G.R. No. L-29300 June 21, 1978 2.
2. On June 24, 1939 a petition for the probate of his will was filed in
PEDRO D. H. GALLANOSA, CORAZON GRECIA-GALLONOSA
and ADOLFO FORTAJADA, the deceased Pedro Gallanosa
being substituted by his legal heirs, namely his above-named
widow and his children, ISIDRO GALLANOSA and LEDY
GALLANOSA, and grandchildren named IMELDA TECLA
GALLANOSA and ROSARIO BRIGIDA GALLANOSA, children of
the late SIKATUNA GALLANOSA, son of Pedro D.H.
GALLONOSA, petitioners,
vs.
HON. UBALDO Y. ARCANGEL, Judge of Branch I of the Court
of First Instance of Sorsogon and FLORENTINO G. HITOSIS,
CASIANO G. HITOSIS, TEOTIMO G. HITOSIS, VICTORIO G.
HITOSIS, EMILIA G. HITOSIS VDA. DE CRUZ, JOAQUIN R.
HITOSIS VDA. DE CRUZ, JOAQUIN R. HITOSIS, FLORENTINO
R. HITOSIS, VIRGINIA R. MITOSIS, DEBORAH R. HITOSIS,
EDILBERTO R. HITOSIS, LEONOR R. HITOSIS, NORMA R.
HITOSIS-VILLANUEVA, LEONCIO R. HITOSIS, minors ANGEL
R. HITOSIS and RODOLFO R. HITOSIS, represented by their
legal guardian and mother LOURDES RELUCIO VDA. DE
HITOSIS, PETRONA HITOSIS-BALBIDO, MODESTO HITOSIS-
GACILO, CLETO HITOSIS, AGUSTIN HITOSIS-FORTES,
TOMASA HITOSIS-BANARES VDA. DE BORRAS, CONRADA
HITOSIS-BANARES FRANCHE, RESTITUTO HITOSIS-
BANARES, DAMIAN HITOSIS-BANARES, FIDEL HITOSIS-
BANARES, SUSANA HITOSIS-BANARES RODRIGUEZ, JOSE
HITOSIS, LOLITA HITOSIS-BANEGA, minors MILAGROS
HITOSIS-BANEGA, ALICIA HITOSIS-BANEGA AND ELISA
HITOSIS-BANEGA, represented by their legal guardian and
father ERNESTO BANEGA, FELICITAS HITOSIS-PENAFLOR,
GENOVEVA HITOSIS-ADRIATICO, MANUEL HITOSIS, PEDRO
HITOSIS, LIBRATA HITOSIS-BALMES, JUANITA HITOSIS-
GABITO VDA. DE GABAS, MAURA HITOSIS-GABITO VDA. DE
GANOLA and LEONA HITOSIS-GABITO GAMBA, respondents.
Haile Frivaldo for petitioners.
Joaquin R Mitosis for private respondents.
AQUINO, J.:
In this special civil action of certiorari, filed on July 29, 1968, the
petitioners seek to annul the orders of respondent Judge dated May
3 trial June 17, 1968, wherein he reconsidered his order of January
10, 1968, dismissing, on the ground of prescription, the complaint in
Civil Case No. 2233 of the Court of First Instance of Sorsogon.
The case involves the sixty-one parcels of land in Sorsogon left by
Florentino Hitosis, with an estimated value of P50,000, trial claims for
damages exceeding one million pesos. The undisputed facts are as
follows:
1. Florentino Hitosis executed a will in the Bicol dialect on June 19,
1938 when he was eighty years old. He died on May 26, 1939 at
Irosin, Sorsogon. A childless widower, he as survived by his brother,
Leon Hitosis. His other brothers, named Juan, Tito (Juancito),
Leoncio (Aloncio) trial Apolonio and only sister, Teodora, were all
dead.
the Court of First Instance of Sorsogon (Special Proceeding No.
3171). The notice of hearing was duly published. In that will,
Florentino bequeathed his one-half share in the conjugal estate to
his second wife, Tecla Dollentas, and, should Tecla predecease him,
as was the case, his one-half share would be assigned to the
spouses Pedro Gallanosa and Corazon Grecia, the reason being that
Pedro, Tecla's son by her first marriage, grew up under the care of
Florentino; he had treated Pedro as his foster child, and Pedro has
rendered services to Florentino and Tecla. Florentino likewise
bequeathed his separate properties consisting of three parcels of
abaca land and parcel of riceland to his protege ( sasacuyang
ataman), Adolfo Fortajada, a minor.
3. Opposition to the probate of the will was registered by the
testator's legal heirs, namely, his surviving brother, Leon, trial his
nephews trial nieces. After a hearing, wherein the oppositors did not
present any evidence in support of their opposition, Judge Pablo S.
Rivera, in his decision of October 27, 1939, admitted the will to
probate and appointed Gallanosa as executor. Judge Rivera
specifically found that the testator executed his last will "gozando de
buena salud y facultades mentales y no obrando en virtud de
amenaza, fraude o influencia indebida."
4. On October 24, 1941, the testamentary heirs, the Gallanosa
spouses trial Adolfo Fortajada, submitted a project of partition
covering sixty-one parcels of land located in various parts of
Sorsogon, large cattle trial several pieces of personal property which
were distributed in accordance with Florentino's will. The heirs
assumed the obligations of the estate amounting to P7,129.27 in the
portion of P2,376.42 for Adolfo Fortajada and P4,752.85 for the
Gallanosa spouses. The project of partition was approved by Judge
Doroteo Amador in his order of March 13, 1943, thus confirming the
heirs' possession of their respective shares. The testator's legal heirs
did not appeal from the decree of probate trial from the order of
partition trial distribution.
