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SUPREME COURT REPORTS ANNOTATED VOLUME 053 09/10/2018, 11)49 PM
360 SUPREME COURT REPORTS ANNOTATED

Cuenco vs. Court of Appeals
No. L-24742. October 26, 1973.
ROSA CAYETANO CUENCO, petitioners, vs. THE

HONORABLE COURT OF APPEALS, THIRD DIVISION,
MANUEL CUENCO, LOURDES CUENCO,
CONCEPCION CUENCO MANGUERRA, CARMEN
CUENCO, CONSUELO CUENCO REYES. and TERESITA
CUENCO GONZALEZ, respondents.
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VOL. 53, OCTOBER 26, 1973 361

Settlement of estates; Jurisdiction; Venue; Residence of deceased

not element of jurisdiction, but of venue.·For purposes of
determining what court has jurisdiction in the settlement of a
deceasedÊs estate, the residence of the deceased or the location of his
estate is not an element of jurisdiction over the subject matter but
merely of venue.
Same; Same; Court first taking cognizance of settlement of the
estate of a decedent.·Section 1, Rule 73 on venue does not state
that the court with whom the testate or intestate petition is first
filed acquires exclusive jurisdiction. The Rule precisely and
deliberately provides that „the court first taking cognizance of the
settlement of the estate of a decedent, shall exercise jurisdiction to
the exclusion of all other courts.‰ A fair reading of the Rule·since it
deals with venue and comity between courts of equal and co-
ordinate jurisdiction·indicates that the court with whom the
petition is first filed, must also first take cognizance of the settlement
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of the estate in order to exercise jurisdiction over it to the exclusion

of all other courts. Conversely such court, may upon learning that a
petition for probate of the decedentÊs last will has been presented in
another court where the decedent obviously had his conjugal
domicile and resided with his surviving widow and their minor
children, and that the allegation of the intestate petition before it
stating that the decedent died intestate may actually be false, may
decline to take cognizance of the petition and hold the petition
before it in abeyance, and instead defer to the second court which
has before it the petition for probate of the decedentÊs alleged last
will. This is exactly what the Cebu court did. Upon petitioner-
widowÊs filing with it a motion to dismiss LourdesÊ intestate
petition, it issued its order holding in abeyance its action on the
dismissal motion and deferred to the Quezon City court, awaiting
its action on the petition for probate before that court. Implicit in
the Cebu courtÊs order was that Âif the will was duly admitted to
probate by the Quezon City court, then it would definitely decline to
take cognizance of LourdesÊ intestate petition which would thereby
be shown to be false and improper, and leave the exercise of
jurisdiction to the Quezon City court, to the exclusion of all other
courts.
Same; Where Quezon City court did not act without jurisdiction
in admitting to probate will of decedent.·Under the facts of the
case and where respondents submitted to the Quezon City court
their opposition to probate of the will, but failed to appear at the
scheduled hearing despite due notice, the said court cannot be
declared, as the appellate court did, to have acted without
jurisdiction in admitting to probate the decedentÊs will and
362
appointing petitioner-widow as executrix thereof in accordance with

the testatorÊs testamentary disposition.
Same; Testate proceedings take precedence over intestate

proceedings. ·ln accordance with settled jurisprudence in this
jurisdiction, testate proceedings for the settlement of the estate of a
deceased person take precedence over intestate proceedings for the

same purpose. Thus it has been held repeatedly that, if in the
course of intestate proceedings pending before a court of first
instance it is found that the decedent had left a last will,
proceedings for the probate of the latter should replace the intestate
proceedings even it at that stage an administrator had already been
appointed x x x. This, however, is understood to be without
prejudice that should the alleged last will be rejected or is
disapproved, the proceeding shall continue as an intestacy.
Same; Jurisdiction; Opposition to jurisdiction of trial court in
settlement proceedings should be by appeal.·Under section 1, Rule
73, the Quezon City courtÊs assumption of jurisdiction over the
decedentÊs estate on the basis of the will duly presented for probate
by petitioner-widow and finding that Quezon City was the first
choice of residence of the decedent, who had his conjugal home and
domicile therein·with the deference in comity duly given by the
Cebu court·could not be contested except by appeal from said court
in the original case, except when want of jurisdiction appears on the
record.
Same; Jurisdictional facts in probate proceedings.·The
„jurisdictional facts‰ in probate proceedings under section 2, Rule
76 of the Rules of Court are the death of the decedent, his residence
at the time of his death in the province where the probate court is
sitting, or if he is an inhabitant of a foreign country, his having left
his estate in such province.
Same; When proceedings for settlement of estate will not be
annulled even if court had improper venue.·The mischievous effect
in the administration of justice of considering the question of
residence as affecting the jurisdiction of the trial court and
annulling the whole proceedings only to start all over again the
same proceedings before another court of the same rank in another
province is too obvious to require comment.
Same; Same.·lt would be unfair imposition upon petitioner as

the one named and entitled to be executrix of the decedentÊs last
will and settle his estate in accordance therewith, and a disregard
of her
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VOL. 53, OCTOBER 26, 1973 363
rights under the rule on venue and the law on jurisdiction to

require her to spend much more time, money and effort to have to
go from Quezon City to the Cebu court everytime she has an
important matter of the estate to take up with the probate court.
Venue; Supreme Court may order change of venue under its
supervisory authority over inferior courts.·In the Supreme CourtÊs
exercise of its supervisory authority over all inferior courts, it may
properly determine that venue was properly assumed by and
transferred to the Quezon City court and that it is the interest of
justice and in avoidance of needless delay that the Quezon City
courtÊs exercise of jurisdiction over the testate estate of the decedent
(with the deference and consent of the Cebu court) xxx and actions
taken in the testate proceedings before it be approved and
authorized x x x.
PETITION for certiorari to review a decision and a

resolution of the Court of Appeals.
The facts are stated in the opinion of the Court.

