1
SECOND DIVISION
ROLANDO TING, G.R. No. 168913
Petitioner,
- versus - Promulgated:
HEIRS OF DIEGO LIRIO, namely: FLORA
A. LIRIO, AMELIA L. ROSKA, AURORA L. March 14, 2007
ABEJO, ALICIA L. DUNQUE, ADELAIDA L.
DAVID, EFREN A. LIRIO and JOCELYN
ANABELLE L. ALCOVER,
Respondents
DECISION
CARPIO MORALES, J.:
In a Decision of December 10, 1976 in Land Registration Case (LRC) No. N-
983, then Judge Alfredo Marigomen of the then Court of First Instance of
Cebu, Branch 7, granted the application filed by the Spouses Diego Lirio and
Flora Atienza for registration of title to Lot No. 18281 (the lot) of the Cebu
Cadastral 12 Extension, Plan Rs-07-000787.
The decision in LRC No. N-983 became final and executory on January 29,
1977. Judge Marigomen thereafter issued an order of November 10,
1982 directing the Land Registration Commission to issue the corresponding
decree of registration and the certificate of title in favor of the spouses Lirio.
On February 12, 1997, Rolando Ting (petitioner) filed with the Regional Trial
Court (RTC) of Cebu an application for registration of title to the same
lot. The application was docketed as LRC No. 1437-N.[1]
The herein respondents, heirs of Diego Lirio, namely: Flora A. Lirio,
Amelia L. Roska, Aurora L. Abejo, Alicia L. Dunque, Adelaida L. David, Efren A.
Lirio and Jocelyn Anabelle L. Alcover, who were afforded the opportunity to
file an opposition to petitioners application by Branch 21 of the Cebu RTC,
filed their Answer[2] calling attention to the December 10, 1976 decision in
LRC No. N-983 which had become final and executory on January 29,
1977 and which, they argued, barred the filing of petitioners application on
the ground of res judicata.
After hearing the respective sides of the parties, Branch 21 of the
Cebu RTC, on motion of respondents, dismissed petitioners application on the
ground of res judicata. [3]
Hence, the present petition for review on certiorari which raises the sole
issue of whether the decision in LRC No. N-983 constitutes res judicata in LRC
No. 1437-N.
Petitioner argues that although the decision in LRC No. N-983 had become
final and executory on January 29, 1977, no decree of registration has been
issued by the Land Registration Authority (LRA);[4] it was only on July 26,
2003 that the extinct decision belatedly surfaced as basis of respondents
motion to dismiss LRC No. 1437-N;[5] and as no action for revival of the said
decision was filed by respondents after the lapse of the ten-year prescriptive
period, the cause of action in the dormant judgment pass[d] into extinction. [6]
Petitioner thus concludes that an extinct judgment cannot be the basis of res
judicata.[7]
The petition fails.
Section 30 of Presidential Decree No. 1529 or the Property Registration
Decree provides:
SEC. 30. When judgment becomes final; duty to cause
issuance of decree. The judgment rendered in a land
registration proceeding becomes final upon the
expiration of thirty days[8] to be counted from the date of
receipt of notice of the judgment. An appeal may be taken
from the judgment of the court as in ordinary civil cases.
After judgment has become final and executory, it shall
devolve upon the court to forthwith issue an order in
accordance with Section 39 of this Decree to the
Commissioner for the issuance of the decree of registration
and the corresponding certificate of title in favor of the
person adjudged entitled to registration. (Emphasis supplied)
In a registration proceeding instituted for the registration of a private land,
with or without opposition, the judgment of the court confirming the title of
the applicant or oppositor, as the case may be, and ordering its registration
in his name constitutes, when final, res judicata against the whole world.[9] It
becomes final when no appeal within the reglementary period is taken from a
judgment of confirmation and registration.[10]
The land registration proceedings being in rem, the land registration courts
approval in LRC No. N-983 of spouses Diego Lirio and Flora Atienzas
application for registration of the lot settled its ownership, and is binding on
the whole world including petitioner.
Explaining his position that the December 10, 1976 Decision in LRC No. N-
983 had become extinct, petitioner advances that the LRA has not issued the
decree of registration, a certain Engr. Rafaela Belleza, Chief
of the Survey Assistance Section, Land Management Services, Department of
Environment and Natural Resources (DENR), Region 7, Cebu City having
claimed that the survey of the Cebu Cadastral Extension is erroneous and all
resurvey within the Cebu Cadastral extension must first be approved by
the Land Management Services of the DENR, Region 7, Cebu City before said
resurvey may be used in court; and that the spouses Lirio did not comply
with the said requirement for they instead submitted to the court a mere
special work order. [11]
There is, however, no showing that the LRA credited the alleged
claim of Engineer Belleza and that it reported such claim to the land
registration court for appropriate action or reconsideration of the decision
which was its duty.
 2

Petitioners insist that the duty of the respondent land
registration officials to issue the decree is purely ministerial.
It is ministerial in the sense that they act under the orders of
the court and the decree must be in conformity with the
decision of the court and with the data found in the record,
and they have no discretion in the matter. However, if they
are in doubt upon any point in relation to the
preparation and issuance of the decree, it is their duty
to refer the matter to the court. They act, in this
respect, as officials of the court and not as
administrative officials, and their act is the act of the
court. They are specifically called upon to extend
assistance to courts in ordinary and cadastral land
registration proceedings.[12] (Emphasis supplied)
As for petitioners claim that under Section 6, Rule 39 of the Rules of
Court reading:
SEC. 6. Execution by motion or by independent action. A final
and executory judgment or order may be executed on motion
within five (5) years from the date of its entry. After the lapse
of such time, and before it is barred by the statute of
limitations, a judgment may be enforced by action. The
revived judgment may also be enforced by motion within five
(5) years from the date of its entry and thereafter by action
before it is barred by the statute of limitations[,]
failure to act to enforce the same within a reasonable
time as provided in the Rules makes the decision
unenforceable against the losing party. In special
proceedings the purpose is to establish
a status, condition or fact; in land registration
proceedings, the
ownership by a person of a parcel of land is sought to
be established. After the ownership has been proved
and confirmed
by judicial declaration, no further proceeding to
enforce said ownership is necessary, except when the
adverse or losing party had been in possession of the
land and the winning party desires to oust him
therefrom.
Furthermore, there is no provision in the Land Registration
Act similar to Sec. 6, Rule 39, regarding the execution of a
judgment in a civil action, except the proceedings to place
the winner in possession by virtue of a writ of possession.
The decision in a land registration case, unless the adverse
or losing party is in possession, becomes final without any
further action, upon the expiration of the period for
perfecting an appeal.
x x x x (Emphasis and underscoring supplied)

the December 10, 1976 decision became extinct in light of the failure of WHEREFORE, the petition is, in light of the foregoing discussions, DENIED.
respondents and/or of their predecessors-in-interest to execute the same
within the prescriptive period, the same does not lie.

Sta. Ana v. Menla, et al.[13] enunciates the raison detre why Section 6, Rule 39
does not apply in land registration proceedings, viz:

THAT THE LOWER COURT ERRED IN ORDERING THAT THE

DECISION RENDERED IN THIS LAND REGISTRATION CASE
ON NOVEMBER 28, 1931 OR TWENTY SIX YEARS AGO, HAS
NOT YET BECOME FINAL AND UNENFORCEABLE.

We fail to understand the arguments of the appellant in

support of the above assignment, except in so far as it
supports his theory that after a decision in a land registration
case has become final, it may not be enforced after the lapse
of a period of 10 years, except by another proceeding to
enforce the judgment or decision. Authority for this theory is
the provision in the Rules of Court to the effect that judgment
may be enforced within 5 years by motion, and after five
years but within 10 years, by an action (Sec. 6, Rule
39.) This provision of the Rules refers to civil actions
and is not applicable to special proceedings, such as a
land registration case. This is so because a party in a
civil action must immediately enforce a judgment that
is secured as against the adverse party, and his

SECOND DIVISION
[G.R. No. 129242. January 16, 2001]
PILAR S. VDA. DE MANALO, ANTONIO S. MANALO, ORLANDO S.
MANALO, and ISABELITA MANALO, petitioners, vs. HON. COURT OF
APPEALS, HON. REGIONAL TRIAL COURT OF MANILA (BRANCH 35),
PURITA S. JAYME, MILAGROS M. TERRE, BELEN M. ORILLANO,
ROSALINA M. ACUIN, ROMEO S. MANALO, ROBERTO S. MANALO,
AMALIA MANALO and IMELDA MANALO, respondents.
DECISION
DE LEON, JR., J.:
This is a petition for review on certiorari filed by petitioners Pilar S. Vda.
De Manalo, et. al., seeking to annul the Resolution [1] of the Court of
Appeals[2] affirming the Orders[3] of the Regional Trial Court and the
Resolution[4]which denied petitioners motion for reconsideration.
The antecedent facts[5] are as follows:
Troadio Manalo, a resident of 1966 Maria Clara Street, Sampaloc, Manila
died intestate on February 14, 1992. He was survived by his wife, Pilar S.
Manalo, and his eleven (11) children, namely: Purita M. Jayme, Antonio
Manalo, Milagros M. Terre, Belen M. Orillano, Isabelita Manalo, Rosalina M.
Acuin, Romeo Manalo, Roberto Manalo, Amalia Manalo, Orlando Manalo, and
Imelda Manalo, who are all of legal age.
At the time of his death on February 14, 1992, Troadio Manalo left
several real properties located in Manila and in the province of Tarlac
including a business under the name and style Manalos Machine Shop with
offices at No. 19 Calavite Street, La Loma, Quezon City and at No. 45 Gen.
Tinio Street, Arty Subdivision, Valenzuela, Metro Manila.
On November 26, 1992, herein respondents, who are eight (8) of the
surviving children of the late Troadio Manalo, namely: Purita, Milagros, Belen,
Rosalina, Romeo, Roberto, Amalia, and Imelda filed a petition [6] with the
respondent Regional Trial Court of Manila[7] for the judicial settlement of the
estate of their late father, Troadio Manalo, and for the appointment of their
brother, Romeo Manalo, as administrator thereof.
On December 15, 1992, the trial court issued an order setting the said
petition for hearing on February 11, 1993 and directing the publication of the
order for three (3) consecutive weeks in a newspaper of general circulation in
Metro Manila, and further directing service by registered mail of the said
order upon the heirs named in the petition at their respective addresses
mentioned therein.
On February 11, 1993, the date set for hearing of the petition, the trial
court issued an order declaring the whole world in default, except the
3
government, and set the reception of evidence of the petitioners therein on
March 16, 1993. However, this order of general default was set aside by the
trial court upon motion of herein petitioners (oppositors therein) namely: Pilar
S. Vda. De Manalo, Antonio, Isabelita and Orlando who were granted ten (10)
days within which to file their opposition to the petition.
Several pleadings were subsequently filed by herein petitioners, through
counsel, culminating in the filing of an Omnibus Motion [8] on July 23, 1993
seeking: (1) to set aside and reconsider the Order of the trial court dated July
9, 1993 which denied the motion for additional extension of time to file
opposition; (2) to set for preliminary hearing their affirmative defenses as
grounds for dismissal of the case; (3) to declare that the trial court did not
acquire jurisdiction over the persons of the oppositors; and (4) for the
immediate inhibition of the presiding judge.
On July 30, 1993, the trial court issued an order [9] which resolved, thus:
A. To admit the so-called Opposition filed by counsel for the
oppositors on July 20, 1993, only for the purpose of considering
the merits thereof;
B. To deny the prayer of the oppositors for a preliminary hearing of
their affirmative defenses as ground for the dismissal of this
proceeding, said affirmative defenses being irrelevant and
immaterial to the purpose and issue of the present proceeding;
C. To declare that this court has acquired jurisdiction over the
persons of the oppositors;
D. To deny the motion of the oppositors for the inhibition of this
Presiding Judge;
E. To set the application of Romeo Manalo for appointment as
regular administrator in the intestate estate of the deceased
Troadio Manalo for hearing on September 9, 1993 at 2:00 oclock
in the afternoon.
Herein petitioners filed a petition for certiorari under Rule 65 of the
Rules of Court with the Court of Appeals, docketed as CA-G.R. SP. No. 39851,
after their motion for reconsideration of the Order dated July 30, 1993 was
denied by the trial court in its Order[10] dated September 15, 1993. In their
petition for certiorari with the appellate court, they contend that: (1) the
venue was improperly laid in SP. PROC. No. 92-63626; (2) the trial court did
not acquire jurisdiction over their persons; (3) the share of the surviving
spouse was included in the intestate proceedings; (4) there was absence of
earnest efforts toward compromise among members of the same family; and
(5) no certification of non-forum shopping was attached to the petition.
Finding the contentions untenable, the Court of Appeals dismissed the
petition for certiorari in its Resolution[11] promulgated on September 30,
1996. On May 6, 1997 the motion for reconsideration of the said resolution
was likewise dismissed.[12]
The only issue raised by herein petitioners in the instant petition for
review is whether or not the respondent Court of Appeals erred in upholding
the questioned orders of the respondent trial court which denied their motion
for the outright dismissal of the petition for judicial settlement of estate
despite the failure of the petitioners therein to aver that earnest efforts

toward a compromise involving members of the same family have been
made prior to the filing of the petition but that the same have failed.
Herein petitioners claim that the petition in SP. PROC No. 92-63626 is
actually an ordinary civil action involving members of the same family. They
point out that it contains certain averments which, according to them, are
indicative of its adversarial nature, to wit:
xxx
Par. 7. One of the surviving sons, ANTONIO MANALO, since the
death of his father, TROADIO MANALO, had not made any
settlement, judicial or extra-judicial of the properties of the
deceased father, TROADIO MANALO.
Par. 8. xxx the said surviving son continued to manage and control
the properties aforementioned, without proper accounting, to his
own benefit and advantage xxx.
xxx
Par. 12. That said ANTONIO MANALO is managing and controlling
the estate of the deceased TROADIO MANALO to his own
advantage and to the damage and prejudice of the herein
petitioners and their co-heirs xxx.
xxx
Par. 14. For the protection of their rights and interests, petitioners
were compelled to bring this suit and were forced to litigate and
incur expenses and will continue to incur expenses of not less
than, P250,000.00 and engaged the services of herein counsel
committing to pay P200,000.00 as and for attorneys fees plus
honorarium of P2,500.00 per appearance in court xxx. [13]
Consequently, according to herein petitioners, the same should be
dismissed under Rule 16, Section 1(j) of the Revised Rules of Court which
provides that a motion to dismiss a complaint may be filed on the ground
that a condition precedent for filing the claim has not been complied with,
that is, that the petitioners therein failed to aver in the petition in SP. PROC.
No. 92-63626, that earnest efforts toward a compromise have been made
involving members of the same family prior to the filing of the petition
pursuant to Article 222[14] of the Civil Code of the Philippines.
The instant petition is not impressed with merit.
It is a fundamental rule that, in the determination of the nature of an
action or proceeding, the averments [15] and the character of the relief
sought[16] in the complaint, or petition, as in the case at bar, shall be
controlling. A careful scrutiny of the Petition for Issuance of Letters of
Administration, Settlement and Distribution of Estate in SP. PROC. No. 92-
63626 belies herein petitioners claim that the same is in the nature of an
ordinary civil action. The said petition contains sufficient jurisdictional facts
required in a petition for the settlement of estate of a deceased person such
as the fact of death of the late Troadio Manalo on February 14, 1992, as well
as his residence in the City of Manila at the time of his said death. The fact of
death of the decedent and of his residence within the country are foundation
facts upon which all the subsequent proceedings in the administration of the
estate rest.[17]
The petition in SP. PROC. No. 92-63626 also contains an enumeration of
the names of his legal heirs including a tentative list of the properties left by
4
the deceased which are sought to be settled in the probate proceedings. In
addition, the reliefs prayed for in the said petition leave no room for doubt as
regard the intention of the petitioners therein (private respondents herein) to
seek judicial settlement of the estate of their deceased father, Troadio
Manalo, to wit:
PRAYER
WHEREFORE, premises considered, it is respectfully prayed for of this
Honorable Court:
(a) That after due hearing, letters of administration be issued to
petitioner ROMEO MANALO for the administration of the estate
of the deceased TORADIO MANALO upon the giving of a bond in
such reasonable sum that this Honorable Court may fix.
(b) That after all the properties of the deceased TROADIO MANALO
have been inventoried and expenses and just debts, if any, have
been paid and the legal heirs of the deceased fully determined,
that the said estate of TROADIO MANALO be settled and
distributed among the legal heirs all in accordance with law.
c) That the litigation expenses o these proceedings in the amount
of P250,000.00 and attorneys fees in the amount of P300,000.00
plus honorarium of P2,500.00 per appearance in court in the
hearing and trial of this case and costs of suit be taxed solely
against ANTONIO MANALO.[18]
Concededly, the petition in SP. PROC. No. 92-63626 contains certain
averments which may be typical of an ordinary civil action. Herein
petitioners, as oppositors therein, took advantage of the said defect in the
petition and filed their so-called Opposition thereto which, as observed by
the trial court, is actually an Answer containing admissions and denials,
special and affirmative defenses and compulsory counterclaims for actual,
moral and exemplary damages, plus attorney's fees and costs [19] in an
apparent effort to make out a case of an ordinary civil action an ultimately
seek its dismissal under Rule 16, Section 1(j) of the Rules of Court vis--vis,
Article 222 of the Civil Code.
It is our view that herein petitioners may not be allowed to defeat the
purpose of the essentially valid petition for the settlement of the estate of
the late Troadio Manalo by raising matters that are irrelevant and immaterial
to the said petition. It must be emphasized that the trial court, sitting, as a
probate court, has limited and special jurisdiction [20] and cannot hear and
dispose of collateral matters and issues which may be properly threshed out
only in an ordinary civil action. In addition, the rule has always been to the
effect that the jurisdiction of a court, as well as the concomitant nature of an
action, is determined by the averments in the complaint and not by the
defenses contained in the answer. If it were otherwise, it would not be too
difficult to have a case either thrown out of court or its proceedings unduly
delayed by simple strategem.[21] So it should be in the instant petition for
settlement of estate.
Herein petitioners argue that even if the petition in SP. PROC. No. 92-
63626 were to be considered as a special proceeding for the settlement of
estate of a deceased person, Rule 16, Section 1(j) of the Rules of Court vis-a-
vis Article 222 of the Civil Code of the Philippines would nevertheless apply
as a ground for the dismissal of the same by virtue of Rule 1, Section 2 of the
Rules of Court which provides that the rules shall be liberally construed in
 5

order to promote their object and to assist the parties in obtaining just,
speedy and inexpensive determination of every action and proceeding.
Petitioners contend that the term proceeding is so broad that it must
necessarily include special proceedings.

The argument is misplaced. Herein petitioners may not validly take

refuge under the provisions of Rule 1, Section 2, of the Rules of Court to
justify the invocation of Article 222 of the Civil Code of the Philippines for the
dismissal of the petition for settlement of the estate of the deceased Troadio
Manalo inasmuch as the latter provision is clear enough, to wit:
Art. 222. No suit shall be filed or maintained between members of the same
family unless it should appear that earnest efforts toward a compromise have
been made, but that the same have failed, subject to the limitations in Article
2035 (underscoring supplied).[22]

The above-quoted provision of the law is applicable only to ordinary civil

actions. This is clear from the term suit that it refers to an action by one
person or persons against another or others in a court of justice in which the
plaintiff pursues the remedy which the law affords him for the redress of an
injury or the enforcement of a right, whether at law or in equity. [23] A civil
action is thus an action filed in a court of justice, whereby a party sues
another for the enforcement of a right, or the prevention or redress of a
wrong.[24] Besides, an excerpt from the Report of the Code Commission
unmistakably reveals the intention of the Code Commission to make that
legal provision applicable only to civil actions which are essentially
adversarial and involve members of the same family, thus:

It is difficult to imagine a sadder and more tragic spectacle than a litigation

between members of the same family. It is necessary that every effort should
be made toward a compromise before a litigation is allowed to breed hate
and passion in the family. It is known that lawsuit between close relatives
generates deeper bitterness than strangers. [25]

It must be emphasized that the oppositors (herein petitioners) are not

being sued in SP. PROC. No. 92-63626 for any cause of action as in fact no
defendant was impleaded therein. The Petition for Issuance of Letters of
Administration, Settlement and Distribution of Estate in SP. PROC. No. 92-
63626 is a special proceeding and, as such, it is a remedy whereby the
petitioners therein seek to establish a status, a right, or a particular fact.
[26]
The petitioners therein (private respondents herein) merely seek to
establish the fact of death of their father and subsequently to be duly
recognized as among the heirs of the said deceased so that they can validly
exercise their right to participate in the settlement and liquidation of the
estate of the decedent consistent with the limited and special jurisdiction of
the probate court.

WHEREFORE, the petition in the above-entitled case, is DENIED for lack

of merit. Costs against petitioners.
SO ORDERED.

THIRD DIVISION
[G.R. No. 163604. May 6, 2005]
REPUBLIC OF THE PHILIPPINES, petitioner, vs. THE HON. COURT OF
APPEALS (Twentieth Division), HON. PRESIDING JUDGE FORTUNITO L.
MADRONA, RTC-BR. 35 and APOLINARIA MALINAO
JOMOC, respondents.
DECISION
CARPIO-MORALES, J.:
In In the Matter of Declaration of Presumptive Death of Absentee Spouse
Clemente P. Jomoc, Apolinaria Malinao Jomoc, petitioner, the Ormoc City,
Regional Trial Court, Branch 35, by Order of September 29, 1999,[1] granted
the petition on the basis of the Commissioners Report [2] and accordingly
declared the absentee spouse, who had left his petitioner-wife nine years
earlier, presumptively dead.
In granting the petition, the trial judge, Judge Fortunito L. Madrona, cited
Article 41, par. 2 of the Family Code. Said article provides that for the
purpose of contracting a valid subsequent marriage during the subsistence of
a previous marriage where the prior spouse had been absent for four
consecutive years, the spouse present must institute summary
proceedings for the declaration of presumptive death of the absentee
spouse, without prejudice to the effect of the reappearance of the absent
spouse.
The Republic, through the Office of the Solicitor General, sought to
appeal the trial courts order by filing a Notice of Appeal. [3] By Order
of November 22, 1999s,[4] the trial court, noting that no record of appeal was
filed and served as required by and pursuant to Sec. 2(a), Rule 41 of the
1997 Rules of Civil Procedure, the present case being a special proceeding,
disapproved the Notice of Appeal.
The Republics Motion for Reconsideration of the trial courts order of
disapproval having been denied by Order of January 13, 2000,[5] it filed a
Petition for Certiorari[6] before the Court of Appeals, it contending that the
declaration of presumptive death of a person under Article 41 of the Family
6
Code is not a special proceeding or a case of multiple or separate appeals
requiring a record on appeal.
By Decision of May 5, 2004, [7] the Court of Appeals denied the Republics
petition on procedural and substantive grounds in this wise: At the outset, it
must be stressed that the petition is not sufficient in form. It failed to attach
to its petition a certified true copy of the assailed Order dated January 13,
2000 [denying its Motion for Reconsideration of the November 22, 1999
Order disapproving its Notice of Appeal]. Moreover, the petition questioned
the [trial courts] Order dated August 15, 1999, which declared Clemente
Jomoc presumptively dead, likewise for having been issued with grave abuse
of discretion amounting to lack of jurisdiction, yet, not even a copy could be
found in the records. On this score alone, the petition should have been
dismissed outright in accordance with Sec. 3, Rule 46 of the Rules of Court.
However, despite the procedural lapses, the Court resolves to delve deeper
into the substantive issue of the validity/nullity of the assailed order.
The principal issue in this case is whether a petition for declaration
of the presumptive death of a person is in the nature of a special
proceeding. If it is, the period to appeal is 30 days and the party appealing
must, in addition to a notice of appeal, file with the trial court a record on
appeal to perfect its appeal. Otherwise, if the petition is an ordinary action,
the period to appeal is 15 days from notice or decision or final order
appealed from and the appeal is perfected by filing a notice of appeal
(Section 3, Rule 41, Rules of Court).
As defined in Section 3(a), Rule 1 of the Rules of Court, a civil action is one
by which a party sues another for the enforcement or protection of a right, or
the prevention of redress of a wrong while a special proceeding under
Section 3(c) of the same rule is defined as a remedy by which a party seeks
to establish a status, a right or a particular fact (Heirs of Yaptinchay, et al. v.
Del Rosario, et al., G.R. No. 124320, March 2, 1999).
Considering the aforementioned distinction, this Court finds that the instant
petition is in the nature of a special proceeding and not an ordinary
action. The petition merely seeks for a declaration by the trial court of the
presumptive death of absentee spouse Clemente Jomoc. It does not seek the
enforcement or protection of a right or the prevention or redress of a wrong.
Neither does it involve a demand of right or a cause of action that can be
enforced against any person.
On the basis of the foregoing discussion, the subject Order dated January 13,
2000 denying OSGs Motion for Reconsideration of the Order dated November
22, 1999 disapproving its Notice of Appeal was correctly issued. The instant
petition, being in the nature of a special proceeding, OSG should
have filed, in addition to its Notice of Appeal, a record on appeal in
accordance with Section 19 of the Interim Rules and Guidelines to Implement
BP Blg. 129 and Section 2(a), Rule 41 of the Rules of Court . . . (Emphasis and
underscoring supplied)
The Republic (petitioner) insists that the declaration of presumptive
death under Article 41 of the Family Code is not a special proceeding
involving multiple or separate appeals where a record on appeal shall be filed
and served in like manner.

