CONSTANTINO C.
ACAIN, petitioner, Acain filed a motion to dismiss on the following grounds for the petitioner
vs.
HON. INTERMEDIATE APPELLATE COURT (Third Special Cases Division),
VIRGINIA A. FERNANDEZ and ROSA DIONGSON, respondents.
Facts:
1. Petitioner Constantino Acain filed before the RTC of Cebu City a petition for
the probate of the will of the late Nemesio Acain and for the issuance to the
same petitioner of letters testamentary.
2. This is on the premise that Nemesio Acain died leaving a will in which
petitioner and his brothers Antonio, Flores and Jose and his sisters Anita,
Concepcion, Quirina and Laura were instituted as heirs. The will allegedly
executed by Nemesio Acain on February 17, 1960 was written in Bisaya with
a translation in English submitted by petitioner without objection raised by
private respondents.
3. The will contained provisions on burial rites, payment of debts, and the
appointment of a certain Atty. Ignacio G. Villagonzalo as the executor of the
testament. On the disposition of the testator's property, the will provided:
THIRD: All my shares that I may receive from our properties. house,
lands and money which I earned jointly with my wife Rosa Diongson
shall all be given by me to my brother SEGUNDO ACAIN Filipino,
widower, of legal age and presently residing at 357-C Sanciangko
Street, Cebu City. In case my brother Segundo Acain pre-deceased
me, all the money properties, lands, houses there in Bantayan and
here in Cebu City which constitute my share shall be given to me to
his children, namely: Anita, Constantino, Concepcion, Quirina, laura,
Flores, Antonio and Jose, all surnamed Acain.
4. Obviously, Segundo pre-deceased Nemesio. Thus it is the children of
Segundo who are claiming to be heirs, with Constantino as the petitioner in
Special Proceedings No. 591 ACEB
5. After the petition was set for hearing in the lower court on June 25, 1984
the oppositors (respondents herein Virginia A. Fernandez, a legally adopted
daughter of tile deceased and the latter's widow Rosa Diongson Vda. de
has no legal capacity to institute these proceedings; (2) he is merely a
universal heir and (3) the widow and the adopted daughter have been
pretirited.. Said motion was denied by the trial judge.
6. After the denial of their subsequent motion for reconsideration in the lower
court, respondents filed with the Supreme Court a petition for certiorari and
prohibition with preliminary injunction
7. Respondent Intermediate Appellate Court granted private respondents'
petition and ordered the trial court to dismiss the petition for the probate of
the will of Nemesio Acain in Special Proceedings No. 591 ACEB
8. His motion for reconsideration having been denied, petitioner filed this
present petition for the review.
9. Petitioner raises the following issues (Memorandum for petitioner, p. 4):
Issue: The pivotal issue in this case is whether or not private respondents have
been pretirited.
Held:
- Article 854 of the Civil Code provides:
Art. 854. The preterition or omission of one, some, or all of the compulsory heirs
in the direct line, whether living at the time of the execution of the will or born
after the death of the testator, shall annul the institution of heir; but the
devisees and legacies shall be valid insofar as they are not inofficious.
If the omitted compulsory heirs should die before the testator, the institution
shall be effectual, without prejudice to the right of representation.
- Preterition consists in the omission in the testator's will of the forced heirs
or anyone of them either because they are not mentioned therein, or,
though mentioned, they are neither instituted as heirs nor are expressly
disinherited . Insofar as the widow is concerned, Article 854 of the Civil
Code may not apply as she does not ascend or descend from the testator,
although she is a compulsory heir. Stated otherwise, even if the surviving
spouse is a compulsory heir, there is no preterition even if she is omitted
 from the inheritance, for she is not in the direct line. (Art. 854, Civil code)
however, the same thing cannot be said of the other respondent Virginia A.