5. On February 20, 1952, Leon Hitosis trial the heirs of Florentino's
deceased brothers trial sisters instituted an action in the Court of
First Instance of Sorsogon against Pedro Gallanosa for the recovery
of the said sixty-one parcels of land. They alleged that they, by
themselves or through their predecessors-in-interest, had been in
continuous possession of those lands en concepto de dueño trial that
Gallanosa entered those lands in 1951 trial asserted ownership over
the lands. They prayed that they be declared the owners of the
lands trial that they be restored to the possession thereof. They also
claimed damages (Civil Case No. 696).
6. Gallanosa moved to dismiss the above complaint for lack of cause
of action trial on the ground of bar by the prior judgment in the
probate proceeding. Judge Anatolio C. Mañalac dismiss the
complaint on the ground of res judicatain his order of August 14,
1952 wherein he said:
It also appears that the plaintiffs and/or their predecessors-in-
interest had intervened in the testate proceedings in Civil Case No.
3171 of this Court for- the purpose of contesting the probate of the
will of (the) late Florentino Hitosis; trial had their opposition
prospered trial the will denied of probate, the proceedings would
have been converted into one of intestacy (Art. 960 Civil Code) and
the settlement of the estate of the said deceased would have been
made in accordance with the provisions of law governing legal or
intestate succession ... , in which case the said plaintiffs, as the
nearest of kin or legal heirs of said Florentino Mitosis, would have
succeeded to the ownership and possession of the 61 parcels of land
in question forming part of his estate (art. 1003, Civil Code).
However, the derision of the Court was adverse to them, when it
their opposition trial ordered the probate of his will. From this
decision (Annex K) legalizing the said will, the oppositors did not file
any appeal within the period fixed by law, despite the fact that they
were duly notified thereof, so that the said decision had become final
trial it now constitutes a bar to any action that the plaintiffs may
institute for the purpose of a redetermination of their rights to inherit
the properties of the late Florentino Hitosis.
In other words, the said decision of this Court in Civil Case special )
No. 3171, in which the herein plaintiffs or their predecessors-in-
interest had intervened as parties oppositors, constitutes a final
judicial determination of the issue that the said plaintiffs, as ordinary
heirs, have no legal rights to succeed to any of the properties of the
late Florentino Hitosis; consequently, their present claim to the
ownership trial possession of the 61 parcels of land in question is
without any legal merit or basis.
7. The plaintiffs did not appeal from that order of dismissal which
should have set the matter at rest. But the same plaintiffs or
oppositors to the probate of the will, trial their heirs, with a
persistence befitting a more meritorious case, filed on September 21,
1967, or fifteen years after the dismissal of Civil Case No. 696 trial
twenty-eight years after the probate of the will another action in the
same court against the Gallanosa spouses trial Adolfo Fortajada for
the "annulment" of the will of Florentino Hitosis trial and for the
recovery of the same sixty-one parcels of land. They prayed for the
appointment of a receiver.
8. As basis of their complaint, they alleged that the Gallanosa
spouses, through fraud trial deceit, caused the execution trial
simulation of the document purporting to be the last will trial
testament of Florentino Hitosis. While in their 1952 complaint the
game plaintiffs alleged that they were in possession of the lands in
question, in their 1967 complaint they admitted that since 1939, or
from the death of Florentino Hitosis, the defendants (now the
petitioners) have been in possession of the disputed lands (Par. XIV
of the complaint, p. 70, Rollo in Civil Case No. 555, Gubat Branch,
which was transferred to Branch I in Sorsogon town where Special
Proceeding No. 3171 trial Civil Case No. 696 were decided trial which
was re-docketed as Civil Case No. 2233).
9. As already stated, that 1967 complaint, upon motion of the
defendants, now the petitioners, was dismissed by respondent Judge.
The plaintiffs filed a motion for reconsideration Respondent Judge.
granted it trial set aside the order of dismissal. He denied defendants'
motion for the reconsideration of his order setting aside that
dismissal order.
The petitioners or the defendants below contend in this certiorari
case that the lower court has no jurisdiction to set aside the 1939
decree of probate trial the 1952 order of dismissal in Civil Case No.
696 trial that it acted with grave abuse of discretion in not dismissing
private respondents' 1967 complaint.
The issue is whether, under the facts set forth above, the private
respondents have a cause of action the "annulment" of the will of
Florentino Hitosis trial for the recovery of the sixty-one parcels of
land adjudicated under that will to the petitioners.
We hold that the lower court committed a grave abuse of discretion
in reconsideration its order of dismissal trial in ignoring the 1939
testamentary case trial the 1952 Civil Case No. 696 which is the
same as the instant 1967 case.
A rudimentary knowledge of substantive law trial procedure is
sufficient for an ordinary lawyer to conclude upon a causal perusal of
the 1967 complaint that it is baseless trial unwarranted.
What the plaintiffs seek is the "annulment" of a last will trial
testament duly probated in 1939 by the lower court itself. The
proceeding is coupled with an action to recover the lands
adjudicated to the defendants by the same court in 1943 by virtue of
the probated will, which action is a resuscitation of The complaint of
the same parties that the same court dismissed in 1952.
It is evident from the allegations of the complaint trial from
defendants' motion to dismiss that plaintiffs' 1967 action is barred
by res judicata, a double-barrelled defense, trial by prescription,
acquisitive trial extinctive, or by what are known in the jus civile trial
the jus gentium as usucapio, longi temporis
possesio and praescriptio (See Ramos vs. Ramos, L-19872,
December 3, 1974, 61 SCRA 284).