Ambrosio Padilla Law Office for petitioner.
Jalandoni & Jamir for respondents.
TEEHANKEE, J.:
Petition for certiorari to review the decision of respondent

Court of Appeals in CA-G.R. No. 34104-R, promulgated 21
November 1964, and its subsequent Resolution
promulgated 8 July 1964 denying petitionerÊs Motion for
Reconsideration.
The pertinent facts which gave rise to the herein
petition follow:
On 25 February 1964 Senator Mariano Jesus Cuenco
died at the Manila DoctorsÊ Hospital, Manila. He was
survived by his widow, the herein petitioner, and their two
(2) minor sons, Mariano Jesus, Jr. and Jesus Salvador, both
surnamed Cuenco, all residing at 69 Pi y Margal St, Sta.
Mesa Heights, Quezon City, and by his children of the first
marriage, respondents herein, namely, Manuel Cuenco,
Lourdes Cuenco, Concepcion Cuenco Manguera, Carmen
Cuenco, Consuelo Cuenco Reyes
364

and Teresita Cuenco Gonzales, all of legal age and residing

in Cebu.
On 5 March
1
1964, (the 9th day after the death of the late
Senator) respondent Lourdes Cuenco filed a Petition for
Letters of Administration with the court of first instance of
Cebu (Sp. Proc. No. 2433-R), alleging among other things,
that the late senator died intestate in Manila on 25
February 1964; that he was a resident of Cebu at the time
of his death; and that he left real and personal properties
in Cebu and Quezon City. On the same date, the Cebu court
issued an order setting the petition for hearing on 10 April
1964, directing that due notice be given to all the heirs and
interested persons, and ordering the requisite publication
thereof at LA PRENSA, a newspaper of general circulation
in the City and Province of Cebu.
The aforesaid order, however, was later suspended and
cancelled and a new and modified one released on 13
March 1964, in view of the fact that the petition was to be
heard at Branch II instead of Branch I of the said Cebu
court. On the same date, a third order was further issued
stating that respondent Lourdes CuencoÊs petition for the
appointment of a special administrator dated 4 March 1964
was not yet ready for the consideration of the said court,
giving as reasons the following:
„It will be premature for this Court to act thereon, it not having yet
regularly acquired jurisdiction to try this proceeding, the requisite
publication of the notice of hearing not yet having been complied
with. Moreover, copies of the petition have not been served on all of
the heirs specified in the basic petition for the issuance of letters of
2
administration.‰
In the meantime, or specifically on 12 March 1964, (a week

after the filing of the Cebu petition) herein petitioner Rosa
Cayetano Cuenco filed a petition with the court of first
instance of Rizal (Quezon City) for the probate of the

deceasedÊs last will and testament and for the issuance of
letters testamentary in her favor, as the surviving widow
and executrix in the said last
_______________
1 1964 was a leap year.

2 Cited in Annex „C‰, page 42, Record.
365
VOL. 53, OCTOBER 26, 1973 365

will and testament. The said proceeding was docketed as

Special Proceeding No. Q-7898.
Having learned of the intestate proceeding in the Cebu
court, petitioner Rosa Cayetano Cuenco filed in said Cebu
court an Opposition and Motion to Dismiss, dated 30
March 1964, as well as an Opposition to Petition for
Appointment of Special Administrator, dated 8 April 1964.
On 10 April 1964, the Cebu court issued an order holding
in abeyance its resolution on petitionerÊs motion to dismiss
„until after the Court of First Instance of Quezon City shall
have acted on the petition for probate of that document
purporting to be the last will 3and testament of the deceased
Don Mariano Jesus Cuenco.‰ Such order of the Cebu court
deferring to the probate proceedings in the Quezon City
court was neither excepted to nor sought by respondents to
be reconsidered or set aside by the Cebu court nor did they
challenge the same by certiorari or prohibition proceedings
in the appellate courts.
Instead, respondents filed in the Quezon City court an
Opposition and Motion to Dismiss, dated 10 April 1964,
opposing probate of the will and assailing the jurisdiction of
the said Quezon City court to entertain petitionerÊs petition
for probate and for appointment as executrix in Sp. Proc.
No. Q7898 in view of the alleged exclusive jurisdiction
vested by her petition in the Cebu court in Sp. Proc. No.
2433-R. Said respondent prayed that Sp. Proc. No. Q-7898
be dismissed for lack of jurisdiction and/or improper venue.
In its order of 11 April 1964, the Quezon City court

denied the motion to dismiss, giving as a principal reason
the „precedence
4
of probate proceeding over an intestate
proceeding.‰ The said court further found in said order
that the residence of the late senator at the time of his
death was at No. 69 Pi y Margal, Sta. Mesa Heights,
Quezon City. The pertinent portion of said order follows:
„On the question of residence of the decedent, paragraph
5 of the
________________

