G.R. No.

L-28946 January 16, 1929

In re estate of Piraso, deceased.

SIXTO ACOP, petitioner-appellant,
vs.
SALMING PIRASO, ET AL., opponents-appellees.

Gibbs and McDonough and Roman Ozaeta for appellant.

Adolfo A. Scheerer for appellees.

ROMUALDEZ, J.:

This appeal was taken from the judgment of the Court of First Instance of Benguet, denying the probate of the instrument
Exhibit A, as the last will and testament of the deceased Piraso.

The proponent-appellant assigns the following as alleged errors of the lower court:

1. In holding that in order to be valid the will in question should have been drawn up in the Ilocano dialect.

2. In not holding that the testator Piraso did not know the Ilocano dialect well enough to understand a will drawn up in
said dialect.

3. In refusing to admit the will in question to probate.

The fundamental errors assigned refer chiefly to the part of the judgment which reads as follows:

The evidence shows that Piraso knew how to speak the Ilocano dialect, although imperfectly, and could make himself
understood in that dialect, and the court is of the opinion that his will should have been written in that dialect.

Such statements were not unnecessary for the decision of the case, once it has been proved without contradiction, that the
said deceased Piraso did not know English, in which language the instrument Exhibit A, alleged to be his will, is drawn.
Section 628 of the Code of Civil Procedure, strictly provides that:

"No will, except as provides in the preceding section" (as to wills executed by a Spaniard or a resident of the Philippine
Islands, before the present Code of Civil Procedure went into effect), "shall be valid to pass any estate, real or personal, nor
charge or affect the same, unless it be written in the language or dialect known by the testator," etc. (Emphasis supplied.) Nor
can the presumption in favor of the will established by this court in Abangan vs. Abangan (40 Phil., 476), to the effect that the
testator is presumed to know the dialect of the locality where he resides, unless there is proof to the contrary, even he
invoked in support of the probate of said document Exhibit A, as a will, because, in the instant case, not only is it not proven
that English is the language of the City of Baguio where the deceased Piraso lived and where Exhibit A was drawn, but that
the record contains positive proof that said Piraso knew no other language than the Igorrote dialect, with a smattering of
Ilocano; that is, he did not know the English language in which Exhibit A is written. So that even if such a presumption could
have been raised in this case it would have been wholly contradicted and destroyed.

We consider the other question raised in this appeal needless and immaterial to the adjudication of this case, it having been,
as it was, proven, that the instrument in question could not be probated as the last will and testament of the deceased Piraso,
having been written in the English language with which the latter was unacquainted.

Such a result based upon solidly established facts would be the same whether or not it be technically held that said will, in
order to be valid, must be written in the Ilocano dialect; whether or not the Igorrote or Inibaloi dialect is a cultivated language
and used as a means of communication in writing, and whether or not the testator Piraso knew the Ilocano dialect well
enough to understand a will written in said dialect. The fact is, we repeat, that it is quite certain that the instrument Exhibit A
was written in English which the supposed testator Piraso did not know, and this is sufficient to invalidate said will according
to the clear and positive provisions of the law, and inevitably prevents its probate.

The judgment appealed from is affirmed, with the costs of this instance against the appellant. So ordered.

Avanceña, C. J., Malcolm, Villamor, Ostrand and Villa-Real, JJ., concur.

G.R. No. L-40502 November 29, 1976

VIRGINIA GARCIA FULE, and HONORABLE SEVERO A. MALVAR, Presiding Judge, Court of First Instance of
Laguna, Branch Vl, petitioners,
vs.
THE HONORABLE COURT OF APPEALS, * PRECIOSA B. GARCIA and AGUSTINA B. GARCIA, respondents.

G.R. No. L-42670 November 29, 1976

VIRGINIA GARCIA FULE, petitioner,

vs.
HONORABLE ERNANI C. PAÑO, Presiding Judge of Court of First Instance of Rizal, Quezon City, Branch XVIII, and
PRECIOSA B. GARCIA, respondents.

Francisco Carreon for petitioners.

Augusto G. Gatmaytan for private respondents.

MARTIN, J.:

These two interrelated cases bring to Us the question of what the word "resides" in Section 1, Rule 73 of the
Revised Rules Of Court, referring to the situs of the settlement of the estate of deceased persons, means.
Additionally, the rule in the appointment of a special administrator is sought to be reviewed.

On May 2, 1973, Virginia G. Fule filed with the Court of First Instance of Laguna, at Calamba, presided over by Judge
Severo A. Malvar, a petition for letters of administration, docketed as Sp. Proc. No. 27-C, alleging, inter alia, "that on
April 26, 1973, Amado G. Garcia, a property owner of Calamba, Laguna, died intestate in the City of Manila, leaving
real estate and personal properties in Calamba, Laguna, and in other places, within the jurisdiction of the Honorable
Court." At the same time, she moved
ex parte for her appointment as special administratrix over the estate. On even date, May 2, 1973, Judge Malvar
granted the motion.

A motion for reconsideration was filed by Preciosa B. Garcia on May 8, 1973, contending that the order appointing
Virginia G. Fule as special administratrix was issued without jurisdiction, since no notice of the petition for letters of
administration has been served upon all persons interested in the estate; there has been no delay or cause for delay
in the proceedings for the appointment of a regular administrator as the surviving spouse of Amado G. Garcia, she
should be preferred in the appointment of a special administratrix; and, Virginia G. Fule is a debtor of the estate of
Amado G. Garcia. Preciosa B. Garcia, therefore, prayed that she be appointed special administratrix of the estate, in
lieu of Virginia G. Fule, and as regular administratrix after due hearing.

While this reconsideration motion was pending resolution before the Court, Preciosa B. Garcia filed on May 29, 1973
a motion to remove Virginia G. Fule as special administratrix alleging, besides the jurisdictional ground raised in the
motion for reconsideration of May 8, 1973 that her appointment was obtained through erroneous, misleading and/or
incomplete misrepresentations; that Virginia G. Fule has adverse interest against the estate; and that she has shown
herself unsuitable as administratrix and as officer of the court.

In the meantime, the notice of hearing of the petition for letters of administration filed by Virginia G. Fule with the
Court of First Instance of Calamba, Laguna, was published on May 17, 24, and 31, 1973, in the Bayanihan, a weekly
publication of general circulation in Southern Luzon.

On June 6, 1973, Preciosa B. Garcia received a "Supplemental Petition for the Appointment of Regular Administrator
' filed by Virginia G. Fule. This supplemental petition modified the original petition in four aspects: (1) the allegation
that during the lifetime of the deceased Amado G. Garcia, he was elected as Constitutional Delegate for the First
District of Laguna and his last place of residence was at Calamba, Laguna; (2) the deletion of the names of Preciosa
B. Garcia and Agustina Garcia as legal heirs of Amado G. Garcia; (3) the allegation that Carolina Carpio, who was
simply listed as heir in the original petition, is the surviving spouse of Amado G. Garcia and that she has expressly
renounced her preferential right to the administration of the estate in favor of Virginia G. Fule; and (4) that Virginia
G. Fule be appointed as the regular administratrix. The admission of this supplemental petition was opposed by
Preciosa B. Garcia for the reason, among others, that it attempts to confer jurisdiction on the Court of First Instance
of Laguna, of which the court was not possessed at the beginning because the original petition was deficient.
On July 19, 1973, Preciosa B. Garcia filed an opposition to the original and supplemental petitions for letters of
administration, raising the issues of jurisdiction, venue, lack of interest of Virginia G. Fule in the estate of Amado G.
Garcia, and disqualification of Virginia G Fule as special administratrix.

An omnibus motion was filed by Virginia G. Fule on August 20, 1973, praying for authority to take possession of
properties of the decedent allegedly in the hands of third persons as well as to secure cash advances from the
Calamba Sugar Planters Cooperative Marketing Association, Inc. Preciosa B. Garcia opposed the motion, calling
attention to the limitation made by Judge Malvar on the power of the special administratrix, viz., "to making an
inventory of the personal and real properties making up the state of the deceased."