Our procedural law does not sanction an action for the "annulment"
of a will. In order that a will may take effect, it has to be probated,
legalized or allowed in the proper testamentary proceeding. The
probate of the will is mandatory (Art. 838, Civil Code; sec. 1, Rule
75, formerly sec. 1, Rule 76, Rules of Court; Guevara vs. Guevara,
74 Phil. 479; Guevara vs. Guevara, 98 Phil. 249).
The testamentary proceeding is a special proceeding for the
settlement of the testator's estate. A special proceeding is distinct
trial different from an ordinary action (Secs. 1 trial 2, Rule 2 trial sec.
1, Rule 72, Rules of Court).
We say that the defense of res judicata, as a ground for the
dismissal of plaintiffs' 1967 complaint, is a two-pronged defense
because (1) the 1939 trial 1943 decrees of probate trial distribution
in Special Proceeding No. 3171 trial (2) the 1952 order of dismissal
in Civil Case No. 696 of the lower court constitute bars by former
judgment, Rule 39 of the Rules of Court provides:
SEC. 49. Effect of judgments. — The effect of a judgment or final
order rendered by a court or judge of the Philippines, having
jurisdiction to pronounce the judgment or order, may be as follows:
(a) In case of a judgment or order against a specific thing, or in
respect to the probate of a will or the administration of the estate of
a deceased person, or in respect to the personal, political, or legal
condition or status of a particular person or his relationship to
another, the judgment or order is conclusive upon the title to the
thing the will or administration, or the condition, status or
relationship of the person; however, the probate of a will or granting
of letters of administration shall only be prima facie evidence of the
death of the testator or intestate;
(b) In other cases the judgment or order is, with respect to the
matter directly adjudged or as to any other matter that could have
been raised in relation thereto, conclusive between the parties trial
their successors in interest by title subsequent to the
commencement of the action or special proceeding, litigating of the
same thing trial under the same title trial in the same capacity;
(c) In any other litigation between the same parties or their
successors in interest, that only is deemed to have been adjudged in
a former judgment which appears upon its face to have been so
adjudged, or which was actually trial necessarily included therein or
necessary thereto.
The 1939 decree of probate is conclusive as to the due execution or
formal validity of the will (Sec. 625, Act 190, sec. 1, Rule 76, now
sec. 1, Rule 75, Rules of Court; Last par. of art. 838, Civil Code).
That means that the testator was of sound trial disposing mind at the
time when he executed the will and was not acting under duress,
menace, fraud, or undue influence; that the will was signed by him in
the presence of the required number of witnesses, and that the will is
genuine trial is not a forgery. Accordingly, these facts cannot again
be questioned in a subsequent proceeding, not even in a criminal
action for the forgery of the will. (3 Moran's Comments on the Rules
of Court, 1970 Edition, p. 395; Manahan vs. Manahan, 58 Phil. 448).
After the finality of the allowance of a will, the issue as to the
voluntariness of its execution cannot be raised anymore (Santos vs.
De Buenaventura, L-22797, September 22, 1966, 18 SCRA 47).
In Austria vs. Ventenilla, 21 Phil. 180, a "petition for annulment of a
will" was not entertained after the decree of probate had become
final. That case is summarized as follows:
Wills; Probate; Alledged Fraudulent Will; Appeal .— V. died. His will
was admitted to probate without objection. No appeal was taken
from said order. It was admitted that due trial legal notice had been
given to all parties. Fifteen months after the date of said order, a
motion was presented in the lower court to have said will declared
null and void, for the reason that fraud had been practised upon the
deceased in the making of his will.
Held: That under section 625 of Act No. 190, the only time given
parties who are displeased with the order admitting to probate a will,
for an appeal is the time given for appeals in ordinary actions; but
without deciding whether or not an order admitting a will to probate
will be opened for fraud, after the time allowed for an appeal has
expired, when no appeal is taken from an order probating a will, the
heirs can not, in subsequent litigation in the same proceedings, raise
questions relating to its due execution. The probate of a will is
conclusive as to its due execution trial as to the testamentary
capacity of The testator. (See Austria vs. Heirs of Ventenilla. 99 Phil.
1069).
On the other hand, the 1943 decree of adjudication rendered by the
trial court in the testate proceeding for the settlement of the estate
of Florentino Hitosis, having been rendered in a proceeding in rem, is
under the abovequoted section 49(a), binding upon the whole world
(Manalo vs. Paredes, 47 Phil. 938; In re Estate of Johnson, 39 Phil.
156; De la Cerna vs. Potot, 120 Phil. 1361, 1364; McMaster vs.
Hentry Reissmann & Co., 68 Phil. 142).
It is not only the 1939 probate proceeding that can be interposed
as res judicata with respect to private respondents' complaint, The
1952 order of dismissal rendered by Judge Mañalac in Civil Case No.
696, a judgment in personam was an adjudication on the merits
(Sec. 4, Rule 30, old Rules of Court). It constitutes a bar by former
judgment under the aforequoted section 49(b) (Anticamara vs. Ong,
L-29689. April 14, 1978).
The plaintiffs or private respondents did not even bother to ask for
the annulment of the testamentary proceeding trial the proceeding
in Civil Case No. 696. Obviously, they realized that the final
adjudications in those cases have the binding force of res
judicata and that there is no ground, nor is it timely, to ask for the
nullification of the final orders trial judgments in those two cases.
It is a fundamental concept in the organization of every jural system,
a principle of public policy, that, at the risk of occasional errors,
judgments of courts should become final at some definite date fixed
by law. Interest rei publicae ut finis sit litum . "The very object for
which the courts were constituted was to put an end to
controversies." (Dy Cay vs. Crossfield and O'Brien, 38 Phil. 521:
Peñalosa vs. Tuason, 22 Phil, 303; De la Cerna vs. Potot, supra).