366

opposition and motion to dismiss reads as follows: Âthat

since the decedent Don Mariano Jesus Cuenco was a
resident of the City of Cebu at the time of his death, the
aforesaid petition filed by Rosa Cayetano Cuenco on 12
March 1964 was not filed with the proper Court (wrong
venue) in view of the provisions of Section 1 of Rule 73 of
the New Rules of Court . . . ' . From the aforequoted
allegation, the Court is made to understand that the
oppositors do not mean to say that the decedent being a
resident of Cebu City when he died, the intestate
proceedings in Cebu City should prevail over the probate
proceedings in Quezon City, because as stated above the
probate of the will should take precedence, but that the
probate proceedings should be filed in the Cebu City Court
of First Instance. If the last proposition is the desire of the
oppositors as understood by this Court, that could not also
be entertained as proper because paragraph 1 of the
petition for the probate of the will indicates that Don
Mariano Jesus Cuenco at the time of his death was a
resident of Quezon City at 69 Pi y Margal. Annex A (Last
Will and Testament of Mariano Jesus Cuenco) of the
petition for probate of the will shows that the decedent at
the time when he executed his Last Will clearly stated that
he is a resident of 69 Pi y Margal, Sta. Mesa Heights,
Quezon City, and also of the City of Cebu. He made the
former as his first choice and the latter as his second choice
of residence.Ê If a party has two residences, the one will be
deemed or presumed to be his domicile which he himself
selects or considers to be his home or which appears to be
the center of his affairs. The petitioner, in thus filing the
instant petition before this Court, follows the first choice of
residence of the decedent and once this court acquires
jurisdiction of5 the probate proceeding it is to the exclusion
of all others.‰
Respondent Lourdes CuencoÊs motion for reconsideration
of the Quezon City courtÊs said order of 11 April 1964
asserting its exclusive jurisdiction over the probate
proceeding as deferred to by the Cebu court was denied on
27 April 1964 and a second motion for reconsideration
dated 20 May 1964 was likewise denied.
On 11 May 1964, pursuant to its earlier order of 11 April
1964, the hearing for probate of the last will of the
decedent was called three times at half-hour intervals, but
notwithstanding due notification none of the oppositors
appeared and the Quezon City court proceeded at 9:00 a.m.
with the hearing in their absence.
________________
5 Id., Id., Id., emphasis supplied.
367
VOL. 53, OCTOBER 26, 1973 367

As per the order issued by it subsequently on 15 May 1964,

the Quezon City court noted that respondents-oppositors
had opposed probate under their opposition and motion to
dismiss on the following grounds:
„(a) That the will was not executed and attested as

required by law;
„(b) That the will was procured by undue and improper
pressure and inf luence on the part of the

beneficiary or some other persons for his benef it;
„(c) That the testatorÊs signature was procured by fraud
and/or that the testator acted by mistake and did
not intend that the instrument he signed should be
his will 6 at the time he affixed his signature
thereto.‰
The Quezon City court further noted that the requisite

publication of the notice of the hearing had been duly
complied with and that all the heirs had been duly notified
of the hearing, and after receiving the testimony of the
three instrumental witnesses to the decedentÊs last will,
namely Atty. Florencio Albino, Dr. Guillermo A. Picache
and Dr. Jose P. Ojeda, and of the notary public, Atty.
Braulio A. Arriola, Jr., who ratified the said last will, and
the documentary evidence (such as the decedentÊs residence
certificates, income tax return, diplomatic passport, deed of
donation) all indicating that the decedent was a resident of
69 Pi y Margal St., Quezon City, as also affirmed by him in
his last will, the Quezon City court in its said order of 15
May 1964 admitted to probate the late senatorÊs last will
and testament as having been „freely and voluntarily
executed by the testator‰ and „with all formalities of the
law‰ and appointed petitioner-widow as executrix of his
estate without bond „following the desire of the testator‰ in
his will as probated.
Instead of appealing from the Quezon City courtÊs said
order admitting the will to probate and naming petitioner-
widow as executrix thereof, respondents filed a special civil
action of certiorari and prohibition with preliminary
injunction with respondent Court of Appeals (docketed as
case CA-G.R. No.
________________
6 Order of 11 May 1964, Annex B, p. 36, Record.
368

34104-R) to bar the Rizal court from proceeding with case

No. Q-7898.
On 21 November 1964, the Court of Appeals rendered a
decision in favor of respondents (petitioners therein) and
against the herein petitioner, holding that:
„Section 1, Rule 73, which fixes the venue in proceedings for the
settlement of the estate of a deceased person, covers both testate
and intestate proceedings. Sp. Proc. 2433-R of the Cebu CFI having
been filed ahead, it is that court whose jurisdiction was first
invoked and which first attached. It is that court which can
properly and exclusively pass upon the factual issues of (1) whether
the decedent left or did not leave a valid will, and (2) whether or not
the decedent was a resident of Cebu at the time of his death.
„Considering therefore that the first proceeding was instituted in
the Cebu CFI (Special Proceeding 2433-R), it follows that the said
court must exercise jurisdiction to the exclusion of the Rizal CFI, in
which the petition for probate was filed by the respondent Rosa
Cayetano Cuenco (Special Proceeding Q-7898). The said respondent
should assert her rights within the framework of the proceeding in
the Cebu CFI, instead of invoking the jurisdiction of another court.
„The respondents try to make capital of the fact that on March
13, 1964, Judge Amador Gomez of the Cebu CFI, acting in Sp. Proc.
2433-R, stated that the petition for appointment of special
administrator was Ânot yet ready for the consideration of the Court
today. It would be premature for this Court to act thereon, it not
having yet regularly acquired jurisdiction to try this proceeding x x
x.Ê It is sufficient to state in this connection that the said judge was
certainly not referring to the courtÊs jurisdiction over the res, not to
jurisdiction itself which is acquired from the moment a petition is
filed, but only to the exercise of jurisdiction in relation to the stage
of the proceedings. At all events, jurisdiction is conferred and
determined by law and does not depend on the pronouncements of a
trial judge.‰
The dispositive part of respondent appellate courtÊs

judgment provided as follows:
„ACCORDINGLY, the writ of prohibition will issue, commanding

and directing the respondent Court of First Instance of Rizal,
Branch IX, Quezon City, and the respondent Judge Damaso B.
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VOL. 53, OCTOBER 26, 1973 369