Petitioner cites Rule 109 of the Revised Rules of Court which enumerates
the cases wherein multiple appeals are allowed and a record on appeal is
required for an appeal to be perfected. The petition for the declaration of
presumptive death of an absent spouse not being included in the
enumeration, petitioner contends that a mere notice of appeal suffices.
By Resolution of December 15, 2004, [8] this Court, noting that copy of
the September 27, 2004 Resolution [9] requiring respondent to file her
comment on the petition was returned unserved with postmasters notation
Party refused, Resolved to consider that copy deemed served upon her.
The pertinent provisions on the General Provisions on Special
Proceedings, Part II of the Revised Rules of Court entitled SPECIAL
PROCEEDINGS, read:
RULE 72
SUBJECT MATTER AND APPLICABILITY OF GENERAL RULES
Section 1. Subject matter of special proceedings. Rules of special
proceedings are provided for in the following:
(a) Settlement of estate of deceased persons;
(b) Escheat;
(c) Guardianship and custody of children;
(d) Trustees;
(e) Adoption;
(f) Rescission and revocation of adoption;
(g) Hospitalization of insane persons;
(h) Habeas corpus;
(i) Change of name;
(j) Voluntary dissolution of corporations;
(k) Judicial approval of voluntary recognition of minor natural
children;
(l) Constitution of family home;
(m) Declaration of absence and death;
(n) Cancellation or correction of entries in the civil registry.
Sec. 2. Applicability of rules of civil actions. In the absence of special
provisions, the rules provided for in ordinary actions shall be, as far as
practicable, applicable in special proceedings. (Underscoring supplied)
The pertinent provision of the Civil Code on presumption of death
provides:
Art. 390. After an absence of seven years, it being unknown whether or not
the absentee still lives, he shall be presumed dead for all purposes, except
for those of succession.
Upon the other hand, Article 41 of the Family Code, upon which the trial
court anchored its grant of the petition for the declaration of presumptive
death of the absent spouse, provides:
Art. 41. A marriage contracted by any person during the subsistence of
a previous marriage shall be null and void, unless before the celebration
of the subsequent marriage, the prior spouses had been absent for four
consecutive years and the spouse present had a well-founded belief
that the absent spouses was already dead. In case of disappearance
7
where there is danger of death under the circumstances set forth in the
provisions of Article 391 of the Civil Code, an absence of only two years
shall be sufficient.
For the purpose pf contracting the subsequent marriage under the preceding
paragraph, the spouses present must institute a summary proceeding as
provided in this Code for the declaration of presumptive death of the
absentee, without prejudice to the effect of a reappearance of the absent
spouse. (Emphasis and underscoring supplied)
Rule 41, Section 2 of the Revised Rules of Court, on Modes of Appeal,
invoked by the trial court in disapproving petitioners Notice of Appeal,
provides:
Sec. 2. Modes of appeal. -
(a) Ordinary appeal. - The appeal to the Court of Appeals in cases
decided by the Regional Trial Court in the exercise of its original
jurisdiction shall be taken by filing a notice of appeal with the court
which rendered the judgment or final order appealed from and serving a
copy thereof upon the adverse party. No record on appeal shall be
required except in special proceedings and other cases of multiple
or separate appeals where the law or these Rules so require. In
such cases, the record on appeal shall be filed and served in like
manner. (Emphasis and underscoring supplied)
xxx
By the trial courts citation of Article 41 of the Family Code, it is gathered
that the petition of Apolinaria Jomoc to have her absent spouse declared
presumptively dead had for its purpose her desire to contract a valid
subsequent marriage. Ergo, the petition for that purpose is a summary
proceeding, following above-quoted Art. 41, paragraph 2 of the Family
Code.
Since Title XI of the Family Code, entitled SUMMARY JUDICIAL
PROCEEDING IN
THE FAMILY LAW, contains the following provision, inter alia:
xxx
Art. 238. Unless modified by the Supreme Court, the procedural rules in this
Title shall apply in all cases provided for in this Codes requiring summary
court proceedings. Such cases shall be decided in an expeditious
manner without regard to technical rules. (Emphasis and underscoring
supplied)
x x x,
there is no doubt that the petition of Apolinaria Jomoc required, and is,
therefore, a summary proceeding under the Family Code, not a special
proceeding under the Revised Rules of Court appeal for which calls for the
filing of a Record on Appeal. It being a summary ordinary proceeding, the
filing of a Notice of Appeal from the trial courts order sufficed.
That the Family Code provision on repeal, Art. 254, provides as follows:
Art. 254. Titles III, IV, V, VI, VII, VIII, IX, XI and XV of Book I of Republic Act No.
386, otherwise known as the Civil Code of the Philippines, as amended, and
Articles 17, 18, 19, 27, 28, 29, 30, 31, 39, 40, 41 and 42 of Presidential
Decree No. 603, otherwise known as the Child and Youth Welfare Code, as

amended, and all laws, decrees, executive orders, proclamations rules and
regulations, or parts thereof, inconsistent therewith are
hereby repealed, (Emphasis and underscoring supplied),
seals the case in petitioners favor.
Finally, on the alleged procedural flaw in petitioners petition before the
appellate court. Petitioners failure to attach to his petition before the
appellate court a copy of the trial courts order denying its motion for
reconsideration of the disapproval of its Notice of Appeal is not necessarily
fatal, for the rules of procedure are not to be applied in a technical sense.
Given the issue raised before it by petitioner, what the appellate court should
have done was to direct petitioner to comply with the rule.
As for petitioners failure to submit copy of the trial courts order granting
the petition for declaration of presumptive death, contrary to the appellate
courts observation that petitioner was also assailing it, petitioners 8-page
petition[10] filed in said court does not so reflect, it merely having assailed
the order disapproving the Notice of Appeal.
WHEREFORE, the assailed May 5, 2004 Decision of the Court of
Appeals is hereby REVERSED and SET ASIDE. Let the case be REMANDED to
it for appropriate action in light of the foregoing discussion.
SO ORDERED.
THIRD DIVISION
[G.R. No. 160258. January 19, 2005]
REPUBLIC OF THE PHILIPPINES, petitioner, vs. GLORIA BERMUDEZ-
LORINO, respondent.
DECISION
GARCIA, J.:
Via this petition for review on certiorari under Rule 45 of the Rules of
Court, petitioner Republic of the Philippines, represented by the Office of the
Solicitor General (OSG), seeks the reversal and setting aside of the decision
dated September 23, 2003 of the Court of Appeals in CA-G.R. CV No. 73884,
which affirmed on appeal an earlier decision of the Regional Trial Court (RTC)
at San Mateo, Rizal in a summary judicial proceeding thereat commenced by
the herein respondent Gloria Bermudez-Lorino for the declaration of the
presumptive death of her absent spouse, Francisco Lorino, Jr., based on the
provisions of Article 41 of the Family Code, for purposes of remarriage.
The facts may be summarized, as follows:
Respondent Gloria Bermudez-Lorino (Gloria for brevity), and her
husband were married on June 12, 1987. Out of this marriage, she begot
three (3) children, namely: Francis Jeno, Fria Lou and Fatima.
8
Before they got married in 1987, Gloria was unaware that her husband
was a habitual drinker, possessed with violent character/attitude, and had
the propensity to go out with friends to the extent of being unable to engage
in any gainful work.
Because of her husbands violent character, Gloria found it safer to leave
him behind and decided to go back to her parents together with her three (3)
children. In order to support the children, Gloria was compelled to work
abroad.
From the time of her physical separation from her husband in 1991,
Gloria has not heard of him at all. She had absolutely no communications
with him, or with any of his relatives.
On August 14, 2000, nine (9) years after she left her husband, Gloria
filed a verified petition with the Regional Trial Court (RTC) at San Mateo, Rizal
under the rules on Summary Judicial Proceedings in the Family Law provided
for in the Family Code, which petition was docketed in the same court as
Special Proceeding No. 325-00 SM.
On August 28, 2000, the RTC issued an order directing, inter alia, the
publication of the petition in a newspaper of general circulation, thus: A
verified petition was filed by herein petitioner through counsel alleging that
she married Francisco Lorino, Jr. on June 12, 1987 but because of the violent
character of his husband, she decided to go back to her parents and lived
separately from her husband. After nine (9) years, there was absolutely no
news about him and she believes that he is already dead and is now seeking
through this petition for a Court declaration that her husband is judicially
presumed dead for the purpose of remarriage.
Finding the said petition to be sufficient in form and substance, the same is
hereby set for hearing before this Court on September 18, 2000 at 8:30
oclock in the morning at which place, date and time, any or all persons who
may claim any interest thereto may appear and show cause why the same
should not be granted.
Let a copy of this Order be published in a newspaper of general circulation in
this province once a week for three (3) consecutive weeks and be posted in
the bulletin boards of the Hall of Justice and the Municipal Hall, San Mateo,
Rizal, all at the expense of the petitioner.
Furnish the Office of the Solicitor General a copy of this Order together with a
copy of the petition. Further, send a copy of this Order to the last known
address of Francisco Lorino, Jr. at 719 Burgos St., Sta. Elena, Marikina City.
SO ORDERED[1]
The evidence in support of the summary judicial proceeding are: the
order of publication dated August 28, 2000 (Exhibit A); affidavit of publication
dated September 16, 2000 (Exhibit B)[2]; copies of the newspapers where the
order appeared (Exhibits C to E-1)[3]; a deposition dated September 4, 2000
of Gloria taken in Hong Kong (Exhibit G)[4]; Glorias affidavit dated October 21,
1999, also executed in Hong Kong (Exhibit G-1)[5]; and a certification by
Department of Foreign Affairs Authentication Officer, Catalina C. Gonzalez,
dated November 3, 1999, therein certifying that the signature of Vice Consul

Adriane Bernie C. Candolada, appearing below the jurat in Glorias affidavit of
October 21, 1999, is authentic (Exhibit G-2)[6].
In a decision dated November 7, 2001, the RTC, finding merit in the
summary petition, rendered judgment granting the same, to wit:
WHEREFORE, this Court in view of the facts and circumstances obtaining,
finds the petition with merit and hereby grants its imprimatur to the petition.
Judgment is hereby rendered declaring the presumptive death/absence of
Francisco Lorino, Jr. pursuant to Art. 41 of the New Family Code but subject to
all restrictions and conditions provided therein. SO ORDERED. [7]
Despite the judgment being immediately final and executory under the
provisions of Article 247 of the Family Code, thus:
Art. 247. The judgment of the court shall be immediately final and
executory,
the Office of the Solicitor General, for the Republic of the Philippines,
nevertheless filed a Notice of Appeal.[8] Acting thereon, the RTC had the
records elevated to the Court of Appeals which docketed the case as
CA-G.R. CV No. 73884.
In a decision dated September 23, 2003, the Court of Appeals, treating
the case as an ordinary appealed case under Rule 41 of the Revised Rules on
Civil Procedure, denied the Republics appeal and accordingly affirmed the
appealed RTC decision:
WHEREFORE, based on the foregoing premises, the instant appeal
is DENIED. Accordingly, the appealed November 7, 2001 Decision of the
Regional Trial Court of San Mateo, Rizal in Spec. Proc. No. 325-00 SM is
hereby AFFIRMED.
SO ORDERED.[9]
Without filing any motion for reconsideration, petitioner Republic directly
went to this Court via the instant recourse under Rule 45, maintaining that
the petition raises a pure question of law that does not require prior filing of
a motion for reconsideration.
The foregoing factual antecedents present to this Court the following
issues:
WHETHER OR NOT THE COURT OF APPEALS DULY ACQUIRED
JURISDICTION OVER THE APPEAL ON A FINAL AND EXECUTORY
JUDGMENT OF THE REGIONAL TRIAL COURT; and
WHETHER OR NOT THE FACTUAL AND LEGAL BASES FOR A JUDICIAL
DECLARATION OF PRESUMPTIVE DEATH UNDER ARTICLE 41 OF THE
FAMILY CODE WERE DULY ESTABLISHED IN THIS CASE.
The Court rules against petitioner Republic.
Article 238 of the Family Code, under Title XI: SUMMARY JUDICIAL
PROCEEDINGS IN THE FAMILY LAW, sets the tenor for cases covered by these
rules, to wit:
Art. 238. Until modified by the Supreme Court, the procedural rules in this
Title shall apply in all cases provided for in this Code requiring summary
court proceedings. Such cases shall be decided in an expeditious manner
without regard to technical rules.
9
Judge Elizabeth Balquin-Reyes of RTC, Branch 75, San Mateo, Rizal duly
complied with the above-cited provision by expeditiously rendering judgment
within ninety (90) days after the formal offer of evidence by therein
petitioner, Gloria Bermudez-Lorino.
The problem came about when the judge gave due course to the
Republics appeal upon the filing of a Notice of Appeal, and had the entire
records of the case elevated to the Court of Appeals, stating in her order of
December 18, 2001, as follows:
Notice of Appeal having been filed through registered mail on November 22,
2001 by the Office of the Solicitor General who received a copy of the
Decision in this case on November 14, 2001, within the reglementary period
fixed by the Rules, let the entire records of this case be transmitted to the
Court of Appeals for further proceedings.
SO ORDERED.[10]
In Summary Judicial Proceedings under the Family Code, there is no
reglementary period within which to perfect an appeal, precisely because
judgments rendered thereunder, by express provision of Section 247, Family
Code, supra, are immediately final and executory. It was erroneous,
therefore, on the part of the RTC to give due course to the Republics appeal
and order the transmittal of the entire records of the case to the Court of
Appeals.
An appellate court acquires no jurisdiction to review a judgment which,
by express provision of law, is immediately final and executory. As we have
said in Veloria vs. Comelec, [11] the right to appeal is not a natural right nor is
it a part of due process, for it is merely a statutory privilege. Since, by
express mandate of Article 247 of the Family Code, all judgments rendered in
summary judicial proceedings in Family Law are immediately final and
executory, the right to appeal was not granted to any of the parties therein.
The Republic of the Philippines, as oppositor in the petition for declaration of
presumptive death, should not be treated differently. It had no right to appeal
the RTC decision of November 7, 2001.
It was fortunate, though, that the Court of Appeals, acting through its
Special Fourth Division, with Justice Elvi John S. Asuncion as Acting Chairman
and ponente, denied the Republics appeal and affirmed without modification
the final and executory judgment of the lower court. For, as we have held
in Nacuray vs. NLRC:[12]
Nothing is more settled in law than that when a judgment becomes final and
executory it becomes immutable and unalterable. The same may no longer
be modified in any respect, even if the modification is meant to correct what
is perceived to be an erroneous conclusion of fact or law, and whether made
by the highest court of the land (citing Nunal v. Court of Appeals, G.R. No.
94005, 6 April 1993, 221 SCRA 26).
But, if only to set the records straight and for the future guidance of the
bench and the bar, let it be stated that the RTCs decision dated November 7,
2001, was immediately final and executory upon notice to the parties. It was
erroneous for the OSG to file a notice of appeal, and for the RTC to give due
course thereto. The Court of Appeals acquired no jurisdiction over the case,
and should have dismissed the appeal outright on that ground.

This judgment of denial was elevated to this Court via a petition for
review on certiorari under Rule 45. Although the result of the Court of
Appeals denial of the appeal would apparently be the same, there is a big
difference between having the supposed appeal dismissed for lack of
jurisdiction by virtue of the fact that the RTC decision sought to be appealed
is immediately final and executory, and the denial of the appeal for lack of
merit. In the former, the supposed appellee can immediately ask for the
issuance of an Entry of Judgment in the RTC, whereas, in the latter, the
appellant can still raise the matter to this Court on petition for review and the
RTC judgment cannot be executed until this Court makes the final
pronouncement.
The Court, therefore, finds in this case grave error on the part of both
the RTC and the Court of Appeals. To stress, the Court of Appeals should have
dismissed the appeal on ground of lack of jurisdiction, and reiterated the fact
that the RTC decision of November 7, 2001 was immediately final and
executory. As it were, the Court of Appeals committed grave reversible error
when it failed to dismiss the erroneous appeal of the Republic on ground of
lack of jurisdiction because, by express provision of law, the judgment was
not appealable.
WHEREFORE, the instant petition is hereby DENIED for lack of merit.
No pronouncement as to costs.
SO ORDERED.
EN BANC
G.R. No. L-24742 October 26, 1973
ROSA CAYETANO CUENCO, petitioners,
vs.
10
THE HONORABLE COURT OF APPEALS, THIRD DIVISION, MANUEL
CUENCO, LOURDES CUENCO, CONCEPCION CUENCO MANGUERRA,
CARMEN CUENCO, CONSUELO CUENCO REYES, and TERESITA CUENCO
GONZALEZ, respondents.
TEEHANKEE, J.:
Petition for certiorari to review the decision of respondent Court of Appeals in
CA-G.R. No. 34104-R, promulgated 21 November 1964, and its subsequent
Resolution promulgated 8 July 1964 denying petitioner's Motion for
Reconsideration.
The pertinent facts which gave rise to the herein petition follow:
On 25 February 1964 Senator Mariano Jesus Cuenco died at the Manila
Doctors' Hospital, Manila. He was survived by his widow, the herein
petitioner, and their two (2) minor sons, Mariano Jesus, Jr. and Jesus Salvador,
both surnamed Cuenco, all residing at 69 Pi y Margal St., Sta. Mesa Heights,
Quezon City, and by his children of the first marriage, respondents herein,
namely, Manuel Cuenco, Lourdes Cuenco, Concepcion Cuenco Manguera,
Carmen Cuenco, Consuelo Cuenco Reyes and Teresita Cuenco Gonzales, all of
legal age and residing in Cebu.
On 5 March 1964, (the 9th day after the death of the late
Senator) 1 respondent Lourdes Cuenco filed a Petition for Letters of
Administration with the court of first instance of Cebu (Sp. Proc. No. 2433-R),
alleging among other things, that the late senator died intestate in Manila on
25 February 1964; that he was a resident of Cebu at the time of his death;
and that he left real and personal properties in Cebu and Quezon City. On the
same date, the Cebu court issued an order setting the petition for hearing on
10 April 1964, directing that due notice be given to all the heirs and
interested persons, and ordering the requisite publication thereof at LA
PRENSA, a newspaper of general circulation in the City and Province of Cebu.
The aforesaid order, however, was later suspended and cancelled and a new
and modified one released on 13 March 1964, in view of the fact that the
petition was to be heard at Branch II instead of Branch I of the said Cebu
court. On the same date, a third order was further issued stating that
respondent Lourdes Cuenco's petition for the appointment of a special
administrator dated 4 March 1964 was not yet ready for the consideration of
the said court, giving as reasons the following:
It will be premature for this Court to act thereon, it not having yet
regularly acquired jurisdiction to try this proceeding, the requisite
publication of the notice of hearing not yet having been complied with.
Moreover, copies of the petition have not been served on all of the
heirs specified in the basic petition for the issuance of letters of
administration. 2
In the meantime, or specifically on 12 March 1964, (a week after the filing of
the Cebu petition) herein petitioner Rosa Cayetano Cuenco filed a petition
with the court of first instance of Rizal (Quezon City) for the probate of the
deceased's last will and testament and for the issuance of letters
testamentary in her favor, as the surviving widow and executrix in the said
last will and testament. The said proceeding was docketed as Special
Proceeding No. Q-7898.

