

SO ORDERED.
Panganiban, Sandoval-Gutierrez and Corona, JJ., concur.

Puno, J., took no part. Knows one of the parties.


|||

(Ganuelas v. Cawed, G.R. No. 123968, [April 24, 2003], 449 PHIL 465-477)

THIRD DIVISION
[G.R. No. 110427. February 24, 1997.]
The Incompetent, CARMEN CAIZA, represented by her legal
guardian, AMPARO EVANGELISTA, petitioner, vs. COURT OF
APPEALS (SPECIAL FIRST DIVISION), PEDRO ESTRADA and
his wife, LEONORA ESTRADA, respondents.
Priscilla A. Villacorta for petitioner.
Montilla Law Office for private respondents.
SYLLABUS
1. REMEDIAL LAW; JURISDICTION; DETERMINED BY THE ALLEGATIONS IN
THE COMPLAINT. It is axiomatic that what determines the nature of an action
as well as which court has jurisdiction over it, are the allegations of the complaint
and the character of the relief sought. An inquiry into the averments of the
amended complaint in the Court of origin is thus in order.
2. ID.; PROVISIONAL REMEDIES; ACTION FOR UNLAWFUL DETAINER; IT IS
SUFFICIENT TO ALLEGE THAT THE DEFENDANT IS UNLAWFULLY
WITHHOLDING POSSESSION FROM THE PLAINTIFF. It is settled that in an
action for unlawful detainer, to allege that the defendant is unlawfully withholding
possession from the plaintiff is deemed sufficient, and a complaint for unlawful
detainer is sufficient if it alleges that the withholding of possession or the refusal
to vacate is unlawful without necessarily employing the terminology of the law.
3. ID.; ID.; ID.; PROPER WHEN A PERSON WHO OCCUPIES, OUT OF
GENEROSITY, THE LAND OF ANOTHER AND FAILS TO VACATE THE SAME
UPON DEMAND BY THE OWNER; CASE AT BAR. More than once has this
Court adjudged that a person who occupies the land of another at the latter's

tolerance or permission without any contract between them is necessarily bound


by an implied promise that he will vacate upon demand, failing which a summary
action for ejectment is the proper remedy against him, The situation is not much
different from that of a tenant whose lease expires but who continues in
occupancy by tolerance of the owner, in which case there is deemed to be an
unlawful deprivation or withholding of possession as of the date of the demand to
vacate. In other words, one whose stay is merely tolerated becomes a deforciant
illegally occupying the land or property the moment he is required to leave. Thus,
in Asset Privatization Trust vs. Court of Appeals, 229 SCRA 627, 636 [1994]
where a company, having lawfully obtained possession of a plant upon its
undertaking to buy the same, refused to return it after failing to fulfill its promise
of payment despite demands this Court held that "(a)fter demand and its
repudiation, . . . (its) continuing possession . . . became illegal and the complaint
for unlawful detainer filed by the . . . (plant's owner) was its proper remedy." It
may not be amiss to point out in this connection that where there had been more
than one demand to vacate, the one-year period for filing the complaint for
unlawful detainer must be reckoned from the date of the last demand the reason
being that the lessor has the option to waive his right of action based on previous
demands and let the lessee remain meanwhile in the premises.
4. CIVIL

LAW;

SUCCESSION;

WILL

HAS NO EFFECT

WHATEVER

AND NO RIGHT CAN BE CLAIMED THEREUNDER UNTIL IT IS ADMITTED TO


PROBATE. A will is essentially ambulatory; at any time prior to the testator's
death, it may be changed or revoked; and until admitted to probate, it
has no effect whatever and no right can be claimed thereunder, the law being
quite explicit: "No will shall pass either real or personal property unless it is
proved and allowed in accordance with the Rules of Court" (ART. 838, CIVIL
CODE). An owner's intention to confer title on the future to persons possessing
property by his tolerance, is not inconsistent with the former's taking back
possession in the meantime for any reason deemed sufficient. And that in this
case there was sufficient cause for the owner's resumption of possession is
apparent: she needed to generate income from the house on account of the
physical infirmities afflicting her, arising from her extreme age.