Tengco to refrain perpetually from proceeding and taking any action

in Special Proceeding Q-7898 pending before the said respondent
court. All orders heretofore issued and actions heretofore taken by
said respondent court and respondent Judge, therein and connected
therewith, are hereby annulled. The writ of injunction heretofore
issued is hereby made permanent. No pronouncement as to costs.‰
PetitionerÊs motion for reconsideration was denied in a

resolution of respondent Court of Appeals, dated 8 July
1965; hence the herein petition for review on certiorari.
The principal and decisive issue at bar is, theretofore,
whether the appellate court erred in law in issuing the writ
of prohibition against the Quezon City court ordering it to
refrain perpetually from proceeding with the testate
proceedings and annulling and setting aside all its orders
and actions, particularly its admission to probate of the
decedentÊs last will and testament and appointing
petitioner-widow as executrix thereof without bond in
compliance with the testatorÊs express wish in his
testament. This issue is tied up with the issue submitted to
the appellate court, to wit, whether the Quezon City court
acted without jurisdiction or with grave abuse of discretion
in taking cognizance and assuming exclusive jurisdiction
over the probate proceedings filed with it, in pursuance of
the Cebu courtÊs order of 10 April 1964 expressly
consenting in deference to the precedence of probate over
intestate proceedings that it (the Quezon City court) should
first act „on the petition for probate of the document
purporting to be the last will and testament of the deceased
Don Mariano Jesus Cuenco‰·which order of the Cebu
court respondents never questioned nor challenged by
prohibition or certiorari proceedings and thus enabled the
Quezon City court to proceed without any impediment or
obstruction, once it denied respondent Lourdes CuencoÊs
motion to dismiss the probate proceeding for alleged lack of
jurisdiction or improper venue, to proceed with the hearing
of the petition and to admit the will to probate upon having
been satisfied as to its due execution and authenticity.

The Court finds under the above-cited facts that the
appellate court erred in law in issuing the writ of
prohibition against the Quezon City court from proceeding
with the testate
370

proceedings and annulling and setting aside all its orders

and actions, particularly its admission to probate of the
deceasedÊs last will and testament and appointing
petitioner-widow as executrix thereof without bond
pursuant to the deceased testatorÊs express wish, for the
following considerations:· 7
1. The Judiciary Act concededly confers original
jurisdiction upon all Courts of First Instance over „all
matters of probate, both of testate and intestate estates.‰
On the other hand, Rule 73, section of the Rules of Court
lays down the rule of venue, as the very caption of the Rule
indicates, and in order to prevent conflict among the
different courts which otherwise may properly assume;
jurisdiction from doing so, the Rule specifies that „the court
first taking cognizance of the settlement of the estate of a
decedent, shall exercise jurisdiction to the exclusion of all
other courts.‰ The cited Rule provides:
„Section 1 1. Where estate of deceased persons settled. If the decedent

is an inhabitant of the Philippines at the time of his death, whether
a citizen or an alien, his will shall be proved, or letters of
administration granted, and his estate settled, in the Court of First
Instance in the Province in which he resides at the time of his death,
and if he is an inhabitant of a foreign country, the Court of First
Instance of the province in which he had estate. The court first
taking cognizance of the settlement of the estate of a decedent, shall
exercise jurisdiction to the exclusion of all other courts. The
jurisdiction assumed by a court, so far as it depends on the place of
residence of the decedent, or of the location of his estate, shall not be
contested in a suit or proceeding, except in an appeal from that
court, in the original case, or when the want of jurisdiction appears
8
on the record.‰ (Rule 73)
It is equally conceded that the residence of the deceased or

the location of his estate is not an element of jurisdiction
over the subject matter but merely of venue. This was
lucidly stated by the late Chief Justice Moran in Sy Oa vs.
Co Ho9 as follows:
________________
7 Republic Act No. 2961, sec. 44 (e).

8 Emphasis supplied.
9 74 Phil. 239, 241 (1943), notes in parenthesis and emphasis supplied.
Sec 3 MoranÊs Rules of Court, 1970 Ed. 370–372.
371
VOL. 53, OCTOBER 26, 1973 371

„We are not unaware of existing decisions to the effect that in

probate cases the place of residence of the deceased is regarded as a
question of jurisdiction over the subject-matter. But we decline to f
this view because of its mischievous consequences. For instance, a
probate case has been submitted in good faith to the Court of First
Instance of a province where the deceased had not resided. All the
parties, however, including all the creditors, have submitted
themselves to the jurisdiction of the court and the case is therein
completely finished except for a claim of a creditor who also
voluntarily filed it with said court but on appeal from an adverse
decision raises for the first time in this Court the question of
jurisdiction of the trial court for lack of residence of the deceased in
the province. If we consider such question of residence as one
affecting the jurisdiction of the trial court over the subject-matter,
the effect shall be that the whole proceedings including all decisions
on the different incidents which have arisen in court will have to be
annulled and the name case will have to be commenced a new before
another court of the same rank in another province. That this is of
mischievous effect in the prompt administration of justice is too
obvious to require comment. (Cf. Tanunchuan vs. Dy Buncio & Co.,
G.R. No. 48206, December 31, 1942) Furthermore, section 600 of
10
Act No. 190, providing that the estate of a deceased person shall
be settled in the province where he had last resided, could not have
been intended as defining the jurisdiction of the probate court over
the subject-matter, because such legal provision is contained in a
law of procedure dealing merely with procedural matters, and, as
we have said time and again, procedure is one thing and
jurisdiction over the subject matter is another. (Attorney-General
vs. Manila Railroad Company, 20 Phil. 523.) The law of jurisdiction
11
·Act No. 136, Section 56, No. 5·confers upon Courts of First
Instance jurisdiction over all probate cases independently of the
place of residence of the deceased. Since, however, there are many
courts of First Instance in the Philippines, the Law of Procedure,
Act No. 190, section 600, fixes the venue or the place where each
case shall be brought. Thus, the place of residence of the deceased is
not an element of jurisdiction over the subjectmatter but merely of
venue. And it is upon this ground that in the new Rules of Court the
province where the estate of a deceased person shall be settled is
properly called ÂvenueÊ ‰
It should be noted that the Rule on venue does not state