Having learned of the intestate proceeding in the Cebu court, petitioner Rosa
Cayetano Cuenco filed in said Cebu court an Opposition and Motion to
Dismiss, dated 30 March 1964, as well as an Opposition to Petition for
Appointment of Special Administrator, dated 8 April 1964. On 10 April 1964,
the Cebu court issued an order holding in abeyance its resolution on
petitioner's motion to dismiss "until after the Court of First Instance of
Quezon City shall have acted on the petition for probate of that document
purporting to be the last will and testament of the deceased Don Mariano
Jesus Cuenco." 3 Such order of the Cebu court deferring to
the probate proceedings in the Quezon City court was neither excepted to
nor sought by respondents to be reconsidered or set aside by the Cebu court
nor did they challenge the same by certiorari or prohibition proceedings in
the appellate courts.
Instead, respondents filed in the Quezon City court an Opposition and Motion
to Dismiss, dated 10 April 1964, opposing probate of the will and assailing
the jurisdiction of the said Quezon City court to entertain petitioner's petition
for probate and for appointment as executrix in Sp. Proc. No. Q-7898 in view
of the alleged exclusive jurisdiction vested by her petition in the Cebu court
in Sp. Proc. No. 2433-R. Said respondent prayed that Sp. Proc. No. Q-7898 be
dismissed for lack of jurisdiction and/or improper venue.
In its order of 11 April 1964, the Quezon City court denied the motion to
dismiss, giving as a principal reason the "precedence of probate proceeding
over an intestate proceeding." 4 The said court further found in said order
that the residence of the late senator at the time of his death was at No. 69
Pi y Margal, Sta. Mesa Heights, Quezon City. The pertinent portion of said
order follows:
On the question of residence of the decedent, paragraph 5 of the
opposition and motion to dismiss reads as follows: "that since the
decedent Don Mariano Jesus Cuenco was a resident of the City of Cebu
at the time of his death, the aforesaid petition filed by Rosa Cayetano
Cuenco on 12 March 1964 was not filed with the proper Court (wrong
venue) in view of the provisions of Section 1 of Rule 73 of the New
Rules of Court ...". From the aforequoted allegation, the Court is made
to understand that the oppositors do not mean to say that the
decedent being a resident of Cebu City when he died, the intestate
proceedings in Cebu City should prevail over the probate proceedings
in Quezon City, because as stated above the probate of the will should
take precedence, but that the probate proceedings should be filed in
the Cebu City Court of First Instance. If the last proposition is the desire
of the oppositors as understood by this Court, that could not also be
entertained as proper because paragraph 1 of the petition for the
probate of the will indicates that Don Mariano Jesus Cuenco at the time
of his death was a resident of Quezon City at 69 Pi y Margal. Annex A
(Last Will and Testament of Mariano Jesus Cuenco) of the petition for
probate of the will shows that the decedent at the time when he
executed his Last Will clearly stated that he is a resident of 69 Pi y
Margal, Sta. Mesa Heights, Quezon City, and also of the City of Cebu.
He made the former as his first choice and the latter as his second
choice of residence." If a party has two residences, the one will be
deemed or presumed to his domicile which he himself selects or
considers to be his home or which appears to be the center of his
11
affairs. The petitioner, in thus filing the instant petition before this
Court, follows the first choice of residence of the decedent and once
this court acquires jurisdiction of the probate proceeding it is to the
exclusion of all others. 5
Respondent Lourdes Cuenco's motion for reconsideration of the Quezon City
court's said order of 11 April 1964 asserting its exclusive jurisdiction over the
probate proceeding as deferred to by the Cebu court was denied on 27 April
1964 and a second motion for reconsideration dated 20 May 1964 was
likewise denied.
On 11 May 1964, pursuant to its earlier order of 11 April 1964, the hearing
for probate of the last will of the decedent was called three times at half-hour
intervals, but notwithstanding due notification none of the oppositors
appeared and the Quezon City court proceeded at 9:00 a.m. with the hearing
in their absence.
As per the order issued by it subsequently on 15 May 1964, the Quezon City
court noted that respondents-oppositors had opposed probate under their
opposition and motion to dismiss on the following grounds:
(a) That the will was not executed and attested as required by law;
(b) That the will was procured by undue and improper pressure and
influence on the part of the beneficiary or some other persons for his
benefit;
(c) That the testator's signature was procured by fraud and/or that the
testator acted by mistake and did not intend that the instrument he
signed should be his will at the time he affixed his signature thereto. 6
The Quezon City court further noted that the requisite publication of the
notice of the hearing had been duly complied with and that all the heirs had
been duly notified of the hearing, and after receiving the testimony of the
three instrumental witnesses to the decedent's last will, namely Atty.
Florencio Albino, Dr. Guillermo A. Picache and Dr. Jose P. Ojeda, and of the
notary public, Atty. Braulio A. Arriola, Jr., who ratified the said last will, and
the documentary evidence (such as the decedent's residence certificates,
income tax return, diplomatic passport, deed of donation) all indicating that
the decedent was a resident of 69 Pi y Margal St., Quezon City, as also
affirmed by him in his last will, the Quezon City court in its said order of 15
May 1964 admitted to probate the late senator's last will and testament as
having been "freely and voluntarily executed by the testator" and "with all
formalities of the law" and appointed petitioner-widow as executrix of his
estate without bond "following the desire of the testator" in his will as
probated.
Instead of appealing from the Quezon City court's said order admitting the
will to probate and naming petitioner-widow as executrix thereof,
respondents filed a special civil action of certiorari and prohibition with
preliminary injunction with respondent Court of Appeals (docketed as case
CA-G.R. No. 34104-R) to bar the Rizal court from proceeding with case No. Q-
7898.
On 21 November 1964, the Court of Appeals rendered a decision in favor of
respondents (petitioners therein) and against the herein petitioner, holding
that:

Section 1, Rule 73, which fixes the venue in proceedings for the
settlement of the estate of a deceased person, covers both testate and
intestate proceedings. Sp. Proc. 2433-R of the Cebu CFI having been filed
ahead, it is that court whose jurisdiction was first invoked and which first
attached. It is that court which can properly and exclusively pass upon
the factual issues of (1) whether the decedent left or did not leave a valid
will, and (2) whether or not the decedent was a resident of Cebu at the
time of his death.
Considering therefore that the first proceeding was instituted in the Cebu
CFI (Special Proceeding 2433-R), it follows that the said court must
exercise jurisdiction to the exclusion of the Rizal CFI, in which the petition
for probate was filed by the respondent Rosa Cayetano Cuenco (Special
Proceeding Q-7898). The said respondent should assert her rights within
the framework of the proceeding in the Cebu CFI, instead of invoking the
jurisdiction of another court.
The respondents try to make capital of the fact that on March 13, 1964,
Judge Amador Gomez of the Cebu CFI, acting in Sp. Proc. 2433-R, stated
that the petition for appointment of special administrator was "not yet
ready for the consideration of the Court today. It would be premature for
this Court to act thereon, it not having yet regularly acquired jurisdiction
to try this proceeding ... . " It is sufficient to state in this connection that
the said judge was certainly not referring to the court's jurisdiction over
the res, not to jurisdiction itself which is acquired from the moment a
petition is filed, but only to the exercise of jurisdiction in relation to the
stage of the proceedings. At all events, jurisdiction is conferred and
determined by law and does not depend on the pronouncements of a
trial judge.
The dispositive part of respondent appellate court's judgment provided as
follows:
ACCORDINGLY, the writ of prohibition will issue, commanding and
directing the respondent Court of First Instance of Rizal, Branch IX,
Quezon City, and the respondent Judge Damaso B. Tengco to refrain
perpetually from proceeding and taking any action in Special Proceeding
Q-7898 pending before the said respondent court. All orders heretofore
issued and actions heretofore taken by said respondent court and
respondent Judge, therein and connected therewith, are hereby annulled.
The writ of injunction heretofore issued is hereby made permanent. No
pronouncement as to costs.
Petitioner's motion for reconsideration was denied in a resolution of
respondent Court of Appeals, dated 8 July 1965; hence the herein petition for
review on certiorari.
The principal and decisive issue at bar is, theretofore, whether the appellate
court erred in law in issuing the writ of prohibition against the Quezon City
court ordering it to refrain perpetually from proceeding with
the testate proceedings and annulling and setting aside all its orders and
actions, particularly its admission to probate of the decedent's last will and
testament and appointing petitioner-widow as executrix thereof without bond
in compliance with the testator's express wish in his testament. This issue is
tied up with the issue submitted to the appellate court, to wit, whether the
Quezon City court acted without jurisdiction or with grave abuse of discretion
12
in taking cognizance and assuming exclusive jurisdiction over the probate
proceedings filed with it, in pursuance of the Cebu court's order of 10 April
1964 expressly consenting in deference to the precedence of probate over
intestate proceedings that it (the Quezon City court) should first act "on the
petition for probate of the document purporting to be the last will and
testament of the deceased Don Mariano Jesus Cuenco" - which order of the
Cebu court respondents never questioned nor challenged by prohibition
or certiorari proceedings and thus enabled the Quezon City court to proceed
without any impediment or obstruction, once it denied respondent Lourdes
Cuenco's motion to dismiss the probate proceeding for alleged lack of
jurisdiction or improper venue, to proceed with the hearing of the petition
and to admit the will to probate upon having been satisfied as to its due
execution and authenticity.
The Court finds under the above-cited facts that the appellate court erred in
law in issuing the writ of prohibition against the Quezon City court from
proceeding with the testate proceedings and annulling and setting aside all
its orders and actions, particularly its admission to probate of the deceased's
last will and testament and appointing petitioner-widow as executrix thereof
without bond pursuant to the deceased testator's express wish, for the
following considerations:
1. The Judiciary Act 7 concededly confers original jurisdiction upon all Courts
of First Instance over "all matter of probate, both of testate and intestate
estates." On the other hand, Rule 73, section of the Rules of Court lays down
the rule of venue, as the very caption of the Rule indicates, and in order to
prevent conflict among the different courts which otherwise may properly
assume jurisdiction from doing so, the Rule specifies that "the court first
taking cognizance of the settlement of the estate of a decedent,
shall exercise jurisdiction to the exclusion of all other courts." The cited Rule
provides:
Section 1. Where estate of deceased persons settled. If the
decedent is an inhabitant of the Philippines at the time of his
death, whether a citizen or an alien, his will shall be proved,
or letters of administration granted, and his estate settled, in
the Court of First Instance in the Province in which he resides
at the time of his death, and if he is an inhabitant of a foreign
country, the Court of First Instance of the province in which
he had estate. The court first taking cognizance of
the settlement of the estate of a decedent, shall exercise
jurisdiction to the exclusion of all other courts.
The jurisdiction assumed by a court, so far as it depends on
the place of residence, of the decedent, or of the location of
his estate, shall not be contested in a suit or
proceeding, except in an appeal from that court, in the
original case, or when the want of jurisdiction appears on
the record. (Rule 73) 8
It is equally conceded that the residence of the deceased or the location of
his estate is not an element of jurisdiction over the subject matter but merely
of venue. This was lucidly stated by the late Chief Justice Moran in Sy Oa vs.
Co Ho 9 as follows:

We are not unaware of existing decisions to the effect that in
probate cases the place of residence of the deceased is
regarded as a question of jurisdiction over the subject-
matter. But we decline to follow this view because of its
mischievous consequences. For instance, a probate case has
been submitted in good faith to the Court of First Instance of
a province where the deceased had not resided. All the
parties, however, including all the creditors, have submitted
themselves to the jurisdiction of the court and the case is
therein completely finished except for a claim of a creditor
who also voluntarily filed it with said court but on appeal
from an adverse decision raises for the first time in this Court
the question of jurisdiction of the trial court for lack of
residence of the deceased in the province. If we consider
such question of residence as one affecting the jurisdiction of
the trial court over the subject-matter, the effect shall be
that the whole proceedings including all decisions on the
different incidents which have arisen in court will have to
be annulled and the same case will have to be commenced
anew before another court of the same rank in another
province. That this is of mischievous effect in the prompt
administration of justice is too obvious to require comment.
(Cf. Tanunchuan vs. Dy Buncio & Co., G.R. No. 48206,
December 31, 1942) Furthermore, section 600 of Act No.
190, 10 providing that the estate of a deceased person shall
be settled in the province where he had last resided,
could not have been intended as defining the jurisdiction of
the probate court over the subject-matter, because such
legal provision is contained in a law of procedure dealing
merely with procedural matters, and, as we have said time
and again, procedure is one thing and jurisdiction over the
subject matter is another. (Attorney-General vs. Manila
Railroad Company, 20 Phil. 523.) The law of jurisdiction Act
No. 136, 11 Section 56, No. 5 confers upon Courts of First
Instance jurisdiction over all probate cases independently of
the place of residence of the deceased. Since, however, there
are many courts of First Instance in the Philippines, the Law
of Procedure, Act No. 190, section 600, fixes the venue or the
place where each case shall be brought. Thus, the place
of residence of the deceased is not an element of
jurisdiction over the subject-matter but merely of venue. And
it is upon this ground that in the new Rules of Court the
province where the estate of a deceased person shall be
settled is properly called "venue".
It should be noted that the Rule on venue does not state that the court with
whom the estate or intestate petition is first filed acquires exclusive
jurisdiction.
The Rule precisely and deliberately provides that "the court first taking
cognizance of the settlement of the estate of a decedent, shall exercise
jurisdiction to the exclusion of all other courts."
13
A fair reading of the Rule since it deals with venue and comity between
courts of equal and co-ordinate jurisdiction indicates that the court with
whom the petition is first filed, must also first take cognizance of the
settlement of the estate in order to exercise jurisdiction over it to the
exclusion of all other courts.
Conversely, such court, may upon learning that a petition for probate of the
decedent's last will has been presented in another court where the decedent
obviously had his conjugal domicile and resided with his surviving widow and
their minor children, and that the allegation of the intestate petition before it
stating that the decedent died intestate may be actually false, may decline
to take cognizance of the petition and hold the petition before it in abeyance,
and instead defer to the second court which has before it the petition
for probate of the decedent's alleged last will.
2. This exactly what the Cebu court did. Upon petitioner-widow's filing with it
a motion to dismiss Lourdes' intestate petition, it issued its order holding in
abeyance its action on the dismissal motion and deferred to the Quezon City
court, awaiting its action on the petition for probate before that court.
Implicit in the Cebu court's order was that if the will was duly admitted to
probate, by the Quezon City court, then it would definitely decline to take
cognizance of Lourdes' intestate petition which would thereby be shown to
be false and improper, and leave the exercise of jurisdiction to the Quezon
City court, to the exclusion of all other courts. Likewise by its act of
deference, the Cebu court left it to the Quezon City court to resolve the
question between the parties whether the decedent's residence at the time
of his death was in Quezon City where he had his conjugal domicile rather
than in Cebu City as claimed by respondents. The Cebu court thus indicated
that it would decline to take cognizance of the intestate petition before it and
instead defer to the Quezon City court, unless the latter would make a
negative finding as to the probate petition and the residence of the decedent
within its territory and venue.
3. Under these facts, the Cebu court could not be held to have acted without
jurisdiction or with grave abuse of jurisdiction in declining to take cognizance
of the intestate petition and deferring to the Quezon City court.
Necessarily, neither could the Quezon City court be deemed to have acted
without jurisdiction in taking cognizance of and acting on the probate petition
since under Rule 73, section 1, the Cebu court must first take
cognizance over the estate of the decedent and must exercise jurisdiction to
exclude all other courts, which the Cebu court declined to do. Furthermore,
as is undisputed, said rule only lays down a rule of venue and the Quezon
City court indisputably had at least equal and coordinate jurisdiction over the
estate.
Since the Quezon City court took cognizance over the probate petition before
it and assumed jurisdiction over the estate, with the consent and deference
of the Cebu court, the Quezon City court should be left now, by the same rule
of venue of said Rule 73, to exercise jurisdiction to the exclusion of all other
courts.
Under the facts of the case and where respondents submitted to the Quezon
City court their opposition to probate of the will, but failed to appear at the

scheduled hearing despite due notice, the Quezon City court cannot be
declared, as the appellate court did, to have acted without jurisdiction in
admitting to probate the decedent's will and appointing petitioner-widow as
executrix thereof in accordance with the testator's testamentary disposition.
4. The relatively recent case of Uriarte vs. Court of First Instance of Negros
Occidental 12 with facts analogous to the present case 13 is authority against
respondent appellate court's questioned decision.
In said case, the Court upheld the doctrine of precedence of probate
proceedings over intestate proceedings in this wise:
It can not be denied that a special proceeding intended to effect the
distribution of the estate of a deceased person, whether in accordance
with the law on intestate succession or in accordance with his will, is a
"probate matter" or a proceeding for the settlement of his estate. It is
equally true, however, that in accordance with settled jurisprudence in
this jurisdiction, testate proceedings for the settlement of the estate of
a deceased person take precedence over intestate proceedings for the
same purpose. Thus it has been held repeatedly that, if in the course of
intestate proceedings pending before a court of first instance it is found
that the decedent had left a last will, proceedings for the probate of the
latter should replace the intestate proceedings even if at that state an
administrator had already been appointed, the latter being required to
render final account and turn over the estate in his possession to the
executor subsequently appointed. This however, is understood to be
without prejudice that should the alleged last will be rejected or is
disapproved, the proceeding shall continue as an intestacy. As already
adverted to, this is a clear indication that proceedings for the probate of
a will enjoy priority over intestate proceedings. 14
The Court likewise therein upheld the jurisdiction of the second court, (in this
case, the Quezon City court) although opining that certain considerations
therein "would seem to support the view that [therein respondent] should
have submitted said will for probate to the Negros Court, [in this case, the
Cebu court] either in a separate special proceeding or in an appropriate
motion for said purpose filed in the already pending Special Proceeding No.
6344," 15 thus:
But the fact is that instead of the aforesaid will being presented for probate
to the Negros Court, Juan Uriarte Zamacona filed the petition for the purpose
with the Manila Court. We can not accept petitioner's contention in this
regard that the latter court had no jurisdiction to consider said petition, albeit
we say that it was not the proper venue therefor.
It is well settled in this jurisdiction that wrong venue is merely
a waivable procedural defect, and, in the light of the circumstances
obtaining in the instant case, we are of the opinion, and so hold, that
petitioner has waived the right to raise such objection or is precluded
from doing so by laches. It is enough to consider in this connection that
petitioner knew of the existence of a will executed by Juan Uriarte y
Goite since December 19, 1961 when Higinio Uriarte filed his opposition
to the initial petition filed in Special Proceeding No. 6344; that petitioner
likewise was served with notice of the existence (presence) of the
alleged last will in the Philippines and of the filing of the petition for its
probate with the Manila Court since August 28, 1962 when Juan Uriarte
14
Zamacona filed a motion for the dismissal of Special Proceeding No.
6344. All these notwithstanding, it was only on April 15, 1963 that he
filed with the Manila Court in Special Proceeding No. 51396 an Omnibus
motion asking for leave to intervene and for the dismissal and
annulment of all the proceedings had therein up to that date; thus
enabling the Manila Court not only to appoint an administrator with the
will annexed but also to admit said will to probate more than five
months earlier, or more specifically, on October 31, 1962. To allow him
now to assail the exercise of jurisdiction over the probate of the will by
the Manila Court and the validity of all the proceedings had in Special
Proceeding No. 51396 would put a premium on his negligence.
Moreover, it must be remembered that this Court is not inclined to annul
proceedings regularly had in a lower court even if the latter was not
the proper venue therefor, if the net result would be to have the same
proceedings repeated in some other court of similar jurisdiction; more
so in a case like the present where the objection against said
proceedings is raised too late. 16
5. Under Rule 73, section 1 itself, the Quezon City
court's assumption of jurisdiction over the decedent's estate on the basis of
the will duly presented for probate by petitioner-widow and finding that
Quezon City was the first choice of residence of the decedent, who had his
conjugal home and domicile therein with the deference in comity duly
given by the Cebu court could not be contested except by appeal from
said court in the original case. The last paragraph of said Rule expressly
provides:
... The jurisdiction assumed by a court, so far as it depends
on the place of residence of the decedent, or of the location
of his estate, shall not be contested in a suit or
proceeding, except in an appeal from that court, in the
original case, or when the want of jurisdiction appears on the
record. (Rule 73)
The exception therein given, viz, "when the want of jurisdiction appears on
the record" could probably be properly invoked, had such deference in
comity of the Cebu court to the Quezon City court not appeared in the
record, or had the record otherwise shown that the Cebu court had taken
cognizance of the petition before it and assumed jurisdiction.
6. On the question that Quezon City established to be the residence of the
late senator, the appellate court while recognizing that "the issue is a
legitimate one" held in reliance on Borja vs. Tan 17 that.
... The issue of residence comes within the competence of
whichever court is considered to prevail in the exercise
jurisdiction - in this case, the Court of First Instance of Cebu
as held by this Court. Parenthetically, we note that the
question of the residence of the deceased is a serious one,
requiring both factual and legal resolution on the basis of
ample evidence to be submitted in the ordinary course of
procedure in the first instance, particularly in view of the fact
that the deceased was better known as the Senator from
Cebu and the will purporting to be his also gives Cebu,
besides Quezon City, as his residence. We reiterate that this

matter requires airing in the proper court, as so indicated in
the leading and controlling case of Borja vs. Hon. Bienvenido
Tan, et al., G.R. L-7792, July 27, 1955.
In the case at bar, however, the Cebu court declined to take cognizance of
the intestate petition first filed with it and deferred to
the testate proceedings filed with the Quezon City court and in effect asked
the Quezon City court to determine the residence of the decedent and
whether he did leave a last will and testament upon which would depend the
proper venue of the estate proceedings, Cebu or Quezon City. The Quezon
City court having thus determined in effect for both courts at the
behest and with the deference and consent of the Cebu court that Quezon
City was the actual residence of the decedent who died testate and therefore
the proper venue, the Borja ruling would seem to have no applicability. It
would not serve the practical ends of justice to still require the Cebu court, if
the Borja ruling is to be held applicable and as indicated in the decision
under review, to determine for itself the actual residence of the decedent
(when the Quezon City court had already so determined Quezon City as the
actual residence at the Cebu court's behest and respondents have not
seriously questioned this factual finding based on documentary evidence)
and if the Cebu court should likewise determine Quezon City as the actual
residence, or its contrary finding reversed on appeal, only then to allow
petitioner-widow after years of waiting and inaction to institute the
corresponding proceedings in Quezon City.
7. With more reason should the Quezon City proceedings be upheld when it is
taken into consideration that Rule 76, section 2 requires that the petition for
allowance of a will must show: "(a) the jurisdictional facts." Such
"jurisdictional facts" in probate proceedings, as held by the Court
in Fernando vs. Crisostomo 18 " are the death of the decedent, his residence
at the time of his death in the province where the probate court is sitting, or
if he is an inhabitant of a foreign country, his having left his estate in such
province."
This tallies with the established legal concept as restated by Moran that
"(T)he probate of a will is a proceeding in rem. The notice by publication as a
pre-requisite to the allowance of a will, is a constructive notice to the whole
world, and when probate is granted, the judgment of the court
is binding upon everybody, even against the State. The probate of a will by a
court having jurisdiction thereof is conclusive as to its due execution and
validity." 19 The Quezon City court acted regularly within its jurisdiction (even
if it were to be conceded that Quezon City was not the proper venue
notwithstanding the Cebu court's giving way and deferring to it,) in admitting
the decedent's last will to probate and naming petitioner-widow as executrix
thereof. Hence, the Quezon city court's action should not be set aside by a
writ of prohibition for supposed lack of jurisdiction as per the appellate
court's appealed decision, and should instead be sustained in line
with Uriarte, supra, where the Court, in dismissing the certiorari petition
challenging the Manila court's action admitting the decedent's will to probate
and distributing the estate in accordance therewith in
the second proceeding, held that "it must be remembered that this Court is
not inclined to annul proceedings regularly had in a lower court even if the
latter was not the proper venue therefor, if the net result would be to have
15
the same proceedings repeated in some other court of similar jurisdiction."
As stressed by Chief Justice Moran in Sy Oa, supra, "the mischievous effect in
the administration of justice" of considering the question of residence as
affecting the jurisdiction of the trial court and annulling the whole
proceedings only to start all over again the same proceedings before another
court of the same rank in another province "is too obvious to require
comment."
8. If the question of jurisdiction were to be made to depend only on who of
the decedent's relatives gets first to file a petition for settlement of the
decedent's estate, then the established jurisprudence of the Court that Rule
73, section 1 provides only a rule of venue in order to preclude different
courts which may properly assume jurisdiction from doing so and creating
conflicts between them to the detriment of the administration of justice, and
that venue is waivable, would be set at naught. As between relatives who
unfortunately do not see eye to eye, it would be converted into a race as to
who can file the petition faster in the court of his/her choice regardless of
whether the decedent is still in cuerpo presente and in disregard of the
decedent's actual last domicile, the fact that he left a last will and testament
and the right of his surviving widow named as executrix thereof. Such dire
consequences were certainly not intended by the Rule nor would they be in
consonance with public policy and the orderly administration of justice.
9. It would finally be unjust and inequitable that petitioner-widow, who under
all the applicable rules of venue, and despite the fact that the Cebu court
(where respondent Lourdes Cuenco had filed an intestate petition in the
Cebu court earlier by a week's time on 5 March 1964) deferred to the Quezon
City court where petitioner had within fifteen days (on March 12, 1964) after
the decedent's death (on February 25, 1964) timely filed the decedent's last
will and petitioned for letters testamentary and is admittedly entitled
to preference in the administration of her husband's estate, 20 would be
compelled under the appealed decision to have to go all the way to Cebu and
submit anew the decedent's will there for probate either in a new proceeding
or by asking that the intestate proceedings be converted into
a testate proceeding when under the Rules, the proper venue for
the testate proceedings, as per the facts of record and as already affirmed by
the Quezon City court is Quezon City, where the decedent and petitioner-
widow had their conjugal domicile.
It would be an unfair imposition upon petitioner as the one named and
entitled to be executrix of the decedent's last will and settle his estate in
accordance therewith, and a disregard of her rights under the rule on venue
and the law on jurisdiction to require her to spend much more time, money
and effort to have to go from Quezon City to the Cebu court everytime she
has an important matter of the estate to take up with the probate court.
It would doubly be an unfair imposition when it is considered that under Rule
73, section 2, 21 since petitioner's marriage has been dissolved with the
death of her husband, their community property and conjugal estate have to
be administered and liquidated in the estate proceedings of the deceased
spouse. Under the appealed decision, notwithstanding that petitioner resides
in Quezon City, and the proper venue of the testate proceeding was in
Quezon City and the Quezon City court properly took cognizance and
exercised exclusive jurisdiction with the deference in comity and consent of
 16

the Cebu court, such proper exercise of jurisdiction would be nullified and
petitioner would have to continually leave her residence in Quezon City and
go to Cebu to settle and liquidate even her own community property and
conjugal estate with the decedent.