5. REMEDIAL LAW; SPECIAL PROCEEDINGS; GUARDIANSHIP; DUTIES OF


THE GUARDIAN; CASE AT BAR. Amparo Evangelista was appointed by a
competent court the general guardian of both the person and the estate of her
aunt, Carmen Caiza. Her Letters of Guardianship dated December 19, 1989
clearly installed her as the "guardian over the person and properties of the
incompetent CARMEN CAIZA with full authority to take possession of the
property of said incompetent in any province or provinces in which it may be
situated and to perform all other acts necessary for the management of her
properties . . ." By that appointment, it became Evangelista's duty to care for her
aunt's person, to attend to her physical and spiritual needs, to assure her wellbeing, with right to custody of her person in preference to relatives and friends. It
also became her right and duty to get possession of, and exercise control over,
Caiza's property, both real and personal, it being recognized principle that the
ward has no right to possession or control of his property during his
incompetency. That right to manage the ward's estate carried with it right to take
possession thereof and recover it from anyone who retains it and bring and
defend such actions as may be needful for this purpose. Actually, in bringing the
action ofdesahucio, Evangelista was merely discharging the duty to attend to "the
comfortable and suitable maintenance of the ward" explicitly imposed on her by
Section 4, Rule 96 of the Rules of Court.
6. ID.; PROVISIONAL REMEDIES; EJECTMENT CASE; EFFECT OF THE
DEATH OF A PARTY; CASE AT BAR. While it is indeed well-established rule
that the relationship of guardian and ward is necessarily terminated by the death
of either the guardian or the ward, the rule affords no advantage to the Estradas.
Amparo Evangelista, as niece of Carmen Caiza, is one of the latter's only two
(2) surviving heirs, the other being Caiza's nephew, Ramon C. Nevado. On their
motion and by resolution of this Court of June 20, 1994, they were in fact
substituted as parties in the appeal at bar in place of the deceased, in
accordance with Section 17, Rule 3 of the Rules of Court. To be sure, an
EJECTMENT case survives the death of a party. Caiza's demise did not
extinguish the desahucio suit instituted by her through her guardian. That action,

not being a purely personal one, survived her death; her heirs have taken her
place and now represent her interests in the appeal at bar.

DECISION

NARVASA, C .J :
p

On November 20, 1989, being then ninety-four (94) years of age, Carmen
Caiza, a spinster, a retired pharmacist, and former professor of the College of
Chemistry and Pharmacy of the University of the Philippines, was declared
incompetent by judgment 1 of the Regional Trial Court of Quezon City, Branch
107, 2 in a guardianship proceeding instituted by her niece, Amparo A.
Evangelista. 3 She was so adjudged because of her advanced age and physical
infirmities which included cataracts in both eyes and senile dementia. Amparo A.
Evangelista was appointed legal guardian of her person and estate.
Caiza was the owner of a house and lot at No. 61 Tobias St., Quezon City. On
September 17, 1990, her guardian Amparo Evangelista commenced a suit in the
Metropolitan Trial Court (MetroTC) of Quezon City (Branch 35) to eject the
spouses Pedro and Leonora Estrada from said premises. 4 The complaint was
later amended to identify the incompetent Caiza as plaintiff, suing through her
legal guardian, Amparo Evangelista.
The amended Complaint 5 pertinently alleged that plaintiff Caiza was the
absolute owner of the property in question, covered by TCT No. 27147; that out
of kindness, she had allowed the Estrada Spouses, their children, grandchildren
and sons-in-law to temporarily reside in her house, rent-free; that Caiza already
had urgent need of the house on account of her advanced age and failing health,
"so funds could be raised to meet her expenses for support, maintenance and
medical treatment.;" that through her guardian, Caiza had asked the Estradas
verbally and in writing to vacate the house but they had refused to do so; and that
"by the defendants' act of unlawfully depriving plaintiff of the possession of the

house in question, they . . . (were) enriching themselves at the expense of the


incompetent, because, while they . . . (were) saving money by not paying any rent
for the house, the incompetent . . . (was) losing much money as her house could
not be rented by others." Also alleged was that the complaint was "filed within
one (1) year from the date of first letter of demand dated February 3, 1990."
In their Answer with Counterclaim, the defendants declared that they had been
living in Caiza's house since the 1960's; that in consideration of their faithful
service they had been considered by Caiza as her own family, and the latter had
in fact executed a holographic will on September 4, 1988 by which she
"bequeathed" to the Estradas the house and lot in question.
Judgment was rendered by the MetroTC on April 13, 1992 in Caiza's favor, 6 the
Estradas being ordered to vacate the premises and pay Caiza P5,000.00 by
way of attorney's fees.
But on appeal, 7 the decision was reversed by the Quezon City Regional Trial
Court, Branch 96. 8 By judgment rendered on October 21, 1992, 9 the RTC held
that the "action by which the issue of defendants' possession should be resolved
is accion publiciana, the obtaining factual and legal situation . . . demanding
adjudication by such plenary action for recovery of possession cognizable in the
first instance by the Regional Trial Court."

cdphil

Caiza sought to have the Court of Appeals reverse the decision of October 21,
1992, but failed in that attempt. In a decision

10

promulgated on June 2, 1993, the

Appellate Court 11 affirmed the RTC's judgment in toto . It ruled that (a) the proper
remedy for Caiza was indeed an accion publiciana in the RTC, not an accion
interdictal in the MetroTC, since the "defendants have not been in the subject
premises as mere tenants or occupants by tolerance, they have been there as a
sort of adopted family of Carmen Caiza," as evidenced by what purports to be
the holographic will of the plaintiff; and (b) while "said will, unless and until it has
passed probate by the proper court, could not be the basis of defendants' claim
to the property, . . . it is indicative of intent and desire on the part of Carmen
Caiza that defendants are to remain and are to continue in their occupancy and

possession, so much so that Caiza's supervening incompetency can not be said


to have vested in her guardian the right or authority to drive the defendants
out." 12