Fernandez, whose legal adoption by the testator has not been questioned
by petitioner (.Memorandum for the Petitioner, pp. 8-9). Under Article 39 of
P.D. No. 603, known as the Child and Youth Welfare Code, adoption gives to
the adopted person the same rights and duties as if he were a legitimate
child of the adopter and makes the adopted person a legal heir of the
adopter. It cannot be denied that she has totally omitted and preterited in
the will of the testator and that both adopted child and the widow were
deprived of at least their legitime. Neither can it be denied that they were
not expressly disinherited. Hence, this is a clear case of preterition of the
legally adopted child.
- Preterition annuls the institution of an heir and annulment throws open to
intestate succession the entire inheritance including "la porcion libre (que)
no hubiese dispuesto en virtual de legado mejora o donacion" Maniesa as
cited in Nuguid v. Nuguid, supra; Maninang v. Court of Appeals, 114 SCRA
[1982]). The only provisions which do not result in intestacy are the legacies
and devises made in the will for they should stand valid and respected,
except insofar as the legitimes are concerned.
- The universal institution of petitioner together with his brothers and sisters
to the entire inheritance of the testator results in totally abrogating the will
because the nullification of such institution of universal heirs-without any
other testamentary disposition in the will-amounts to a declaration that
nothing at all was written. Carefully worded and in clear terms, Article 854
of the Civil Code offers no leeway for inferential interpretation (Nuguid v.
Nuguid), supra. No legacies nor devises having been provided in the will the
whole property of the deceased has been left by universal title to petitioner
and his brothers and sisters. The effect of annulling the "Institution of heirs
will be, necessarily, the opening of a total intestacy except that proper
legacies and devises must, as already stated above, be respected.
SPECPRO RELATED
- In order that a person may be allowed to intervene in a probate
proceeding he must have an interest in the estate, or in the will, or in the
property to be affected by it either as executor or as a claimant of the
estate and an interested party is one who would be benefited by the
estate such as an heir or one who has a claim against the estate like a
creditor.
- Petitioner is not the appointed executor, neither a devisee or a legatee
there being no mention in the testamentary disposition of any gift of an
individual item of personal or real property he is called upon to receive
(Article 782, Civil Code).
- At the outset, he appears to have an interest in the will as an heir, defined
under Article 782 of the Civil Code as a person called to the succession
either by the provision of a will or by operation of law.
- However, intestacy having resulted from the preterition of respondent
adopted child and the universal institution of heirs, petitioner is in effect not
an heir of the testator. He has no legal standing to petition for the probate
of the will left by the deceased and Special Proceedings No. 591 A-CEB must
be dismissed.
- Special Proceedings No. 591 ACEB is for the probate of a will. As stated by
respondent Court, the general rule is that the probate court's authority is
limited only to the extrinsic validity of the will, the due execution thereof,
the testator's testamentary capacity and the compliance with the
requisites or solemnities prescribed by law. The intrinsic validity of the will
normally comes only after the Court has declared that the will has been duly
authenticated. Said court at this stage of the proceedings is not called upon
to rule on the intrinsic validity or efficacy of the provisions of the will.
- The rule, however, is not inflexible and absolute. Under exceptional
circumstances, the probate court is not powerless to do what the situation
constrains it to do and pass upon certain provisions of the will. In Nuguid v.
Nuguid the oppositors to the probate moved to dismiss on the ground of
absolute preteriton The probate court acting on the motion held that the
will in question was a complete nullity and dismissed the petition without
costs. On appeal the Supreme Court upheld the decision of the probate
court, induced by practical considerations. The Court said:
- We pause to reflect. If the case were to be remanded for probate of the will,
nothing will be gained. On the contrary, this litigation will be protracted.
 And for aught that appears in the record, in the event of probate or if the
court rejects the will, probability exists that the case will come up once
again before us on the same issue of the intrinsic validity or nullity of the
will. Result: waste of time, effort, expense, plus added anxiety. These are
the practical considerations that induce us to a belief that we might as well
meet head-on the issue of the validity of the provisions of the will in
question. After all there exists a justiciable controversy crying for solution.
In Saguimsim v. Lindayag (6 SCRA 874 [1962]) the motion to dismiss the petition
by the surviving spouse was grounded on petitioner's lack of legal capacity to
institute the proceedings which was fully substantiated by the evidence during
the hearing held in connection with said motion. The Court upheld the probate
court's order of dismissal.