However, by July 2, 1973, Judge Malvar and already issued an order, received by Preciosa B. Garcia only on July 31,
1973, denying the motion of Preciosa B. Garcia to reconsider the order of May 2, 1973, appointing Virginia G. Fule as
special administratrix, and admitting the supplementation petition of May 18,1973.

On August 31, 1973, Preciosa B. Garcia moved to dismiss the petition, because (1) jurisdiction over the petition or
over the parties in interest has not been acquired by the court; (2) venue was improperly laid; and (3) Virginia G.
Fule is not a party in interest as she is not entitled to inherit from the deceased Amado G. Garcia.

On September 28, 1973, Preciosa B. Garcia filed a supplemental motion to substitute Virginia G. Fule as special
administratrix, reasoning that the said Virginia G. Fule admitted before before the court that she is a full-blooded
sister of Pablo G. Alcalde, an illegitimate son of Andrea Alcalde, with whom the deceased Amado G. Garcia has no
relation.

Three motions were filed by Preciosa B. Garcia on November 14, 1973, one, to enjoin the special administratrix from
taking possession of properties in the hands of third persons which have not been determined as belonging to
Amado G. Garcia; another, to remove the special administratrix for acting outside her authority and against the
interest of the estate; and still another, filed in behalf of the minor Agustina B. Garcia, to dismiss the petition for
want of cause of action, jurisdiction, and improper venue.

On November 28, 1973, Judge Malvar resolved the pending omnibus motion of Virgina G. Fule and the motion to
dismiss filed by Preciosa B. Garcia. Resolving the motion to dismiss, Judge Malvar ruled that the powers of the
special administratrix are those provided for in Section 2, Rule 80 of the Rules of Court, 1subject only to the previous
qualification made by the court that the administration of the properties subject of the marketing agreement with the
Canlubang Sugar Planters Cooperative Marketing Association should remain with the latter; and that the special
administratrix had already been authorized in a previous order of August 20, 1973 to take custody and possession of
all papers and certificates of title and personal effects of the decedent with the Canlubang Sugar Planters
Cooperative Marketing Association, Inc. Ramon Mercado, of the Canlubang Sugar Planters Cooperative Marketing
Association, Inc., was ordered to deliver to Preciosa B. Garcia all certificates of title in her name without any
qualifying words like "married to Amado Garcia" does not appear. Regarding the motion to dismiss, Judge Malvar
ruled that the issue of jurisdiction had already been resolved in the order of July 2, 1973, denying Preciosa B.
Garcia's motion to reconsider the appointment of Virginia G. Fule and admitting the supplemental petition, the
failure of Virginia G. Fule to allege in her original petition for letters of administration in the place of residence of the
decedent at the time of his death was cured. Judge Malvar further held that Preciosa B. Garcia had submitted to the
jurisdiction of the court and had waived her objections thereto by praying to be appointed as special and regular
administratrix of the estate.

An omnibus motion was filed by Preciosa B. Garcia on December 27, 1973 to clarify or reconsider the foregoing
order of Judge Malvar, in view of previous court order limiting the authority of the special administratrix to the
making of an inventory. Preciosa B. Garcia also asked for the resolution of her motion to dismiss the petitions for
lack of cause of action, and also that filed in behalf of Agustina B. Garcia. Resolution of her motions to substitute
and remove the special administratrix was likewise prayed for.

On December 19, 1973, Judge Malvar issued two separate orders, the first, denying Preciosa B. Garcia's motions to
substitute and remove the special administratrix, and the second, holding that the power allowed the special
administratrix enables her to conduct and submit an inventory of the assets of the estate.

On January 7, 1974, Preciosa B. Garcia moved for reconsideration of the foregoing orders of November 28, 1973 and
December 19, 1973, insofar as they sustained or failed to rule on the issues raised by her: (a) legal standing (cause
of action) of Virginia G. Fule; (b) venue; (c) jurisdiction; (d) appointment, qualification and removal of special
administratrix; and (e) delivery to the special administratrix of checks and papers and effects in the office of the
Calamba Sugar Planters Cooperative Marketing Association, Inc.
On March 27, 1973, Judge Malvar issued the first questioned order denying Preciosa B. Garcia's motion for
reconsideration of January 7, 1974. On July 19, 1974, Judge Malvar issued the other three questioned orders: one,
directing Ramon Mercado, of the Calamba Sugar Planters Cooperative Marketing Association, Inc., to furnish
Virginia G. Fule, as special administratrix, copy of the statement of accounts and final liquidation of sugar pool, as
well as to deliver to her the corresponding amount due the estate; another, directing Preciosa B. Garcia to deliver to
Virginia G. Fule two motor vehicles presumably belonging to the estate; and another, directing Ramon Mercado to
deliver to the court all certificates of title in his possession in the name of Preciosa B. Garcia, whether qualified with
the word "single" or "married to Amado Garcia."

During the hearing of the various incidents of this case (Sp. Proc. 27-C) before Judge Malvar, 2 Virginia G. Fule
presented the death certificate of Amado G. Garcia showing that his residence at the time of his death was Quezon
City. On her part, Preciosa B. Garcia presented the residence certificate of the decedent for 1973 showing that three
months before his death his residence was in Quezon City. Virginia G. Fule also testified that Amado G. Garcia was
residing in Calamba, Laguna at the time of his death, and that he was a delegate to the 1971 Constitutional
Convention for the first district of Laguna.

On July 26, 1974, Preciosa B. Garcia and Agustina B. Garcia commenced a special action for certiorari and/or
prohibition and preliminary injunction before the Court of Appeals, docketed as CA-G.R. No. 03221-SP. primarily to
annul the proceedings before Judge Malvar in Sp. Proc. No. 27-C of the Court of First Instance of Laguna, or, in the
alternative, to vacate the questioned four orders of that court, viz., one dated March 27, 1974, denying their motion
for reconsideration of the order denying their motion to dismiss the criminal and supplemental petitions on the
issue, among others, of jurisdiction, and the three others, all dated July 19, 1974, directing the delivery of certain
properties to the special administratrix, Virginia G. Fule, and to the court.

On January 30, 1975, the Court of Appeals rendered judgment annulling the proceedings before Judge Severo A.
Malvar in Sp. Proc. 27-C of the Court of First Instance of Calamba, Laguna, for lack of jurisdiction.

Denied of their motion for reconsideration on March 31, 1975, Virginia G. Fule forthwith elevated the matter to Us on
appeal by certiorari. The case was docketed as G.R. No. L-40502.

However, even before Virginia G. Fule could receive the decision of the Court of Appeals, Preciosa B. Garcia had
already filed on February 1, 1975 a petition for letters of administration before the Court of First Instance of Rizal,
Quezon City Branch, docketed as Sp. Proc. No. Q-19738, over the same intestate estate of Amado G. Garcia. On
February 10, 1975, Preciosa B. Garcia urgently moved for her appointment as special administratrix of the estate.
Judge Vicente G. Ericta granted the motion and appointed Preciosa B. Garcia as special administratrix upon a bond
of P30,000.00. Preciosa B. Garcia qualified and assumed the office.

For the first time, on February 14, 1975, Preciosa B. Garcia informed Judge Ericta of the pendency of Sp. Proc. No.
27-C before Judge Malvar of the Court of First Instance of Laguna, and the annulment of the proceedings therein by
the Court of Appeals on January 30, 1975. She manifested, however, her willingness to withdraw Sp. Proc. Q-19738
should the decision of the Court of Appeals annulling the proceedings before the Court of First Instance of Laguna
in Sp. Proc. No. 27-C have not yet become final, it being the subject of a motion for reconsideration.