Through her guardian, Caiza came to this Court praying for reversal of the
Appellate Court's judgment. She contends in the main that the latter erred in (a)
holding that she should have pursued an accion publiciana, and not an accion
interdictal; and in (b) giving much weight to "a xerox copy of an alleged
holographic will, which is irrelevant to this case." 13
In the responsive pleading filed by them on this Court's requirement,

14

the

Estradas insist that the case against them was really not one of unlawful detainer;
they argue that since possession of the house had not been obtained by them by
any "contract, express or implied," as contemplated by Section 1, Rule 70 of the
Rules of Court, their occupancy of the premises could not be deemed one
"terminable upon mere demand (and hence never became unlawful) within the
context of the law." Neither could the suit against them be deemed one of forcible
entry, they add, because they had been occupying the property with the prior
consent of the "real owner," Carmen Caiza, which "occupancy can even ripen
into full ownership once the holographic will of petitioner Carmen Caiza is
admitted to probate." They conclude, on those postulates, that it is beyond the
power of Caiza's legal guardian to oust them from the disputed premises.
Carmen Caiza died on March 19, 1994, 15 and her heirs the aforementioned
guardian, Amparo Evangelista, and Ramon C. Nevado, her niece and nephew,
respectively were by this Court's leave, substituted for her. 16
Three issues have to be resolved: (a) whether or not an ejectment action is the
appropriate judicial remedy for recovery of possession of the property in dispute;
(b) assuming desahucio to be proper, whether or not Evangelista, as Caiza's
legal guardian had authority to bring said action; and (c) assuming an affirmative
answer to both questions, whether or not Evangelista may continue to represent
Caiza after the latter's death.

I
It is axiomatic that what determines the nature of an action as well as which court
has jurisdiction over it, are the allegations of the complaint and the character of
the relief sought. 17 An inquiry into the averments of the amended complaint in
the Court of origin is thus in order. 18
The amended Complaint alleges:19
"6. That the plaintiff, Carmen Caiza, is the sole and absolute owner of a
house and lot at No. 61 Scout Tobias, Quezon City, which property is
now the subject of this complaint;
xxx xxx xxx
9. That the defendants, their children, grandchildren and sons-in-law,
were allowed to live temporarily in the house of plaintiff, Carmen Caiza,
for free, out of her kindness;
10. That the plaintiff, through her legal guardian, has duly notified the
defendants, for them to vacate the said house, but the two (2) letters of
demand were ignored and the defendants refused to vacate the same. . .
11. That the plaintiff, represented by her legal guardian, Amparo
Evangelista, made another demand on the defendants for them to vacate
the premises, before Barangay Captain Angelina A. Diaz of Barangay
Laging Handa, Quezon City, but after two (2) conferences, the result was
negative

and no settlement

was

reached.

photocopy

of

the

Certification to File Action dated July 4, 1990; issued by said Barangay


Captain is attached, marked Annex "D" and made an integral part
hereof;
12. That the plaintiff has given the defendants more than thirty (30) days
to vacate the house, but they still refused to vacate the premises, and
they are up to this time residing in the said place;

13. That this complaint is filed within one (1) year from the date of first
letter of demand dated February 3, 1990 (Annex "B") sent by the plaintiff
to the defendants,by her legal guardian Amparo Evangelista;
14. By the defendants' act of unlawfully depriving the plaintiff of the
possession of the house in question, they are enriching themselves at
the expense of the incompetent plaintiff, because, while they are saving
money by not paying any rent for the house, the plaintiff is losing much
money as her house could not be rented by others;
15. That the plaintiff's health is failing and she needs the house urgently,
so that funds could be raised to meet her expenses for her support,
maintenance and medical treatment;
16. That because of defendants' refusal to vacate the house at No. 61
Scout Tobias, Quezon City, the plaintiff, through her legal guardian, was
compelled to go to court for justice, and she has to spend P10,000.00 as
attorney's fees."
Its prayer 20 is quoted below:
"WHEREFORE, in the interest of justice and the rule of law, plaintiff,
Carmen Caiza, represented by her legal guardian. Amparo Evangelista,
respectfully prays to this Honorable Court, to render judgment in favor of
plaintiff and against the defendants as follows:
1. To order the defendants, their children, grandchildren, sons-in-law and
other persons claiming under them, to vacate the house and premises
at No. 61 Scout Tobias, Quezon City, so that its possession can be
restored to the plaintiff, Carmen Caiza: and
2. To pay attorney's fees in the amount of P10,000.00;
3. To pay the costs of the suit."