- The Court held that as on its face the will appeared to have preterited the
petitioner the respondent judge should have denied its probate outright.
Where circumstances demand that intrinsic validity of testamentary
provisions be passed upon even before the extrinsic validity of the will is
resolved, the probate court should meet the issue.
- For private respondents to have tolerated the probate of the will and
allowed the case to progress when on its face the will appears to be
intrinsically void as petitioner and his brothers and sisters were instituted as
universal heirs coupled with the obvious fact that one of the private
respondents had been preterited would have been an exercise in futility. It
would have meant a waste of time, effort, expense, plus added futility. The
trial court could have denied its probate outright or could have passed upon
the intrinsic validity of the testamentary provisions before the extrinsic
validity of the will was resolved (Cayetano v. Leonides, supra; Nuquid v.
Nuguid, supra. The remedies of certiorari and prohibition were properly
availed of by private respondents.
- DECISION of CA AFFIRMED.
FLORENCIO MANALO, as guardian of the minors Lazaro Mendieta and Daria
Mendieta, petitioner,
vs.
Honorable ISIDRO PAREDES, Judge of First Instance of Laguna, and PHILIPPINE
FOOD COMPANY,respondents.
Facts:
1. Laureana Hidalgo, surviving spouse of Francisco Villegas, filed with the CFI
an application for letters of administration of the estate left by her
deceased husband, who, according to the application, died intestate
2. In the course of said administration, Justina Mendieta, Lazaro Mendieta,
Daria Mendieta and Melecio Fule, supposed testamentary executor,
through their attorney, Mr. Eusebio Lopez, filed a motion with the court,
praying for the probate of the supposed will of Francisco Villegas, wherein
most of his property was given as a legacy to said Justina Mendieta, the
latter's children and the legitimate wife of the deceased Francisco Villegas.
3. Messrs. E.M. Lopez and V.F. Reyes, attorneys, on behalf of the executor
Melecio Fule, filed a motion wherein they stated that the attesting
witnesses, Exequiel Evidente and Albino Villegas, had assured them that the
supposed will had not been executed by Francisco Villegas in accordance
with law, and that the executor Melecio Fule no longer took interest in the
case
4. On June 5, 1924, having received an order of the court requiring her to
produce the supposed will of Francisco Villegas, Justina Mendieta filed a
motion wherein, among other things, she said:
That having learned of the aforesaid order of this court, I hereby
freely and spontaneously state that I know not of any will executed
by the deceased Francisco Villegas, except the one that I had had
said deceased Francisco Villegas sign on January 18, 1924, which he
signed at my request and inducement in order that my children
begotten by him might have a share in his estate, as said deceased
did in fact sign said will only in my presence and compelled by the
 pressure exerted by me and for my aforesaid children. (Rec. No.
4031, file 1, fol. 70.)
5. Notwithstanding the foregoing motions, the court ordered the publication
in the newspaper El Debate, of Manila, of the application of Melecio Fule
and of Justina Mendieta, Lazaro Mendieta, and Daria Mendieta for the
probate of the supposed will of the deceased Francisco Villegas, setting said
application for hearing on the 3rd day of October, 1924
6. Justina Mendieta, together with her children Lazaro Mendieta and Daria
Mendieta, filed another application for the probate of the same will through
their attorneys, and on October 13, 1924, the same attorneys and Attorney
Marcelino Lontok, on behalf of Justina Mendieta and her minor children,
filed a motion for the appointment of a guardian ad litem for said minors.