After the period for seeking relief from a final order or judgment
under Rule 38 of the Rules of Court has expired, a final judgment or
order can be set aside only on the grounds of (a) lack of jurisdiction
or lack of due process of law or (b) that the judgment was obtained
by means of extrinsic or collateral fraud. In the latter case, the
period for annulling the judgment is four years from the discovery of
the fraud (2 Moran's Comments on the Rules of Court, 1970 Edition,
pp. 245-246; Mauricio vs. Villanueva, 106 Phil. 1159).
To hurdle over the obstacle of prescription, the trial court, naively
adopting the theory of plaintiffs' counsel, held that the action for the
recovery of the lands had not prescribed because the rule in article
1410 of the Civil Code, that "the action or defense for the
declaration of the inexistence of a contract does not prescribe",
applies to wills.
That ruling is a glaring error. Article 1410 cannot possibly apply to
last wills trial testaments. The trial court trial plaintiffs' counsel relied
upon the case of Dingle vs. Guillermo, 48 0. G. 4410, allegedly
decided by this Court, which cited the ruling in Tipton vs. Velasco, 6
Phil. 67, that mere lapse of time cannot give efficacy to
void contracts, a ruling elevated to the category of a codal provision
in article 1410. The Dingle case was decided by the Court of
Appeals. Even the trial court did not take pains to verify the
misrepresentation of plaintiffs' counsel that the Dinglecase was
decided by this Court. An elementary knowledge of civil law could
have alerted the trial court to the egregious error of plaintiffs'
counsel in arguing that article 1410 applies to wills.
WHEREFORE, the lower court's orders of May 3 trial June 17, 1968
are reversed trial set aside trial its order of dismissal dated January
10, 1968 is affirmed. Costs against the private respondents.
SO ORDERED.
Fernando (Chairman), Barredo, Antonio, and Santos, JJ., concur.
Concepcion, Jr., J., is on leave.
G.R. No. L-23638 October 12, 1967
DIONISIO FERNANDEZ, EUSEBIO REYES and LUISA
REYES, petitioners,
vs.
ISMAELA DIMAGIBA, respondent.
----------------------------------------
G.R. No. L-23662 October 12, 1967
MARIANO REYES, CESAR REYES, LEONOR REYES and
PACIENCIA REYES, petitioners,
vs.
ISMAELA DIMAGIBA, respondent.
Jose D. Villena for petitioners.
Antonio Barredo and Exequiel M. Zaballero for respondent.
REYES, J.B.L., Actg. C.J.:
The heirs intestate of the late Benedicta de los Reyes have petitioned
for a review of the decision of the Court of Appeals (in CA-G. R. No.
31221-R) affirming that of the Court of First Instance of Bulacan, in
Special Proceeding No. 831 of said Court, admitting to probate the
alleged last will and testament of the deceased, and overruling the
opposition to the probate.
It appears from the record that on January 19, 1955, Ismaela
Dimagiba, now respondent, submitted to the Court of First Instance a
petition for the probate of the purported will of the late Benedicta de
los Reyes, executed on October 22, 1930, and annexed to the
petition. The will instituted the petitioner as the sole heir of the
estate of the deceased. The petition was set for hearing, and in due
time, Dionisio Fernandez, Eusebio Reyes and Luisa Reyes and one
month later, Mariano, Cesar, Leonor and Paciencia, all surnamed
Reyes, all claiming to be heirs intestate of the decedent, filed
oppositions to the probate asked. Grounds advanced for the
opposition were forgery, vices of consent of the testatrix, estoppel by
laches of the proponent and revocation of the will by two deeds of
conveyance of the major portion of the estate made by the testatrix
in favor of the proponent in 1943 and 1944, but which conveyances
were finally set aside by this Supreme Court in a decision
promulgated on August 3, 1954, in cases G.R. Nos. L-5618 and L-
5620 (unpublished).
After trial on the formulated issues, the Court of First Instance, by
decision of June 20, 1958, found that the will was genuine and
properly executed; but deferred resolution on the questions of
estoppel and revocation "until such time when we shall pass upon
the intrinsic validity of the provisions of the will or when the question
of adjudication of the properties is opportunely presented."
Oppositors Fernandez and Reyes petitioned for reconsideration,
and/or new trial, insisting that the issues of estoppel and revocation
be considered and resolved; whereupon, on July 27, 1959, the Court
overruled the claim that proponent was in estoppel to ask for the
probate of the will, but "reserving unto the parties the right to raise
the issue of implied revocation at the opportune time."
On January 11, 1960, the Court of First Instance appointed Ricardo
Cruz as administrator for the sole purpose of submitting an inventory
of the estate, and this was done on February 9, 1960.
On February 27, 1962, after receiving further evidence on the issue
whether the execution by the testatrix of deeds of sale of the larger
portion of her estate in favor of the testamentary heir, made in 1943
and 1944, subsequent to the execution of her 1930 testament, had
revoked the latter under Article 957(2) of the 1950 Civil Code (Art.
869 of the Civil Code of 1889), the trial Court resolved against the
oppositors and held the will of the late Benedicta de los Reyes
"unaffected and unrevoked by the deeds of sale." Whereupon, the
oppositors elevated the case to the Court of Appeals.
The appellate Court held that the decree of June 20, 1958, admitting
the will to probate, had become final for lack of opportune appeal;
that the same was appealable independently of the issue of implied
revocation; that contrary to the claim of oppositors-appellants, there
had been no legal revocation by the execution of the 1943 and 1944
deeds of sale, because the latter had been made in favor of the
legatee herself, and affirmed the decision of the Court of First
Instance.