In essence, the amended complaint states:

1) that the Estradas were occupying Caiza's house by tolerance


having been "allowed to live temporarily . . . (therein) for
free, out of . . . (Caiza's) kindness;"
2) that Caiza needed the house "urgently" because her
"health . . . (was) failing and she . . . (needed) funds . . . to
meet her expenses for her support, maintenance and
medical treatment;"
3) that through her general guardian, Caiza requested the
Estradas several times, orally and in writing, to give back
possession of the house;
4) that the Estradas refused and continue to refuse to give back the
house to Caiza, to her continuing prejudice; and
5) that the action was filed within one (1) year from the last demand
to vacate.
Undoubtedly, a cause of action for desahucio has been adequately set out. It is
settled that in an action for unlawful detainer, it suffices to allege that the
defendant is unlawfully withholding possession from the plaintiff is deemed
sufficient, 21 and a complaint for unlawful detainer is sufficient if it alleges that the
withholding of possession or the refusal to vacate is unlawful without necessarily
employing the terminology of the law. 22
The Estradas' first proffered defense derives from a literal construction of Section
1, Rule 70 of the Rules of Court which inter alia authorizes the institution of an
unlawful detainer suit when "the possession of any land or building is unlawfully
withheld after the expiration or termination of the right to hold possession, by
virtue of any contract, express or implied." They contend that since they did not
acquire possession of the property in question "by virtue of any contract, express
or implied" they having been, to repeat, "allowed to live temporarily . . .
(therein) for free, out of . . . (Caiza's) kindness" in no sense could there be an
"expiration or termination of . . . (their) right to hold possession, by virtue of any
contract, express or implied." Nor would an action for forcible entry lie against

them, since there is noclaim that they had "deprived (Caiza) of the possession
of . . . (her property) by force, intimidation, threat, strategy, or stealth."
The argument is arrant sophistry. Caiza's act of allowing the Estradas to occupy
her house, rent-free, did not create a permanent and indefeasible right of
possession in the latter's favor. Common sense, and the most rudimentary sense
of fairness clearly require that act of liberality be implicitly, but no less certainly,
accompanied by the necessary burden on the Estradas of returning the house to
Caiza upon her demand. More than once has this Court adjudged that a person
who occupies the land of another at the latter's tolerance or permission without
any contract between them is necessarily bound by an implied promise that he
will vacate upon demand, failing which a summary action for ejectment is the
proper remedy against him. 23 The situation is not much different from that of a
tenant whose lease expires but who continues in occupancy by tolerance of the
owner, in which case there is deemed to be an unlawful deprivation or
withholding of possession as of the date of the demand to vacate.

24

In other

words, one whose stay is merely tolerated becomes a deforciant illegally


occupying the land or property the moment he is required to leave.

25

Thus,

in Asset Privatization Trust vs. Court of Appeals, 26 where a company, having


lawfully obtained possession of a plant upon its undertaking to buy the same,
refused to return it after failing to fulfill its promise of payment despite demands,
this Court held that "(a)fter demand and its repudiation, . . . (its) continuing
possession . . . became illegal and the complaint for unlawful detainer filed by the
. . . (plant's owner) was its proper remedy."
It may not be amiss to point out in this connection that where there had been
more than one demand to vacate, the one-year period for filing the complaint for
unlawful detainer must be reckoned from the date of the last demand,

27

the

reason being that the lessor has the option to waive his right of action based on
previous demands and let the lessee remain meanwhile in the premises.

28

Now,

the complaint filed by Caiza's guardian alleges that the same was "filed within
one (1) year from the date of the first letter of demand dated February 3, 1990."
Although this averment is not in accord with law because there is in fact

a second letter of demand to vacate, dated February 27, 1990, the mistake is
inconsequential, since the complaint was actually filed on September 17, 1990,
well within one year from the second (last) written demand to vacate.
The Estradas' possession of the house stemmed from the owner's express
permission. That permission was subsequently withdrawn by the owner, as was
her right; and it is immaterial that the withdrawal was made through her judicial
guardian, the latter being indisputably clothed with authority to do so. Nor is it of
any consequence that Carmen Caiza had executed a will bequeathing the
disputed property to the Estradas; that circumstance did not give them the right to
stay in the premises after demand to vacate on the theory that they might in
future become owners thereof, that right of ownership being at best
inchoate, no transfer of ownership being possible unless and until the will is duly
probated.

Thus, at the time of the institution of the action of desahucio, the Estradas
had no legal right to the property, whether as possessors by tolerance or
sufferance, or as owners. They could not claim the right of possession by
sufferance, that had been legally ended. They could not assert any right of
possession flowing from their ownership of the house; their status as owners is
dependent on the probate of the holographic will by which the property had
allegedly been bequeathed to them an event which still has to take place; in
other words; prior to the probate of the will, any assertion of possession by them
would be premature and inefficacious.
In any case, the only issue that could legitimately be raised under the
circumstances was that involving the Estradas' possession by tolerance, i.e.,
possession de facto, not de jure. It is therefore incorrect to postulate that the
proper remedy for Caiza is not ejectment but accion publiciana, a plenary action
in the RTC or an action that is one for recovery of the right to possession de jure.
II