10. The Court therefore holds under the facts of record that the Cebu court
did not act without jurisdiction nor with grave abuse of
discretion in declining to take cognizance of the intestate petition and
instead deferring to the testate proceedings filed just a week later by
petitioner as surviving widow and designated executrix of the decedent's last
will, since the record before it (the petitioner's opposition and motion to
dismiss) showed the falsity of the allegation in the intestate petition that the
decedent had died without a will. It is noteworthy that respondents never
challenged by certiorari or prohibition proceedings the Cebu court's order of
10 April 1964 deferring to the probate proceedings before the Quezon City
court, thus leaving the latter free (pursuant to the Cebu court's order of
deference) to exercise jurisdiction and admit the decedent's will to probate.

For the same reasons, neither could the Quezon City court be held to have
acted without jurisdiction nor with grave abuse of discretion in admitting the
decedent's will to probate and appointing petitioner as executrix in
accordance with its testamentary disposition, in the light of the settled
doctrine that the provisions of Rule 73, section 1 lay down only a rule
of venue, not of jurisdiction.

Since respondents undisputedly failed to appeal from the Quezon City court's
order of May 15, 1964 admitting the will to probate and appointing petitioner
as executrix thereof, and said court concededly has jurisdiction to issue said
order, the said order of probate has long since become final and can not be
overturned in a special civic action of prohibition.

11. Finally, it should be noted that in the Supreme Court's exercise of its
supervisory authority over all inferior courts, 22 it may properly determine, as
it has done in the case at bar, that venue was properly assumed by
and transferred to the Quezon City court and that it is the interest of justice
and in avoidance of needless delay that the Quezon City court's exercise of
jurisdiction over the testate estate of the decedent (with the due deference
and consent of the Cebu court) and its admission to probate of his last will
and testament and appointment of petitioner-widow as administratrix
without bond in pursuance of the decedent's express will and all its orders
and actions taken in the testate proceedings before it be approved and
authorized rather than to annul all such proceedings regularly had and to
repeat and duplicate the same proceedings before the Cebu court only to
revert once more to the Quezon City court should the Cebu court find that
indeed and in fact, as already determined by the Quezon City court on the
strength of incontrovertible documentary evidence of record, Quezon City EN BANC
was the conjugal residence of the decedent. G.R. No. L-11156 February 23, 1961
ACCORDINGLY, judgment is hereby rendered reversing the appealed decision PURA CARREON, ET AL., plaintiffs-appellants,
and resolution of the Court of Appeals and the petition for certiorari and vs.
prohibition with preliminary injunction originally filed by respondents with the RUFO AGCAOILI and LOURDES SANTIAGO, defendants- appellees.
Court of Appeals (CA-G.R. No. 34104-R) is ordered dismissed. No costs.
BAUTISTA ANGELO, J.:

During the marriage of Bonifacio Carreon and Celerina Dauag the registered
land subject of this case was acquired. After the death of Carreon, his widow
Celerina executed on September 24, 1946, an affidavit adjudicating to
herself alone the said land. She declared in said document that she was the
only heiress of her husband. The original certificate of title covering the land
was cancelled and a transfer certificate was issued in her name. There was
however annotated on her certificate a lien to the effect that her title was
subject to Section 4 of Rule 74 of the Rules of Court.
On September 25, 1946, she borrowed P1,200.00 from the Philippine
National Bank guaranteed by a mortgage on one-half of the land. A
memorandum of the mortgage was annotated on her transfer certificate.
After the maturity of the loan, she requested a certain Mr. Pintang to look for
a buyer of the land for P3,000.00. One by the name of Rufo Agcaoili was
found. The latter made an advance payment of Pl,500.00 and the balance
was paid in full on October 13, 1947. The loan from the bank was paid, the
mortgage was released and the deed of absolute sale executed in his favor
was registered.1 A new transfer certificate of title was issued in the name of
Agcaoili.
On February 19, 1955, the children of Celerina with the deceased husband
filed a complaint against the spouses Agcaoili seeking to have the deed of
sale executed by their mother declared as one of mortgage and to recover
one half pro-indiviso of the land described in the complaint. Simultaneous
with the filing of said complaint, Celerina filed an action for intervention
which was dismissed by the trial court.
Defendants filed a motion for summary judgment upon the plea that the
main averments of the complaint even if admitted do not constitute a cause
of action and supported their plea with certain documentary evidence.
Plaintiffs filed an opposition on the ground that there was a genuine issue
which could not be determined unless a trial is had. The trial court, however,
allowed the parties to submit evidence in support of their contentions and
after a careful analysis thereof found for defendants holding that plaintiffs,
claim has no legal basis.
As may be gleaned from the appellants' assignments of error, the present
appeal is predicated on the arguments that appellees were buyers in bad
faith; that there existed a trust relationship between them and appellants,
and that such being the case, the action against appellees is imprescriptible.
There is no clear proof that when Rufo Agcaoili bought the land he knew of
any flaw in the title of Celerina Dauag. The mere fact that he was a
townmate of Celerina is not sufficient basis to conclude that he knew that
she had children by her first husband. It has been shown that since 1920
Rufo Agcaoili has been an enlisted man in the Philippine constabulary and
seldom come home to visit his relatives. A man of such a situation cannot be
expected to know the relatives and children of his vendor even if they are
townmates,. Fraud cannot be presumed. It must be established by clear and
sufficient evidence. Here every indication is that Agcaoili bought the land in
all good faith oblivious of the source of its acquisition.
17
If fraud had been committed such was perpetrated by Celerina, appellants'
mother. By her action she induced Agcaoili to believe that she was the
absolute owner of the land which bore a torrens title. In dealing with it he
merely relied on such title. He was not required to do more. He is only
charged with notice of the burdens which are noted on the face of said title.
So, after he bought the land and a new title was issued in his name, he
became a purchaser thereof for value and a holder of a good and valid title. 2
On the transfer certificate of title issued to Agcaoili there was annotated a
statement that it was subject to Section 4, Rule 74 of the Rules of Court. This
was an annotation carried over from Celerina's transfer certificate. Section 4,
Rule 74, provides the following:
SEC. 4. Liability of distributees and estate. If it shall appear at any
time within two years after the settlement and distribution of an
estate in accordance with the provisions of either of the first two
sections of this rule, that an heir or other person has been unduly
deprived of his lawful participation in the estate, such heir or such
other person may compel the settlement of the estate in the courts
in the manner hereinafter provided for the purpose of satisfying such
lawful participation. And if within the same time of two years, it shall
appear that there are debts outstanding against the estate which
have not been paid, or that an heir or other person has been unduly
deprived of his lawful participation payable in money, the court
having jurisdiction of the estate may, by order for that purpose, after
hearing, settle the amount of such debts or lawful participation and
order how much and in what manner each distributee shall
contribute in the payment thereof, and may issue execution, if
circumstances require, against the bond provided in the preceding
section or against the real estate belonging to the deceased, or both.
Such bond and such real estate shall remain charged with a liability
to creditors, heirs, or other persons for the full period of two years
after such distribution, notwithstanding any transfers of the real
estate that may have been made.
The above lien is effective only for a period of two years. From September
28, 1946, when a transfer certificate of title was issued to Celerina, to
September 8, 1949 when the deed of sale in favor of Agcaoili was issued and
registered, more than two years had elapsed We sustain the lower court's
opinion that thenceforth the right to have such lien cancelled became vested
on appellee Agcaoili and that the same had become functus oficio.3 And
there being no fraud in the transaction on the part of appellee, nor proof that
he knew of any legal infirmity in the title of his vendor, we find no reason to
apply the proposition that he is deemed to be holding the land in trust for the
children of Celerina Dauag.
WHEREFORE, the decision appealed from is affirmed, without pronouncement
as to costs.
FIRST DIVISION
[G.R. No. 48840. December 29, 1943.]

ERNESTO M. GUEVARA, Petitioner-Appellant, v. ROSARIO GUEVARA
and her husband PEDRO BUISON, Respondents-Appellees.
SYLLABUS
1. WILLS; PRESENTATION OF WILL FOR PROBATE IS MANDATORY;
SETTLEMENT OF ESTATE ON BASIS OF INTESTACY WHEN DECEDENT LEFT A
WILL, AGAINST THE LAW. We hold that under section 1 of Rule 74, in
relation to Rule 76, if the decedent left a will and no debts and the heirs and
legatees desire to make an extrajudicial partition of the estate, they must
first present that will to the court for probate and divide the estate in
accordance with the will. They may not disregard the provisions of the will
unless those provisions are contrary to law. Neither may they do away with
the presentation of the will to the court for probate, because such
suppression of the will is contrary to law and public policy. The law enjoins
the probate of the will and public policy requires it, because unless the will is
probated and notice thereof given to the whole world, the right of a person to
dispose of his property by will may be rendered nugatory, as is attempted to
be done in the instant case. Absent legatees and devisees, or such of them
as may have no knowledge of the will, could be cheated of their inheritance
thru the collusion of some of the heirs who might agree to the partition of the
estate among themselves to the exclusion of others.
2. ID.; ID.; ID. Even if the decedent left no debts and nobody raises any
question as to the authenticity and due execution of the will, none of the
heirs may sue for the partition of the estate in accordance with that will
without first securing its allowance or probate of the court: first, because the
law expressly provides that "no will shall pass either real or personal estate
unless it is proved and allowed in the proper court" ; and, second, because
the probate of a will, which is a proceeding in rem, cannot be dispensed with
and substituted by any other proceeding, judicial or extrajudicial, without
offending against public policy designed to effectuate the testators right to
dispose of his property by will in accordance with law and to protect the
rights of the heirs and legatees under the will thru the means provided by
law, among which are the publication and the personal notices to each and
all of said heirs and legatees. Nor may the court approve and allow the will
presented in evidence in such an action for partition, which is one in
personam, any more than it could decree the registration under the Torrens
system of the land involved in an ordinary action for reivindicacion or
partition.
3. TORRENS REGISTRATION; REGISTRATION DOES NOT AFFECT RIGHTS OF
PARTITION BETWEEN LEGATEES. It results that the interested parties
consented to the registration of the land in question in the name of E. M. G.
alone subject to the implied trust on account of which he is under obligation
to deliver and convey to them their corresponding shares after all the debts
of the original owner of said land had been paid. Such finding does not
constitute a reversal of the decision and decree of registration, which merely
confirmed the petitioners title; and in the absence of any intervening
innocent third party, the petitioner may be compelled to fulfill the promise by
virtue of which he acquired his title. That is authorized by section 70 of the
Land Registration Act, cited by the Court of Appeals, and by the decision of
this Court in Severino v. Severino, 44 Phil., 343, and the cases therein cited.
18
DECISION
OZAETA, J.:
Ernesto M. Guevara and Rosario Guevara, legitimate son and natural
daughter, respectively, of the deceased Victorino L. Guevara, are litigating
here over their inheritance from the latter. The action was commenced on
November 12, 1937, by Rosario Guevara to recover from Ernesto Guevara
what she claims to be her strict ligitime as an acknowledged natural
daughter of the deceased to wit, a portion of 423,492 square meters of a
large parcel of land described in original certificate of title No. 51691 of the
province of Pangasinan, issued in the name of Ernesto M. Guevara and to
order the latter to pay her P6,000 plus P2,000 a year as damages for
withholding such legitime from her. The defendant answered the complaint
contending that whatever right or rights the plaintiff might have had, had
been barred by the operation of law.
It appears that on August 26, 1931, Victorino L. Guevara executed a will
(exhibit A), apparently with all the formalities of the law, wherein he made
the following bequests: To his stepdaughter Candida Guevara, a pair of
earrings worth P150 and a gold chain worth P40; to his son Ernesto M.
Guevara, a gold ring worth P180 and all the furniture, pictures, statues, and
other religious objects found in the residence of the testator in Poblacion Sur,
Bayambang, Pangasinan; "a mi hija Rosario Guevara," a pair of earrings
worth P120; to his stepson Pio Guevara, a ring worth P120; and to his wife by
second marriage, Angustia Posadas, various pieces of jewelry worth P1,020.
He also made the following devises: "A mis hijos Rosario Guevara y Ernesto
M. Guevara y a mis hijastros, Vivencio, Eduviges, Dionisia, Candida y Pio,
apellidados Guevara," a residential lot with its improvements situate in the
town of Bayambang, Pangasinan, having an area of 960 square meters and
assessed at P540; to his wife Angustia Posadas he confirmed the donation
propter nuptias theretofore made by him to her of a portion of 25 hectares of
the large parcel of land of 259-odd hectares described in plan Psu-66618. He
also devised to her a portion of 5 hectares of the same parcel of land by way
of complete settlement of her usufructuary right.
He set aside 100 hectares of the same parcel of land to be disposed of either
by him during his lifetime or by his attorney-in-fact Ernesto M. Guevara in
order to pay all his pending debts and to defray his expenses and those of
his family up to the time of his death.
The remander of said parcel of land he disposed of in the following
manner:jgc:chanrobles.com.ph
"(d). Toda la porcion restante de mi terreno arriba descrito, de la extension
superficial aproximada de ciento veintinueve (129) hectareas setenta (70)
areas, y veinticinco (25) centiareas, con todas sus mejoras existentes en la
misma, dejo y distribuyo, pro-indiviso, a mis siguientes herederos como
sigue:jgc:chanrobles.com.ph
"A mi hijo legitimo, Ernesto M. Guevara, ciento ocho (108) hectareas, ocho
(8) areas y cincuenta y cuatro (54) centiareas, hacia la parte que colinda al
Oeste de las cien (100) hectareas referidas en el inciso (a) de este parrafo

del testamento, como su propiedad absoluta y exclusiva, en la cual extension
superficial estan incluidas cuarenta y tres (43) hectareas, veintitres (23)
areas y cuarenta y dos (42) centiareas que le doy en concepto de mejora.
"A mi hija natural reconocida, Rosario Guevara, veintiun (21) hectareas,
sesenta y un (61) areas y setenta y un (71) centiareas, que es la parte
restante.
"Duodecimo. Nombro por la presente como Albacea Testamentario a mi
hijo Ernesto M. Guevara, con relevacion de fianza. Y una vez legalizado este
testamento, y en cuanto sea posible, es mi deseo, que los herederos y
legatarios aqui nombrados se repartan extrajudicialmente mis bienes de
conformidad con mis disposiciones arriba consignadas."cralaw virtua1aw
library
Subsequently, and on July 12, 1933, Victorino L. Guevara executed a deed of
sale (exhibit 2) in favor of Ernesto M. Guevara whereby he conveyed to him
the southern half of the large parcel of land of which he had theretofore
disposed by the will above mentioned, in consideration of the sum of P1 and
other valuable considerations, among which were the payment of all his
debts and obligations amounting to not less than P16,500, his maintenance
up to his death, and the expenses of his last illness and funeral expenses. As
to the northern half of the same parcel of land, he declared: "Hago constar
tambien que reconozco a mi referido hijo Ernesto M. Guevara como dueo de
la mitad norte de la totalidad y conjunto de los referidos terrenos por
haberlos comprado de su propio peculio del Sr. Rafael T. Puzon a quien habia
vendido con anterioridad."cralaw virtua1aw library
On September 27, 1933, final decree of registration was issued in land
registration case No. 15174 of the Court of First Instance of Pangasinan, and
pursuant thereto original certificate of title No. 51691 of the same province
was issued on October 12 of the same year in favor of Ernesto M. Guevara
over the whole parcel of land described in the deed of sale above referred to.
The registration proceeding had been commenced on November 1, 1932, by
Victorino L. Guevara and Ernesto M. Guevara as applicants, with Rosario,
among others, as oppositor; but before the trial of the case Victorino L.
Guevara withdrew as applicant and Rosario Guevara and her co-oppositors
also withdrew their opposition, thereby facilitating the issuance of the title in
the name of Ernesto M. Guevara alone.
On September 27, 1933, Victorino L. Guevara died. His last will and
testament, however, was never presented to the court for probate, nor has
any administration proceeding ever been instituted for the settlement of his
estate. Whether the various legatees mentioned in the will have received
their respective legacies or have even been given due notice of the
execution of said will and of the dispositions therein made in their favor, does
not affirmatively appear from the record of this case. Ever since the death of
Victorino L. Guevara, his only legitimate son Ernesto M. Guevara appears to
have possessed the land adjudicated to him in the registration proceeding
and to have disposed of various portions thereof for the purpose of paying
the debts left by his father.
In the meantime Rosario Guevara, who appears to have had her fathers last
will and testament in her custody, did nothing judicially to invoke the
19
testamentary dispositions made therein in her favor, whereby the testator
acknowledged her as his natural daughter and, aside from certain legacies
and bequests, devised to her a portion of 21.6171 hectares of the large
parcel of land described in the will. But a little over four years after the
testators demise, she (assisted by her husband) commenced the present
action against Ernesto M. Guevara alone for the purpose hereinbefore
indicated; and it was only during the trial of this case that she presented the
will to the court, not for the purpose of having it probated but only to prove
that the deceased Victorino L. Guevara had acknowledged her as his natural
daughter. Upon that proof of acknowledgment she claimed her share of the
inheritance from him, but on the theory or assumption that he died intestate,
because the will had not been probated, for which reason, she asserted, the
betterment therein made by the testator in favor of his legitimate son
Ernesto M. Guevara should be disregarded. Both the trial court and the Court
of Appeals sustained that theory.
Two principal questions are before us for determination: (1) the legality of the
procedure adopted by the plaintiff (respondent herein) Rosario Guevara; and
(2) the efficacy of the deed of sale exhibit 2 and the effect of the certificate
of title issued to the defendant (petitioner herein) Ernesto M. Guevara.
I
We cannot sanction the procedure adopted by the respondent Rosario
Guevara, it being in our opinion in violation of procedural law and an attempt
to circumvent and disregard the last will and testament of the decedent. The
Code of Civil Procedure, which was in force up to the time this case was
decided by the trial court, contains the following pertinent
provisions:jgc:chanrobles.com.ph
"Sec. 625. Allowance Necessary, and Conclusive as to Execution. No will
shall pass either the real or personal estate, unless it is proved and allowed
in the Court of First Instance, or by appeal to the Supreme Court; and the
allowance by the court of a will of real and personal estate shall be
conclusive as to its due execution.
"Sec. 626. Custodian of Will to Deliver. The person who has the custody of
a will shall, within thirty days after he knows of the death of the testator,
deliver the will into the court which has jurisdiction, or to the executor named
in the will.
"Sec. 627. Executor to Present Will and Accept or Refuse Trust. A person
named as executor in a will, shall within thirty days after he knows of the
death of the testator, or within thirty days after he knows that he is named
executor, if he obtained such knowledge after knowing of the death of the
testator, present such will to the court which has jurisdiction, unless the will
has been otherwise returned to said court, and shall, within such period,
signify to the court his acceptance of the trust, or make known in writing his
refusal to accept it.
"Sec. 628. Penalty. A person who neglects any of the duties required in the
two preceding sections, unless he gives a satisfactory excuse to the court,
shall be subject to a fine not exceeding one thousand dollars.