Oppositors then appealed to this Court.
In this instance, both sets of oppositors-appellants pose three main
issues: (a) whether or not the decree of the Court of First Instance
allowing the will to probate had become final for lack of appeal; (b)
whether or not the order of the Court of origin dated July 27, 1959,
overruling the estoppel invoked by oppositors-appellants had
likewise become final; and (c) whether or not the 1930 will of
Benedicta de los Reyes had been impliedly revoked by her execution
of deeds of conveyance in favor of the proponent on March 26, 1943
and April 3, 1944.
As to the first point, oppositors-appellants contend that the order
allowing the will to probate should be considered interlocutory,
because it fails to resolve the issues of estoppel and revocation
propounded in their opposition. We agree with the Court of Appeals
that the appellant's stand is untenable. It is elementary that a
probate decree finally and definitively settles all questions
concerning capacity of the testator and the proper execution and
witnessing of his last will and testament, irrespective of whether its
provisions are valid and enforceable or otherwise. (Montañano vs.
Suesa, 14 Phil. 676; Mercado vs. Santos, 66 Phil. 215; Trillana vs.
Crisostomo, 89 Phil. 710). As such, the probate order is final and
appealable; and it is so recognized by express provisions of Section
1 of Rule 109, that specifically prescribes that "any interested person
may appeal in special proceedings from an order or judgment . . .
where such order or judgment: (a) allows or disallows a will."
Appellants argue that they were entitled to await the trial Court's
resolution on the other grounds of their opposition before taking an
appeal, as otherwise there would be a multiplicity of recourses to the
higher Courts. This contention is without weight, since Rule 109,
section 1, expressly enumerates six different instances when appeal
may be taken in special proceedings.
There being no controversy that the probate decree of the Court
below was not appealed on time, the same had become final and
conclusive. Hence, the appellate courts may no longer revoke said
decree nor review the evidence upon which it is made to rest. Thus,
the appeal belatedly lodged against the decree was correctly
dismissed.
The alleged revocation implied from the execution of the deeds of
conveyance in favor of the testamentary heir is plainly irrelevant to
and separate from the question of whether the testament was duly
executed. For one, if the will is not entitled to probate, or its probate
is denied, all questions of revocation become superfluous in law,
there is no such will and hence there would be nothing to revoke.
Then, again, the revocation invoked by the oppositors-appellants is
not an express one, but merely implied from subsequent acts of the
testatrix allegedly evidencing an abandonment of the original
intention to bequeath or devise the properties concerned. As such,
the revocation would not affect the will itself, but merely the
particular devise or legacy. Only the total and absolute revocation
can preclude probate of the revoked testament (Trillana vs.
Crisostomo, supra.).
As to the issue of estoppel, we have already ruled in Guevara vs.
Guevara, 98 Phil. 249, that the presentation and probate of a will are
requirements of public policy, being primarily designed to protect the
testator's, expressed wishes, which are entitled to respect as a
consequence of the decedent's ownership and right of disposition
within legal limits. Evidence of it is the duty imposed on a custodian
of a will to deliver the same to the Court, and the fine and
imprisonment prescribed for its violation (Revised Rule 75). It would
be a non sequitur to allow public policy to be evaded on the pretext
of estoppel. Whether or not the order overruling the allegation of
estoppel is still appealable or not, the defense is patently
unmeritorious and the Court of Appeals correctly so ruled.
The last issue, that of revocation, is predicated on paragraph 2 of
Article 957 of the Civil Code of 1950 (Art. 869 of the Code of 1889),
which recites:
Art. 957. The legacy or devise shall be without effect:
(1) . . . .
(2) If the testator by any title or for any cause alienates the thing
bequeathed or any part thereof, it being understood that in the latter
case the legacy or devise shall be without effect only with respect to
the part thus alienated. If after the alienation the thing should again
belong to the testator, even if it be by reason of nullity of the
contract, the legacy or devise shall not thereafter be valid, unless the
reacquisition shall have been effected by virtue of the exercise of the
right of repurchase;
xxx xxx xxx
It is well to note that, unlike in the French and Italian Codes, the
basis of the quoted provision is a presumed change of intention on
the part of the testator. As pointed out by Manresa in his
Commentaries on Article 869 of the Civil Code (Vol. 6, 7th Ed., p.
743) —
Este caso se funda en la presunta voluntad del testador. Si este,
despues de legar, se desprende de la cosa por titulo lucrativo u
oneroso, hace desaparecer su derecho sobra ella, dando lugar a la
presuncion de que ha cambiado de voluntad, y no quiere que el
legado se cumpla. Mas para que pueda presumirse esa voluntad, es
necesario que medien actos del testador que la indiquen. Si la
perdida del derecho sobre la cosa ha sido independiente de la
voluntad del testador, el legado podraquedar sin efecto, mas no en
virtud del numero 2 del articulo 869, que exige siempre actos
voluntarios de enajenacion por parte del mismo testador.
As observed by the Court of Appeals, the existence of any such
change or departure from the original intent of the testatrix,
expressed in her 1930 testament, is rendered doubtful by the
circumstance that the subsequent alienations in 1943 and 1944 were
executed in favor of the legatee herself, appellee Dimagiba. In fact,
as found by the Court of Appeals in its decision annulling these
conveyances (affirmed in that point by this Supreme Court in Reyes
vs. Court of Appeals and Dimagiba, L-5618 and L-5620, promulgated
on July 31, 1954), "no consideration whatever was paid by
respondent Dimagiba" on account of the transfers, thereby rendering
it even more doubtful whether in conveying the property to her
legatee, the testatrix merely intended to comply in advance with
what she had ordained in her testament, rather than an alteration or
departure therefrom.1 Revocation being an exception, we believe,
with the Courts below, that in the circumstances of the particular
case, Article 957 of the Civil Code of the Philippines, does not apply
to the case at bar.