The Estradas insist that the devise of the house to them by Caiza clearly
denotes her intention that they remain in possession thereof, and legally
incapacitated her judicial guardian, Amparo Evangelista, from evicting them
therefrom, since their ouster would be inconsistent with the ward's will.
A will is essentially ambulatory; at any time prior to the testator's death, it may be
changed or revoked; 29 and until admitted to probate, it has no effect whatever
andno right can be claimed thereunder, the law being quite explicit: "No will shall
pass either real or personal property unless it is proved and allowed in
accordance with the Rules of Court" (ART. 838, Id.). 30 An owner's intention to
confer title in the future to persons possessing property by his tolerance, is not
inconsistent with the former's taking back possession in the meantime for any
reason deemed sufficient. And that in this case there was sufficient cause for the
owner's resumption of possession is apparent: she needed to generate income
from the house on account of the physical infirmities afflicting her, arising from
her extreme age.
Amparo Evangelista was appointed by a competent court the general guardian of
both the person and the estate of her aunt, Carmen Caiza. Her Letters of
Guardianship 31 dated December 19, 1989 clearly installed her as the "guardian
over the person and properties of the incompetent CARMEN CAIZA with full
authority to take possession of the property of said incompetent in any province
or provinces in which it may be situated and to perform all other acts necessary
for the management of her properties . . ." 32 By that appointment, it became
Evangelista's duty to care for her aunt's person, to attend to her physical and
spiritual needs, to assure her well-being, with right to custody of her person in
preference to relatives and friends. 33 It also became her right and duty to get
possession of, and exercise control over, Caiza's property, both real and
personal, it being recognized principle that the ward has no right to possession or
control of his property during her incompetency.

34

That right to manage the

ward's estate carries with it the right to take possession thereof and recover it
from anyone who retains it, 35 and bring and defend such actions as may be
needful for this purpose. 36

Actually, in bringing the action of desahucio, Evangelista was merely discharging


the duty to attend to "the comfortable and suitable maintenance of the ward"
explicitly imposed on her by Section 4, Rule 96 of the Rules of Court, viz.:
"SEC. 4. Estate to be managed frugally, and proceeds applied to
maintenance of ward. A guardian must manage the estate of his ward
frugally and without waste, and apply the income and profits thereof, so
far as maybe necessary, to the comfortable and suitable maintenance of
the ward and his family, if there be any; and if such income and profits be
insufficient for that purpose, the guardian may sell or encumber the real
estate, upon being authorized by order to do so, and apply to such of the
proceeds as may be necessary to such maintenance."

Finally, it may be pointed out in relation to the Estradas' defenses in the


ejectment action, that as the law now stands, even when, in forcible entry and
unlawful detainer cases, the defendant raises the question of ownership in his
pleadings and the question of possession cannot be resolved without deciding
the issue of ownership, the Metropolitan Trial Courts, Municipal Trial Courts, and
Municipal Circuit Trial Courts nevertheless have the undoubted competence to
resolve. "the issue of ownership . . . only to determine the issue of possession." 37
III
As already stated, Carmen Caiza passed away during the pendency of this
appeal. The Estradas thereupon moved to dismiss the petition, arguing that
Caiza's death automatically terminated the guardianship, Amparo Evangelista
lost all authority as her judicial guardian, and ceased to have legal personality to
represent her in the present appeal. The motion is without merit.
While it is indeed well-established rule that the relationship of guardian and ward
is necessarily terminated by the death of either the guardian or the ward,

38

the

rule affords no advantage to the Estradas. Amparo Evangelista, as niece of


Carmen Caiza, is one of the latter's only two (2) surviving heirs, the other being
Caiza's nephew, Ramon C. Nevado. On their motion and by Resolution of this
Court 39 of June 20, 1994, they were in fact substituted as parties in the appeal at

bar in place of the deceased, in accordance with Section 17, Rule 3 of the Rules
of Court, viz.: 40
"SEC. 17. Death of a party. After a party dies and the claim is not
thereby extinguished, the court shall order, upon proper notice, the legal
representative of the deceased to appear and be substituted for the
deceased within a period of thirty (30) days, or within such time as may
be granted. If the legal representative fails to appear within said time, the
court may order the opposing party to procure the appointment of a legal
representative of the deceased within a time to be specified by the court,
and the representative shall immediately appear for and on behalf of the
interest of the deceased. The court charges involved in procuring such
appointment, if defrayed by the opposing party, may be recovered as
costs. The heirs of the deceased may be allowed to be substituted for
the deceased, without requiring the appointment of an executor or
administrator and the court may appoint guardian ad litem for the minor
heirs.

To be sure, an ejectment case survives the death of a party. Caiza's demise did
not extinguish the desahucio suit instituted by her through her guardian.