that
________________
10 Source of Rule 73 (formerly Rule 75), section 1 of the Revised Rules

of Court.
11 Superseded by the Judiciary Act, R.A. 296 as amended.
372

the court with whom the estate or intestate petition is first

filed acquires exclusive jurisdiction.
The Rule precisely and deliberately provides that „the
court first taking cognizance of the settlement of the estate of
a decedent, shall exercise jurisdiction to the exclusion of all
other courts.‰
A fair reading of the Rule·since it deals with venue and
comity between courts of equal and co-ordinate jurisdiction
·indicates that the court with whom the petition is first
filed, must also first take cognizance of the settlement of the
estate in order to exercise jurisdiction over it to the exclusion

of all other courts.
Conversely, such court, may upon learning that a
petition for probate of the decedentÊs last will has been
presented in another court where the decedent obviously
had his conjugal domicile and resided with his surviving
widow and their minor children, and that the allegation of
the intestate petition before it stating that the decedent
died intestate may be actually false, may decline to take
cognizance of the petition and hold the petition before it in
abeyance, and instead defer to the second court which has
before it the petition for probate of the decedentÊs alleged
last will.
2. This exactly what the Cebu court did. Upon
petitionerwidowÊs filing with it a motion to dismiss LourdesÊ
intestate petition, it issued its order holding in abeyance its
action on the dismissal motion and deferred to the Quezon
City court, awaiting its action on the petition for probate
before that court. Implicit in the Cebu courtÊs order was
that if the will was duly admitted to probate by the Quezon
City court, then it would definitely decline to take
cognizance of LourdesÊ intestate petition which would
thereby be shown to be false and improper, and leave the
exercise of jurisdiction to the Quezon City court, to the
exclusion of all other courts. Likewise by its act of
deference, the Cebu court left it to the Quezon City court to
resolve the question between the parties whether the
decedentÊs residence at the time of his death was in Quezon
City where he had his conjugal domicile rather than in
Cebu City as claimed by respondents. The Cebu court thus
indicated
373
VOL. 53, OCTOBER 26, 1973 373

that it would decline to take cognizance of the intestate

petition before it and instead defer to the Quezon City
court, unless the latter would make a negative finding as to
the probate petition and the residence of the decedent
within its territory and venue.
3. Under these facts, the Cebu court could not be held to

have acted without jurisdiction or with grave abuse of
jurisdiction in declining to take cognizance of the intestate
petition and deferring to the Quezon City court.
Necessarily, neither could the Quezon City court be
deemed to have acted without jurisdiction in taking
cognizance of and acting on the probate petition since
under Rule 73, section 1, the Cebu court must first take
cognizance over the estate of the decedent and must
exercise jurisdiction to exclude all other courts, which the
Cebu court declined to do. Furthermore, as is undisputed,
said rule only lays down a rule of venue and the Quezon
City court indisputably had at least equal and coordinate
jurisdiction over the estate.
Since the Quezon City court took cognizance over the
probate petition before it and assumed jurisdiction over the
estate, with the consent and deference of the Cebu court,
the Quezon City court should be left now, by the same rule
of venue of said Rule 73, to exercise jurisdiction to the
exclusion of all other courts.
Under the facts of the case and where respondents
submitted to the Quezon City court their opposition to
probate of the will, but failed to appear at the scheduled
hearing despite due notice, the Quezon City court cannot be
declared, as the appellate court did, to have acted without
jurisdiction in admitting to probate the decedentÊs will and
appointing petitioner-widow as executrix thereof in
accordance with the testatorÊs testamentary disposition.
4. The relatively recent case of Uriarte vs. Court of First
Instance of Negros
13
Occidental12 with facts analogous to the
present case is authority against respondent appellate
courtÊs questioned decision.
_______________
12 33 SCRA 252 (May 29, 1970).

13 The minor factual difference of that case is that there, the
374

In said case, the Court upheld the doctrine of precedence of

probate proceedings over intestate proceedings in this wise:
„It can not be denied that a special proceeding intended to effect the
distribution of the estate of a deceased person, whether in
accordance with the law on intestate succession or in accordance
with his will, is a Âprobate matterÊ or a proceeding for the settlement
of his estate. It is equally true. however, that in accordance with
settled jurisprudence in this jurisdiction, testate proceedings for the
settlement of the estate of a deceased person take precedence over
instestate proceedings for the same purpose. Thus it has been held
repeatedly that, if in the course of intestate proceedings pending
before a court of first instance it is found that the decedent had left a
last will, proceedings for the the probate of the latter should replace
the intestate proceedings even if.at that state an administrator had
already been appointed, the latter being required to render final
account and turn over the estate in his possession to the executor
subsequently appointed. This, however, is understood to be without
prejudice that should Âthe alleged last will be rejected or is
disapproved the proceeding shall continue na an intestacy. As
already adverted to, this is a clear indication that proceedings for
the probate of a will enjoy priority over intestate proceedings.‰14
The Court likewise therein upheld the jurisdiction of the

second court, (in this case, the Quezon City court) although
opining that certain considerations therein „would seem to
support the view that [therein respondent] should have
submitted said will for probate to the Negros Court, [in this
case, the Cebu court] either in a separate special
proceeding or in an appropriate motion for said purpose
filed in the already
________________
Negros court granted the testamentary heirsÊ motion to dismiss the

intestate petition first filed before it by the therein petitioner who
claimed to be an acknowledged natural child, and that said petitionerÊs
attempt to intervene in the probate proceedings subsequently filed in
Manila by the testamentary heirs, was declared too late. Here, the Cebu
court acceded in part to petitioner-widowÊs motion to dismiss by declining
to take cognizance of the first intestate petition and deferring to the
Quezon City court which it asked to act first on the second petition for
probate, and while opposition was filed against probate, oppositors failed
to appear at the hearing despite due notice.