Not only that, but even if it were applicable, the annulment of the
conveyances would not necessarily result in the revocation of the
legacies, if we bear in mind that the findings made in the decision
decreeing the annulment of the subsequent 1943 and 1944 deeds of
sale were also that
it was the moral influence, originating from their confidential
relationship, which was the only cause for the execution of Exhs. A
and B (the 1943 and 1944 conveyances). (Decision, L-5618 and L-
5620).
If the annulment was due to undue influence, as the quoted passage
implies, then the transferor was not expressing her own free will and
intent in making the conveyances. Hence, it can not be concluded,
either, that such conveyances established a decision on her part to
abandon the original legacy.
True it is that the legal provision quoted prescribes that the recovery
of the alienated property "even if it be by reason of the nullity of the
contract" does not revive the legacy; but as pointed out by Scaevola
(Codigo Civil, Vol. XV, 4th Ed., pp. 324-325) the "nullity of the
contract" can not be taken in an absolute sense. 2 Certainly, it could
not be maintained, for example, that if a testator's subsequent
alienation were avoided because the testator was mentally deranged
at the time, the revocatory effect ordained by the article should still
ensue. And the same thing could be said if the alienation (posterior
to the will) were avoided on account of physical or mental duress.
Yet, an alienation through undue influence in no way differs from
one made through violence or intimidation. In either case, the
transferor is not expressing his real intent, 3 and it can not be held
that there was in fact an alienation that could produce a revocation
of the anterior bequest.
In view of the foregoing considerations, the appealed decision of the
Court of Appeals is hereby affirmed. Costs against appellants Reyes
and Fernandez. So ordered.
Dizon, Makalintal, Zaldivar, Sanchez, Castro, Angeles and Fernando,
JJ., concur.
Concepcion, C.J. and Bengzon, J.P., J., are on leave, took no part.

G.R. No. 156021 September 23, 2005
CYNTHIA C. ALABAN, FRANCIS COLLADO, JOSE P. COLLADO,
JUDITH PROVIDO, CLARITA PROVIDO, ALFREDO PROVIDO,
MANUEL PROVIDO, JR., LORNA DINA E. PROVIDO, SEVERO
ARENGA, JR., SERGIO ARENGA, EDUARDO ARENGA, CAROL
ARENGA, RUTH BABASA, NORMA HIJASTRO, DOLORES M.
FLORES, ANTONIO MARIN, JR., JOSE MARIN, SR., and
MATHILDE MARIN, Petitioners,
vs.
COURT OF APPEALS and FRANCISCO H.
PROVIDO, Respondent.
DECISION
Tinga, J.:
This is a petition for review of the Resolutions1 of the
Court of Appeals (CA) in CA-G.R. SP No. 69221, 2 dismissing
petitioners’ petition for annulment of judgment.
On 8 November 2000, respondent Francisco Provido (respondent)
filed a petition, docketed as SP Proc. No. 00-135, for the probate of
the Last Will and Testament3 of the late Soledad Provido
Elevencionado ("decedent"), who died on 26 October 2000 in
Janiuay, Iloilo.4 Respondent alleged that he was the heir of the
decedent and the executor of her will. On 30 May 2001, the Regional
Trial Court (RTC), Branch 68, in P.D. Monfort North, Dumangas,
Iloilo, rendered its Decision,5 allowing the probate of the will of the
decedent and directing the issuance of letters testamentary to
respondent.6
More than four (4) months later, or on 4 October 2001, herein
petitioners filed a motion for the reopening of the probate
proceedings.7 Likewise, they filed an opposition to the allowance of
the will of the decedent, as well as the issuance of letters
testamentary to respondent,8 claiming that they are the intestate
heirs of the decedent. Petitioners claimed that the RTC did not
acquire jurisdiction over the petition due to non-payment of the
correct docket fees, defective publication, and lack of notice to the
other heirs. Moreover, they alleged that the will could not have been
probated because: (1) the signature of the decedent was forged; (2)
the will was not executed in accordance with law, that is, the
witnesses failed to sign below the attestation clause; (3) the
decedent lacked testamentary capacity to execute and publish a will;
(4) the will was executed by force and under duress and improper
pressure; (5) the decedent had no intention to make a will at the
time of affixing of her signature; and (6) she did not know the
properties to be disposed of, having included in the will properties
which no longer belonged to her. Petitioners prayed that the letters
testamentary issued to respondent be withdrawn and the estate of
the decedent disposed of under intestate succession.9
On 11 January 2002, the RTC issued an Order10 denying petitioners’
motion for being unmeritorious. Resolving the issue of jurisdiction,
the RTC held that petitioners were deemed notified of the hearing by
publication and that the deficiency in the payment of docket fees is
not a ground for the outright dismissal of the petition. It merely
required respondent to pay the deficiency.11 Moreover, the
RTC’s Decision was already final and executory even before
petitioners’ filing of the motion to reopen. 12
Petitioners thereafter filed a petition13 with an application for
preliminary injunction with the CA, seeking the annulment of the
RTC’s Decision dated 30 May 2001 and Order dated 11 January
2002. They claimed that after the death of the decedent, petitioners,
together with respondent, held several conferences to discuss the
matter of dividing the estate of the decedent, with respondent
agreeing to a one-sixth (1/6) portion as his share. Petitioners
allegedly drafted a compromise agreement to implement the division
of the estate. Despite receipt of the agreement, respondent refused
to sign and return the same. Petitioners opined that respondent
feigned interest in participating in the compromise agreement so
that they would not suspect his intention to secure the probate of
the will.14 They claimed that they learnt of the probate proceedings