"Sec. 629. Person Retaining Will may be Committed. If a person having
custody of a will after the death of the testator neglects without reasonable
cause to deliver the same to the court having jurisdiction, after notice by the
court so to do, he may be committed to the prison of the province by a
warrant issued by the court, and there kept in close confinement until he
delivers the will."cralaw virtua1aw library
The foregoing provisions are now embodied in Rule 76 of the new Rules of
Court, which took effect on July 1, 1940.
The proceeding for the probate of a will is one in rem, with notice by
publication to the whole world and with personal notice to each of the known
heirs, legatees, and devisees of the testator (section 630, C. C. P., and
sections 3 and 4, Rule 77). Altho not contested (section 5, Rule 77), the due
execution of the will and the fact that the testator at the time of its execution
was of sound and disposing mind and not acting under duress, menace, and
undue influence or fraud, must be proved to the satisfaction of the court, and
only then may the will be legalized and given effect by means of a certificate
of its allowance, signed by the judge and attested by the seal of the court;
and when the will devises real property, attested copies thereof and of the
certificate of allowance must be recorded in the register of deeds of the
province in which the land lies. (Section 12, Rule 77, and section 624, C. C.
P.)
It will readily be seen from the above provisions of the law that the
presentation of a will to the court for probate is mandatory and its allowance
by the court is essential and indispensable to its efficacy. To assure and
compel the probate of a will, the law punishes a person who neglects his
duty to present it to the court with a fine not exceeding P2,000, and if he
should persist in not presenting it, he may be committed to prison and kept
there until he delivers the will.
The Court of Appeals took express notice of these requirements of the law
and held that a will, unless probated, is ineffective. Nevertheless it
sanctioned the procedure adopted by the respondent for the following
reasons:jgc:chanrobles.com.ph
"The majority of the Court is of the opinion that if this case is dismissed
ordering the filing of testate proceedings, it would cause injustice,
inconvenience, delay, and much expense to the parties, and that therefore, it
is preferable to leave them in the very status which they themselves have
chosen, and to decide their controversy once and for all, since, in a similar
case, the Supreme Court applied that same criterion (Leao v. Leao, supra),
which is now sanctioned by section 1 of Rule 74 of the Rules of Court.
Besides, section 6 of Rule 124 provides that, if the procedure which the court
ought to follow in the exercise of its jurisdiction is not specifically pointed out
by the Rules of Court, any suitable process or mode of procedure may be
adopted which appears most consistent to the spirit of the said Rules. Hence,
we declare the action instituted by the plaintiff to be in accordance with
law."cralaw virtua1aw library
Let us look into the validity of these considerations. Section 1 of Rule 74
provides as follows:jgc:chanrobles.com.ph
20
"Section 1. Extrajudicial settlement by agreement between heirs. If the
decedent left no debts and the heirs and legatees are all of age, or the
minors are represented by their judicial guardians, the parties may, without
securing letters of administration, divide the estate among themselves as
they see fit by means of a public instrument filed in the office of the register
of deeds, and should they disagree, they may do so in an ordinary action of
partition. If there is only one heir or one legatee, he may adjudicate to
himself the entire estate by means of an affidavit filed in the office of the
register of deeds. It shall be presumed that the decedent left no debts if no
creditor files a petition for letters of administration within two years after the
death of the decedent."cralaw virtua1aw library
That is a modification of section 596 of the Code of Civil Procedure, which
reads as
"Sec. 596. Settlement of Certain Intestates Without Legal Proceedings.
Whenever all the heirs of a person who died intestate are of lawful age and
legal capacity and there are no debts due from the estate, or all the debts
have been paid the heirs may, by agreement duly executed in writing by all
of them, and not otherwise, apportion and divide the estate among
themselves, as they may see fit, without proceedings in court."cralaw
virtua1aw library
The implication is that by the omission of the word "intestate" and the use of
the word "legatees" in section 1 of Rule 74, a summary extrajudicial
settlement of a deceased persons estate, whether he died testate or
intestate, may be made under the conditions specified. Even if we give
retroactive effect to section 1 of Rule 74 and apply it here, as the Court of
Appeals did, we do not believe it sanctions the nonpresentation of a will for
probate and much less the nullification of such will thru the failure of its
custodian to present it to the court for probate; for such a result is precisely
what Rule 76 sedulously provides against. Section 1 of Rule 74 merely
authorizes the extrajudicial or judicial partition of the estate of a decedent
"without securing letters of administration." It does not say that in case the
decedent left a will the heirs and legatees may divide the estate among
themselves without the necessity of presenting the will to the court for
probate. The petition to probate a will and the petition to issue letters of
administration are two different things, altho both may be made in the same
case. The allowance of a will precedes the issuance of letters testamentary
or of administration (section 4, Rule 78). One can have a will probated
without necessarily securing letters testamentary or of administration. We
hold that under section 1 of Rule 74, in relation to Rule 76, if the decedent
left a will and no debts and the heirs and legatees desire to make an
extrajudicial partition of the estate, they must first present that will to the
court for probate and divide the estate in accordance with the will. They may
not disregard the provisions of the will unless those provisions are contrary to
law. Neither may they do away with the presentation of the will to the court
for probate, because such suppression of the will is contrary to law and
public policy. The law enjoins the probate of the will and public policy
requires it, because unless the will is probated and notice thereof given to
the whole world, the right of a person to dispose of his property by will may
be rendered nugatory, as is attempted to be done in the instant case. Absent
legatees and devisees, or such of them as may have no knowledge of the

will, could be cheated of their inheritance thru the collusion of some of the
heirs who might agree to the partition of the estate among themselves to the
exclusion of others.
In the instant case there is no showing that the various legatees other than
the present litigants had received their respective legacies or that they had
knowledge of the existence and of the provisions of the will. Their right under
the will cannot be disregarded, nor may those rights be obliterated on
account of the failure or refusal of the custodian of the will to present it to
the court for probate.
Even if the decedent left no debts and nobody raises any question as to the
authenticity and due execution of the will, none of the heirs may sue for the
partition of the estate in accordance with that will without first securing its
allowance or probate by the court, first, because the law expressly provides
that "no will shall pass either real or personal estate unless it is proved and
allowed in the proper court" ; and, second, because the probate of a will,
which is a proceeding in rem, cannot be dispensed with and substituted by
any other proceeding, judicial or extrajudicial, without offending against
public policy designed to effectuate the testators right to dispose of his
property by will in accordance with law and to protect the rights of the heirs
and legatees under the will thru the means provided by law, among which
are the publication and the personal notices to each and all of said heirs and
legatees. Nor may the court approve and allow the will presented in evidence
in such an action for partition, which is one in personam, any more than it
could decree the registration under the Torrens system of the land involved
in an ordinary action for reivindicacion or partition.
We therefore believe and so hold that section 1 of Rule 74, relied upon by the
Court of Appeals, does not sanction the procedure adopted by
the Respondent.
The case of Leao v. Leao (25 Phil., 180), cited by the Court of Appeals, like
section 1 of Rule 74, sanctions the extrajudicial partition by the heirs of the
properties left by a decedent, but not the nonpresentation of a will for
probate. In that case one Paulina Ver executed a will on October 11, 1902,
and died on November 1, 1902. Her will was presented for probate on
November 10, 1902, and was approved and allowed by the Court on August
16, 1904. In the meantime, and on November 10, 1902, the heirs went ahead
and divided the properties among themselves and some of them
subsequently sold and disposed of their shares to third persons. It does not
affirmatively appear in the decision in that case that the partition made by
the heirs was not in accordance with the will or that they in any way
disregarded the will. In closing the case by its order dated September 1,
1911, the trial court validated the partition, and one of the heirs, Cunegunda
Leao, appealed. In deciding the appeal this Court
said:jgc:chanrobles.com.ph
"The principal assignment of error is that the lower court committed an error
in deciding that the heirs and legatees of the estate of Da. Paulina Ver had
voluntarily divided the estate among themselves."cralaw virtua1aw library
In resolving that question this Court said:jgc:chanrobles.com.ph
21
"In view of the positive finding of the judge of the lower court that there had
been a voluntary partition of the estate among the heirs and legatees, and in
the absence of positive proof to the contrary, we must conclude that the
lower court had some evidence to support its conclusion."cralaw virtua1aw
library
Thus it will be seen that as a matter of fact no question of law was raised and
decided in that case. That decision cannot be relied upon as an authority for
the unprecedented and unheard of procedure adopted by the respondent
whereby she seeks to prove her status as an acknowledged natural child of
the decedent by his will and attempts to nullify and circumvent the
testamentary dispositions made by him by not presenting the will to the
court for probate and by claiming her legitime as an acknowledged natural
child on the basis of intestacy; and that in the face of express mandatory
provisions of the law requiring her to present the will to the court for
probate.
In the subsequent case of Riosa v. Rocha (1926), 48 Phil. 737, this Court
departed from the procedure sanctioned by the trial court and impliedly
approved by this Court in the Leao case, by holding that an extrajudicial
partition is not proper in testate succession. In the Riosa case the Court,
speaking thru Chief Justice Avancea, held:jgc:chanrobles.com.ph
"1. EXTRAJUDICIAL PARTITION; NOT PROPER IN TESTATE SUCCESSION.
Section 596 of the Code of Civil Procedure, authorizing the heirs of a person
who died intestate to make extrajudicial partition of the property of the
deceased, without going into any court of justice, makes express reference to
intestate succession, and therefore excludes testate succession.
"2. ID.; EFFECTS OF; TESTATE SUCCESSION. In the instant case, which is a
testate succession, the heirs made an extrajudicial partition of the estate and
at the same time instituted proceeding for the probate of the will and the
administration of the estate. When the time came for making the partition,
they submitted to the court the extrajudicial partition previously made by
them, which the court approved. Held: That for the purposes of the
reservation and the rights and obligations created thereby, in connection
with the relatives benefited, the property must not be deemed transmitted to
the heirs from the time the extrajudicial partition was made, but from the
time said partition was approved by the court." (Syllabus.)
The Court of Appeals also cites section 6 of Rule 124, which provides that if
the procedure which the court ought to follow in the exercise of its
jurisdiction is not specifically pointed out by the Rules of Court, any suitable
process or mode of proceeding may be adopted which appears most
conformable to the spirit of the said Rules. That provision is not applicable
here for the simple reason that the procedure which the court ought to follow
in the exercise of its jurisdiction is specifically pointed out and prescribed in
detail by Rules 74, 76, and 77 of the Rules of Court.
The Court of Appeals also said "that if this case is dismissed, ordering the
filing of testate proceedings, it would cause injustice, inconvenience, delay,
and much expense to the parties." We see no injustice in requiring the

plaintiff not to violate but to comply with the law. On the contrary, an
injustice might be committed against the other heirs and legatees mentioned
in the will if the attempt of the plaintiff to nullify said will by not presenting it
to the court for probate should be sanctioned. As to the inconvenience,
delay, and expense, the plaintiff herself is to blame because she was the
custodian of the will and she violated the duty imposed upon her by sections
2, 4, and 5 of Rule 76, which command her to deliver said will to the court on
pain of a fine not exceeding P2,000 and of imprisonment for contempt of
court. As for the defendant, he is not complaining of inconvenience, delay,
and expense, but on the contrary he is insisting that the procedure
prescribed by law be followed by the plaintiff.
Our conclusion is that the Court of Appeals erred in declaring the action
instituted by the plaintiff to be in accordance with law. It also erred in
awarding relief to the plaintiff in this action on the basis of intestacy of the
decedent notwithstanding the proven existence of a will left by him and
solely because said will has not been probated due to the failure of the
plaintiff as custodian thereof to comply with the duty imposed upon her by
the law.
It is apparent that the defendant Ernesto M. Guevara, who was named
executor in said will, did not take any step to have it presented to the court
for probate and did not signify his acceptance of the trust or refusal to accept
it as required by section 3 of Rule 76 (formerly section 627 of the Code of
Civil Procedure), because his contention is that said will, insofar as the large
parcel of land in litigation is concerned, has been superseded by the deed of
sale exhibit 2 and by the subsequent issuance of the Torrens certificate of
title in his favor.
II. This brings us to the consideration of the second question, referring to the
efficacy of the deed of sale exhibit 2 and the effect of the certificate of title
issued to the defendant Ernesto M. Guevara. So that the parties may not
have litigated here in vain insofar as that question is concerned, we deem it
proper to decide it now and obviate the necessity of a new action.
The deed of sale exhibit 2 executed by and between Victorino L. Guevara and
Ernesto M. Guevara before a notary public on July 12, 1933, may be divided
into two parts: (a) insofar as it disposes of and conveys to Ernesto M.
Guevara the southern half of Victorino L. Guevaras hacienda of 259-odd
hectares in consideration of P1 and other valuable considerations therein
mentioned; and (b) insofar as it declares that Ernesto M. Guevara became
the owner of the northern half of the same hacienda by repurchasing it with
his own money from Rafael T. Puzon.
A. As to the conveyance of the southern half of the hacienda to Ernesto M.
Guevara in consideration of the latters assumption of the obligation to pay
all the debts of the deceased, the Court of Appeals found it to be valid and
efficacious because:" (a) it has not been proven that the charges imposed as
a condition is [are] less than the value of the property; and (b) neither has it
been proven that the defendant did not comply with the conditions imposed
upon him in the deed of transfer." As a matter of fact the Court of Appeals
found: "It appears that the defendant has been paying the debts left by his
father. To accomplish this, he had to alienate considerable portions of the
above-mentioned land. And we cannot brand such alienation as anomalous
22
unless it is proven that they have exceeded the value of what he has
acquired by virtue of the deed of July 12, 1933, and that of his corresponding
share in the inheritance." The finding of the Court of Appeals on this aspect
of the case is final and conclusive upon the respondent, who did not appeal
therefrom.
B. With regard to the northern half of the hacienda, the findings of fact and of
law made by the Court of Appeals are as follows:jgc:chanrobles.com.ph
"The defendant has tried to prove that with his own money, he bought from
Rafael Puzon one-half of the land in question, but the Court a quo, after
considering the evidence, found it not proven; we hold that such conclusion
is well founded. The acknowledgment by the deceased, Victorino L. Guevara,
of the said transactions, which was inserted incidentally in the document of
July 12, 1933, is clearly belied by the fact that the money paid to Rafael
Puzon came from Silvestre P. Coquia, to whom Victorino L. Guevara had sold
a parcel of land with the right of repurchase. The defendant, acting for his
father, received the money and delivered it to Rafael Puzon to redeem the
land in question, and instead of executing a deed of redemption in favor of
Victorino L. Guevara, the latter executed a deed of sale in favor of the
defendant.
"The plaintiff avers that she withdrew her opposition to the registration of the
land in the name of the defendant, because of the latters promise that after
paying all the debts of their father, he would deliver to her and to the widow
their corresponding shares. As their father then was still alive, there was no
reason to require the delivery of her share and that was why she did not
insist on her opposition, trusting on the reliability and sincerity of her
brothers promise. The evidence shows that such promise was really made.
The registration of land under the Torrens system does not have the effect of
altering the laws of succession, or the rights of partition between
coparceners, joint tenants, and other cotenants nor does it change or affect
in any other way any other rights and liabilities created by law and applicable
to unregistered land (sec. 70, Land Registration Law). The plaintiff is not,
then, in estoppel, nor can the doctrine of res judicata be invoked against her
claim. Under these circumstances, she has the right to compel the defendant
to deliver her corresponding share in the estate left by the deceased,
Victorino L. Guevara."cralaw virtua1aw library
In his tenth to fourteenth assignments of error the petitioner assails the
foregoing findings of the Court of Appeals. But the findings of fact made by
said court are final and not reviewable by us on certiorari. The Court of
Appeals found that the money with which the petitioner repurchased the
northern half of the land in question from Rafael Puzon was not his own but
his fathers, it being the proceeds of the sale of a parcel of land made by the
latter to Silvestre P. Coquia. Said court also found that the respondent
withdrew her opposition to the registration of the land in the name of the
petitioner upon the latters promise that after paying all the debts of their
father he would deliver to her and to the widow their corresponding shares.
From these facts, it results that the interested parties consented to the
registration of the land in question in the name of Ernesto M. Guevara alone
subject to the implied trust on account of which he is under obligation to
deliver and convey to them their corresponding shares after all the debts of

the original owner of said land had been paid. Such finding does not
constitute a reversal of the decision and decree of registration, which merely
confirmed the petitioners title; and in the absence of any intervening
innocent third party, the petitioner may be compelled to fulfill the promise by
virtue of which he acquired his title. That is authorized by section 70 of the
Land Registration Act, cited by the Court of Appeals, and by the decision of
this Court in Severino v. Severino, 44 Phil., 343, and the cases therein cited.
Upon this phase of the litigation, we affirm the finding of the Court of Appeals
that the northern half of the land described in the will exhibit A and in
original certificate of title No. 51691 still belongs to the estate of the
deceased Victorino L. Guevara. In the event the petitioner Ernesto M.
Guevara has alienated any portion thereof, he is under obligation to
compensate the estate with an equivalent portion from the southern half of
said land that has not yet been sold. In other words, to the estate of Victorino
L. Guevara still belongs one half of the total area of the land described in
said original certificate of title, to be taken from such portions as have not
yet been sold by the petitioner, the other half having been lawfully acquired
by the latter in consideration of his assuming the obligation to pay all the
debts of the deceased.
Wherefore, that part of the decision of the Court of Appeals which declares in
effect that notwithstanding exhibit 2 and the issuance of original certificate
of title No. 51691 in the name of Ernesto M. Guevara, one half of the land
described in said certificate of title belongs to the estate of Victorino L.
Guevara and the other half to Ernesto M. Guevara in consideration of the
latters assumption of the obligation to pay all the debts of the deceased, is
hereby affirmed; but the judgment of said court insofar as it awards any relief
to the respondent Rosario Guevara in this action is hereby reversed and set
aside, and the parties herein are hereby ordered to present the document
exhibit A to the proper court for probate in accordance with law, without
prejudice to such action as the provincial fiscal of Pangasinan may take
against the responsible party or parties under section 4 of Rule 76. After the
said document is approved and allowed by the court as the last will and
testament of the deceased Victorino L. Guevara, the heirs and legatees
therein named may take such action, judicial or extrajudicial, as may be
necessary to partition the estate of the testator, taking into consideration the
pronouncements made in part II of this opinion. No finding as to costs in any
of the three instances.
EN BANC
[G.R. No. 45629. September 22, 1938.]
ATILANO G. MERCADO, Petitioner, v. ALFONSO SANTOS, Judge of
First Instance of Pampanga, and IIGO S. DAZA, Provincial Fiscal of
Pampanga, Respondents. ROSARIO BASA DE LEON, ET AL.,
intervenors.
SYLLABUS
1. WILLS; CONCLUSIVENESS OF THE DUE EXECUTION OF A PROBATED WILL.
Section 625 of the Code of Civil Procedure is explicit as to the
conclusiveness of the due execution of a probated will. It provides: "No will
shall pass either the real or personal estate, unless it is proved and allowed
in the Court of First Instance, or by appeal to the Supreme Court; and the
allowance by the court of a will of real and personal estate shall be
23
conclusive as to its due execution."cralaw virtua1aw library
2. ID.; ID. The probate of a will by the probate court having jurisdiction
thereof is considered as conclusive as to its due execution and validity, and
is also conclusive that the testator was of sound and disposing mind at the
time when he executed the will, and was not acting under duress, menace,
fraud, or undue influence, and that the will is genuine and not a forgery.
3. ID.; ID.; PROCEEDING "IN REM." The probate of a will in this jurisdiction
is a proceeding in rem. The provision of notice by publication as a
prerequisite to the allowance of a will is constructive notice to the whole
world, and when probate is granted, the judgment of the court is binding
upon everybody, even against the State.
4. ID.; ID.; CONCLUSIVE PRESUMPTION. Conclusive presumptions are
inferences which the law makes so peremptory that it will not allow them to
be overturned by any contrary proof however strong. The will in question
having been probated by a competent court, the law will not admit any proof
to overthrow the legal presumption that it is genuine and not a forgery.
5. ID.; ID.; CRIMINAL ACTION AGAINST FORGER OF A DULY PROBATED WILL.
Upon the facts stated in the opinion of the court, it was held: That in view
of the provisions of sections 306, 333 and 625 of the Code of Civil Procedure,
criminal action will not lie in this jurisdiction against the forger of a will which
had been duly admitted to probate by a court of competent jurisdiction.
6. CRIMINAL LAW; PROSECUTION OF OFFENSES; RIGHT TO A SPEEDY TRIAL.
The prosecution of offenses is a matter of public interest and it is the duty
of the government or those acting in its behalf to prosecute all cases to their
termination without oppressive, capricious and vexatious delay. The
Constitution does not say that the right to a speedy trial may be availed of
only where the prosecution for crime is commenced and undertaken by the
fiscal. It does not exclude from its operation cases commenced by private
individuals. Where once a person is prosecuted criminally, he is entitled to a
speedy trial, irrespective of the nature of the offense or the manner in which
it is authorized to be commenced. In any event, even the actuations of the
fiscal himself in this case is not entirely free from criticism.
7. ID.; ID. In Kalaw v. Apostol (G. R. No. 45591, Oct. 15, 1937), the
Supreme Court observed that the prosecuting officer is in charge and has
under the direction and control all prosecutions for public offenses (sec. 1681
and 2465 of the Rev. Adm. Code), and that it is his duty to see that criminal
cases are heard without vexatious, capricious and oppressive delays so that
the courts of justice may dispose of them on the merits and determine
whether the accused is guilty or not. This is as clear an admonition as could
be made. An accused person is entitled to a trial at the earliest opportunity.
(Sutherland on the Constitution, 664; United States v. Fox, 3 Mont., 512.) He
cannot be oppressed by delaying the commencement of trial for an
unreasonable length of time. If the proceedings pending trial are deferred,
the trial itself is necessarily delayed.
8. ID.; ID.; ID. It is not to be supposed, of course, that the Constitution
intends to remove from the prosecution every reasonable opportunity to

prepare for trial. Impossibilities cannot be expected or extraordinary efforts
required on the part of the prosecutor or the court. As stated by the Supreme
Court of the United States, "The right of a speedy trial is necessarily relative.
It is consistent with delays and depends upon circumstances. It secures
rights to a defendant. It does not preclude the rights of public justice."
(Beavers v. Haubert [1905], 198 U. S., 86; 25 S. Ct., 573; 49 Law. ed., 950,
954.)
DECISION
LAUREL, J.:
On May 28, 1931, the petitioner herein filed in the Court of First Instance of
Pampanga a petition for the probate of the will of his deceased wife, Ines
Basa. Without any opposition, and upon the testimony of Benigno F. Gabino,
one of the attesting witnesses, the probate court, on June 27, 1931, admitted
the will to probate. Almost three years later, on April 11, 1934, the five
intervenors herein moved ex parte to reopen the proceedings, alleging lack
of jurisdiction of the court to probate the will and to close the proceedings.
Because filed ex parte, the motion was denied. The same motion was filed a
second time, but with notice to the adverse party. The motion was
nevertheless denied by the probate court on May 24, 1934. On appeal to this
court, the order of denial was affirmed on July 26, 1935. (Basa v. Mercado, 33
off. Gaz., 2521.)
It appears that on October 27, 1932, i. e., sixteen months after the probate of
the will of Ines Basa, intervenor Rosario Basa de Leon filed with the justice of
the peace court of San Fernando, Pampanga, a complaint against the
petitioner herein, for falsification or forgery of the will probated as above
indicated. The petitioner was arrested. He put up a bond in the sum of
P4,000 and engaged the services of an attorney to undertake his defense.
Preliminary investigation of the case was continued twice upon petition of
the complainant. The complaint was finally dismissed, at the instance of the
complainant herself, in an order dated December 8, 1932. Three months
later, or on March 2, 1933, the same intervenor charged the petition for the
second time with the same offense, presenting the complaint this time in the
justice of the peace court of Mexico, Pampanga. The petitioner was again
arrested, again put up a bond in the sum of P4,000, and engaged the
services of counsel to defend him. This second complaint, after investigation,
was also dismissed, again at the instance of the complainant herself who
alleged that the petitioner was in poor health. That was on April 27, 1933.
Some nine months later, on February 2, 1934, to be exact, the same
intervenor accused the same petitioner for the third time of the same
offense. The information was filed by the provincial fiscal of Pampanga in the
justice of the peace court of Mexico. The petitioner was again arrested, again
put up a bond of P4,000, and engaged the services of defense counsel. The
case was dismissed on April 24, 1934, after due investigation, on the ground
that the will alleged to have been falsified had already been probated and
there was no evidence that the petitioner had forged the signature of the
testatrix appearing thereon, but that, on the contrary, the evidence
satisfactorily established the authenticity of the signature aforesaid.
Dissatisfied with the result, the provincial fiscal, on May 9, 1934, moved in
the Court of First Instance of Pampanga for reinvestigation of the case. The
motion was granted on May 23, 1934, and, for the fourth time, the petitioner
24
was arrested, filed a bond and engaged the services of counsel to handle his
defense. The reinvestigation dragged on for almost a year until February 18,
1934, when the Court of First Instance ordered that the case be tried on the
merits. The petitioner interposed a demurrer on November 25, 1935, on the
ground that the will alleged to have been forged had already been probated.
This demurrer was overruled on December 24, 1935, whereupon an
exception was taken and a motion for reconsideration and notice of appeal
were filed. The motion for reconsideration and the proposed appeal were
denied on January 14, 1936. The case proceeded to trial, and forthwith
petitioner moved to dismiss the case claiming again that the will alleged to
have been forged had already been probated and, further, that the order
probating the will is conclusive as to the authenticity and due execution
thereof. The motion was overruled and the petitioner filed with the Court of
Appeals a petition for certiorari with preliminary injunction to enjoin the trial
court from further proceedings in the matter. The injunction was issued and
thereafter, on June 19, 1937, the Court of Appeals denied the petition
for certiorari, and dissolved the writ of preliminary injunction. Three justices
dissented in a separate opinion. The case is now before this court for review
on certiorari.
Petitioner contends: (1) that the probate of the will of his deceased wife is a
bar to his criminal prosecution for the alleged forgery of the said will; and, (2)
that he has been denied the constitutional right to a speedy trial.
1. Section 306 of our Code of Civil Procedure provides as to the effect of
judgment:jgc:chanrobles.com.ph
"SEC. 306. Effect of judgment. The effect of a judgment or final order in an
action or special proceeding before a court or judge of the Philippine Islands
or of the United States, or of any State or Territory of the United States,
having jurisdiction to pronounce the judgment or order, may be as
follows:jgc:chanrobles.com.ph
"1. In case of a judgment or order against a specific thing, or in respect to
the probate of a will, or the administration of the estate of a deceased
person, or in respect to the personal, political, or legal condition or relation of
a particular person, the judgment or order is conclusive upon the title of the
thing, the will or administration, or the condition or relation of the person:
Provided, That the probate of a will or granting of letters of administration
shall only be prima facie evidence of the death of the testator or
intestate:chanrob1es virtual 1aw library
x x x
Section 625 of the same Code is more explicit as to the conclusiveness of the
due execution of a probated will. It says:jgc:chanrobles.com.ph
"SEC. 625. Allowance Necessary, and Conclusive as to Execution. No will
shall pass either the real or personal estate, unless it is proved and allowed
in the Court of First Instance, or by appeal to the Supreme Court; and the
allowance by the court of a will of real and personal estate shall be
conclusive as to its due execution." (Emphasis ours.)
In Manahan v. Manahan (58 Phil., 448, 451), we held:jgc:chanrobles.com.ph