14 33 SCRA at p. 259, emphasis supplied.
375
VOL. 53, OCTOBER 26, 1973 375

15
pending Special Proceeding No. 6344," thus:
„But the fact is that instead of the aforesaid will being presented for
probate to the Negros Court, Juan Uriarte Zamacona filed the
petition for the purpose with the Manila Court. We can not accept
petitionerÊs contention in this regard that the latter court had no
jurisdiction to consider said petition, albeit we say that it was not
the proper venue therefor.
„It is well settled in this jurisdiction that wrong venue is

merely a waivable procedural defect, and, in the light of the
circumstances obtaining in the instant case, we are of the
opinion, and so hold, that petitioner has waived the right to
raise such objection or is precluded from doing so by laches.
It is enough to consider in this connection that petitioner
knew of the existence of a will executed by Juan Uriarte y
Goite since December 19, 1961 when Higinio Uriarte filed
his opposition to the initial petition filed in Special
Proceeding No. 6344; that petitioner likewise was served
with notice of the existence (presence) of the alleged last
will in the Philippines and of the filing of the petition for its
probate with the Manila Court since August 28, 1962 when
Juan Uriarte Zamacona filed a motion for the dismissal of
Special Proceeding No. 6344. All these notwithstanding, it
was only on April 15, 1963 that he filed with the Manila
Court in Special Proceeding No. 51396 an Omnibus motion
asking for leave to intervene and for the dismissal and
annulment of all the proceedings had therein up to that
date; thus enabling the Manila Court not only to appoint
an administrator-with the will annexed but also to admit
said Âwill to probate more than five months earlier, or more
specifically, on October 31, 1962. To allow him now to assail
the exercise of jurisdiction over the probate of the will by
the Manila Court and the validity of all the proceedings
had in Special Proceeding No. 51396 would put a premium

on his negligence. Moreover, it must be remembered that
this Court is not inclined to annul proceedings regularly
had in a lower court even if the latter was not the proper
venue therefor, if the net result would be to have the same
proceedings repeated in some other court of similar
jurisdiction; more so in a case like the present where 16
the
objection against said proceedings is raised too late.‰
5. Under Rule 73, section 1 itself, the Quezon City
courtÊs assumption of jurisdiction over the decedentÊs estate
on the
_______________
15 Idem, at p. 260, notes supplied.

16 Idem, at pp. 260–261, emphasis copied.
376

basis of the will duly presented for probate by

petitionerwidow and finding that Quezon City was the first
choice of residence of the decedent, who had his conjugal
home and domicile therein·with the deference in comity
duly given by the Cebu court·could not be contested
except by appeal from said court in the original case. The
last paragraph of said Rule expressly provides:
„x x x 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
front that court, in the original case, or when the want of
jurisdiction appears on the record.‰ (Rule 73)
The exception therein given, viz, „when the want of

jurisdiction appears on the record‰ could probably be
properly invoked, had such deference in comity of the Cebu
court to the Quezon City court not appeared in the record,
or had the record otherwise shown that the Cebu court had
taken cognizance of the petition before it and assumed
jurisdiction.
6. On the question that Quezon City established to be
the residence of the late senator, the appellate court while
recognizing that „the issue is a legitimate one‰ held in
reliance on Borja vs. Tan17 that
„
„x x x The issue of residence comes within the competence of
whichever court is considered to prevail in the exercise of
jurisdiction·in this case, the Court of First Instance of Cebu as
held by this Court. Parenthetically, we note that the question of the
residence of the deceased is a serious one, requiring both factual
and legal resolution on the basis of ample evidence to be submitted
in the ordinary course of procedure in the first instance,
particularly in view of the fact that the deceased was better known
as the Senator from Cebu and the will purporting to be his also
gives Cebu, besides Quezon City, as his residence. We reiterate that
this matter requires airing in the proper court, as so indicated in
the leading and controlling case of Borja vs. Hon. Bienvenido Tan,
et al., G.R. L-7792, July 27, 1955.‰
In the case at bar, however, the Cebu court declined to take
________________
17 97 Phil. 330 (1955).
377
VOL. 53, OCTOBER 26, 1973 377

cognizance of the intestate petition first filed with it and

deferred to the testate proceedings filed with the Quezon
City court and in effect asked the Quezon City court to
determine the residence of the decedent and whether he
did leave a last will and testament upon which would
depend the proper venue of the estate proceedings, Cebu or
Quezon City. The Quezon City court having thus
determined in effect for both courts·at the behest and with
the deference and consent of the Cebu court·that Quezon
City was the actual residence of the decedent who died
testate and therefore the proper venue, the Borja ruling

would seem to have no applicability. It would not serve the
practical ends of justice to still require the Cebu court, if
the Borja ruling is to be held applicable and as indicated in
the decision under review, to determine for itself the actual
residence of the decedent (when the Quezon City court had
already so determined Quezon City as the actual residence
at the Cebu courtÊs behest and respondents have not
seriously questioned this factual finding based on
documentary evidence) and if the Cebu court should
likewise determine Quezon City as the actual residence, or
its contrary finding reversed on appeal, only then to allow
petitioner-widow after years of waiting and inaction to
institute the corresponding proceedings in Quezon City.
7. With more reason should the Quezon City proceedings
be upheld when it is taken into consideration that Rule 76,
section 2 requires that the petition for allowance of a will
must show: „"(a) the jurisdictional facts.‰ Such
„jurisdictional facts‰ in probate proceedings, as held by the
Court in Fernando vs. Crisostomo18 „are the death of the
decedent, his residence at the time of his death in the
province where the probate court is sitting, or if he is an
inhabitant of a foreign country, his having left his estate in
such province.‰
This tallies with the established legal concept as
restated by Moran that „(T)he probate of a will is a
proceeding in rem. The notice by publication as a pre-
requisite to the allowance of a will, is a constructive notice
to the whole world, and when probate is granted, the
judgment of the court is binding upon
________________
18 90 Phil. 585 (1951); see also 3 MoranÊs 1970 Ed., p. 400.
378