41

That

action, not being a purely personal one, survived her death; her heirs have taken
her place and now represent her interests in the appeal at bar.
WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals
promulgated on June 2, 1993 affirming the Regional Trial Court's judgment
and dismissing petitioner's petition for certiorari is REVERSED and SET
ASIDE, and the Decision dated April 13, 1992 of the Metropolitan Trial Court of
Quezon City, Branch 35, in Civil Case No. 3410 is REINSTATED and AFFIRMED.
Costs against private respondents.

cda

SO ORDERED.
Davide, Jr., Melo, Francisco and Panganiban, JJ., concur.
|||

(Caiza v. Court of Appeals, G.R. No. 110427, [February 24, 1997], 335 PHIL

1107-1121)

ECOND 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 :
p

This is a petition for review under Rule 45 of the Rules of Court seeking the
reversal of the decision 1 dated March 26, 2002, and the resolution 2 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


Sale 4 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 letter 7 sent to petitioner on her
behalf:

HTSAEa

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 above-described
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-dayperiod, 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 decision 13 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 Code 14 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).

ASHEca

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 Code 17 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 executed 19 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.

TASCDI

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 co-heir 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. 22 This 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. 27 Petitioner
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.

ECHSDc

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 corespondents 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, Sandoval-Gutierrez, Corona and Garcia, JJ., concur.
|||

(Cua v. Vargas, G.R. No. 156536, [October 31, 2006], 536 PHIL 1082-1097)

THIRD DIVISION
[G.R. No. 175720. September 11, 2007.]
CRESENCIANA TUBO RODRIGUEZ (now deceased),
substituted by SUSANA A. LLAGAS, petitioner, vs.
EVANGELINE RODRIGUEZ, BELEN RODRIGUEZand
BUENAVENTURA RODRIGUEZ, respondents.

DECISION

YNARES-SANTIAGO, J :
p

This petition for review on certiorari assails the Decision 1 of the Court of Appeals
in CA-G.R. SP No. 91442 dated June 27, 2006, which set aside the Decision of
the Regional Trial Court (RTC) of Makati City, Branch 134, in Civil Case No. 03517, and reinstated the Decision of the Metropolitan Trial Court (MTC) of Makati
City, Branch 63, in Civil Case No. 75717, dismissing the complaint for ejectment;
as well as the Resolution denying the motion for reconsideration.
Juanito Rodriguez owned a five-door apartment located at San Jose Street,
Guadalupe Nuevo, Makati City, and covered by TCT No. 144865. 2 On October
27, 1983, Juanito executed a "Huling Habilin at Testamento" giving petitioner
Cresenciana Tubo Rodriguez, his live-in partner, apartments D and E, and his
children BenjaminRodriguez (the deceased husband of respondent
Evangeline Rodriguez), apartment A, respondent Buenaventura Rodriguez,
apartment B, and respondent BelenRodriguez, apartment C. 3

SHIcDT

However, on June 14, 1984, Juanito executed a Deed of Absolute Sale over the
property in favor of petitioner. 4 Thus, TCT No. 144865 was cancelled and a new
TCT No. 150431 was issued in the name of the petitioner. 5

aEIcHA

The case arose when petitioner filed on September 20, 2001 a complaint for
unlawful detainer against the respondents, alleging that she is the lawful and
registered owner of the property; and that in 1984, she allowed respondents
Evangeline, Buenaventura and Belen, out of kindness and tolerance, to
personally occupy units A, B and D, respectively. However, without her
knowledge and consent, respondents separately leased the units to Montano
Magpantay, Mel Navarro and Socorro Escota, who despite repeated demands,
failed and refused to vacate the premises and to pay the rentals thereof. 6
In their Answer, respondents claimed ownership over the subject property by
succession. They alleged that while petitioner is the registered owner of the
property, however, she is not the lawful owner thereof because the June 14, 1984
Deed of Absolute Sale was simulated and void. As in Civil Case No. 01-1641 now
pending before the RTC of Makati City, Branch 141, which they filed to assail the
validity of the said sale, respondents maintain that petitioner exerted undue
influence over their father, who at that time was seriously ill, to agree to the sale
of the property for only P20,000.00 after knowing that only two apartments were
given to her in the Huling Habilin at Testamento. Further, she had no cause of
action against them for being a party to the August 23, 1990 Partition Agreement
wherein they recognized each other as co-owners and partitioned the property in
accordance with the provision of the last will and testament. 7
On February 26, 2002, the MTC rendered a judgment in favor of the respondents
and held that the deed of sale was simulated otherwise petitioner would not have
entered into the Partition Agreement, which legally conferred upon each heir
exclusive ownership over their respective shares, thus:
WHEREFORE, the Complaint is DISMISSED. Plaintiff is ordered to pay
attorney's fees of P10,000.00 and the costs of suit in favor of defendants.
SO ORDERED. 8

On appeal, the RTC reversed the decision of the MTC. It held that petitioner's
certificate of title is a conclusive evidence of ownership of the land described
therein; and that unless and until said title has been annulled by a court of

competent jurisdiction, such title is existing and valid. This is true also with
respect to the deed of sale. The present action, which involves only the issue of
physical or material possession, is not the proper action to challenge it. Further,
the MTC erred when it relied heavily on the "Huling Habilin at Testamento," which
was not probated hence has no effect and no right can be claimed therein. The
Partition Agreement which was allegedly entered into pursuant to the Huling
Habilin at Testamento should not also be considered. Thus:
WHEREFORE, premises considered, the decision rendered by the
Metropolitan Trial Court, Branch 63, Makati City, is hereby ordered
REVERSED AND SET ASIDE. Consequently, judgment is hereby
rendered ordering the defendants and all persons claiming rights under
them to vacate the premises and surrender the possession thereof to the
plaintiff. Defendants are likewise ordered to pay jointly and severally the
plaintiff an amount of P5,000.00 a month per unit beginning 13 August
2001 until they finally vacate the premises and the costs of this suit.