7. At the trial, the court below appointed Justina Mendieta, natural mother of
said minors, as their guardian ad litem. Laureana Hidalgo entered her
objection to the probate of the will and immediately the court proceeded to
hear the evidence of the parties
8. When the case was filed on October 24, 1924, for the continuation of the
trial, Justina Mendieta, for herself and in her capacity as guardian ad
litem of her minor children Lazaro Mendieta and Daria Mendieta,
represented by their attorneys, and Laureana Hidalgo, represented by her
attorney, Mr. J.E. Blanco, on the other, submitted to the court an
agreement wherein Justina Mendieta stated that she withdrew her
application for the probate of the supposed will of the deceased Francisco
Villegas on the ground that the evidence was insufficient to justify the
probate of said will, and consequently, she prayed that said will be held not
allowable to probate and that the deceased died intestate, without leaving
any more heirs than his legitimate wife, Laureana Hidalgo, and his two
adulterous children, Lazaro and Daria Mendieta, and that the property of
the deceased be distributed in accordance with said agreement
9. By an order dated October 25, 1924, the court approved said stipulation and
rendered judgment, holding that the supposed will of Francisco Villegas
could not be probated, and awarding to the heirs of the deceased the estate
left by Francisco Villegas in accordance with said agreement (rec. No. 4031,
file 2, fol. 173). From this order no appeal has been taken.
10. On January 7, 1925, one Gelacio Malihan, who claimed to be first cousin of
the deceased Francisco Villegas, filed with the court a new application for
the probate of the same supposed will of the deceased Francisco Villegas
(rec. No. 4217).
11. As may be seen from the facts above stated, the will, the probate of which is
applied for in the petition dated January 7, 1925, is the same one that was
the subject of the application of May 5, 1924, and of September 5, 1924.
The only difference lies in that the first application was filed by Justina
Mendieta and her minor children Lazaro Mendieta and Daria Mendieta and
Melecio Fule, supposed testamentary executor, all represented by the
attorney, Mr. Eusebio M. Lopez; the second by Justina Mendieta and her
minor children Lazaro Mendieta and Daria Mendieta, represented by the
attorneys Messrs. Azada and Veluz; and the third and last by one Gelacio
Malihan who claimed to be first cousin of the deceased Francisco Villegas.
12. The proceeding for the probate of a will is a proceeding in rem , 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 is binding against all of
them.
13. Through the publication ordered by the Court of First Instance of Laguna
of the application for the probate of the supposed will of Francisco
Villegas, filed by Justina Mendieta and her minor children Lazaro and Daria
Mendieta and Melecio Fule, testamentary executor, through their
attorney, Mr. Eusebio Lopez, said court acquired jurisdiction over all such
persons as were interested in the supposed will, including Gelacio
Malihan.
14. The court having tried said application for probate, hearing all the testimony
of the attesting witnesses of the said supposed will, the applicant Justina
Mendieta for herself and as guardian ad litem of her minor children,
represented by their attorneys, Messrs. Marcelino Lontok and Marcial
Azada, on the one hand, and Laureana Hidalgo, widow of Francisco Villegas,
represented by her attorney, Jesus. E. Blanco, on the other, having
 submitted a stipulation wherein the former withdrew her application and
the latter reserved certain rights over the estate left by Francisco Villegas in
G.R. No. L-3807 and L-3088, July 31, 1954
favor of Justina Mendieta and her minor children; and the court having
approved said stipulation and declared that Francisco Villegas died intestate
according to said agreement, all the parties became bound by said
judgment; and if any of them or other persons interested were not
satisfied with the court's decision, they had the remedy of appeal to
correct any injustice that might have been committed, and cannot now
through the special remedy of mandamus, obtain a review of the
proceeding upon a new application for the probate of the same will in
order to compel the respondent judge to comply with his ministerial duty
imposed by section 330 of the Code of Civil Procedure; because this
remedy, being extraordinary, cannot be used in lieu of appeal, or writ of
error (26 Cyc., 177; 18 R.C.L., par. 443); especially when the parties
interested have agreed to disregard the testamentary provisions and
divide the estate as they pleased, each of them taking what pertained to
him (25 R.C.L., 359).
15. For all the foregoing, the petition for mandamus is denied with the costs
against the petitioner.
Issue: Whether or not the will executed in Amoy, China can still be
validly probated in the Philippines
Suntay vs. Suntay
1. In 1934, Jose B. Suntay, a Filipino citizen and a resident of the
Philippines, died in Amoy, China. He left real and personal
properties in the Philippines and a house in Amoy. During his
lifetime, he married twice, the first wife was Manuela Cruz,
with whom he had several children. The second marriage was
with Maria Natividad Lim Brillian, with whom he had a son,
petitioner Silvino Suntay.