everybody, even against the State. The probate of a will by

a court having jurisdiction thereof is conclusive as to its due
execution and validity.‰19 The Quezon City court acted

regularly within its jurisdiction (even if it were to be
conceded that Quezon City was not the proper venue
notwithstanding the Cebu courtÊs giving way and deferring
to it,) in admitting the decedentÊs last will to probate and
naming petitionerwidow as executrix thereof. Hence, the
Quezon city courtÊs action should not be set aside by a writ
of prohibition for supposed lack of jurisdiction as per the
appellate courtÊs appealed decision, and should instead be
sustained in line with Uriarte, supra, where the Court, in
dismissing the certiorari petition challenging the Manila
courtÊs action admitting the decedentÊs will to probate and
distributing the estate in accordance therewith in the
second proceeding, held that „it must be remembered that
this Court is not inclined to annul proceedings regularly
had in a lower court even if the latter was not the proper
venue therefor, if the net result would be to have the same
proceedings repeated in some other court of similar
jurisdiction.‰ As stressed by Chief Justice Moran in Sy Oa,
supra, „the mischievous effect in the administration of
justice‰ of considering the question of residence as affecting
the jurisdiction of the trial court and annulling the whole
proceedings only to start all over again the same
proceedings before another court of the same rank in
another province „is too obvious to require comment.‰
8. If the question of jurisdiction were to be made to
depend only on who of the decedentÊs relatives gets first to
file a petition for settlement of the decedentÊs estate, then
the established jurisprudence of the Court that Rule 73,
section 1 provides only a rule of venue in order to preclude
different courts which may properly assume jurisdiction
from doing so and creating conflicts between them to the
detriment of the administration of justice, and that venue
is waivable, would be set at naught. As between relatives
who unfortunately do not see eye to eye, it would be
converted into a race as to who can file the petition faster
in the court of his/her choice, regardless of whether the
decedent is still in cuerpo pre-
________________
19 3 MoranÊs Comments 1970 Ed., p. 395.
379
VOL. 53, OCTOBER 26, 1973 379

sente and in disregard of the decedentÊs actual last

domicile, the fact that he left a last will and testament and
the right of his surviving widow named as executrix
thereof. Such dire consequences were certainly not
intended by the Rule nor would they be in consonance with
public policy and the orderly administration of justice.
9. It would finally be unjust and inequitable that
petitionerwidow, who under all the applicable rules of
venue, and despite the fact that the Cebu court (where
respondent Lourdes Cuenco had filed an intestate petition
in the Cebu court earlier by a weekÊs time on 5 March 1964)
deferred to the Quezon City court where petitioner had
within fifteen days (on March 12, 1964) after the decedentÊs
death (on February 25, 1964) timely filed the decedentÊs
last will and petitioned for letters testamentary and is
admittedly entitled to 20preference in the administration of
her husbandÊs estate, would be compelled under the
appealed decision to have to go all the way to Cebu and
submit anew the decedentÊs will there for probate either in
a new proceeding or by asking that the intestate
proceedings be converted into a testate proceeding·when
under the Rules, the proper venue for the testate
proceedings, as per the facts of record and as already
affirmed by the Quezon City court is Quezon City, where
the decedent and petitioner-widow had their conjugal
domicile.
It would be an unfair imposition upon petitioner as the
one named and entitled to be executrix of the decedentÊs
last will and settle his estate in accordance therewith, and
a disregard of her rights under the rule on venue and the
law on jurisdiction to require her to spend much more time,
money and effort to have to go from Quezon City to the
Cebu court everytime she has an important matter of the
estate to take up with the probate court.
It would doubly be an unfair imposition 21
when it is
considered that under Rule 73, section 2, since petitionerÊs
marriage has been dissolved with the death of her

husband, their community property and conjugal estate
have to be administered and
________________
20 Rule 78, section 6.

21 „SEC. 2. Where estate settled upon dissolution of marriage.
380

liquidated in the estate proceedings of the deceased spouse.

Under the appealed decision, notwithstanding that
petitioner resides in Quezon City, and the proper venue of
the testate proceeding was in Quezon City and the Quezon
City court properly took cognizance and exercised exclusive
jurisdiction with the deference in comity and consent of the
Cebu court, such proper exercise of jurisdiction would be
nullified and petitioner would have to continually leave her
residence in Quezon City and go to Cebu to settle and
liquidate even her own community property and conjugal
estate with the decedent.
10. The Court therefore holds under the facts of record
that the Cebu court did not act without jurisdiction nor
with grave abuse of discretion in declining to take
cognizance of the intestate petition and instead deferring to
the testate proceedings filed just a week later by petitioner
as surviving widow and designated executrix of the
decedentÊs last will, since the record before it (the
petitionerÊs opposition and motion to dismiss) showed the
falsity of the allegation in the intestate petition that the
decedent had died without a will. It is noteworthy that
respondents never challenged by certiorari or prohibition
proceedings the Cebu courtÊs order of 10 April 1964
deferring to the probate proceedings before the Quezon
City court/thus leaving the latter free (pursuant to the
Cebu courtÊs order of deference) to exercise jurisdiction and
admit the decedentÊs will to probate.
For the same reasons, neither could the Quezon City
court be held to have acted without jurisdiction nor with

grave abuse of discretion in admitting the decedentÊs will to
probate and appointing petitioner as executrix in
accordance with its testamentary disposition, in the light of
the settled doctrine that the provisions of Rule 73, section 1
lay down only a rule of venue, not of jurisdiction.
________________
·When the marriage is dissolved by a death of the husband or wife,

the community property shall be inventoried, administered, and
liquidated, and the debts thereof paid, in the testate or intestate
proceedings of the deceased spouse. If both spouses have died, the
conjugal partnership shall be liquidated in the testate or intestate
proceedings of either.‰ (Rule 73; emphasis supplied)
381
VOL. 53, OCTOBER 26, 1973 381