". . . The decree of probate is conclusive with respect to the due execution
thereof 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.
(Sec. 625, Code of Civil Procedure; Castaneda v. Alemany, 3 Phil., 426;
Pimentel v. Palanca, 5 Phil., 436; Sahagun v. De Gorostiza, 7 Phil., 347;
Limjuco v. Ganara, 11 Phil., 393; Montaano v. Suesa, 14 Phil., 676; In re
Estate of Johnson, 39 Phil., 156; Riera v. Palmaron, 40 Phil., 105; Austria v.
Ventenilla, 21 Phil., 180; Ramirez v. Gmur, 42 Phil., 855; and Chiong Joc-soy v.
Vano, 8 Phil., 119."cralaw virtua1aw library
In 28 R. C. L., p. 377, section 378, it is said:jgc:chanrobles.com.ph
"The probate of a will by the probate court having jurisdiction thereof is
usually considered as conclusive as to its due execution and validity, and is
also conclusive that the testator was of sound and disposing mind at the
time when he executed the will, and was not acting under duress, menace,
fraud, or undue influence, and that the will is genuine and not a forgery."
(Emphasis ours.)
As our law on wills, particularly section 625 of our Code of Civil Procedure
aforequoted, was taken almost bodily from the Statutes of Vermont, the
decisions of the Supreme Court of that State relative to the effect of the
probate of a will are of persuasive authority in this jurisdiction. The Vermont
statute as to the conclusiveness of the due execution of a probated will reads
as follows:jgc:chanrobles.com.ph
"SEC. 2356. No will shall pass either real or personal estate, unless it is
proved and allowed in the probate court, or by appeal in the country or
supreme court; and the probate of a will of real or personal estate shall be
conclusive as to its due execution." (Vermont Statutes, p. 451.)
Said the Supreme Court of Vermont in the case of Missionary Society v. Eelss
(68 Vt., 497, 504): "The probate of a will by the probate court having
jurisdiction thereof, upon the due notice, is conclusive as to its due execution
against the whole world. (Vt. St., sec. 2336; Fosters Exrs. v. Dickerson, 64
Vt., 233.)"
The probate of a will in this jurisdiction is a proceeding in rem. The provision
of notice by publication as a prerequisite to the allowance of a will is
constructive notice to the whole world, and when probate is granted, the
judgment of the court is binding upon everybody, even against the State.
This court held in the case of Manalo v. Paredes and Philippine Food Co. (47
Phil., 938):jgc:chanrobles.com.ph
"The proceeding for the probate of a will is one in rem (40 Cyc., 1265), and
the court acquires jurisdiction over all the persons interested, through the
publication of the notice prescribed by section 630 of the Code of Civil
Procedure, and any order that may be entered therein is binding against all
of them.
"Through the publication of the petition for the probate of the will, the court
acquires jurisdiction over all such persons as are interested in said will; and
25
any judgment that may be rendered after said proceeding is binding against
the world."
"In this State the probate of a will is a proceeding in rem, being in form and
substance upon the will itself to determine its validity. The judgment
determines the status of the instrument, whether it is or is not the will of the
testator. When the proper steps required by law have been taken the
judgment is binding upon everybody, and makes the instrument as to all the
world just what the judgment declares it to be. (Woodruff v. Taylor, 20 Vt., 65,
73; Burbeck v. Little, 50 Vt., 713; 715; Missionary Society v. Eells, 68 Vt., 497,
504; 35 Atl. 463.) The proceedings before the probate court are statutory and
are not governed by common-law rules as to parties or causes of action.
(Holdrige v. Holdriges Estate, 53 Vt., 546, 550; Purdy v. Estate of Purdy, 67
Vt. 50, 55; 30 Atl., 695.) No process is issued against anyone in such
proceedings, but all persons interest in determining the state or conditions of
the instrument are constructively notified by the publication of notice as
required by G. L. 3219. (Woodruff v. Taylor, supra; In re Warners Estate 98
Vt., 254; 271; 127 Atl., 362.)"
Section 333, paragraph 4, of the Code of Civil Procedure establishes an
incontrovertible presumption in favor of judgments declared by it to be
conclusive:
"SEC. 333. Conclusive Presumptions. The following presumptions or
deductions, which the law expressly directs to be made from particular facts,
are deemed conclusive:jgc:chanrobles.com.ph
"x x x
"4. The judgment or order of a court, when declared by this code to be
conclusive."cralaw virtua1aw library
Conclusive presumptions are inferences which the law makes so peremptory
that it will not allow them to be overturned by any contrary proof however
strong. (Brant v. Morning Journal Assn., 80 N. Y. S., 1002, 1004; 81 App. Div.,
183; see, also, Joslyn v. Puloer, 59 Hun., 129, 140; 13 N. Y. S., 311.) The will
in question having been probated by a competent court, the law will not
admit any proof to overthrow the legal presumption that it is genuine and not
a forgery.
The majority decision of the Court of Appeals cites English decisions to
bolster up its conclusion that "the judgment admitting the will to probate is
binding upon the whole world as to the due execution and genuineness of
the will insofar as civil rights and liabilities are concerned, but not for the
purpose of punishment of a crime." The cases of Dominus Rex v. Vincent, 93
English Reports, Full Reprint, 648 and Dominus Rex v. Rodes, 93 English
Reports, Full Reprint, 795, the first case being decided in 1721, were cited to
illustrate the earlier English decisions to the effect that upon indictment for
forging a will, the probating of the same is conclusive evidence in the
defendants favor of its genuine character. Reference is made, however, to
the cases of Rex v. Gibson, 168 English Reports, Full Reprint, 836, footnote
(a), decided in 1802, and Rex v. Buttery and Macnamarra, 168 English
Reports, Full Reprint, 836, decided in 1818, which establish a contrary rule.
Citing these later cases, we find the following quotation from Black on
Judgments, Vol. II, page 764:jgc:chanrobles.com.ph

"A judgment admitting a will to probate cannot be attacked collaterally
although the will was forged; and a payment to the executor names therein
of a debt due the decedent will discharge the same, notwithstanding the
spurious character of the instrument probated. It has also been held that,
upon an indictment for forging a will, the probate of the paper in question is
conclusive evidence in the defendants favor of its genuine character. But
this particular point has lately been ruled otherwise."cralaw virtua1aw library
It was the case of Rex v. Buttery, supra, which induced the Supreme Court of
Massachusetts in the case of Waters v. Stickney (12 Allen 1; 90 Am. Dec.,
122) also cited by the majority opinion, to hold that "according to later and
sounder decisions, the probate, though conclusive until set aside of the
disposition of the property, does not protect the forger from punishment."
This was reproduced in 28 R. C. L., p. 376, and quoted in Barry v. Walker
9103 Fla., 533; 137 So., 711, 715), and Thompson v. Freeman (149 So., 740,
742), also cited in support of the majority opinion of the Court of Appeals.
The dissenting opinion of the Court of Appeals in the instant case under
review makes a cursory study of the statutes obtaining in England,
Massachusetts and Florida, and comes to the conclusion that the decisions
cited in the majority opinion do not appear to "have been promulgated in the
face of statutes similar to ours." The dissenting opinion cites Whartons
Criminal Evidence (11th ed., sec. 831), to show that the probate of a will in
England is only prima facie proof of the validity of the will (Op. Cit. quoting
Marriot v. Marriot, 93 English Reprint, 770); and 21 L. R. A. (pp. 686-689 and
note), to show that in Massachusetts there is no statute making the probate
of a will conclusive, and that in Florida the statute (sec. 1810, Revised
Statutes) makes the probate conclusive evidence as to the validity of the will
with regard to personal, and prima facie as to real estate. The cases decided
by the Supreme Court of Florida cited by the majority opinion, supra, refer to
wills of both personal and real estate.
The petitioner cites the case of State v. McGlynn (20 Cal., 233, decided in
1862), in which Justice Norton of the Supreme Court of California, makes the
following review of the nature of probate proceedings in England with respect
to wills personal and real property:
"In England, the probate of wills of personal estate belongs to the
Ecclesiastical Courts. No probate of a will relating to real estate is there
necessary. The real estate, upon the death of the party seized, passes
immediately to the devisee under the will if there be one; or if there be no
will, to the heir at law. The person who thus becomes entitled takes
possession. If one person claims to be the owner under a will, and another
denies the validity of the will and claims to be the owner as heir at law, an
action of ejectment is brought against the party who may be in possession by
the adverse claimant; and on the trial of such an action, the validity of the
will is contested, and evidence may be given by the respective parties as to
any fraud practiced upon him, or as to the actual execution of it, or as to any
other circumstance affecting its character as a valid devise of the real estate
in dispute. The decision upon the validity of the will in such action becomes
res adjudicata, and is binding and conclusive upon the parties to that action
and upon any reason who may subsequently acquire the title from either of
those parties; but the decision has no effect upon other parties, and does not
26
settle what may be called the status or character of the will, leaving it
subject to be enforced as a valid will, or defeated as invalid, whenever other
parties may have a contest depending upon it. A judicial determination of the
character of the will itself. It does not necessarily or ordinarily arise from any
controversy between adverse claimants, but is necessary in order to
authorize a disposition of the personal estate in pursuance of its provisions.
In case of any controversy between adverse claimants of the personal estate,
the probate is given in evidence and is binding upon the parties, who are not
at liberty to introduce any other evidence as to the validity of the will."cralaw
virtua1aw library
The intervenors, on the other hand, attempt to show that the English law on
wills is different from that stated in the case of State v. McGlynn, supra, citing
the following statutes:
1. The Wills Act, 1837 (7 Will. 4 E 1 Vict. c. 26).
2. The Court of Probate Act, 1857 (20 & 21 Vict. c. 77).
3. The Judicature Act, 1873 (36 & 37 Vict. c. 66).
The Wills Act of 1837 provides that probate may be granted of "every
instrument purporting to be testamentary and executed in accordance with
the statutory requirements . . . if it disposes of property, whether personal or
real." the Ecclesiastical Courts which took charge of testamentary causes
(Ewells Blackstone [1910], p. 460), were determined by the Court of Probate
Act of 1857, and the Court of Probate in turn was, together with other courts,
incorporated into the Supreme Court of Judicature, and transformed into the
Probate Division thereof, by the Judicature Act of 1873. (Lord Halsbury, The
Laws of England [1910], pp. 151-156.) The intervenors overlook the fact,
however, that the case of Rex v. Buttery and Macnamarra, supra, upon which
they rely in support of their theory that the probate of a forged will does not
protect the forger from punishment, was decided long before the foregoing
amendatory statutes to the English law on wills were enacted. The case of
State v. McGlynn may be considered, therefore, as more or less authoritative
on the law of England at the time of the promulgation of the decision in the
case of Rex v. Buttery and Macnamarra.
In the case of State v. McGlynn, the Attorney-General of California filed an
information to set aside the probate of the will of one Broderick, after the
lapse of one year provided by the law of California for the review of an order
probating a will, in order that the estate may be escheated to the State of
California, on the ground that the probated will was forged and that Broderick
therefore died intestate, leaving no heirs, representatives or devisees
capable of inheriting his estate. Upon these facts, the Supreme Court of
California held:jgc:chanrobles.com.ph
"The fact that a will purporting to be the genuine will of Broderick, devising
his estate to a devisee capable of inheriting and holding it, has been
admitted to probate and established as a genuine will by the decree of a
Probate Court having jurisdiction of the case, renders it necessary to decide
whether that decree, and the will established by it, or either of them, can be
set aside and vacated by the judgment of any other court. If it shall be found
that the decree of the Probate Court, not reversed by the appellate court, is
final and conclusive, and not liable to be vacated or questioned by any other

court, either incidentally or by any direct proceeding, for the purpose of
impeaching it, and that so long as the probate stands the will must be
recognized and admitted in all courts to be valid, then it will be immaterial
and useless to inquire whether the will in question was in fact genuine or
forged." (State v. McGlynn, 20 Cal., 233; 81 Am. Dec., 118, 121.)
Although in the foregoing case the information filed by the State was to set
aside the decree of probate on the ground that the will was forged, we see no
difference in principle between that case and the case at bar. A subtle
distinction could perhaps be drawn between setting aside a decree of
probate, and declaring a probated will to be a forgery. it is clear, however,
that a duly probated will cannot be declared to be a forgery without
disturbing in a way the decree allowing said will to probate. It is at least
anomalous that a will should be regarded as genuine for one purpose and
spurious for another.
The American and English cases show a conflict of authorities on the
question as to whether or not the probate of a will bars criminal prosecution
of the alleged forger of the probated will. We have examined some important
cases and have come to the conclusion that no fixed standard may be
adopted or drawn therefrom, in view of the conflict no less than of diversity
of statutory provisions obtaining in different jurisdictions. It behooves us,
therefore, as the court of last resort, to choose that rule most consistent with
our statutory law, having in view the needed stability of property rights and
the public interest in general. To be sure, we have seriously reflected upon
the dangers of evasion from punishment of culprits deserving of the severity
of the law in cases where, as here, forgery is discovered after the probate of
the will and the prosecution is had before the prescription of the offense. By
and large, however, the balance seems inclined in favor of the view that we
have taken. Not only does the law surround the execution of the will with the
necessary formalities and require probate to be made after an elaborate
judicial proceeding, but section 113, not to speak of section 513, of our Code
of Civil Procedure provides for an adequate remedy to any party who might
have been adversely affected by the probate of a forged will, much in the
same way as other parties against whom a judgment is rendered under the
same or similar circumstances. (Pecson v. Coronel, 43 Phil., 358.) The
aggrieved party may file an application for relief with the proper court within
a reasonable time, but in no case exceeding six months after said court has
rendered the judgment of probate, on the ground of mistake, inadvertence,
surprise or excusable neglect. An appeal lies to review the action of a court
of first instance when that court refuses to grant relief. (Banco Espaol-
Filipino v. Palanca, 37 Phil., 921; Philippine Manufacturing Co. v. Imperial, 47
Phil., 810; Samia v. Medina, 56 Phil., 613.) After a judgment allowing a will to
be probated has become final and unappelable, and after the period fixed by
section 113 of the Code of Civil Procedure has expired, the law as an
expression of the legislative wisdom goes no further and the case ends there.
". . . The court of chancery has no capacity, as the authorities have settled,
to judge or decide whether a will is or is not a forgery; and hence there would
be an incongruity in its assuming to set aside a probate decree establishing a
will, on the ground that the decree was procured by fraud, when it can only
arrive at the fact of such fraud by first deciding that the will was a forgery.
There seems, therefore, to be a substantial reason, so long as a court of
27
chancery is not allowed to judge of the validity of a will, except as shown by
the probate, for the exception of probate decrees from the jurisdiction which
courts of chancery exercise in setting aside other judgments obtained by
fraud. But whether the exception be founded in good reason or otherwise, it
has become too firmly established to be disregarded. At the present day, it
would not be a greater assumption to deny the general rule that courts of
chancery may set aside judgments procured by fraud, than to deny the
exception to that rule in the case of probate decrees. We must acquiesce in
the principle established by the authorities, if we are unable to approve of
the reason. Judge Story was a staunch advocate for the most enlarged
jurisdiction of courts of chancery, and was reluctant to allow the exception in
cases of wills, but was compelled to yield to the weight of authority. He says:
No other excepted case is known to exist; and it is not easy to discover the
grounds upon which this exception stands, in point of reason or principle,
although it is clearly settled by authority. (1 Storys Eq. Jur. sec. 440.)" (State
v. McGlyn,, 20 Cl., 233; 81 Am. Dec., 118, 129. See, also, Tracy v. Muir, 121
American State Reports, 118, 125.) .
We hold, therefore, that in view of the provisions of sections 306, 333 and
625 of our Code of Civil Code Procedure, criminal action will not lie in this
jurisdiction against the forger of a will which had been duly admitted to
probate by a court of competent jurisdiction.
The resolution of the foregoing legal question is sufficient to dispose of the
case. However, the other legal question with reference to the denial to the
accused of his right to a speedy trial having been squarely raised and
submitted, we shall proceed to consider the same in the light of cases
already adjudicated by this court.
2. The Constitution of the Philippines provides that "In all criminal
prosecutions the accused . . . shall enjoy the right . . . to have a speedy . . .
trial . . . (Art. III, sec, 1, par. 17. See, also G. O. No. 58 sec. 15, NO. 7.) Similar
provisions are to be found in the Presidents Instructions to the Second
Philippine Commission (par. 11), the Philippine Bill of July 1, 1902 (sec. 5, par.
2) and the Jones Act of August 29, 1916 (sec. 3, par. 2). The provision in the
foregoing organic acts appear to have been taken from similar provisions in
the Constitution of the United States (6th Amendment) and those of the
various states of the American Union. A similar injunction is contained in the
Malolos Constitution (art. 8, Title IV), not to speak of other constitutions.
More than once this court had occasion to set aside the proceedings in
criminal cases to give effect to the constitutional injunction of speedy trial.
(Conde v. Judge of First Instance and Fiscal of Tayabas [1923], 45 Phil., 173;
Conde v. Rivera and Unson [1924], 45 Phil., 650; People v. Castaeda and
Fernandez [1936]), 35 Off. GAz., 1269; Kalaw v. Apostol, Oct. 15, 1937, G. R.
No. 45591; Esguerra v. De la Costa, Aug. 30, 1938, G. R. NO. 46039.)
In Conde v. Rivera and Unson, supra, decided before the adoption of our
Constitution, we said:jgc:chanrobles.com.ph
"Philippine organic and statutory law expressly guarantee that in all criminal
prosecutions the accused shall enjoy the right to have a speedy trial. Aurelia
Conde, like all other accused persons, has a right to a speedy trial in order
that if innocent she may go free, and she has been deprived of that right in

defiance of law. Dismissed from her humble position, and compelled to dance
attendance on courts while investigations and trials are arbitrarily postponed
without her consent, is palpably and openly unjust to her and a detriment to
the public. By the use of reasonable diligence, the prosecution could have
settled upon the appropriate information, could have settled upon the
appropriate information, could have attended to the formal preliminary
examination, and could have prepared the case for a trial free from
vexatious, capricious, and oppressive delays."cralaw virtua1aw library
In People v. Castaeda and Fernandez, supra, this court found that the
accused had not been given a fair and impartial trial. The case was to have
been remanded to the court a quo for a new trial before an impartial judge.
This step, however, was found unnecessary. A review of the evidence
convinced this court that a judgment of conviction for theft, as changed,
could not be sustained and, having in view the right to a speedy trial
guaranteed by the Constitution to every person accused of crime, entered a
judgment acquitting the accused, with costs de oficio. We
said:jgc:chanrobles.com.ph
". . . The Constitution, Article III, section 1, paragraph 17, guarantees to
every accused person the right to a speedy trial. This criminal proceeding
has been dragging on for almost five years now. The accused have twice
appealed to this court for redress from the wrong that they have suffered at
the hands of the trial court. At least one of them, namely Pedro Fernandez
alias Piro, had been confined in prison from July 20, 1932 to November 27,
1934, for inability to post the required bond of P3,000 which was finally
reduced to P300. The Government should be the last to set an example of
delay and oppression in the administration of justice and it is the moral and
legal obligation of this court to see that the criminal proceedings against the
accused come to an end and that they be immediately discharged from the
custody of the law. (Conde v. Rivera and Unson, 45 Phil., 651.)"
In Kalaw v. Apostol, supra, the petitioner invoked and this court applied and
gave effect to the doctrines stated in the second Conde case, supra. In
granting the writs prayed for, this court, after referring to the constitutional
and statutory provisions guaranteeing to persons accused of crime the right
to a speedy trial, said:jgc:chanrobles.com.ph
"Se infiere de los preceptos legales transcritos que todo acusado en causa
criminal tiene derecho a ser juzgado pronta y publicamente. Juicio rapido
significa un juicio que se celebra de acuerdo con la ley de procedimiento
criminal y los reglamentos, libre de dilaciones vejatorias, caprichosas y
opresivas (Burnett v. State, 76 Ark., 295; 88 S. W., 956; 113 AMSR, 94;
Stewart v. State, 13 Ark., 720; Peo. v. Shufelt, 61 Mich, 237; 28 N. W., 79;
Nixon v. State, 10 Miss., 497; 41 AMD., 601; State v. Cole, 4 Okl., Cr., 25; 109
P., 736; State v. Caruthers, 1 Okl. Cr., 428; 98 P., 474; State v. Keefe, 17 Wyo.,
227, 98 p., 122; 22 IRANS, 896; 17 Ann. Cas., 161). Segun los hechos
admitidos resulta que al recurrente se le concedio vista parcial del asunto, en
el Juzgado de Primera Instancia de Samar, solo despues de haber
transcurrido ya mas de un ao y medio desde la presentacion de la primera
querella y desde la recepcion de la causa en dicho Juzgado, y despues de
haberse transferido dos veces la vista del asunto sin su consentimiento. A
esto debe aadirse que la primera transferencia de vista era claramente
28
injustificada porque el motivo que se alego consistio unicamente en la
conveniencia personal del ofendido y su abogado, no habiendose probado
suficientemente la alegacion del primero de que se hallaba enfermo. Es
cierto que el recurrente habia pedido que, en vez de seialarse a vista el
asunto para el mayo de 1936, lo fuera para el noviembre del mismo ao;
pero, aparte de que la razon que alego era bastante fuerte porque su
abogado se oponia a comparecer por compromisos urgentes contraidos con
anterioridad y en tal circunstancia hubiera quedado indefenso si hubiese sido
obligado a entrar en juicio, aparece que la vista se pospuso por el Juzgado a
motu proprio, por haber cancelado todo el calendario judicial preparado por
el Escribano para el mes de junio. Declaramos, con visto de estos hechos,
que al recurrente se le privo de su derecho fundamental de ser juzgado
prontamente."cralaw virtua1aw library
Esguerra v. De la Costa, supra, was a petition for mandamus to compel the
respondent judge of the Court of First Instance of Rizal to dismiss the
complaint filed in a criminal case against the petitioner, to cancel the bond
put up by the said petitioner and to declare the costs de oficio. In accepting
the contention that the petitioner had been denied speedy trial, this court
said:jgc:chanrobles.com.ph
"Consta que en menos de un ao el recurrente fue procesado criminalmente
por el ageldao delito de abusos deshonestos, en el Juzgado de Paz del
Municipio de Cainta, Rizal. Como consecuencia de las denuncias que contra
el se presentaron fue arrestado tres veces y para gozar de libertad
provisional, en espera de los juicios, se vio obligado a prestar tres fianzas por
la suma de P1,000 cada una. Si no se da fin al proceso que ultimamente se
ha incoado contra el recurrente la incertidumbre continuara cerniendose
sobre el y las consiguientes molestias y preocupaciones continuaran
igualmente abrumandole. El Titulo III, articulo 1, No. 17, de la Constitucio
preceptua que en todo proceso criminal el acusado tiene derecho de ser
juzgado pronta y publicamente. El Articulo 15, No. 7, de la Orden General No.
58 dispone asimismo que en las causas criminales el acusado tendra derecho
a ser juzgado pronta y publicamente. Si el recurrente era realmente culpable
del delito que se le imputo, tenia de todos modos derechos a que fuera
juzgado pronta y publicamente y sin dilaciones arbitrarias y vejatorias.
Hemos declarado reiteradamente que existe un remedio positivo para los
casos en que se viola el derecho constitucional del acusado de ser juzgado
prontamente. El acusado que es privado de su derecho fundamental de ser
enjuiciado rapidamente tiene derecho a pedir que se le ponga en libertad, si
estuviese detenido, o a que la causa que pende contra el sea sobreseida
definitivamente. (Conde contra Rivera y Unson, 45 Jur. Fil., 682; In the matter
of Ford [1911], 160 Cal., 334; U. S. v. Fox [1880], 3 Mont., 512; Kalaw contra
Apostol, R. G. No. 45591, Oct. 15, 1937; Pueblo contra Castaeda y
Fernandez, 35 Gac. Of., 1357.)"
We are again called upon to vindicate the fundamental right to a speedy trial.
The facts of the present case may be at variance with those of the cases
hereinabove referred to. Nevertheless, we are of the opinion that, under the
circumstances, we should consider the substance of the right instead of
indulging in more or less academic or undue factual differentiations. The
petitioner herein has been arrested four times, has put up a bond in the sum
of P4,000 and has engaged the services of counsel to undertake his defense