only in July of 2001, as a result of which they filed their motion to
reopen the proceedings and admit their opposition to the probate of
the will only on 4 October 2001. They argued that the
RTC Decision should be annulled and set aside on the ground of
extrinsic fraud and lack of jurisdiction on the part of the RTC. 15
In its Resolution16 promulgated on 28 February 2002, the CA
dismissed the petition. It found that there was no showing that
petitioners failed to avail of or resort to the ordinary remedies of
new trial, appeal, petition for relief from judgment, or other
appropriate remedies through no fault of their own. 17 Moreover, the
CA declared as baseless petitioners’ claim that the proceedings in the
RTC was attended by extrinsic fraud. Neither was there any showing
that they availed of this ground in a motion for new trial or petition
for relief from judgment in the RTC, the CA added. 18 Petitioners
sought reconsideration of the Resolution, but the same was denied
by the CA for lack of merit.19
Petitioners now come to this Court, asserting that the CA committed
grave abuse of discretion amounting to lack of jurisdiction when it
dismissed their petition for the alleged failure to show that they have
not availed of or resorted to the remedies of new trial, appeal,
petition for relief from judgment or other remedies through no fault
of their own, and held that petitioners were not denied their day in
court during the proceedings before the RTC.20 In addition, they
assert that this Court has yet to decide a case involving Rule 47 of
the Rules of Court and, therefore, the instant petition should be
given due course for the guidance of the bench and bar.21
For his part, respondent claims that petitioners were in a position to
avail of the remedies provided in Rules 37 and 38, as they in fact did
when they filed a motion for new trial. 22 Moreover, they could have
resorted to a petition for relief from judgment since they learned of
the RTC’s judgment only three and a half months after its
promulgation.23Respondent likewise maintains that no extrinsic fraud
exists to warrant the annulment of the RTC’s Decision, since there
was no showing that they were denied their day in court. Petitioners
were not made parties to the probate proceedings because the
decedent did not institute them as her heirs. 24 Besides,
assuming arguendo that petitioners are heirs of the decedent, lack of
notice to them is not a fatal defect since personal notice upon the
heirs is a matter of procedural convenience and not a jurisdictional
requisite.25 Finally, respondent charges petitioners of forum–
shopping, since the latter have a pending suit involving the same
issues as those in SP No. 00-135, that is SP No. 1181 26 filed before
Branch 23, RTC of General Santos City and subsequently pending on
appeal before the CA in CA-G.R. No.74924.27
It appears that one of the petitioners herein, Dolores M. Flores
("Flores"), who is a niece of the decedent, filed a petition for letters
of administration with the RTC of General Santos City, claiming that
the decedent died intestate without any issue, survived by five
groups of collateral heirs. Flores, armed with a Special Power of
Attorney from most of the other petitioners, prayed for her
appointment as administratrix of the estate of the decedent. The RTC
dismissed the petition on the ground of lack of jurisdiction, stating
that the probate court in Janiuay, Iloilo has jurisdiction since the
venue for a petition for the settlement of the estate of a decedent is
the place where the decedent died. This is also in accordance with
the rule that the first court acquiring jurisdiction shall continue
hearing the case to the exclusion of other courts, the RTC
added.28 On 9 January 2002, Flores filed a Notice of Appeal 29and on
28 January 2002, the case was ordered forwarded to the CA. 30
Petitioners maintain that they were not made parties to the case in
which the decision sought to be annulled was rendered and, thus,
they could not have availed of the ordinary remedies of new trial,
appeal, petition for relief from judgment and other appropriate
remedies, contrary to the ruling of the CA. They aver that
respondent’s offer of a false compromise and his failure to notify
them of the probate of the will constitute extrinsic fraud that
necessitates the annulment of the RTC’s judgment.31
The petition is devoid of merit.
Section 37 of the Rules of Court allows an aggrieved party to file a
motion for new trial on the ground of fraud, accident, mistake, or
excusable negligence. The same
Rule permits the filing of a motion for reconsideration on the grounds
of excessive award of damages, insufficiency of evidence to justify
the decision or final order, or that the decision or final order is
contrary to law.32 Both motions should be filed within the period for
taking an appeal, or fifteen (15) days from notice of the judgment or
final order.
Meanwhile, a petition for relief from judgment under Section 3 of
Rule 38 is resorted to when a judgment or final order is entered, or
any other proceeding is thereafter taken, against a party in any court
through fraud, accident, mistake, or excusable negligence. Said party
may file a petition in the same court and in the same case to set
aside the judgment, order or proceeding. It must be filed within sixty
(60) days after the petitioner learns of the judgment and within six
(6) months after entry thereof.33
A motion for new trial or reconsideration and a petition for relief from
judgment are remedies available only to parties in the proceedings
where the assailed
judgment is rendered.34 In fact, it has been held that a person who
was never a party to the case, or even summoned to appear therein,
cannot avail of a petition for relief from judgment. 35
However, petitioners in this case are mistaken in asserting that they
are not or have not become parties to the probate proceedings.