On March 10, 1973, Judge Ericta ordered the suspension of the proceedings before his court until Preciosa B.
Garcia inform the court of the final outcome of the case pending before the Court of Appeals. This notwithstanding,
Preciosa B. Garcia filed on December 11, 1975, an "Urgent Petition for Authority to Pay Estate Obligations."

On December 13, 1975, Virginia G. Fule filed a "Special Appearance to Question Venue and Jurisdiction" reiterating
the grounds stated in the previous special appearance of March 3, 1975, and calling attention that the decision of the
Court of Appeals and its resolution denying the motion for reconsideration had been appealed to this Court; that the
parties had already filed their respective briefs; and that the case is still pending before the Court.

On December 17, 1975, Judge Ernani Cruz Pano, who succeeded Judge Ericta, issued an order granting Preciosa B.
Garcia's "Urgent Petition for Authority to Pay Estate Obligations" in that the payments were for the benefit of the
estate and that there hangs a cloud of doubt on the validity of the proceedings in Sp. Proc. No. 27-C of the Court of
First Instance of Laguna.

A compliance of this Order was filed by Preciosa B. Garcia on January 12,1976.

On February 4,1974, VIRGINIA G. FULE instituted G.R. No. L-42670, a petition for certiorari with temporary
restraining order, to annul the proceedings in Sp. Proc. No. Q-19738 and to restrain Judge Ernani Cruz Paño from
further acting in the case. A restraining order was issued on February 9, 1976.
We dismiss the appeal in G.R. No. L-40502 and the petition for certiorari in G.R. No. L-42670 for the reasons and
considerations hereinafter stated.

1. Section 1, Rule 73 of the Revised Rules of Court provides: "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 any province in which he had estate. The court
first taking cognizance of the settlement of the estate of a decedent, shall exercise jurisdiction to the exclusion of all
other courts. The jurisdiction assumed by a court, so far as it depends on the place of residence of the decedent, or
of the location of his estate, shall not be contested in a suit or proceeding, except in an appeal from that court, in the
original case, or when the want of jurisdiction appears on the record." With particular regard to letters of
administration, Section 2, Rule 79 of the Revised Rules of Court demands that the petition therefor should
affirmatively show the existence of jurisdiction to make the appointment sought, and should allege all the necessary
facts, such as death, the name and last residence of the decedent, the existence, and situs if need be, of assets,
intestacy, where this is relied upon, and the right of the person who seeks administration, as next of kin, creditor, or
otherwise, to be appointed. The fact of death of the intestate and his last residence within the country are foundation
facts upon which all subsequent proceedings in the administration of the estate rest, and that if the intestate was
not an inhabitant of the state at the time of his death, and left no assets in the state, no jurisdiction is conferred on
the court to grant letters of administration. 3

The aforequoted Section 1, Rule 73 (formerly Rule 75, Section 1), specifically the clause "so far as it depends on the place of
residence of the decedent, or of the location of the estate," is in reality a matter of venue, as the caption of the Rule indicates:
"Settlement of Estate of Deceased Persons. Venue and Processes. 4 It could not have been intended to define the jurisdiction
over the subject matter, because such legal provision is contained in a law of procedure dealing merely with procedural
matters. Procedure is one thing; jurisdiction over the subject matter is another. The power or authority of the court over the
subject matter "existed and was fixed before procedure in a given cause began." That power or authority is not altered or
changed by procedure, which simply directs the manner in which the power or authority shall be fully and justly exercised.
There are cases though that if the power is not exercised conformably with the provisions of the procedural law, purely, the
court attempting to exercise it loses the power to exercise it legally. However, this does not amount to a loss of jurisdiction
over the subject matter. Rather, it means that the court may thereby lose jurisdiction over the person or that the judgment
may thereby be rendered defective for lack of something essential to sustain it. The appearance of this provision in the
procedural law at once raises a strong presumption that it has nothing to do with the jurisdiction of the court over the subject
matter. In plain words, it is just a matter of method, of convenience to the parties. 5

The Judiciary Act of 1948, as amended, confers upon Courts of First Instance jurisdiction over all probate cases
independently of the place of residence of the deceased. Because of the existence of numerous Courts of First Instance in
the country, the Rules of Court, however, purposedly fixes the venue or the place where each case shall be brought. A
fortiori, the place of residence of the deceased in settlement of estates, probate of will, and issuance of letters of
administration does not constitute an element of jurisdiction over the subject matter. It is merely constitutive of venue. And it
is upon this reason that the Revised Rules of Court properly considers the province where the estate of a deceased person
shall be settled as "venue." 6

2. But, the far-ranging question is this: What does the term "resides" mean? Does it refer to the actual residence or domicile
of the decedent at the time of his death? We lay down the doctrinal rule that the term "resides" connotes ex vi termini "actual
residence" as distinguished from "legal residence or domicile." This term "resides," like, the terms "residing" and "residence,"
is elastic and should be interpreted in the light of the object or purpose of the statute or rule in which it is employed. 7 In the
application of venue statutes and rules — Section 1, Rule 73 of the Revised Rules of Court is of such nature —
residence rather than domicile is the significant factor. Even where the statute uses the word "domicile" still it is construed as
meaning residence and not domicile in the technical sense. Some cases make a distinction between the terms "residence"
and "domicile" but as generally used in statutes fixing venue, the terms are synonymous, and convey the same meaning as
the term "inhabitant." 8 In other words, "resides" should be viewed or understood in its popular sense, meaning, the personal,
actual or physical habitation of a person, actual residence or place of abode. It signifies physical presence in a place and
actual stay thereat. In this popular sense, the term means merely residence, that is, personal residence, not legal residence
or domicile. 9Residence simply requires bodily presence as an inhabitant in a given place, while domicile requires bodily
presence in that place and also an intention to make it one's domicile. 10 No particular length of time of residence is required
though; however, the residence must be more than temporary. 11

3. Divergent claims are maintained by Virginia G. Fule and Preciosa B. Garcia on the residence of the deceased Amado G.
Garcia at the time of his death. In her original petition for letters of administration before the Court of First Instance of
Calamba, Laguna, Virginia G. Fule measely stated "(t)hat on April 26,1973, Amado G. Garcia, a property owner of Calamba,
Laguna, died intestate in the City of Manila, leaving real estate and personal properties in Calamba, Laguna, and in other
places within the jurisdiction of this Honorable Court." Preciosa B. Garcia assailed the petition for failure to satisfy the
jurisdictional requirement and improper laying of venue. For her, the quoted statement avers no domicile or residence of the
deceased Amado G. Garcia. To say that as "property owner of Calamba, Laguna," he also resides in Calamba, Laguna, is,
according to her, non sequitur. On the contrary, Preciosa B. Garcia claims that, as appearing in his death certificate
presented by Virginia G. Fule herself before the Calamba court and in other papers, the last residence of Amado G. Garcia
was at 11 Carmel Avenue, Carmel Subdivision, Quezon City. Parenthetically, in her amended petition, Virginia G. Fule
categorically alleged that Amado G. Garcia's "last place of residence was at Calamba, Laguna."