an equal number of times. The first arrest was made upon a complaint filed
by one of the intervenors herein for alleged falsification of a will which,
sixteen months before, had been probated in court. This complaint, after
investigation, was dismissed at the complaints own request. The second
arrest was made upon a complaint charging the same offense and this
complaint, too, was dismissed at the behest of the complainant herself who
alleged the quite startling ground that the petitioner was in poor health. The
third arrest was made following the filing of an information by the provincial
fiscal of Pampanga, which information was dismissed, after due investigation,
because of insufficiency of the evidence. The fourth arrest was made when
the provincial fiscal secured a reinvestigation of the case against the
petitioner on the pretext that he had additional evidence to present,
although such evidence does not appear to have ever been presented.
It is true that provincial fiscal did not intervene in the case until February 2,
1934, when he presented an information charging the petitioner, for the third
time, of the offense of falsification. This, however, does not matter. The
prosecution of offenses is a matter of public interest and it is the duty of the
government or those acting in its behalf to prosecute all cases to their
termination without oppressive, capricious and vexatious delay. The Constitution does
not say that the right to a speedy trial may be availed of only where the prosecution
for crime is commenced and undertaken by the fiscal. It does not exclude from its
operation cases commenced by private individuals. Where once a person is prosecuted
criminally, he is entitled to a speedy trial, irrespective of the nature of the offense or
the manner in which it is authorized to be commenced. In any event, even the
actuations of the fiscal himself in this case is not entirely free from criticism. From
October 27, 1932, when the first complaint was filed in the justice of the peace court
of San Fernando, to February 2, 1934, when the provincial fiscal filed his information
with the justice of the peace of Mexico, one year, three months and six days
transpired; and from April 27, 1933, when the second criminal complaint was
dismissed by the justice of the peace of Mexico, to February 2, 1934, nine months and
six days elapsed. The investigation following the fourth arrest, made after the fiscal
had secured a reinvestigation of the case, appears also to have dragged on for about a
year. There obviously has been a delay, and considering the antecedent facts and
circumstances within the knowledge of the fiscal, the delay may not at all be regarded
as permissible. In Kalaw v. Apostol, supra, we observed that the prosecuting officer is
in charge of and has under his direction and control all prosecutions for public offenses
(secs. 1681 and 2465 of the Rev. Adm. Code), and that it is his duty to see that
criminal cases are heard without vexatious, capricious and oppressive delays so that
the courts of justice may dispose of them on the merits and determine whether the
accused is guilty or not. This is as clear an admonition as could be made. an accused
person is entitled to a trial at the earliest opportunity. (Sutherland on the Constitution,
p. 664; United States v. Fox, 3 Mont., 512.) He cannot be oppressed by delaying the
commencement of trial for an unreasonable length of time. If the proceedings pending
trial are deferred, the trial itself is necessarily delayed. It is not to be supposed, of
course, that the Constitution intends to remove from the prosecution every reasonable
opportunity to prepare for trial. Impossibilities cannot be expected or extraordinary
efforts required on the part of the prosecutor or the court. As stated by the Supreme
Court of the United States, "The right of a speedy trial is necessarily relative. It is
consistent with delays and depends upon circumstances. It secures rights to a
defendant. It does preclude the rights of public justice." (Beavers v. Haubert [1905],
198 U. S. 86; 25 S. Ct., 573; 49 Law. ed., 950, 954.)
It may be true, as seems admitted by counsel for the intervenors, in paragraph 8, page
3 of his brief, that the delay was due to "the efforts towards reaching an amicable
extrajudicial compromise," but this fact, we think, casts doubt instead upon the motive
which led the intervenors to bring criminal action against the petitioner. The petitioner
29
claims that the intention of the intervenors was to press upon settlement, with the
continuous threat of criminal prosecution, notwithstanding the probate of the will
alleged to have been falsified. Argument of counsel for the petitioner in this regard is
not without justification. Thus after the filing of the second complaint with the justice
of the peace court of Mexico, complainant herself, as we have seen, asked for
dismissal of the complaint, on the ground that "el acusado tenia la salud bastante
delicada," and, apparently because of failure to arrive at any settlement, she decided
to renew her complaint.
Counsel for the intervenors contend and the contention is sustained by the Court of
Appeals that the petitioner did not complain heretofore of the denial of his
constitutional right to a speedy trial. This is a mistake. When the petitioner, for the
fourth time, was ordered arrested by the Court of First Instance of Pampanga, he
moved for reconsideration of the order of arrest, alleging, among other things, "Que
por estas continuas acusaciones e investigaciones, el acusado compareciente no
obsdtante su mal estado de salud desde el ao 1932 en que tuvo que ser operado por
padecer de tuberculosis ha tenido que sostener litigios y ha sufrido la mar de
humiliaciones y zozobras y ha incurrido en enormes gastos y molestias y ha
desatendido su quebrantada salud." The foregoing allegation was inserted on page 6
of the amended petition for certiorari presented to the Court of Appeals. The
constitutional issue also appears to have been actually raised and considered in the
Court of Appeals. In the majority opinion of that court, it is
stated:jgc:chanrobles.com.ph
"Upon the foregoing facts, counsel for the petitioner submits for the consideration of
this court the following questions of law: First, that the respondent court acted
arbitrarily and with abuse of its authority, with serious damage and prejudice to the
rights and interests of the petitioner, in allowing that the latter be prosecuted and
arrested for the fourth time, and that he be subjected, also for the fourth time, to a
preliminary investigation for the same offense, thereby converting the court into an
instrument of oppression and vengeance on the pat of the alleged offended parties,
Rosario Basa Et. Al.;. . . ."cralaw virtua1aw library
And in the dissenting opinion, we find the following opening
paragraph:jgc:chanrobles.com.ph
"We cannot join in a decision declining to stop a prosecution that has dragged for
about five years and caused the arrest on four different occasions of a law abiding
citizen for the alleged offense of falsifying a will that years before, had been declared
genuine and valid by a court of competent jurisdiction."cralaw virtua1aw library
From the view we take of the instant case, the petitioner is entitled to have the
criminal proceedings against him quashed. The judgment of the Court of Appeals is
hereby reversed, without pronouncement regarding costs. So ordered.
EN BANC
G.R. No. L-23372 June 14, 1967
IN RE: INTESTATE ESTATE OF THE LATE PIO DURAN. CIPRIANO DURAN
and MIGUEL DURAN, petitioners-appellants,
vs.
JOSEFINA B. DURAN, movant-oppositor and appellee.
BENGZON J.P, J.:
Pio Duran died without testament on February 28, 1961 in Guinobatan Albay.
Among his alleged heirs are Josefina Duran, as surviving spouse; several
brothers and sisters; nephews and nieces.
Subsequent to his death, on June 2, 1962, Cipriano Duran, one of the
surviving brothers, executed a public instrument assigning and renouncing

his hereditary rights to the decedent's estate in favor of Josefina Duran, for
the consideration of P2,500.00.
A year later, on June 8, 1963, Cipriano Duran filed in the Court of First
Instance of Albay a petition for intestate proceedings to settle Pio Duran's
estate, further asking that he be named the administrator. An ex
parte motion to be appointed special administrator was also filed by him.
Against said petition, Josefina Duran filed on August 9, 1963 an opposition,
praying for its dismissal upon the ground that the petitioner is not an
"interested person" in the estate, in view of the deed of transfer and
renunciation the estate, in view of afore-stated, attaching a copy of the
same; in the alternative, she asked to be appointed administratrix.
Replying to this, Cipriano alleged, on September 11, 1963, alleged in his
opposition to the motion to dismiss, that Josefina Duran was not the
decedent's wife. Anent the deed of assignment, he contended that the same
was procured thru fraud, with gross inadequacy of price and vitiated by
lesion.
Still later, another brother of the decedent, Miguel Duran, filed on September
14, 1963, a petition to be joined as co-petitioner of Cipriano. Josefina Duran
moved to strike out said petition as an improper attempt to intervene in the
case. She also filed a reply to Cipriano's opposition to her motion to dismiss.
In turn, Miguel filed an opposition to Josefina's motion to strike
out.1wph1.t
Acting on said motions, on June 3, 1964, the Court of First Instance issued an
order dismissing the petition of Cipriano for his lack of interest in the estate.
Said lack of interest was premised on the deed of transfer executed by
Cipriano, regarding which the court declared itself without power to examine
in said proceedings, collaterally, the alleged fraud, inadequacy of price and
lesion that would render it rescissible or voidable. And with the petition's
dismissal, Miguel's petition to be joined as co-petitioner was deemed without
leg to stand on.
Appeal to Us directly, on questions of law, was taken by Cipriano and Miguel
Duran.
The Rules of Court provides that a petition for administration and settlement
of an estate must be filed by an "interested person" (See. 2, Rule 79).
Appellants contend that the deed of assignment executed by Cipriano did not
operate to render him a person without interest in the estate. Relying on In
re Irene Santos, L-11848, May 31, 1962, they argue that an assignment by
one heir of his share in the estate to a co-heir amounts to a partition needing
approval by the settlement court to be effective; and that the assigning heir
does not lose his status as a person interested in the estate, even after said
assignment is approved by the court.
The situation in the Santos case involves an assignment between co-
heirs pendente lite, during the course of settlement proceedings, properly
and validly commenced. At the time of said assignment, therefore, the
settlement court had already acquired jurisdiction over the properties of
estate. As a result, any assignment regarding the same had to be approved
by said court. And since the approval the court is not deemed final until the
30
estate is closed the assigning heir remains an interested person in
proceedings even after said approval, which can be vacated is given.
In the present case, however, the assignment took place when no settlement
proceedings was pending. The properties subject matter of the assignment
were not under the jurisdiction of a settlement court. Allowing that the
assignment must be deemed a partition as between the assignor and
assignee, the same does not need court approval to be effective as between
the parties. An extrajudicial partition is valid as between the participants
even if the requisites of Sec. 1, Rule 74 for extrajudicial partition are not
followed, since said requisites are for purposes of binding creditors and non-
participating heirs only (Hernandez v. Andal, 78 Phil. 196). Should it be
contended that said partition was attended with fraud, lesion or inadequacy
of price, the remedy is to rescind or to annul the same in an action for that
purpose. And in the meanwhile, assigning heir cannot initiate a settlement
proceedings, for until the deed of assignment is annulled or rescinded, it is
deemed valid and effective against him, so that he is left without that
"interest" in the estate required to petite for settlement proceedings.
Anent appellant Miguel Duran, he sought in his petition below to "join
petitioner Cipriano Duran as co-petitioner in the latter's petition . . . and
incorporates herein by adoption all the allegations made in said petition."
(Record on Appeal, pp. 45-46). The same, therefore, amounted to a petition
to intervene in the settlement proceedings. As aptly ruled by the court a quo,
since there was really no settlement proceedings in the first place, the
petition to intervene must be denied.
Finally, although Josefina Duran prayed to be appointed administratrix, her
doing so did not amount to ratification of the petition for settlement under
the ruling in Eusebio v. Valmores, 97 Phil. 163, since she did so merely by
way of an alternative prayer, should her motion to dismiss fail. And said
motion to dismiss was properly sustained.
Wherefore, the dismissal order appealed from is hereby affirmed, with costs
against appellants. So ordered.
EN BANC
[G.R. No. L-12190. August 30, 1958.]
TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP deceased.
FAUSTO E. GAN, Petitioner-Appellant, v. ILDEFONSO YAP, Oppositor-
Appellee.
SYLLABUS

1. HOLOGRAPHIC WILLS; PROBATE OF; EXECUTION AND CONTENTS OF WILL,
HOW PROVED. 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.
DECISION
BENGZON, J.:
On November 20, 1951, Felicidad Esguerra Alto Yap died of heart failure in
the University of Santo Tomas Hospital, leaving properties in Pulilan, Bulacan,
and in the City of Manila.
On March 17, 1952, Fausto E. Gan initiated these proceedings in the Manila
court of first instance with a petition for the probate of a holographic will
allegedly executed by the deceased, substantially in these
words:jgc:chanrobles.com.ph
"Nobyembre 5, 1951
Ako, si Felicidad E. Alto-Yap, may asawa, at ganap na pagiisip, ay
nagsasalaysay na ang aking kayamanan sa bayan ng Pulilan, Bulacan ay
aking ipinamamana sa aking mga kamaganakang sumusunod:chanrob1es
virtual 1aw library
Vicente Esguerra, Sr. 5 Bahagi
Fausto E. Gan 2 Bahagi
Rosario E. Gan 2 Bahagi
Filomena Alto 1 Bahagi
Beatriz Alto 1 Bahagi
At ang aking lahat ng ibang kayamanan sa Maynila at iba pang lugar ay
aking ipinamamana sa aking asawang si Ildefonso D. Yap sa kondisyong
siyay magpapagawa ng isang Health Center na nagkakahalaga ng di
kukulangin sa halagang P60,000.00 sa bayan ng Pulilan, Bulacan, na
nakaukit ang aking pagalang Felicidad Esguerra-Alto. At kung ito ay may
kakulagan man ay bahala na ang aking asawa ang magpuno upang
matupad ang aking kagustuhan.
(Lagda) Felicidad E. Alto-Yap"
Opposing the petition, her surviving husband Ildefonso Yap asserted that the
deceased had not left any will, nor executed any testament during her
lifetime.
After hearing the parties and considering their evidence, the Hon. Ramon R.
San Jose, Judge, 1 refused to probate the alleged will. A seventy-page motion
for reconsideration failed. Hence this appeal.
The will itself was not presented. Petitioner tried to establish its contents and
due execution by the statements in open court of Felina Esguerra, Primitivo
Reyes, Socorro Olarte and Rosario Gan Jimenez, whose testimonies may be
31
summarized as follows:chanrob1es virtual 1aw library
Sometime in 1950 after her last trip abroad, Felicidad Esguerra mentioned to
her first cousin, Vicente Esguerra, her desire to make a will. She confided
however that it would be useless if her husband discovered or knew about it.
Vicente consulted with Fausto E. Gan, nephew of Felicidad, who was then
preparing for the bar examinations. The latter replied it could be done
without any witness, provided the document was entirely in her handwriting,
signed and dated by her. Vicente Esguerra lost no time in transmitting the
information, and on the strength of it, in the morning of November 5, 1951,
in her residence at Juan Luna Street, Manila, Felicidad wrote, signed and
dated a holographic will substantially of the tenor above transcribed, in the
presence of her niece, Felina Esguerra (daughter of Vicente), who was invited
to read it. In the afternoon of that day, Felicidad was visited by a distant
relative, Primitivo Reyes, and she allowed him to read the will in the presence
of Felina Esguerra, who again read it.
Nine days later, he had other visitors: Socorro Olarte a cousin, and Rosario
Gan Jimenez, a niece. To these she showed the will, again in the presence of
Felina Esguerra, who read it for the third time.
When on November 19, 1951, Felicidad was confined at the U.S.T. Hospital
for her last illness, she entrusted the said will, which was contained in a
purse, to Felina Esguerra. But a few hours later, Ildefonso Yap, her husband,
asked Felina for the purse; and being afraid of him by reason of his well-
known violent temper, she- delivered it to him. Thereafter, in the same day,
Ildefonso Yap returned the purse to Felina, only to demand it the next day
shortly before the death of Felicidad. Again, Felina handed it to him but not
before she had taken the purse to the toilet, opened it and read the will for
the last time. 2
From the oppositors proof it appears that Felicidad Esguerra had been
suffering from heart disease for several years before her death; that she had
been treated by prominent physicians, Dr. Agerico Sison, Dr. Agustin Liboro
and others; that in May 1950 husband and wife journeyed to the United
States wherein for several weeks she was treated for the disease; that
thereafter she felt well and after visiting interesting places, the couple
returned to this country in August 1950. However, her ailment recurred, she
suffered several attacks, the most serious of which happened in the early
morning of the first Monday of November 1951 (Nov. 5). The whole
household was surprised and alarmed, even the teachers of the Harvardian
Colleges occupying the lower floors and owned by the Yap spouses.
Physicians help was hurriedly called, and Dr. Tanjuaquio arrived at about
8:00 a.m., found the patient hardly breathing, lying in bed, her head held
high by her husband. Injections and oxygen were administered. Following the
doctors advice the patient stayed in bed, and did nothing the whole day, her
husband and her personal attendant, Mrs. Bantique, constantly at her side.
These two persons swore that Mrs. Felicidad Esguerra Yap made no will, and
could have made no will on that day.
The trial judge refused to credit the petitioners evidence for several reasons,
the most important of which were these: (a) if according to his evidence, the

decedent wanted to keep her will a secret, so that her husband would not
know it, it is strange she executed
it in the presence of Felina Esguerra, knowing as she did that witnesses were
unnecessary; (b) in the absence of a showing that Felina was a confidant of
the decedent it is hard to believe that the latter would have allowed the
former to see and read the will several times; (c) it is improbable that the
decedent would have permitted Primitivo Reyes, Rosario Gan Jimenez and
Socorro Olarte to read her will, when she precisely wanted its contents to
remain a secret during her lifetime; (d) it is also improbable that her purpose
being to conceal the will from her husband she would carry it around, even to
the hospital, in her purse which could for one reason or another be opened
by her husband; (e) if it is true that the husband demanded the purse from
Felina in the U.S.T. Hospital and that the will was there, it is hard to believe
that he returned it without destroying the will, the theory of the petitioner
being precisely that the will was executed behind his back for fear he will
destroy it.
In the face of these improbabilities, the trial judge had to accept the
oppositors evidence that Felicidad did not and could not have executed such
holographic will.
In this appeal, the major portion of appellants brief discussed the testimony
of the oppositor and of his witnesses in a vigorous effort to discredit them. It
appears that the same arguments, or most of them, were presented in the
motion to reconsider; but they failed to induce the court a quo to change its
mind. The oppositors brief, on the other hand, aptly answers the criticisms.
We deem it unnecessary to go over the same matters, because in our opinion
the case should be decided not on the weakness of the opposition but on the
strength of the evidence of the petitioner, who has the burden of proof.
The Spanish Civil Code permited the execution of holographic wills along with
other forms. The Code of Civil Procedure (Act 190) approved August 7, 1901,
adopted only one form, thereby repealing the other forms, including
holographic wills.
The New Civil Code effective in 1950 revived holographic wills in its arts.
810-814. "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."cralaw virtua1aw library
This is indeed a radical departure from the form and solemnities provided for
wills under Act 190, which for fifty years (from 1901 to 1950) required wills to
be subscribed by the testator and three credible witnesses in each and every
page; such witnesses to attest to the number of sheets used and to the fact
that the testator signed in their presence and that they signed in the
presence of the testator and of each other.
The object of such requirements it has been said, is to close the door against
bad faith and fraud, to prevent substitution of wills, to guarantee their truth
and authenticity (Abangan v. Abangan, 40 Phil., 476) and to avoid that those
who have no right to succeed the testator would succeed him and be
benefited with the probate of same. (Mendoza v. Pilapil, 40 off. Gaz., 1855).
32
However, formal imperfections may be brushed aside when authenticity of
the instrument is duly proved. (Rodriguez v. Yap, 40 Off. Gaz. Ist Supp. No. 3
p. 194.) .
Authenticity and due execution is the dominant requirement to be fulfilled
when such will is submitted to the courts for allowance. For that purpose the
testimony of one of the subscribing witnesses would be sufficient, if there is
no opposition (Sec. 5, Rule 77). If there is, the three must testify, if available.
(Cabang v. Delfinado 34 Phil., 291; Tolentino v. Francisco, 57 Phil., 742). From
the testimony of such witnesses (and of other additional witnesses) the court
may form its opinion as to the genuineness and authenticity of the
testament, and the circumstances of its due execution.
Now, in the matter of holographic wills, no such guaranties of truth and
veracity are demanded, since as stated, they need no witnesses; provided
however, that they are "entirely written, dated, and signed by the hand of
the testator himself." The law, it is reasonable to suppose, regards the
document itself as material proof of authenticity, and as its own safeguard,
since it could at any time, be demonstrated to be or not to be in the
hands of the testator himself. "In the probate of a holographic will" says the
New Civil Code, "it shall be necessary that at least one witness who knows
the handwriting and signature of the testator explicitly declare that the will
and the signature are in the handwriting of the testator. If the will is
contested, at least three such witnesses shall be required. In the absence of
any such witnesses, (familiar with decedents handwriting) and if the court
deem it necessary, expert testimony may be resorted to."cralaw virtua1aw
library
The witnesses so presented do not need to have seen the execution of the
holographic will. They may be mistaken in their opinion of the handwriting, or
they may deliberately lie in affirming it is in the testators hand. However,
the oppositor may present other witnesses who also know the testators
handwriting, or some expert witnesses, who after comparing the will with
other writings or letters of the deceased, have come to the conclusion that
such will has not been written by the hand of the deceased. (Sec. 50, Rule
123). And the court, in view of such contradictory testimony may use its own
visual sense, and decide in the face of the document, whether the will
submitted to it has indeed been written by the testator.
Obviously, when the will itself is not submitted, these means of opposition,
and of assessing the evidence are not available. And then the only guaranty
of authenticity 3 the testators handwriting has disappeared.
Therefore, the question presents itself, may a holographic will be probated
upon the testimony of witnesses who have allegedly seen it and who declare
that it was in the handwriting of the testator? How can the oppositor prove
that such document was not in the testators handwriting? His witnesses who
know testators handwriting have not examined it. His experts can not
testify, because there is no way to compare the alleged testament with other
documents admittedly, or proven to be, in the testators hand. The oppositor
will, therefore, be caught between the upper millstone of his lack of
knowledge of the will or the form thereof, and the nether millstone of his
inability to prove its falsity. Again the proponents witnesses may be honest