2. Intestate proceedings were instituted by the heirs from the
first marriage. While the second wife, the surviving widow
who remained in Amoy China, filed a petition for the probate
of the last will and testament of the deceased which was
claimed to have been executed and signed in the Philippines
on November, 1929. The petition was denied due to the loss
of the will before the hearing thereof. After the pacific war,
Silvino, claimed to have found among the records of his
father, a last will and testament in Chinese
characters executed and signed by the deceased on January,
1931 and probated in the Amoy District Court. He filed a
petition in the intestate proceedings for the probate of the
will executed in the Philippines on November 1929 or the will
executed in Amoy China on November, 1931.
- The fact that the municipal district court of Amoy, China is a
probate court must be proved. The law of China on procedure
in the probate or allowance of wills must also be proved. The
legal requirements for the execution of the will in China in
1931 should also be established by competent evidence.
There is no proof on these points.
- Moreover, it appears that all the proceedings had in the
municipal district court of Amoy were for the purpose of
taking the testimony of two attesting witnesses to the will
and that the order of the municipal district court of Amoy
does not purport to probate the will.
- The order of the municipal district court of Amoy, China does
not purport to probate or allow the will which was the subject
of the proceedings. In view thereof, the will and the alleged
probate thereof cannot be said to have been done in
accordance with the accepted basic and fundamental
concepts and principles followed in the probate and
allowance of wills. Consequently, the authenticated transcript
of proceedings held in the municipal district court of Amoy,
China, cannot be deemed and
accepted as proceedings leading to the probate of allowance
of a will and therefore, the will referred to therein cannot be
allowed, filed and recorded by a competent court of this
country.
In the Matter of the Testate Estate of BASIL GORDON BUTLER;
MERCEDES LEON, petitioner-appellant, and ADA LOGGEY
GHEZZI, administratrix-appellant,
vs.
MANUFACTURERS LIFE INSURANCE CO., thru Philippine
Branch, oppositor-appellee.
Facts:
1. Basil Gordon Butler, formerly a resident of the Philippines,
died in Brooklyn, New York City, in 1945, leaving a will which
was duly probated in the Surrogate's Court of New York
County on August 3 of the same year, and of which James
Ross, Sr., James Madison Ross, Jr. and Ewald E. Selph were
named executors. The estate having been settled, the
proceedings were closed on July 17, 1947.
2. The will contained this residuary clause:
After payment of these legacies and my just debts,
including funeral expenses, I devise, give and bequeath
all of my remaining estate and personal effects of which I
may die possessed to Mercedes de Leon, of Maypajo,
Caloocan, Rizal, to wit: the personal effects to be
delivered to her for her use and profit; the moneys,
securities and other valuable property, not personal
effects, to be held in trust for her benefit by my executors,
at their absolute discretion, to be administered for her
permanent benefit in whatever way they may consider
most advantageous in the circumstances existing. Since
the said Mercedes de Leon is not of sound judgment, and
discretion in the handling of money, it is not my wish that
she be given any sums of money other than for her
 current needs, except as my executors in their judgment City, U. S. A., and that there are no properties of the estate
deem advantageous to her. In case the amount available left to be administered.") After having qualified, the
for this bequest be sufficient to purchase an adequate
annuity, the executors in their discretion may do so. And I
administratrix filed the motion which Judge Amparo has
attest and direct that I do not wish to intend that the denied; and as the party most if not solely interested in that
action of my executors upon their discretion in this matter motion, Mercedes de Leon has joined Ghezzi in this appeal.
be questioned by anyone whatsoever.