On this issue, We rule that the last place of residence of the deceased Amado G. Garcia was at 11 Carmel Avenue, Carmel
Subdivision, Quezon City, and not at Calamba, Laguna. A death certificate is admissible to prove the residence of the
decedent at the time of his death. 12 As it is, the death certificate of Amado G. Garcia, which was presented in evidence by
Virginia G. Fule herself and also by Preciosa B. Garcia, shows that his last place of residence was at 11 Carmel Avenue,
Carmel Subdivision, Quezon City. Aside from this, the deceased's residence certificate for 1973 obtained three months
before his death; the Marketing Agreement and Power of Attorney dated November 12, 1971 turning over the administration
of his two parcels of sugar land to the Calamba Sugar Planters Cooperative Marketing Association, Inc.; the Deed of
Donation dated January 8, 1973, transferring part of his interest in certain parcels of land in Calamba, Laguna to Agustina B.
Garcia; and certificates of titles covering parcels of land in Calamba, Laguna, show in bold documents that Amado G.
Garcia's last place of residence was at Quezon City. Withal, the conclusion becomes imperative that the venue for Virginia C.
Fule's petition for letters of administration was improperly laid in the Court of First Instance of Calamba, Laguna.
Nevertheless, the long-settled rule is that objection to improper venue is subject to waiver. Section 4, Rule 4 of the Revised
Rules of Court states: "When improper venue is not objected to in a motion to dismiss, it is deemed waived." In the case
before Us the Court of Appeals had reason to hold that in asking to substitute Virginia G. Fule as special administratrix,
Preciosa B. Garcia did not necessarily waive her objection to the jurisdiction or venue assumed by the Court of First Instance
of Calamba, Laguna, but availed of a mere practical resort to alternative remedy to assert her rights as surviving spouse,
while insisting on the enforcement of the Rule fixing the proper venue of the proceedings at the last residence of the
decedent.

4. Preciosa B. Garcia's challenge to Virginia G. Fule's appointment as special administratrix is another issue of perplexity.
Preciosa B. Garcia claims preference to the appointment as surviving spouse. Section 1 of Rule 80 provides that "(w)hen
there is delay in granting letters testamentary or of administration by any cause including an appeal from the allowance or
disallowance of a will, the court may appoint a special administrator to take possession and charge of the estate of the
deceased until the questions causing the delay are decided and executors or administrators appointed. 13 Formerly, the
appointment of a special administrator was only proper when the allowance or disallowance of a will is under appeal. The
new Rules, however, broadened the basis for appointment and such appointment is now allowed when there is delay in
granting letters testamentary or administration by any cause e.g., parties cannot agree among themselves. 14 Nevertheless,
the discretion to appoint a special administrator or not lies in the probate court. 15 That, however, is no authority for the judge
to become partial, or to make his personal likes and dislikes prevail over, or his passions to rule, his judgment. Exercise of
that discretion must be based on reason, equity, justice and legal principle. There is no reason why the same fundamental
and legal principles governing the choice of a regular administrator should not be taken into account in the appointment of a
special administrator. 16 Nothing is wrong for the judge to consider the order of preference in the appointment of a regular
administrator in appointing a special administrator. After all, the consideration that overrides all others in this respect is
the beneficial interest of the appointee in the estate of the decedent. 17 Under the law, the widow would have the right of
succession over a portion of the exclusive property of the decedent, besides her share in the conjugal partnership. For such
reason, she would have as such, if not more, interest in administering the entire estate correctly than any other next of kin.
The good or bad administration of a property may affect rather the fruits than the naked ownership of a property. 18

Virginia G. Fule, however, disputes the status of Preciosa B. Garcia as the widow of the late Amado G. Garcia. With equal
force, Preciosa B. Garcia maintains that Virginia G. Fule has no relation whatsoever with Amado G. Garcia, or that, she is a
mere illegitimate sister of the latter, incapable of any successional rights. 19 On this point, We rule that Preciosa B. Garcia
is prima facie entitled to the appointment of special administratrix. It needs be emphasized that in the issuance of such
appointment, which is but temporary and subsists only until a regular administrator is appointed, 20 the appointing court does
not determine who are entitled to share in the estate of the decedent but who is entitled to the administration. The issue of
heirship is one to be determined in the decree of distribution, and the findings of the court on the relationship of the parties in
the administration as to be the basis of distribution. 21The preference of Preciosa B. Garcia is with sufficient reason. In a
Donation Inter Vivos executed by the deceased Amado G. Garcia on January 8, 1973 in favor of Agustina B. Garcia, he
indicated therein that he is married to Preciosa B. Garcia. 22 In his certificate of candidacy for the office of Delegate to the
Constitutional Convention for the First District of Laguna filed on September 1, 1970, he wrote therein the name of Preciosa
B. Banaticla as his spouse. 23 Faced with these documents and the presumption that a man and a woman deporting
themselves as husband and wife have entered into a lawful contract of marriage, Preciosa B. Garcia can be reasonably
believed to be the surviving spouse of the late Amado G. Garcia. Semper praesumitur pro matrimonio. 24

5. Under these circumstances and the doctrine laid down in Cuenco vs. Court of Appeals, 25 this Court under its supervisory
authority over all inferior courts may properly decree that venue in the instant case was properly assumed by and transferred
to Quezon City and that it is in the interest of justice and avoidance of needless delay that the Quezon City court's exercise of
jurisdiction over the settlement of the estate of the deceased Amado G. Garcia and the appointment of special administratrix
over the latter's estate be approved and authorized and the Court of First Instance of Laguna be disauthorized from
continuing with the case and instead be required to transfer all the records thereof to the Court of First Instance of Quezon
City for the continuation of the proceedings.

6. Accordingly, the Order of Judge Ernani Cruz Pano of December 17, 1975, granting the "Urgent Petition for Authority to Pay
Estate Obligations" filed by Preciosa B. Garcia in Sp. Proc. No. Q-19738, subject matter of G.R. No. L-42670, and ordering
the Canlubang Sugar Estate to deliver to her as special administratrix the sum of P48,874.70 for payment of the sum of
estate obligations is hereby upheld.

IN VIEW OF THE FOREGOING, the petitions of petitioner Virginia Garcia Fule in G.R. No. L-40502 and in G.R. No. L42670
are hereby denied, with costs against petitioner.

SO ORDERED.

Teehankee (Chairman), Makasiar, Aquino and Concepcion, Jr., JJ., concur.

Muñoz Palma, J., took no part.

