Santos Vs Castillo

FIRST DIVISION
GR No. 45463, March 18, 1937

EMERITA SANTOS, in her behalf and as guardian of the
persons and property of the minors Bienvenido, Apolonio,
Manuel, Juana and Norberta, surnamed Azores y
Santos, Petitioner,
v.
MODESTO CASTILLO, Judge of First Instance of Laguna, and
JOSE, SINFOROSA, and ANTONIO AZORES, Respondents.
PONENTE: CONCEPCION, J.
Facts:
Nicolas Azores died on 5 January 1937. His forced heirs were
his legitimate children [respondents] and his acknowledged
natural children by Emerita Santos [petitioners]. On 7 January
1937, Emerita filed with CFI Laguna a petition [SP:3101] for
the probate of the will. During the hearing, respondents
objected to the jurisdiction of the CFI on the ground that (1)
Emerita failed to allege that she was the custodian of the will,
hence she had no personality to petition for probate; (2) the
will she presented was not the original, but only a carbon copy;
and (3) said will did not express the testators last will because
a codicil had been executed subsequently by the testator,
hence said will cannot be probated without the codicil.
Upon order of the court, respondent Jose delivered to the

court the original copy of the will and the codicil together with
a petition for the probate of the same on 21 January 1937
[SP:3104]. On 26 January 1937, the CFI dismissed SP:3101
ruling that it cannot stand without the codicil filed thereto nor
can the respondents in SP:3104 abandon their petition to give
way to SP:3101. On 30 January 1937, Emerita moved to
reconsider and moved to suspend the publication of notice of
hearing of SP:3104, but were denied. Hence, the petition for
certiorari.
Issues:
1. Whether or not respondent Jose [legitimate children], who
had the custody of the originals of the will and of the codicil,
was the one who had the right and were bound by law to
apply for the probate of their fathers will, and not
petitioner Emerita who possessed only the carbon copy of
the said will. [YES]
2. Whether or not petitioner Emerita can compel respondent
Jose to present the copy of the will and the codicil in
SP:3101. [NO]
Ruling:
Petition is Denied.
First of all, it is advisable to separate in this case the

actuations of the respondent judge in case No. 3101 from his
actuations in case No. 3104. This court is of the opinion that
the petitioner is not entitled at all to interpose this appeal in
connection with case No. 3104 instituted by the legitimate
children of the deceased Azores, on the ground that she is not
a party thereto and has not asked therein for the
reconsideration of the courts order directing the publication of
the notice of the hearing of the probate of the will in said case
No. 3104.
With respect to case No. 3101, in order to decide the question

whether or not the respondent judge exceeded his jurisdiction
in dismissing the petitioners application, we should first
consider who was entitled to apply for the probate of the will of
Nicolas Azores. To get to the bottom of this question, it is
necessary to ascertain beforehand who was bound by law to
apply for the probate of the will.
Section 625 of the Code of Civil Procedure provides that no will

shall pass either the real or personal estate, unless it is proved
and allowed. For this purpose, section 626 provides that the
person who has the custody of a will shall within thirty days
after he knows of the death of the testator, deliver the will into
the court which has jurisdiction, or to the executor named in
the will, and sections 628 and 629 prescribe coercive means to
compel a person having the custody of a will to deliver it to the
court having jurisdiction.
The petitioner alleges that the deceased Azores designated

nobody as custodian of his will but that he directed his nephew
Manuel Azores Concordia to deliver a copy thereof to the
petitioner, to preserve the other copy in his (Manuel Azores
Concordias) possession, and to turn over the other two copies
to his son Jose Azores, with instructions to the effect that if the
petitioner or his son Jose Azores failed to present said will for
probate, he (Manuel Azores Concordia) should take charge of
presenting it to the court for said purpose. Granting that the
entire paragraph in question were true, with the exception of
the conclusion that the testator designated nobody as
custodian of his will, the petitioner is silent as to the
disposition made by the testator of the original of his will. To
whom was the original delivered? It is, of course, evident that
there must be an original of the will in question even if four
equal copies have been made thereof. Well, one of the two
copies of the will turned over to Jose Azores must be the
original because the respondents had the original of the will as
well as the codicil. The petitioner did not dispute this fact.
Taking this into account, we may conclude that it was Jose
Azores, the son of the deceased, who had the custody of the
will because the original thereof was turned over to him. If in
addition to the foregoing it is considered that the respondents
Azores also had the original of the codicil, it necessarily follows
that, by provision of the testator, it was said respondents who
had the custody of his will and of his codicil.
For the sake of argument, however, let us admit that the