HETDAC

SO ORDERED. 9

Aggrieved, respondents filed a petition for review before the Court of Appeals
which reversed and set aside the decision of the RTC and reinstated the decision
of the MTC. It held that the MTC correctly received evidence on ownership since
the question of possession could not be resolved without deciding the issue of
ownership. Further, the Huling Habilin at Testamento transmitted ownership of the
specific apartments not only to the respondents but also to the petitioner; and
pursuant thereto, the parties executed the Partition Agreement in accordance
with the wishes of the testator, thus:
WHEREFORE, this Court resolves to REVERSE and SET ASIDE the
Decision of the Regional Trial Court. The decision dated February 26,
2002 of the Metropolitan Trial Court, Branch 63, Makati City in Civil Case
No. 75717 dismissing the complaint for ejectment is hereby
REINSTATED.

cHECAS

SO ORDERED. 10

The motion for reconsideration was denied hence, petitioner filed the present
petition for review raising the following errors:
I.
THE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR OF
LAW AND GRAVE ABUSE OF DISCRETION IN REVERSING AND
SETTING ASIDE THE DECISION OF THE REGIONAL TRIAL COURT
AND REINSTATING THE DECISION OF THE METROPOLITAN TRIAL
COURT DISMISSING PETITIONER'S COMPLAINT FOR UNLAWFUL
DETAINER.

aTIEcA

II.
THE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR OF
LAW AND GRAVE ABUSE OF DISCRETION IN DECLARING THAT
THE PROPERTY, A PARCEL OF LAND UPON WHICH A FIVE-UNIT
APARTMENT STANDS, BECAME THE SUBJECT OF
JUANITO RODRIGUEZ'S HULING HABILIN AT
TESTAMENTO WHEREIN THE PROPERTY WAS DISTRIBUTED TO
HIS HEIRS (HEREIN RESPONDENTS) INCLUDING THE
RESPONDENT (PETITIONER HEREIN). 11

Petitioner alleges that as the registered owner of the subject property, she enjoys
the right of possession thereof and that question of ownership cannot be raised in
an ejectment case unless it is intertwined with the issue of possession. While the
court may look into the evidence of title or ownership and possession de jure to
determine the nature of possession, it cannot resolve the issue of ownership
because the resolution of said issue would effect an adjudication on ownership
which is not proper in the summary action for unlawful detainer. Petitioner insists
that the Court of Appeals erred in ruling that the Huling Habilin at
Testamento transmitted ownership of the specific apartments disregarding the
fact that the same is not probated yet and that the testator changed or revoked
his will by selling the property to petitioner prior to his death.

Contrarily, respondents pray that the instant petition for review be dismissed
since the resolution of the question of ownership by the MTC and the Court of
Appeals was provisional only to resolve the issue of possession. Petitioner can
always avail of legal remedies to have the issue of ownership passed upon by the
proper court. Aware of the provisional nature of the resolution on ownership in
ejectment cases, respondents filed Civil Case No. 01-1641 to assail the validity of
the deed of sale of the property and the registration thereof in petitioner's
name.

DHITSc

The petition has merit.


An action for unlawful detainer exists when a person unlawfully withholds
possession of any land or building against or from a lessor, vendor, vendee or
other persons, after the expiration or termination of the right to hold possession,
by virtue of any contract, express or implied. 12 The sole issue to be resolved is
the question as to who is entitled to the physical or material possession of the
premises or possession de facto. 13 Being a summary proceeding intended to
provide an expeditious means of protecting actual possession or right to
possession of property, the question of title is not involved 14 and should be
raised by the affected party in an appropriate action in the proper court. 15

HIAcCD

However, when the issue of ownership is raised the court is not ousted of its
jurisdiction. Section 16 of Rule 70 of the Rules of Court provides:
SEC 16. Resolving defense of ownership. When the defendant raises
the defense of ownership in his pleadings and the question of
possession cannot be resolved without deciding the issue of ownership,
the issue of ownership shall be resolved only to determine the issue of
possession.

TcSAaH

Thus, all that the trial court can do is to make an initial determination of who is
the owner of the property so that it can resolve who is entitled to its
possession absent other evidence to resolve ownership. 16 But this
adjudication is only provisional and does not bar or prejudice an action
between the same parties involving title to the property. 17

In the case at bar, petitioner's cause of action for unlawful detainer was based on
her alleged ownership of land covered by TCT No. 150431 and that she merely
tolerated respondents' stay thereat. However, when respondents leased the
apartments to other persons without her consent, their possession as well as
those persons claiming right under them became unlawful upon their refusal to
vacate the premises and to pay the rent. On the other hand, respondents
assailed petitioner's title by claiming that the deed of sale upon which it was
based was simulated and void. They insisted that they were co-owners thus, they
have the right to possess the said property. To prove their claim, they presented
the Huling Habilin at Testamento of Juanito Rodriguez and the Partition
Agreement.