Under the Rules of Court, any executor, devisee, or legatee named in
a will, or any other person interested in the estate may, at any time
after the death of the testator, petition the court having jurisdiction
to have the will allowed. 36Notice of the time and place for proving the
will must be published for three (3) consecutive weeks, in a
newspaper of general circulation in the province, 37 as well as
furnished to the designated or other known heirs, legatees, and
devisees of the testator.38 Thus, it has been held that a proceeding
for the probate of a will is one in rem, such that with the
corresponding publication of the petition the court's jurisdiction
extends to all persons interested in said will or in the settlement of
the estate of the decedent.39
Publication is notice to the whole world that the proceeding has for
its object to bar indefinitely all who might be minded to make an
objection of any sort against the right sought to be established. It is
the publication of such notice that brings in the whole world as a
party in the case and vests the court with jurisdiction to hear and
decide it.40 Thus, even though petitioners were not mentioned in the
petition for probate, they eventually became parties thereto as a
consequence of the publication of the notice of hearing.
As parties to the probate proceedings, petitioners could have validly
availed of the remedies of motion for new trial or reconsideration
and petition for relief from judgment. In fact, petitioners filed a
motion to reopen, which is essentially a motion for new trial, with
petitioners praying for the reopening of the case and the setting of
further proceedings. However, the motion was denied for having
been filed out of time, long after the Decision became final and
executory.
Conceding that petitioners became aware of the Decision after it had
become final, they could have still filed a petition for relief from
judgment after the denial of their motion to reopen. Petitioners claim
that they learned of the Decision only on 4 October 2001, or almost
four (4) months from the time the Decision had attained finality. But
they failed to avail of the remedy.
For failure to make use without sufficient justification of the said
remedies available to them, petitioners could no longer resort to a
petition for annulment of judgment; otherwise, they would benefit
from their own inaction or negligence.41
Even casting aside the procedural requisite, the petition for
annulment of judgment must still fail for failure to comply with the
substantive requisites, as the appellate court ruled.
An action for annulment of judgment is a remedy in law independent
of the case where the judgment sought to be annulled was
rendered.42 The purpose of such action is to have the final and
executory judgment set aside so that there will be a renewal of
litigation. It is resorted to in cases where the ordinary remedies of
new trial, appeal, petition for relief from judgment, or other
appropriate remedies are no longer available through no fault of the
petitioner,43 and is based on only two grounds: extrinsic fraud, and
lack of jurisdiction or denial of due process. 44 A person need not be a
party to the judgment sought to be annulled, and it is only essential
that he can prove his allegation that the judgment was obtained by
the use of fraud and collusion and he would be adversely affected
thereby.45
An action to annul a final judgment on the ground of fraud lies only
if the fraud is extrinsic or collateral in character. 46Fraud is regarded
as extrinsic where it prevents a party from having a trial or from
presenting his entire case to the court, or where it operates upon
matters pertaining not to the judgment itself but to the manner in
which it is procured. The overriding consideration when extrinsic
fraud is alleged is that the fraudulent scheme of the prevailing
litigant prevented a party from having his day in court.47
To sustain their allegation of extrinsic fraud, petitioners assert that as SO ORDERED.
a result of respondent’s deliberate omission or concealment of their
names, ages and residences as the other heirs of the decedent in his
petition for allowance of the will, they were not notified of the
proceedings, and thus they were denied their day in court. In
addition, they claim that respondent’s offer of a false compromise
even before the filing of the petition prevented them from appearing
and opposing the petition for probate.

The Court is not convinced.

According to the Rules, notice is required to be personally given to

known heirs, legatees, and devisees of the testator. 48 A perusal of the
will shows that respondent was instituted as the sole heir of the
decedent. Petitioners, as nephews and nieces of the decedent, are
neither compulsory nor testate heirs 49 who are entitled to be notified
of the probate proceedings under the Rules. Respondent had no legal
obligation to mention petitioners in the petition for probate, or to
personally notify them of the same.

Besides, assuming arguendo that petitioners are entitled to be so

notified, the purported infirmity is cured by the publication of the
notice. After all, personal notice upon the heirs is a matter of
procedural convenience and not a jurisdictional requisite.50

The non-inclusion of petitioners’ names in the petition and the

alleged failure to personally notify them of the proceedings do not
constitute extrinsic fraud. Petitioners were not denied their day in
court, as they were not prevented from participating in the
proceedings and presenting their case before the probate court.

One other vital point is the issue of forum-shopping against

petitioners. Forum-shopping consists of filing multiple suits in
different courts, either simultaneously or successively, involving the
same parties, to ask the courts to rule on the same or related causes
and/or to grant the same or substantially same reliefs, 51 on the
supposition that one or the other court would make a favorable
disposition.52 Obviously, the parties in the instant case, as well as in
the appealed case before the CA, are the same. Both cases deal with
the existence and validity of the alleged will of the decedent, with
petitioners anchoring their cause on the state of intestacy. In the
probate proceedings, petitioners’ position has always been that the
decedent left no will and if she did, the will does not comply with the
requisites of a valid will. Indeed, that position is the bedrock of their
present petition. Of course, respondent maintains the contrary
stance. On the other hand, in the petition for letters of
administration, petitioner Flores prayed for her appointment as
administratrix of the

estate on the theory that the decedent died intestate. The petition
was dismissed on the ground of lack of jurisdiction, and it is this
order of dismissal which is the subject of review in CA-G.R. No.
74924. Clearly, therefore, there is forum-shopping.

Moreover, petitioners failed to inform the Court of the said pending

case in their certification against forum- shopping. Neither have they
done so at any time thereafter. The Court notes that even in the
petition for annulment of judgment, petitioners failed to inform the
CA of the pendency of their appeal in CA-G.R. No. 74924, even
though the notice of appeal was filed way before the petition for
annulment of judgment was instituted.

WHEREFORE, the petition is DENIED. Costs against petitioners.