and truthful; but they may have been shown a faked document, and having
no interest to check the authenticity thereof have taken no pains to examine
and compare. Or they may be perjurers boldly testifying, in the knowledge
that none could convict them of perjury, because no one could prove that
they have not "been shown" a document which they believed was in the
handwriting of the deceased. Of course, the competency of such perjured
witnesses to testify as to the handwriting could be tested by exhibiting to
them other writings sufficiently similar to those written by the deceased; but
what witness or lawyer would not foresee such a move and prepare for it? His
knowledge of the handwriting established, the witness (or witnesses) could
simply stick to his statement: he has seen and read a document which he
believed was in the deceaseds handwriting. And the court and the oppositor
would practically be at the mercy of such witness (or witnesses) not only as
to the execution, but also as to the contents of the will. Does the law permit
such a situation?
The Rules of Court, (Rule 77) approved in 1940, allow proof (and probate) of
a lost or destroyed will by secondary evidence the testimony of witnesses,
in lieu of the original document. Yet such Rules could not have contemplated
holographic wills which could not then be validly made here. (See also Sec.
46, Rule 123; Art. 830-New Civil Code.) .
Could Rule 77 be extended, by analogy, to holographic wills?
Spanish commentators agree that one of the greatest objections to the
holographic will is that it may be lost or stolen 4 an implied admission that
such loss or theft renders it useless.
This must be so, because the Civil Code requires it to be protocoled and
presented to the judge, (Art. 689) who shall subscribe it and require its
identity to be established by the three witnesses who depose that they have
no reasonable doubt that the will was written by the testator (Art. 691). And
if the judge considers that the identity of the will has been proven he shall
order that it be filed (Art. 693). All these, imply presentation of the will itself.
Art. 692 bears the same implication, to a greater degree. It requires that the
surviving spouse and the legitimate ascendants and descendants be
summoned so that they may make "any statement they may desire to
submit with respect to the authenticity of the will." As it is universally
admitted that the holographic will is usually done by the testator and by
himself alone, to prevent others from knowing either its execution or its
contents, the above article 692 could not have the idea of simply permitting
such relatives to state whether they know of the will, but whether in the face
of the document itself they think the testator wrote it. Obviously, this they
cant do unless the will itself is presented to the Court and to them.
Undoubtedly, the intention of the law is to give the near relatives the choice
of either complying with the will if they think it authentic, or to oppose it, if
they think it spurious. 5 Such purpose is frustrated when the document is not
presented for their examination. If it be argued that such choice is not
essential, because anyway the relatives may oppose, the answer is that their
opposition will be at a distinct disadvantage, and they have the right and
privilege to comply with the will, if genuine, a right which they should not be
denied by withholding inspection thereof from them.
33
We find confirmation of these ideas about exhibition of the document itself
in the decision of the Supreme Court of Spain of June 5, 1925, which
denied protocolization or probate to a document containing testamentary
dispositions in the handwriting of the deceased, but apparently mutilated,
the signature and some words having been torn from it. Even in the face of
allegations and testimonial evidence (which was controverted), ascribing the
mutilation to the opponents of the will. The aforesaid tribunal declared that,
in accordance with the provision of the Civil Code (Spanish) the will itself,
whole and unmutilated, must be presented; otherwise, it shall produce no
effect.
"Considerando que sentado lo anterior, y estableciendose en el parrafo
segundo del articulo 688 del Codigo civil, que para que sea valido el
testamento olografo debera estar escrito todo el y firmado por testador, con
expression del ao, mes y dia en que se otorque, resulta evidente que para
la validez y eficacia de esos testamentos, no basta la demostracion mas o
menos cumplida de que cuando se otorgaron se llenaron todos esos
requisitos, sino que de la expresada redaccion el precepto legal, y por el
tiempo en que el verbo se emplea, se desprende la necesidad de que el
documento se encuentre en dichas condiciones en el momento de ser
presentado a la Autoridad competente, para su adveracion y protocolizacion;
y como consecuencia ineludible de ello, forzoso es affirmar que el de autos
carece de validez y aficacia, por no estar firmado por el testador, cualquiera
que sea la causa de la falta de firma, y sin perjuicio de las acciones que
puedan ejercitar los perjudicados, bien para pedir indemnizacion por el
perjuicio a la persona culpable, si la hubiere, o su castigo en via criminal si
procediere, por constituir dicha omision un defecto insubsanable . . . ."cralaw
virtua1aw library
This holding aligns with the ideas on holographic wills in the Fuero Juzgo,
admittedly the basis of the Spanish Civil Code provisions on the matter. 6
"PRECEDENTES LEGALES Fuero Juzgo, libro segundo, titulo V, ley 15 E
depues que los herederos e sus fijos ovieren esta manda, fasta . . . annos
muestrenla al obispo de la tierra, o al juez fasta Vl meses y el obispo o el juez
tomen otros tales tres escritos, que fuesen fechos por su mano daquel que
fizo la manda; e por aquellos escriptos, si semjara la letra de la manda, sea
confirmada la manda. E depues que todo esto fuere connoscido, el obispo o
el juez, o otras testimonios confirmen el escripto de la manda otra vez, y en
esta manera vala la manda." (Art. 689, Scaevola - Codigo Civil.)
(According to the Fuero above, the will itself must be compared with
specimens of the testators handwriting.)
All of which can only mean: the courts will not distribute the property of the
deceased in accordance with his holographic will, unless they are shown his
handwriting and signature. 7
Parenthetically, it may be added that even the French Civil Law considers the
loss of the holographic will to be fatal. (Planiol y Ripert, Derecho Civil
Frances, traduccion por Diaz Cruz, 1946, Tomo V, page 555).
 34

Taking all the above circumstances together, we reach the conclusion 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. 8
Under the provisions of Art. 838 of the New Civil Code, we are empowered to
adopt this opinion as a Rule of Court for the allowance of such holographic
wills. We hesitate, however, to make this Rule decisive of this controversy,
simultaneously with its promulgation. Anyway, decision of the appeal may
rest on the sufficiency, rather the insufficiency, of the evidence presented by
petitioner Fausto E. Gan.
At this point, before proceeding further, it might be convenient to explain
why, unlike holographic wills, ordinary wills may be proved by testimonial
evidence when lost or destroyed. The difference lies in the nature of the wills.
In the first, the only guarantee of authenticity is the handwriting itself; in the
second, the testimony of the subscribing or instrumental witnesses (and of
the notary, now). The loss of the holographic will entails the loss of the only
medium of proof; if the ordinary will is lost, the subscribing witnesses are
available to authenticate.
In the case of ordinary wills, it is quite hard to convince three witnesses (four
with the notary) deliberately to lie. And then their lies could be checked and
exposed, their whereabouts and acts on the particular day, the likelihood
that they would be called by the testator, their intimacy with the testator,
etc. And if they were intimates or trusted friends of the testator they are not
likely to lend themselves to any fraudulent scheme to distort his wishes. Last
but not least, they can not receive anything on account of the will.
court, nor directly contradicted by the oppositors, because the handwriting
itself is not at hand.
Turning now to the evidence presented by the petitioner, we find ourselves
sharing the trial judges disbelief. In addition to the dubious circumstances
described in the appealed decision, we find it hard to believe that the
deceased should show her will precisely to relatives who had received
nothing from it: Socorro Olarte and Primitivo Reyes. These could pester her
into amending her will to give them a share, or threaten to reveal its
execution to her husband Ildefonso Yap. And this leads to another point: if
she wanted so much to conceal the will from her husband, why did she not
entrust it to her beneficiaries? Opportunity to do so was not lacking: for
instance, her husbands trip to Davao, a few days after the alleged execution
of the will.
In fine, even if oral testimony were admissible to establish and probate a lost
holographic will, we think the evidence submitted by herein petitioner is so
tainted with improbabilities and inconsistencies that it fails to measure up to
that "clear and distinct" proof required by Rule 77, sec. 6. 11
Wherefore, the rejection of the alleged will must be sustained.
Judgment affirmed, with costs against petitioner.

Whereas in the case of holographic wills, if oral testimony were admissible 9

only one man could engineer the whole fraud this way: after making a clever
or passable imitation of the handwriting and signature of the deceased, he
may contrive to let three honest and credible witnesses see and read the
forgery; and the latter, having no interest, could easily fall for it, and in court
they would in all good faith affirm its genuineness and authenticity. The will
having been lost the forger may have purposely destroyed it in an
"accident" the oppositors have no way to expose the trick and the error,
because the document itself is not at hand. And considering that the
holographic will may consist of two or three pages, and only one of them
need be signed, the substitution of the unsigned pages, which may be the
most important ones, may go undetected.

If testimonial evidence of holographic wills be permitted, one more

objectionable feature feasibility of forgery would be added to the
several objections to this kind of wills listed by Castan, Sanchez Roman and
Valverde and other well-known Spanish Commentators and teachers of Civil
Law. 10

One more fundamental difference: in the case of a lost will, the three
subscribing witnesses would be testifying to a fact which they saw, namely
the act of the testator of subscribing the will; whereas in the case of a lost
holographic will, the witnesses would testify as to their opinion of the
handwriting which they allegedly saw, an opinion which can not be tested in

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.
AMPARO ARANZA, ET AL., oppositors-appellees, ATTY. LORENZO
SUMULONG, intervenor.
RELOVA, J.:
This case was certified to this Tribunal by the Court of Appeals for final
determination pursuant to Section 3, Rule 50 of the Rules of Court.
As found by the Court of Appeals:
... On January 11, 1977, appellant filed a petition with the Court of First
Instance of Rizal for the probate of the holographic will of Ricardo B.
Bonilla and the issuance of letters testamentary in her favor. The petition,
docketed as Sp. Proc. No. 8432, was opposed by the appellees Amparo
Aranza Bonilla, Wilferine Bonilla Treyes Expedita Bonilla Frias and Ephraim
Bonilla on the following grounds:
(1) Appellant was estopped from claiming that the deceased left a will by
failing to produce the will within twenty days of the death of the testator
as required by Rule 75, section 2 of the Rules of Court;
(2) The alleged copy of the alleged holographic will did not contain a
disposition of property after death and was not intended to take effect
after death, and therefore it was not a will
(3) The alleged hollographic will itself,and not an alleged copy thereof,
must be produced, otherwise it would produce no effect, as held in Gam v.
Yap, 104 Phil. 509; and
(4 ) The deceased did not leave any will, holographic or otherwise,
executed and attested as required by law.
The appellees likewise moved for the consolidation of the case with
another case Sp. Proc. No, 8275). Their motion was granted by the court
in an order dated April 4, 1977.
35
On November 13, 1978, following the consolidation of the cases, the
appellees moved again to dismiss the petition for the probate of the will.
They argued that:
(1) The alleged holographic was not a last will but merely an instruction as
to the management and improvement of the schools and colleges
founded by decedent Ricardo B. Bonilla; and
(2) Lost or destroyed holographic wills cannot be proved by secondary
evidence unlike ordinary wills.
Upon opposition of the appellant, the motion to dismiss was denied by the
court in its order of February 23, 1979.
The appellees then filed a motion for reconsideration on the ground that
the order was contrary to law and settled pronouncements and rulings of
the Supreme Court, to which the appellant in turn filed an opposition. On
July 23, 1979, the court set aside its order of February 23, 1979 and
dismissed the petition for the probate of the will of Ricardo B. Bonilla. The
court said:
... It is our considered opinion that once the original copy of the
holographic will is lost, a copy thereof cannot stand in lieu of the original.
In the case of Gam vs. Yap, 104 Phil. 509, 522, the Supreme Court held
that 'in the matter of holographic wills the law, it is reasonable to
suppose, regards the document itself as the material proof of authenticity
of said wills.
MOREOVER, this Court notes that the alleged holographic will was
executed on January 25, 1962 while Ricardo B. Bonilla died on May 13,
1976. In view of the lapse of more than 14 years from the time of the
execution of the will to the death of the decedent, the fact that the
original of the will could not be located shows to our mind that the
decedent had discarded before his death his allegedly missing
Holographic Will.
Appellant's motion for reconsideration was denied. Hence, an appeal to the
Court of Appeals in which it is contended that the dismissal of appellant's
petition is contrary to law and well-settled jurisprudence.
On July 7, 1980, appellees moved to forward the case to this Court on the
ground that the appeal does not involve question of fact and alleged that the
trial court committed the following assigned errors:
I. THE LOWER COURT ERRED IN HOLDING THAT A LOST HOLOGRAPHIC
WILL MAY NOT BE PROVED BY A COPY THEREOF;
II. THE LOWER COURT ERRED IN HOLDING THAT THE DECEDENT HAS
DISCARDED BEFORE HIS DEATH THE MISSING HOLOGRAPHIC WILL;
III. THE LOWER COURT ERRED IN DISMISSING APPELLANT'S WILL.
The only question here is whether a holographic will which was lost or cannot
be found can be proved by means of a photostatic copy. Pursuant to Article
811 of the Civil Code, probate of holographic wills is the allowance of the will
by the court after its due execution has been proved. The probate may be
uncontested or not. If uncontested, at least one Identifying witness is
required and, if no witness is available, experts may be resorted to. If
contested, at least three Identifying witnesses are required.
However, if the holographic will has been lost or destroyed and no other copy
is available, the will can not be probated because the best and only evidence

is the handwriting of the testator in said will. It is necessary that there be a
comparison between sample handwritten statements of the testator and the
handwritten will. But, a photostatic copy or xerox copy of the holographic will
may be allowed because comparison can be made with the standard writings
of the testator. In the case of Gam vs. Yap, 104 PHIL. 509, the Court ruled
that "the execution and the contents of a lost or destroyed holographic will
may not be proved by the bare testimony of witnesses who have seen and/or
read such will. The will itself must be presented; otherwise, it shall produce
no effect. The law regards the document itself as material proof of
authenticity." But, in Footnote 8 of said decision, it says that "Perhaps it may
be proved by a photographic or photostatic copy. Even a mimeographed or
carbon copy; or by other similar means, if any, whereby the authenticity of
the handwriting of the deceased may be exhibited and tested before the
probate court," Evidently, the photostatic or xerox copy of the lost or
destroyed holographic will may be admitted because then the authenticity of
the handwriting of the deceased can be determined by the probate court.
WHEREFORE, the order of the lower court dated October 3, 1979, denying
appellant's motion for reconsideration dated August 9, 1979, of the Order
dated July 23, 1979, dismissing her petition to approve the will of the late
Ricardo B. Bonilla, is hereby SET ASIDE.
SO ORDERED.
EN BANC
G.R. No. 184769 October 5, 2010
MANILA ELECTRIC COMPANY, ALEXANDER S. DEYTO and RUBEN A.
SAPITULA, Petitioners,
vs.
ROSARIO GOPEZ LIM, Respondent.
DECISION
CARPIO MORALES, J.:
The Court is once again confronted with an opportunity to define the evolving
metes and bounds of the writ of habeas data. May an employee invoke the
remedies available under such writ where an employer decides to transfer
her workplace on the basis of copies of an anonymous letter posted therein
imputing to her disloyalty to the company and calling for her to leave, which
imputation it investigated but fails to inform her of the details thereof?
Rosario G. Lim (respondent), also known as Cherry Lim, is an administrative
clerk at the Manila Electric Company (MERALCO).
On June 4, 2008, an anonymous letter was posted at the door of the Metering
Office of the Administration building of MERALCO Plaridel, Bulacan Sector, at
which respondent is assigned, denouncing respondent.
The letter reads:
Cherry Lim:
MATAPOS MONG LAMUNIN LAHAT NG BIYAYA NG MERALCO, NGAYON NAMAN
AY GUSTO MONG PALAMON ANG BUONG KUMPANYA SA MGA BUWAYA NG
GOBYERNO. KAPAL NG MUKHA MO, LUMAYAS KA RITO, WALANG UTANG NA
LOOB.1
36
Copies of the letter were also inserted in the lockers of MERALCO linesmen.
Informed about it, respondent reported the matter on June 5, 2008 to the
Plaridel Station of the Philippine National Police. 2
By Memorandum3 dated July 4, 2008, petitioner Alexander Deyto, Head of
MERALCOs Human Resource Staffing, directed the transfer of respondent to
MERALCOs Alabang Sector in Muntinlupa as "A/F OTMS Clerk," effective July
18, 2008 in light of the receipt of " reports that there were accusations and
threats directed against [her] from unknown individuals and which could
possibly compromise [her] safety and security."
Respondent, by letter of July 10, 2008 addressed to petitioner Ruben A.
Sapitula, Vice-President and Head of MERALCOs Human Resource
Administration, appealed her transfer and requested for a dialogue so she
could voice her concerns and misgivings on the matter, claiming that the
"punitive" nature of the transfer amounted to a denial of due process. Citing
the grueling travel from her residence in Pampanga to Alabang and back
entails, and violation of the provisions on job security of their Collective
Bargaining Agreement (CBA), respondent expressed her thoughts on the
alleged threats to her security in this wise:
xxxx
I feel that it would have been better . . . if you could have intimated to me
the nature of the alleged accusations and threats so that at least I could have
found out if these are credible or even serious. But as you stated, these
came from unknown individuals and the way they were handled, it appears
that the veracity of these accusations and threats to be [sic] highly
suspicious, doubtful or are just mere jokes if they existed at all.
Assuming for the sake of argument only, that the alleged threats exist as the
management apparently believe, then my transfer to an unfamiliar place and
environment which will make me a "sitting duck" so to speak, seems to
betray the real intent of management which is contrary to its expressed
concern on my security and safety . . . Thus, it made me think twice on the
rationale for managements initiated transfer. Reflecting further, it appears to
me that instead of the management supposedly extending favor to me, the
net result and effect of management action would be a punitive
one.4 (emphasis and underscoring supplied)
Respondent thus requested for the deferment of the implementation of her
transfer pending resolution of the issues she raised. No response to her
request having been received, respondent filed a petition 5 for the issuance of
a writ of habeas data against petitioners before the Regional Trial Court (RTC)
of Bulacan, docketed as SP. Proc. No. 213-M-2008.
By respondents allegation, petitioners unlawful act and omission consisting
of their continued failure and refusal to provide her with details or
information about the alleged report which MERALCO purportedly
received concerning threats to her safety and security amount to a violation
of her right to privacy in life, liberty and security, correctible by habeas data.
Respondent thus prayed for the issuance of a writ commanding petitioners to
file a written return containing the following:
a) a full disclosure of the data or information about respondent in
relation to the report purportedly received by petitioners on the

alleged threat to her safety and security; the nature of such data and
the purpose for its collection;
b) the measures taken by petitioners to ensure the confidentiality of
such data or information; and
c) the currency and accuracy of such data or information obtained.
Additionally, respondent prayed for the issuance of a Temporary Restraining
Order (TRO) enjoining petitioners from effecting her transfer to the MERALCO
Alabang Sector.
By Order6 of August 29, 2008, Branch 7 of the Bulacan RTC directed
petitioners to file their verified written return. And by Order of September 5,
2008, the trial court granted respondents application for a TRO.
Petitioners moved for the dismissal of the petition and recall of the TRO on
the grounds that, inter alia, resort to a petition for writ of habeas data was
not in order; and the RTC lacked jurisdiction over the case which properly
belongs to the National Labor Relations Commission (NLRC). 7
By Decision8 of September 22, 2008, the trial court granted the prayers of
respondent including the issuance of a writ of preliminary injunction directing
petitioners to desist from implementing respondents transfer until such time
that petitioners comply with the disclosures required.
The trial court justified its ruling by declaring that, inter alia, recourse to a
writ of habeas data should extend not only to victims of extra-legal killings
and political activists but also to ordinary citizens, like respondent whose
rights to life and security are jeopardized by petitioners refusal to provide
her with information or data on the reported threats to her person.
Hence, the present petition for review under Rule 45 of 1997 Rules of Civil
Procedure and the Rule on the Writ of Habeas Data9 contending that 1) the
RTC lacked jurisdiction over the case and cannot restrain MERALCOs
prerogative as employer to transfer the place of work of its employees, and
2) the issuance of the writ is outside the parameters expressly set forth in
the Rule on the Writ of Habeas Data.101avvphi1
Maintaining that the RTC has no jurisdiction over what they contend is clearly
a labor dispute, petitioners argue that "although ingeniously crafted as a
petition for habeas data, respondent is essentially questioning the transfer of
her place of work by her employer"11 and the terms and conditions of her
employment which arise from an employer-employee relationship over which
the NLRC and the Labor Arbiters under Article 217 of the Labor Code have
jurisdiction.
Petitioners thus maintain that the RTC had no authority to restrain the
implementation of the Memorandum transferring respondents place of work
which is purely a management prerogative, and that OCA-Circular No. 79-
200312 expressly prohibits the issuance of TROs or injunctive writs in labor-
related cases.
Petitioners go on to point out that the Rule on the Writ of Habeas Data directs
the issuance of the writ only against public officials or employees, or private
individuals or entities engaged in the gathering, collecting or storing of data
37
or information regarding an aggrieved partys person, family or home; and
that MERALCO (or its officers) is clearly not engaged in such activities.
The petition is impressed with merit.
Respondents plea that she be spared from complying with MERALCOs
Memorandum directing her reassignment to the Alabang Sector, under the
guise of a quest for information or data allegedly in possession of petitioners,
does not fall within the province of a writ of habeas data.
Section 1 of the Rule on the Writ of Habeas Data provides:
Section 1. Habeas Data. The writ of habeas data is a remedy available to
any person whose right to privacy in life, liberty or security is violated
or threatened by an unlawful act or omission of a public official or
employee or of a private individual or entity engaged in the gathering,
collecting or storing of data or information regarding the person,
family, home and correspondence of the aggrieved party. (emphasis and
underscoring supplied)
The habeas data rule, in general, is designed to protect by means of judicial
complaint the image, privacy, honor, information, and freedom of information
of an individual. It is meant to provide a forum to enforce ones right to the
truth and to informational privacy, thus safeguarding the constitutional
guarantees of a persons right to life, liberty and security against abuse in
this age of information technology.
It bears reiteration that like the writ of amparo, habeas data was conceived
as a response, given the lack of effective and available remedies, to address
the extraordinary rise in the number of killings and enforced disappearances.
Its intent is to address violations of or threats to the rights to life, liberty or
security as a remedy independently from those provided under prevailing
Rules.13
Castillo v. Cruz14 underscores the emphasis laid down in Tapuz v. del
Rosario15 that the writs of amparo and habeas data will NOT issue to protect
purely property or commercial concerns nor when the grounds invoked in
support of the petitions therefor are vague or doubtful. 16 Employment
constitutes a property right under the context of the due process clause of
the Constitution.17 It is evident that respondents reservations on the real
reasons for her transfer - a legitimate concern respecting the terms and
conditions of ones employment - are what prompted her to adopt the
extraordinary remedy of habeas data. Jurisdiction over such concerns is
inarguably lodged by law with the NLRC and the Labor Arbiters.
In another vein, there is no showing from the facts presented that petitioners
committed any unjustifiable or unlawful violation of respondents right to
privacy vis-a-vis the right to life, liberty or security. To argue that petitioners
refusal to disclose the contents of reports allegedly received on the threats to
respondents safety amounts to a violation of her right to privacy is at best
speculative. Respondent in fact trivializes these threats and accusations from
unknown individuals in her earlier-quoted portion of her July 10, 2008 letter
as "highly suspicious, doubtful or are just mere jokes if they existed at
all."18 And she even suspects that her transfer to another place of work
"betray[s] the real intent of management]" and could be a "punitive move."
Her posture unwittingly concedes that the issue is labor-related.
 38

WHEREFORE, the petition is GRANTED. The assailed September 22, 2008

Decision of the Bulacan RTC, Branch 7 in SP. Proc. No. 213-M-2008 is hereby
REVERSED and SET ASIDE. SP. Proc. No. 213-M-2008 is, accordingly,
DISMISSED.
No costs.
SO ORDERED.