testator had designated nobody as custodian of his will in
distributing the copies thereof and in entrusting his nephew
Manuel Azores Concordia, as above-stated, with the
presentation of a copy of said will to the court for probate.
Even so, it cannot be denied that as the testator had
subsequently made his codicil and had entrusted the custody
thereof to his legitimate children, his last will, as to the
custody of his will and codicil, was clearly modified in the
sense of entrusting the custody of both to his legitimate
children and not to Manuel Azores Concordia or to the
petitioner.
Therefore, as the legitimate children of the deceased had

custody of the originals of the will and of the codicil, they alone
could, had the right and were bound by law to apply for the
probate of their fathers last will. Consequently, the
respondent judge, in dismissing the application presented by
the petitioner, neither exceeded his jurisdiction nor acted
arbitrarily or irregularly, but reasonably made use of his sound
discretion.
The petitioner contends that instead of dismissing her

application, the respondent judge should have compelled the
respondents Azores to present the copy of the will and the
alleged codicil in case No. 3101. The court could not prudently
do so: first, because in said case the petitioner applied for the
probate of the will and nothing more; and second, because the
petitioner has clearly stated that even if she had the codicil in
her possession, she would not have presented it to the court
because said codicil was allegedly "marked", not signed, by
the testator about fifteen days before his death, that is, on a
date when, according to the medical opinion of Doctors Manuel
B. Calupitan and Fortunato Manzanero, he was physically and
mentally incapacitated to govern his properties, thereby
making it clearly understood that she would oppose the
probate of the codicil in question. If such is the petitioners
attitude and intention, were the codicil attached to case No.
3101, there would be the anomaly of her being applicant and
at the same time oppositor therein. Who would be the
applicant for the probate of the codicil? Could the court, or
rather, would the court have authority to compel the
legitimate children of the deceased Azores to appear as
applicants in case No. 3101 where they have precisely
questioned the jurisdiction of the court?
With respect to the courts jurisdiction, this court finds that it is
a fact impliedly admitted by the petitioner, from the time she
presented an amended petition for the purpose of curing the
deficiencies of her application, that the allegations of said
application were insufficient to confer jurisdiction upon the
court. As said amendment had not been admitted by the court,
the lack of jurisdiction continued to be manifest upon the face
of the proceedings.
Wherefore, this court holds in conclusion that in order that the

court may acquire jurisdiction over the case for the probate of
a will and for the administration of the properties left by a
deceased person, the application must allege, in addition to
the residence of the deceased and other indispensable facts or
circumstances, that the applicant is the executor named in the
will or is the person who had the custody of the will to be
probated. The original of said document must be presented or
sufficient reasons given to justify the nonpresentation of said
original and the acceptance of the copy or duplicate thereof.
Inasmuch as these requisites had not been complied with in
the application filed by the petitioner, the respondent judge
did not exceed his jurisdiction in dismissing the application in
question.
- Digested [11 August 2017, 10:04]
***

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FIRST DIVISION

GR No. 45463, March 18, 1937

Upon order of the court, respondent Jose delivered to the

First of all, it is advisable to separate in this case the

With respect to case No. 3101, in order to decide the question

Section 625 of the Code of Civil Procedure provides that no will

The petitioner alleges that the deceased Azores designated

For the sake of argument, however, let us admit that the

Therefore, as the legitimate children of the deceased had

The petitioner contends that instead of dismissing her

Wherefore, this court holds in conclusion that in order that the

- Digested [11 August 2017, 10:04]

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