78 Phil. 432

PERFECTO, J.:
On June 20, 1940, Mariano Garchitorena filed a motion praying that subdivision plan Psu-
66063-Amd., marked as Annex E, be approved and that it be decreed that certificates of title
be issued in his name on lots 2, 3, and 4 of the original plan Psu-66063 and upon lots 1, 5, 6, 7,
and 8 of the subdivision plan Psu-66063-Amd.
The movant alleged that on May 14, 1931, a decision was rendered by the lower court granting
Rita Garchitorena as heiress of her father Andres, title over four lots, the same described in
her original application, subject to lien in favor of Mariano Garchitorena and other creditors,
with the exclusion of about 500 hectares belonging to Ramon and Jose Alvarez, about 300
hectares of land of the public domain, a portion of 18 hectares belonging to Hermogenes P.
Obias and another portion of 24 hectares of land of the public domain, with the exception of 4
hectares belonging to Januario Alvarez, all said portions being included in lot number 1. It is
also alleged that after said judgment was modified by the Supreme Court and some steps have
been taken as a result of said modification, lots 1, 2, 3, and 4 of land Psu-66063 were
adjudicated to Mariano Garchitorena in consideration of the amount of P28,745.93, a deed of
sale having been executed to said effect on September 8, 1935, which was approved by the
lower court on April 26, 1940, and that Mariano Garchitorena bought the 500 hectares of
Ramon and Jose Alvarez on April 27, 1939.
Several persons appeared to oppose the motion, but only three of them came to us appealing
against the lower court's order dated June 28, 1941, decreeing the issuance of certificate of
titles in favor of Mariano Garchitorena on lots 2, 3, and 4 of the original plan Psu-66063, and
on lots 6 and 8 of the subdivision plan Psu-66063-Amd., and on lots 1, 6, and 7 of the same
subdivision plan.
The appellants are H. P. Obias, Ana Pataan and Vicente Sotto.
We will deal separately with their respective contentions.
OPPOSITION OF H. P. OBIAS
This oppositor contends that the 300 hectares ordered to be excluded from lot number 1 as
land of public domain, as provided in the lower court's decision of May 14, 1931, in fact should
measure not only 300 hectares but 961 hectares, 38 ares and 9 centares.
The lower court disposed of the opposition by stating that the decision of May 14, 1931, was
amended, and the Supreme Court affirmed it as amended, and that the subdivision plan Psu-
66063-Amd. is in conformity with the terms of said amended decision.
Appellant Obias complains in his appeal that the lower court erred in awarding to Mariano
Garchitorena the title on lots 1, 6, and 7 of subdivision plan Psu-66063-Amd., belonging
originally to Ramon and Jose Alvarez.
No law and no authority has been invoked in support of appellant's contention, although he
advances several reasons in support of his theory. The reasons advanced are stated in his brief
as follows:
"1. Ramon Alvarez did not seek any affirmative relief in his opposition to the application for
registration of Rita Garchitorena so that what the Court did in rendering its decision was
simply to order its segregation from the plan, and hence his supposed successor in interest,
Mariano Garchitorena, could not be entitled to the issuance of a degree of registration in the
name of the latter.
"2. Because the decision rendered in this case is already final, and hence cannot be amended.
"3. Because the duty of the lower Court in regards to this case is simply to comply with that
final judgment so that inasmuch as the dispositive part orders the segregation from the plan of
the portions awarded to Roman Alvarez, the lower Court is in duty bound to comply with that
mandatory order.
"4. Because the issuance of a decree of registration in favor of the movant-appellant for the
portions awarded to Ramon Alvarez and Jose Alvarez would create an anomaly, in the sense
that interested parties would be prejudiced thereby. There are several persons possessing
portions of land within the land adjudicated to Ramon Alvarez and Jose Alvarez. They
possessed these portions with a claim of right of ownership adverse to that of Ramon Alvarez
and Jose Alvarez."
We do not find merit in appellant's contention.
Section 38 of the Land Registration Act No. 496, as amended by Act No. 3621, which took
effect on December 5, 1929, provides:
"If the court after hearing finds that the applicant or adverse claimant has title as stated in his
application or adverse claim and proper for registration, a decree of confirmation and
registration shall be entered * * *."
In the case of Garchitorena Vda. de Centenera vs. Obias (58 Phil., 21, 23), the Supreme Court
declared that from the evidence "it conclusively appears that the late Jose Alvarez and his
successors had a considerable extent of land in the same place where the applicant's land is
situated, and taking also into account that the land was surveyed for purposes of registration,
we find that the weight of the evidence indicates that the land claimed by the opponent
Ramon Alvarez had been included in the applicant's plan. This land has an area of 500
hectares. According to Ramon Alvarez, it appears that his father, Ibo Alvarez, had held the
tract since 1905 and that at the death of said Ibo Alvarez, Ramon Alvarez and his co-owner,
Jose Alvarez, entered into possession and have remained therein since."
From the above, there cannot be any doubt that Ramon and Jose Alvarez have been finally
declared as the owners of the 500 hectares in question, and such declaration is good for all
purposes, including the issuance of the corresponding certificates of title to said owners or
their successors in interest, such as buyer Mariano Garchitorena. Appellant's allegation that
the decree of registration in favor of Mariano Garchitorena for the portions awarded to
Ramon and Jose Alvarez would prejudice interested parties is groundless, because all
interested parties were given full opportunity to advance and present their respective claims
since the original application was duly published and the proceedings for registration, which
are in rem in character, were begun, it appearing that the original application included the
500 hectares which were finally adjudicated to Ramon and Jose Alvarez. Anybody and
everybody who had any legitimate claim to said 500 hectares or any part thereof, if they
wanted to, could have appeared before the court and presented their claims. If they failed to
do it at the opportune time, it is now too late for them to complain.
APPEAL OF ANA PATAAN
This appellant complains that the lower court erred in holding that the free patent title
number 1406 of said Ana Pataan is null and void ab initio.
The lower court's action is based upon the fact that when the free patent title number 1406
was issued in 1937, the land of 10 hectares covered by it was part of a larger tract which was
declared private property according to the decision of May 14, 1931, which was later affirmed
by the Supreme Court, very much earlier than the issuance of the free patent title in question.
We do not find any error in the lower court's action.
The decision of the Supreme Court declaring the land in question as private property was
promulgated on March 4, 1933 (Garchitorena Vda. de Centenera vs. Obias, 58 Phil., 21), that
is more than four years before the issuance of the free patent title in question on March 21,
1937.
Upon this conclusion, it will serve no purpose to pass upon the question raised by appellant
Pataan as to the court's denial of her motion for reopening, besides the fact that the basis of
her contention, that she has not been mentioned in the original application as possessor of the
land which she is claiming, appear to be flimsy by the fact that she is the wife of Senen Pandai
who was appointed by Jose N. Garchitorena, the administrator of the estate of Andres
Garchitorena, to take care of the lands in question.
APPEAL OF VICENTE SOTTO
This appellant alleges that on March 4, 1931, the Court of First Instance of Manila rendered a
judgment ordering Rita Garchitorena Vda. de Centenera to pay him the amount of P960.84;
that by virtue of a writ of execution issued on March 22, 1932, the lots in question were
attached and sold at public auction, the sheriff issuing to appellant the deed of sale on August
7, 1934, which was later registered in the office of the Register of Deeds of Camarines Sur.
The lower court found upon the evidence that lots 2, 3, and 4 of original plan Psu-66063 and
lots 5 and 8 of the subdivision plan Psu-66063-Amd. were adjudicated, by virtue of a decision
of the Supreme Court on March 4, 1933, to Rita Garchitorena as heiress of her father, Andres
Garchitorena, the adjudication subject to sections 712 and 713 of the Code of Civil Procedure.
Following directives in said decision, Mariano Garchitorena and brothers filed a complaint in
the Court of First Instance of Camarines Sur against Rita Garchitorena, and secured a
judgment on December 20, 1934, ordering Rita Garchitorena to deliver to the administrator of
the deceased Andres Garchitorena the possession of the lands decreed to be adjudicated to her
in this case, with the declaration that the creditors of the intestate of Andres Garchitorena will
have the preferent right of retention upon said lands for costs and other expenses caused by
delays, and that the judicial administrator of the intestate was authorized on July 8, 1935,
against opposition of appellant Vicente Sotto, to sell at public auction the above five lots in
order to pay the credits of Mariano, Flor, and Marcel Garchitorena.
Oppositor Vicente Sotto appealed against the order to the Supreme Court, which affirmed the
appealed order, overruling later on several motions for reconsideration filed by said appellant.