CTcSIA

The lower courts considered the following documentary evidence in arriving at


their respective decisions, albeit the RTC decision contradicts that of the MTC
and Court of Appeals: 1) Huling Habilin at Testamento executed by
Juanito Rodriguez on October 27, 1983; 2) Deed of Sale of the property executed
by Juanito Rodriguez and the petitioner on June 14, 1984; 3) TCT No. 150431 in
the name of the petitioner; and 4) the August 23, 1990 Partition Agreement
executed by both the respondents and the petitioner.

cEAHSC

Based on the foregoing documentary evidence, we find that there is


preponderance of evidence in favor of the petitioner's claim. Respondents failed
to prove their right of possession, as the Huling Habilin at Testamento and the
Partition Agreement have no legal effect since the will has not been probated.
Before any will can have force or validity it must be probated. This cannot be
dispensed with and is a matter of public policy. 18 Article 838 of the Civil Code
mandates that "[n]o will shall pass either real or personal property unless it is
proved and allowed in accordance with the Rules of Court." As the will was not
probated, the Partition Agreement which was executed pursuant thereto can not
be given effect. Thus, the fact that petitioner was a party to said agreement
becomes immaterial in the determination of the issue of possession.

ECcTaH

Moreover, at the time the deed of sale was executed in favor of the petitioner,
Juanito Rodriguez remained the owner thereof since ownership would only pass
to his heirs at the time of his death. Thus, as owner of the property, he had the
absolute right to dispose of it during his lifetime. Now, whether or not the
disposition was valid is an issue that can be resolved only in Civil Case No. 011641, an action instituted by the respondents for that purpose.

DCcIaE

We are, thus, left with the deed of sale and the certificate of title over the property
to consider.
We agree with the RTC that a certificate of title is a conclusive evidence of
ownership of the land described therein; the validity of which shall not be subject
to a collateral attack, especially in an ejectment case which is summary in
nature.

DSATCI

In Ross Rica Sales Center, Inc. v. Ong, 19 the Court held that:
The long settled rule is that the issue of ownership cannot be subject of
a collateral attack.

IcTEAD

In Apostol v. Court of Appeals, this Court had the occasion to clarify this:
. . . Under Section 48 of Presidential Decree No. 1529, a
certificate of title shall not be subject to collateral attack. It cannot
be altered, modified or cancelled, except in a direct proceeding for
that purpose in accordance with law. The issue of the validity of
the title of the respondents can only be assailed in an action
expressly instituted for that purpose. Whether or not the
petitioners have the right to claim ownership over the property is
beyond the power of the court a quo to determine in an action for
unlawful detainer.

SECcIH

Further, in Co v. Militar, 20 it was held that:


[T]he Torrens System was adopted in this country because it was
believed to be the most effective measure to guarantee the integrity of

land titles and to protect their indefeasibility once the claim of ownership
is established and recognized.

IaTSED

It is settled that a Torrens Certificate of title is indefeasible and binding


upon the whole world unless and until it has been nullified by a court of
competent jurisdiction. Under existing statutory and decisional law, the
power to pass upon the validity of such certificate of title at the first
instance properly belongs to the Regional Trial Courts in a direct
proceeding for cancellation of title.

aIcDCA

As the registered owner, petitioner had a right to the possession of the


property, which is one of the attributes of ownership. . . .

We emphasize, however, that our ruling on the issue of ownership is only


provisional to determine who between the parties has the better right of
possession. It is, therefore, not conclusive as to the issue of ownership, which is
the subject matter of Civil Case No. 01-1641. Our ruling that petitioner has a
better right of possession was arrived at on the basis of evidence without
prejudice to the eventual outcome of the annulment case, where the issue as to
who has title to the property in question is fully threshed out. As the law now
stands, in an ejectment suit, the question of ownership may be provisionally ruled
upon for the sole purpose of determining who is entitled to possession de
facto.

EScAID

WHEREFORE, in view of the foregoing, the Decision of the Court of Appeals in


CA-G.R. SP No. 91442 dated June 27, 2006 is REVERSED and SET ASIDE.
The Decision of the Regional Trial Court of Makati City, Branch 134, in Civil Case
No. 03-517, reversing the Decision of the Metropolitan Trial Court (MTC) of
Makati City, Branch 63, in Civil Case No. 75717, is REINSTATED.
SO ORDERED.
Austria-Martinez, Chico-Nazario, Nachura and Reyes, JJ., concur.
|||

(Rodriguez v. Rodriguez, G.R. No. 175720, [September 11, 2007], 559 PHIL

398-408)

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