Issue: WON Mercedes has disposition of the funds covered by the
3. For the purpose of carrying out that testamentary provision, annuity.
James Madison Ross was appointed trustee by the New York
- The important thing to inquire into is the Manila court's
County Surrogate's Court.
authority with respect to the assets herein involved. The
4. Once appointed, Ross bought an annuity from the
general rule universally recognized is that administration
Manufacturer's life Insurance Co. at its head office in Toronto,
extends only to the assets of a decedent found within the
Canada, paying in advance premiums. The contract stipulates
state or country where it was granted, so that an
for a monthly payment to Mercedes Benz during her lifetime,
administrator appointed in one state or country has no power
with the proviso that in the event of her death, the residue, if
over property in another state or country.This principle is
any, of the capital sum shall be paid in one sum to James
specifically embodied in section 4 of Rule 78 of the Rules of
Madison Ross or his successor as trustee.Mercedes de Leon
Court:
has been receiving the stipulated monthly allowance through
Estate, how administered.—When a will is thus
the Insurance Company's Manila Office.
allowed, the court shall grant letters testamentary, or letters
5. With the object of getting hold at once of the entire amount
of administration with the will annexed, and such letters
invested in the annuity, Mercedes de Leon on September 4,
testamentary or of administration, shall extend to all the
1948, presented Butler's will for probate in the Court of First
estate of the testator in the Philippines. Such estate, after the
Instance of Manila, and secured the appointment of Ada
payment of just debts and expenses of administration, shall
Loggey Ghezzi as administratrix with the will annexed early in
be disposed of according to such will, so far as such will may
1949. (James Madison Ross and Ewald E. Selph had expressly
operate upon it; and the residue, if any, shall be disposed of
declined appointment as executors "on the ground that the
as is provided by law in cases of estates in the Philippines
probate proceedings of the above estate were terminated by
belonging to persons who are inhabitants of another state or
the Surrogate's Court of the County of New York, New York
country.
- It is manifest from the facts before set out that the funds in
question are outside the jurisdiction of the probate court of
Manila. Having been invested in an annuity in Canada under
a contract executed in the country, Canada is the suits of the
money. The party whose appearance the appellant seeks is
only a branch or agency of the company which holds the
funds in its possession, the agency's intervention being
limited to delivering to the annuitant the checks made out
and issued from the home office. There is no showing or
allegation that the funds have been transferred or removed
to the Manila Branch.
- Even if the money were in the hands of the Manila Branch,
yet it no longer forms part of butler's estate and is beyond
the control of the court. It has passed completely into the
hands of the company in virtue of a contract duly authorized
and validly executed. Whether considered as a trust or as
simple consideration for the company's assumed obligation,
which it has been religiously performing, of paying periodical
allowances to the annuitant, the proceeds of the sale can
not be withdrawn without the consent of the company,
except, upon the death of the annuitant, the residuary
legatee may claim the remainder, if there be any. Neither
the domiciliary or ancillary executor of Butler's will, nor the
trustee, nor the annuitant has disposition of any of these
funds beyond the amounts and except upon the conditions
agreed upon in the contract for annuity.
- In the third place, the power of the court to cite a person for
the purpose stated in the administratrix's motion is defined in
section 7 of Rule 88, which provides.
Person entrusted with estate compelled to render
account.—The court, on complaint of an executor or
administrator, with any part the estate of the deceased to
appear before it, and may require such person to render a full
account, on oath, of the money, goods, chattels, bonds,
accounts, or other papers belonging to such estate as came to
his possession in trust for such executor or administrator, and
for his proceedings thereon; and if the person so cited refuses
to appear to render such account, the court may punish him
for contempt as having disobeyed a lawful order of the court.
- The appellant administratrix did not entrust to the appellee
the money she wants the latter to account for, nor did the
said money come to the appellee's possession in trust for
the administratrix. In other words, the administratrix is a
complete stranger to the subject of the motion and to the
appellee. There being no creditors, the only subject of the
motion, we incline to believe, is to enable Mercedes de Leon
to get the legacy in a lump sum in complete disregard of the
wishes of the testator, who showed deep concern for her
welfare, and of the annuity contract which the annuitant
herself applied for in conjunction with the trustee.
- All in all, from every standpoint, including that of the
annuitant's financial well-being, the motion and the appeal
are utterly groundless and ill-advised.