The judicial administrator, consequently, sold at public auction on September 7, 1935, the lots
in question to Mariano Garchitorena, who happened to have appeared as the only buyer, at
the price of P28,745.93. The deed of sale was executed on September 8, 1935, and approved by
the court on April 26, 1940, against the opposition of appellant Vicente Sotto.
On April 27, 1939, Mariano Garchitorena bought the 500 hectares adjudicated by the Supreme
Court to Ramon and Jose Alvarez, comprising lots 1, 6, and 7 of the subdivision plan Psu-
66063-Amd.
From the foregoing undisputed facts, no issue of facts having been raised in any of the appeals
in this case, it appears that Rita Garchitorena has never become the owner of the lots in
question, it appearing that the adjudication made in her favor was subject to the provisions of
sections 712 and 713 of the Code of Civil Procedure, which in substance means without
prejudice to the rights of the creditors of her deceased father, Andres Garchitorena.
Although the Civil Code provides that succession takes effect from the time of the death of the
owner, such provision does not create a succession which, as a matter of fact, does not exist, as
in the case of what the deceased Andres Garchitorena could have left to his daughter Rita.
In the contemplation of the law, no succession shall be declared unless and until a liquidation
of the assets and debts left by the deceased shall have been made and all his creditors fully
paid. Until a final liquidation is made and all debts are paid, there is no way of determining if
his heirs may inherit anything.
Until such a liquidation has been made, the right of heirs to inherit remains to be inchoate. It
partakes of the nature of hope. Liquidation is necessary to determine if the deceased has left
any liquid asset which may be transmitted to his heirs. Before any liquid asset is determined,
all debts and obligations must first be liquidated and paid.
In the instant case it appears that after the lots in question had been sold at public auction to
Mariano Garchitorena at the price of P28,745.93, with which the debt of the deceased Andres
Garchitorena to Mariano, Flor, and Marcel Garchitorena were paid, no property or asset
remained to be adjudicated to his daughter Rita Garchitorena. Consequently, at the public
auction in which appellant alleges he bought the lots in question from Rita Garchitorena to
collect the amount of P960.84, as a matter of fact appellant bought nothing, it appearing that
what he bought as belonging to Rita Garchitorena did not belong to the latter.
Appellant alleges that he cannot be prejudiced by judgments or orders issued in other cases in
which he has not been a party, and said other cases are the petition for land registration filed
by Rita Garchitorena, decided by the Court of First Instance of Camarines Sur on May 14,
1931, with the modification decreed by the Supreme Court on March 4, 1933 (58 Phil., 21);
civil case No. 5782 of the Court of First Instance of Camarines Sur instituted by Mariano, Flor,
and Marcel Garchitorena against Rita Garchitorena, to recover the lots in question, on the
ground that said properties pertained really to the deceased Andres Garchitorena and should
be made available to answer for the latter's debts, and the intestate of Andres Garchitorena,
case No. 2881 of the Court of First Instance of Camarines Sur, in which proceedings took place
ending in the sale of the lots in question to Mariano Garchitorena (SC-G. R. No. 44854).
In the latter case appellant filed on June 4, 1935, an opposition to have the properties in
question sold to satisfy claims of Mariano, Flor and Marcel Garchitorena against the deceased
Andres Garchitorena. In said opposition appellant alleged:
"Comparece Vicente Sotto, por si y en su propia representacion, como tercerista en este
asunto, y se opone a la mocion de Mariano Garchitorena y Marcel Garchitorena, de fecha 20
de Mayo de 1935, pidiendo la venta en privado o en publica subasta de las parcelas de terreno
descritas en la misma, por el fundamento de que el infrascrito es el unico y absoluto dueño de
dichas parcelas de terreno.
"1. En los asuntos R. G. Nos. 36385 y 36547, titulados Rita Garchitorena Vda. de
Centenera contra Hermogenes P. Obias et al., y Rita Garchitorena Vda. de
Centenera contra El Director de Terrenos y otros, respectivamente, el Tribunal Supremo
decreto, en decision de Marzo 4, 1933, que todas las parcelas de terreno descritas en la
mencionada mocion fuesen registradas a nombre de Rita Garchitorena (Gac. Of., Vol. XXXII,
No. 18, de Febrero 10, 1934.)
"2. En el asunto No. 38722 del Juzgado de Primera Instancia de Manila, promovido por
Vicente Sotto contra Rita Garchitorena Vda. de Centenera, se dicto con fecha 31 de Mayo de
1931 sentencia en favor del demandante y contra la demandada; y, habiendose quedado firme
y ejecutoria dicha sentencia, las parcelas de terreno en cuestion, que son las mismas descritas
en la mocion de que se trata en el presente asunto, fueron vendidas en publica subasta por el
Sheriff Provincial de Camarines Sur, y adquiridas por el compareciente el 7 de Julio de 1933
en que se verifico dicha venta en publica subasta.
"3. El dia 1.° de Septiembre de 1933 se expedio por el Sheriff de Camarines Sur en favor del
comprador Vicente Sotto el correspondiente Certificado de Venta, sobre dichas parcelas de
terreno, y dicho certificado de venta fue anotado en el Registro de la Propiedad de Camarines
Sur correspondiente el 20 de Septiembre de 1933; y
"4. No habiendose ejercitado por las ejecutadas en el citado asunto su derecho de retracto,
dentro del plazo legal, el 6 de Agosto de 1934, el citado Sheriff Provincial de Camarines Sur
expedio en favor de Vicente Sotto el certificado de venta absoluta, el cual fue igualmente
anotado en el Registro de la Propiedad de Camarines Sur correspondiente en la misma fecha,
y una copia del cual se acompaña a este asunto y se marca como Exhibito 'A-T' del infrascrito
tercerista.
"De los hechos que preceden como se ve, resulta que el aqui tercerista, Vicente Sotto, adquirio
las parcelas de terreno en cuestion en virtud de compra en publica subasta, anunciada y
llevada a cabo por el Sheriff Provincial de Camarines Sur el 7 de Julio de 1933, o sea mucho
antes de que este Juzgado dictara el 20 de Diciembre de 1934 su sentencia en el asunto No.
5782, titulado Mariano de Garchitorena, Flor Garchitorena y Marcel Garchitorena contra Rita
Garchitorena Vda. de Centenera y Jose N. Garchitorena en su capacidad de administrador
judicial del abintestato del finado Andres Garchitorena."
Appellant's contentions were overruled by the Court of First Instance of Camarines Sur.
Appellant appealed to the Supreme Court, which, on December 5, 1938 (G. R. No. 44854),
overruling again appellant's contentions, among others, stated:
"Claiming to have acquired title to the land in question by reason of a sheriff's sale made in his
favor, the appellant, after obtaining a permission to intervene, filed a written opposition to the
aforesaid motion of Mariano de Garchitorena, Flor Garchitorena and Marcel Garchitorena.
The court below rejected this opposition, on the ground that, although the sheriff's sale was
made prior to the rendition of the judgment in civil case No. 5782, it could not prevail against
the said judgment, in view of the fact, that, prior to the sale, a notice of lis pendens was filed in
connection with that case.
"In support of this appeal, it is now contended that the notice of lis pendens could not
prejudice the right of the appellant to the land in question because such notice could only
affect land registered under Act No. 496. Appellant further relies on section 194 of the
Administrative Code, as amended, which in part provides that 'any registration made under
this section shall be understood to be without prejudice to a third party with better right.' The
point thus raised is set at rest by the decisions of this court in Atkins, Kroll & Company vs.
Domingo, 46 Phil., 362, and Fetalino vs. Sanz, 44 Phil., 691. In the latter case, this court held
that 'a transferee pendente lite of real property in litigation is bound by a judgment against his
predecessor in interest and is a proper but not an indispensable party.'
"Appellant also claims that he could not be affected by the judgment rendered in civil case No.
5782, because it was fraudulently obtained. This contention is without merit. The judgment in
question must be presumed to be legal and valid, unless shown by conclusive evidence to have
obtained through fraud. No such evidence exists in this case."
The questions raised in the above opposition are substantially the same as those raised in the
supplementary opposition filed by appellant in the case at bar.
When Mariano Garchitorena filed on February 24, 1940, a motion for the approval of the sale
in his favor of the lots in question, appellant filed an opposition, dated March 11, 1940,
reiterating his alleged rights by virtue of the levy and sale on execution in his favor. The
opposition was overruled by an order dated April 26, 1940, in which the sale in favor of
Mariano Garchitorena was approved. Appellant did not appeal against said order.
The decision of the Supreme Court of December 5, 1938, in case G. R. No. 44854 and the
unappealed order of the Court of First Instance of Camarines Sur dated April 26, 1940, and
special proceeding No. 2881 had finally settled the questions raised by the appellant.
For all the foregoing, finding no merit in the appeals of appellants H. P. Obias, Ana Pataan,
and Vicente Sotto, the order of the lower court dated June 28, 1941, is affirmed, with costs
against appellants.
Moran, C.J., Paras, Pablo, Bengzon, Briones, Padilla, and Tuason, JJ., concur.
 CONCURRING AND DISSENTING

HILADO, J.:
I concur partly in the disposition of the case as regards the parcels of land decreed by this
Court in G. R. Nos. 36385 and 35547 in favor of Rita Garchitorena, and dissent from the
remainder of the majority decision which affects the parcels covered by the oppositions of the
herein opponents-appellants.
These latter parcels, whose registration the majority decision also decrees in favor of movant-
appellee Mariano Garchitorena, were never applied for in an application for registration, nor
the subject of a like petition on the part of any opponent in the original registration cases
which, after having been appealed to this court, were docketed and disposed of herein under
G. R. Nos. 36385 and 36547 (see 58 Phil., 21). Those cases were instituted, prosecuted and
decided under Act No. 496. The judgment of this Court disposing of said cases and
promulgated on March 4, 1933, and elevated to the authority of res judicata seven years
before the motion now under consideration was filed in the court below, and more than
fourteen years ago today, upheld the oppositions filed by the Director of Lands, Hermogenes
P. Obias (18 hectares), Ramon and Jose Alvarez (500 hectares), and Januario Alferez (24
hectares), and ordered the amendment of the Plan Psu-66063 "so as to exclude the portions of
land pertaining to said opponents." No affirmative relief was granted said opponents in the
sense of decreeing the registration in their favor of the parcels of land respectively covered by
their oppositions.
Before the amendment of sections 34, 37, and 38 of Act No. 496 by sections 1, 2, and 3 of Act
No. 3621, the court had no jurisdiction to decree in the same proceeding the registration in
favor of the opponent, even though it should find that, as between the applicant and the
opponent, the land belonged to the latter. In Tecson vs. Corporacion de los PP. Dominicos (19
Phil., 79, 80), this Court, inter alia, said:
"* * * this court has held heretofore that the jurisdiction of the Land Court extends no further
than the inscription of the land described in its final decree and the enforcement of that
decree, and that, even though the land described in the petition be found by the court, as
between the petitioner and the oppositor, to be the property of the opponent, such land can
not be inscribed in his name, the Land Court having, as we have said, no jurisdiction or power
to do so. It naturally and necessarily follows that the opponent, if he desires the land of which
he claims ownership to be registered in accordance with law, must begin a new proceeding in
the Land Court for that purpose."
In this consisted at that time, the difference between registration proceedings under Act No.
496 and those under Chapter VI of Act No. 926. (Sec. 64, latter Act.)
On December 5, 1929, section 34 of Act No. 496, it is true, was amended by section 1 of Act
No. 3621, so that the second sentence thereof thereafter reads as follows:
"* * * The answer (or opposition, as it is often called) shall state all the objections to the
application, and shall set forth the interest claimed by the party filing the same and apply for
the remedy desired, and shall be signed and sworn to by him or by some person in his behalf."
Section 37 of Act No. 496 was also amended by section 2 of Act No. 3621, so that it partly read
as follows:
"SEC. 37. * * * * * * *
"* * * in a case where there is an adverse claim, the court shall determine the conflicting
interests of the applicant and the adverse claimant, and after taking evidence shall dismiss the
application if neither of them succeeds in showing that he has proper title for registration, or
shall enter a decree awarding the land applied for, or any part thereof, to the person entitled
thereto * * *."
But even after the amendment, the underscored portions of the above-quoted provisions
clearly contemplate that in order for the opponent to obtain from the court a decree of
registration, he must apply for the same remedy.
It is likewise true that the same amending act reformed section 38 of Act No. 496 so that said
section thereafter read thus:
"SEC. 38. If the court after hearing finds that the applicant or adverse claimant has title as
stated in his application or adverse claim and proper for registration, a decree of confirmation
and registration shall be entered."
There can be no dispute that in the original registration cases under consideration, no positive
decree of registration was prayed for by any opponent, as categorically required by section 34
of Act No. 496, as amended; and certainly none has been decreed by the above-mentioned
final judgment of this Court, which was beyond its power to amend, much less that of the
lower court, when the latter in granting the motion under consideration attempted to do so. It
seems to me evident, therefore, that even if the opponents themselves had sought such an
amendment, it could not have been legally made at such a late date for the simple reason that
they had not applied for a decree of registration in their opposition as required in said
provision, and furthermore, because the judgment of this Court had long before become final
and irrevocable. If the opponents themselves could not legally have achieved such an end, how
could their successor in interest, the movant-appellee?
What could be the purpose of Act No. 3621, section 1, amending Act No. 496, section 34, in
providing that the opponent shall "apply for the remedy desired"? It is to be presumed that
this phrase was there used for a purpose it would be an insult to the intelligence of the
lawmaker to understand the contrary. What could be that purpose? To my mind, it could only
be to establish a basis for the court's jurisdiction to decree registration in favor of the
opponent and a condition precedent for the exercise thereof. The law undoubtedly aimed at
duly apprising the applicant and any other adverse claimants that such opponent was
asserting a right to the registration and was praying for that remedy, so that such applicant
and other adverse claimants could duly meet the pretensions of said opponent and protect
their rights and interests accordingly. Under the provision, if the opponent applied for a
positive registration in his favor as the remedy that he desired, in case he should prove title in
himself proper for registration, the court would have jurisdiction to grant him that remedy. To
say now that even if he should not apply for the remedy the court could still grant it to him,
would be tantamount to declaring the quoted phrase utterly useless and devoid of meaning.
In Government of the Philippine Islands vs. Tombis Triño (50 Phil., 708, 718), this Court said:
"In a cadastral proceeding, a court has no jurisdiction to decree a lot to one who has put in no
claim to it. The written declaration claiming certain described property is the very basis of
jurisdiction to render a judgment. * * *"
While the present case is not concerned with a cadastral proceeding, it involves the
registration of land like such a proceeding and, as is well known, a claim in a cadastral
proceeding, which is denominated "answer" is for the express purpose of securing the
registration of the land covered thereby in the name of the claimant. That "answer" is the
pleading which the claimant files in view of and against the petition or application of the
Director of Lands which starts the case, in much the same way as an opposition or adverse
claim in an ordinary registration case is in answer to the application of the applicant which
commences the latter proceeding. Hence, in my opinion, the doctrine above quoted from the
Triño case is perfectly applicable herein.
It is likewise true that after Act No. 3621, more specifically on November 17, 1931, Act No.
3901 was enacted, amending section 29 of Act No. 496 so as to read in part as follows:
"SEC. 29. After the filing of the application and before the issuance of the decree of title by the
Chief of the General Land Registration Office the land therein described may be dealt with and
instruments relating thereto shall be recorded in the office of the register of deeds at any time
before the issuance of the decree of title, in the same manner as if no application had been
made. The interested party may, however, present such instruments to the Court of First
Instance instead of presenting them to the office of the register of deeds, together with a
motion that the same be considered in relation with the application, and the court, after
notice to the parties, shall order such land registered subject to the incumbrance created by
said instruments, or order the decree of registration issued in the name of the buyer or of the
person to whom the property has been conveyed by said instruments. If such motion is made
after the decision has become final, the court shall require the interested party, before
granting his motion, to pay the fees which the register of deeds would collect in accordance
with section one hundred and fourteen of this Act, as amended, if such instruments had been
presented for registration in the office of the register of deeds after registration of the original
certificate of title. If the order of the court above mentioned is received by the Chief of the
Land Registration Office after issuance of the decree of title, such order shall forthwith be
forwarded by said officer to the register of deeds concerned, for compliance therewith. If the
proceedings upon the application end in the issuance of a decree of title, the property
included therein shall, as soon as said decree has been registered in the office of the register of
deeds, as provided in section forty-one, become registered land under this Act, * * *." (Italics
supplied.)
Of course, under the provision just quoted it was proper for the lower court to decree the
registration in favor of movant-appellee of the parcels of land whose registration was ordered
in favor of Rita Garchitorena, as original applicant, in G. R. Nos. 36385 and 36547, but "the
court shall require the interested party, before granting his motion, to pay the fees which the
register of deeds would collect in accordance with section one hundred and fourteen of this
Act, as amended, if such instruments had been presented for registration in the office of the
register of deeds after registration of the original certificate of title."
It is clear from the section last above quoted that its provisions are confined to
the application which starts the registration proceedings. The phrase "after the filing of the
application" in its first sentence can not refer but to that which the applicant files, and this is
the self-same application which is alluded to in the remainder of the section. If so, the
provisions of said section do not apply to the oppositionfiled by the opponent. The writer does
not mean to be technical at all, but merely acts upon the principle that this Court has to
exercise its jurisdiction and powers by authority of law. Where the law-making body has seen
fit to confine the provision to the application, it is not for this Court to say that it would be
more practical to extend it to the opposition. Where the law is clear, the duty of the court is
merely to apply it. Construction would be out of place and, if attempted, would be no more nor
less than judicial legislation. It would be just as obnoxious to our system of government for
the courts to legislate in the matter of their own jurisdiction as it would be for the legislature
to render judgment upon purely judicial questions.
I am forced to the conclusion that movant-appellee (a) must pay the fees above mentioned
pursuant to section 29 of Act No. 496, as amended, as a condition precedent to the
registration in his name of the parcels of land adjudicated to Rita Garchitorena, and (b) must
file a separate proceeding for the registration of the parcels of land covered by the said
oppositions or any of them, in the regular manner and following the regular procedure.
G.R. No. L-45320 January 26, 1939

Intestate estate of the deceased Macario Carrillo.

ROSENDA ALMEIDA VIUDA DE CARRILLO, petitioner-appellee,
vs.
CORAZON EDELMIRA CARRILLO DE GALANG, GRACIA CARRILLO, and ROMULO CARRILLO, oppositors-appellants.

Deogracias J. Puyat for appellants.

Ramon Diokno for appellee.

IMPERIAL, J.:

Macario Carrillo died in the City of Manila on May 17, 1931, leaving as next of kin, his widow, Rosenda Almeida, the appellee,
and his three children by his first marriage, Corazon Edelmira Carrillo, Romulo Carrillo and Gracia Carrillo, the appellants.
With the consent of all the relatives, the appellee caused the remains of the deceased to be buried in the private lot of the
Intengan family in the North Cemetery, Manila, to be transferred later after a period of three years but not more than five,
upon paying P100 for the use of the lot. Later on, in the Court of First Instance of Manila, the intestate proceedings of the
decedent were commenced, special proceedings No. 39632, and in the project of partition submitted by all the co-heirs, and
approved by the court, said co-heirs agreed upon the following:

(6) Out of love for her late husband, Macario Carrillo, the party of the first part (Rosenda Almeida) undertakes to pay
the expenses of the last illness of the decedent, such as medicine, physician's fees and nurses; cost of the funeral
and the care of the tomb.

Sometime in January, 1963, the appellee built a mausoleum in Biñan, Province of Laguna, for the remains of her late
husband. Shortly before the expiration of the period of five years for the exhumation of said remains, the appellants secured
the consent of the appellee to have the remains of the deceased transferred to the Ermita Church in Manila. As we was made
to understand that such transfer would only be a temporary and that it would be easier to transfer the remains from that place
to the mausoleum, which she had built in Biñan, the appellee gave her consent. Having been informed by her lawyer that she
should not have given her consent, she withdrew it, and inasmuch as the appellants were about to remove and transfer the
remains, the appellee moved the court to enjoin the appellants from removing the remains to the Ermita Church. The motion
was duly heard and thereafter the court made permanent the preliminary injunction which had been issued, and ordered the
appellants to abstain from removing the remains of the deceased and transferring them to another place. Thereupon, the
appeal was perfected.

The only question raised in the three assignments of error made by the appellants, is whether or not they have a better right
than the appellee to disinter the remains of the deceased and transfer them to the place they had chosen. The court held that
the appellee's right, as the widow, is preferred, as may be gathered from the spirit of section 1103 of the Revised
Administrative Code and from some American cases. We hold that the court correctly decided the case and did not commit
any of the assigned errors.
In this jurisdiction there is no express law which determines the preference, among the next of kin of a deceased, with regard
to the disposition of his remains.

Leaving aside for the moment the law upon the matter and the American cases, to which we will later on refer, we believe
that the agreement between the parties is decisive of the controversy. The parties agreed in the partition approved by the
court that the widow, the appellee, out of love for her late husband, would undertake the care of his tomb. The word tomb,
which in this case means the grave where the body of the deceased was buried, for at the time of the partition-agreement
Macario Carrillo had already died, has been used without any restriction or limitation, and it should be interpreted as meaning
both the grave at the North Cemetery and that which might be determined after the five-year period for the conservation of
the remains of the deceased. If the intention of the parties referred only to the burial of the deceased in the North Cemetery
for five years, which is the maximum period allowed by law, this idea could have been easily expressed.

We hold, then, that under the terms of said agreement, the appellee has a better right than the appellants, and the latter
cannot object to the transfer of the remains of the deceased by the appellee to the mausoleum she built in Biñan, Laguna.

The appellants allege that the appellee consented to the transfer of the remains to the Ermita Church and that now she
cannot validly oppose it. We find no merit in this contention because it appears that the appellee erroneously gave her
consent, for she was made to believe by the appellants that the transfer of the remains to the Ermita Church would only be
temporary, and that her consent thereto would facilitate the subsequent transfer to the mausoleum in Biñan.

In this jurisdiction there is no law that expressly determines the right care, possession and disposition of the remains of the
deceased. Section 1103 of the Revised Administrative Code of 1917, quoted by the court, provides that the obligation to bury
the remains of a deceased, falls, firstly, on the surviving spouse; if the deceased was not married, the obligation falls upon
the closest next of kin; and if he dies with no surviving relative, the burial is the concern of the authorities of the municipality
where he died. This legal provision has no direct application to the controversy, for the simple reason that it refers to the
burial of a dead body, which he is not the case here. However, it is being mentioned merely to point out that even in the case
the right of the surviving spouse is considered preferred and superior to that of the next of kin. In the United States of
America the superior and preferred right of the surviving spouse to the burial and any other legal disposition of the remains of
the husband or of the wife, has always been held undisputed. "It is generally conceded that on the death of a husband or a
wife, the primary and paramount right to possession of the body and to control the burial or other legal disposition thereof is in
the surviving spouse, and not in the next of kin, at least in the absence of a different provision by the deceased." (15 Am.
Jur., par. 9, p. 834; Southern L. & Health Ins. Co. vs. Morgan, 21 Ala. App., 5; 105 So., 161; Enos vs. Snyder, 131 Cal., 68;
63 Pac., 170; O'Donnell vs. Slack, 123 Cal., 285; 55 Pac., 906; Boyle vs. Chandler, 33 Del., 323; 138 A., 273; Louisville & N.
R. Co. vs. Wilson, 123 Ga., 62; 51 S. E., 24; Anderson vs. Acheson, 132 Iowa, 744; 110 N. W., 335.) "The surviving spouse
is entitled to select the place of burial and the place of reinterment if the remains are removed after burial." (15 Am. Jur., par.
9, p. 834.) "The better rule seems to be, however, that if the widow has not waived her right, she may, against the objections
of the next of kin, remove her husband's body, after interment, to another place of sepulture." (15 Am. Jur., par. 21, p. 843;
Bunol vs. Bunol, 12 La App., 675; 127 So., 70; Hackett vs. Hackett, 19 L. R. A., 558; 49 Am. St. Rep., 762.)

For the foregoing reasons, the appealed order is affirmed, with costs in this instance against the appellants. So ordered.

Avanceña, C.J., Villa-Real, Diaz, Laurel, Concepcion, and Moran, JJ., concur.