Since respondents undisputedly failed to appeal from the

Quezon City courtÊs order of May 15, 1964 admitting the
will to probate and appointing petitioner as executrix
thereof, and said court concededly has jurisdiction to issue
said order, the said order of probate has long since become
final and can not be overturned in a special civil action of
prohibition.
11. Finally, it should be noted that in the Supreme
CourtÊs22exercise of its supervisory authority over all inferior
courts, it may properly determine, as it has done in the
case at bar, that venue was properly assumed by and
transferred to the Quezon City court and that it is the
interest of justice and in avoidance of needless delay that
the Quezon City courtÊs exercise of jurisdiction over the
testate estate of the decedent (with the due deference and
consent of the Cebu court) and its admission to probate of
his last will and testament and appointment of petitioner-
widow as administratrix without bond in pursuance of the
decedentÊs express will and all its orders and actions taken
in the testate proceedings before it be approved and
authorized rather than to annul all such proceedings
regularly had and to repeat and duplicate the same

proceedings before the Cebu court only to revert once more
to the Quezon City court should the Cebu court find that
indeed and in fact, as already determined by the Quezon
City court on the strength of incontrovertible documentary
evidence of record, Quezon City was the conjugal residence
of the decedent.
ACCORDINGLY, judgment is hereby rendered reversing
the appealed decision and resolution of the Court of
Appeals and the petition for certiorari and prohibition with
preliminary injunction originally filed by respondents with
the Court of Appeals (CA-G.R. No. 34104-R) is ordered
dismissed. No costs.
Makalintal, C.J., Zaldivar, Makasiar, Antonio and

Esguerra, JJ., concur.
Fernando, J., did not take part.
_______________
22 See People vs. Gutierrez, 36 SCRA 172 (Nov. 26, 1970) and Article
X, sec. 5, par. 4 providing that the Supreme Court shall have the power
to „order a change of venue or place of trial to avoid a miscarriage of
justice.‰
382

Barredo, J., concurs in separate opinion.

Castro, J., took no part.
BARREDO, J., Concurring:
I concur in the main opinion of Mr. Justice Teehankee.

I only want to stress that in my view, the failure of
respondents to question within a reasonable time the
laying of the venue in the Quezon City Court of First
Instance and the assumption of jurisdiction by that court,
after the Court of First Instance of Cebu deferred in its
favor, in order to prevent the holding therein of any
proceeding and trial, and their having filed therein a

formal opposition to the probate of the will, makes them
guilty of laches, for which reason they are not entitled to
the equitable relief prayed for in the present petition.
Decision and resolution reversed and petition ordered
dismissed.
Notes.·For the purposes of determining proper venue

in the Courts of First Instance, the words „residence‰ and
„found‰ are held as synonymous terms, meaning „domicile‰
where the defendant is a resident of the Philippines
(Portillo vs. Reyes, 3 SCRA 311).
A venue, which was properly laid when the complaint
was filed cannot, subsequently, become improper in
consequence of issues later raised by any of the intervenors
(Claridades vs. Mercader, 17 SCRA 1).
The rule in ordinary civil cases that the failure to object
on the ground of venue improperly laid would be deemed a
waiver thereof, cannot be invoked in naturalization cases.
(Chin Guan Go vs. Republic, 6 SCRA 960; Board of
Commissioners vs. Domingo, 8 SCRA 661). In
naturalization cases, the action to test the legality of the
detention of an alien who was born in China and entered
the Philippines for the first time in 1962 is the place where
he is detained. (Board of Commissioners vs. Domingo, 8
SCRA 661).
383
VOL. 53, OCTOBER 26, 1973 383

Carandang vs. Cabatuando
In settlement proceedings for deceased personÊs estate,

wrong venue is merely a waivable procedural defect, and,
such waiver may occur by laches where a party had been
served notice of the filing of the probate petition for about a
year and allowed the proceedings to continue before filing a
motion to dismiss the same. (Uriarte vs. Court of First
Instance of Negros Occidental, 33 SCRA 252).
LEGAL RESEARCH SERVICE

See SCRA Quick Index-Digest, volume one, page 93 on

Appeal; and page 501 on Courts.
See also SCRA Quick Index-Digest, volume two, page
1114 on Jurisdiction; page 1902 on Settlement of Estate;
and page 2117 on Venue.
··oOo··
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SUPREME COURT REPORTS ANNOTATED VOLUME 053 09/10/2018, 11)49 PM

360 SUPREME COURT REPORTS ANNOTATED

No. L-24742. October 26, 1973.

ROSA CAYETANO CUENCO, petitioners, vs. THE

VOL. 53, OCTOBER 26, 1973 361

Settlement of estates; Jurisdiction; Venue; Residence of deceased

of the estate in order to exercise jurisdiction over it to the exclusion

362 SUPREME COURT REPORTS ANNOTATED

Cuenco vs. Court of Appeals

appointing petitioner-widow as executrix thereof in accordance with

Same; Testate proceedings take precedence over intestate

deceased person take precedence over intestate proceedings for the

Same; Same.·lt would be unfair imposition upon petitioner as

VOL. 53, OCTOBER 26, 1973 363

Cuenco vs. Court of Appeals

rights under the rule on venue and the law on jurisdiction to

PETITION for certiorari to review a decision and a

The facts are stated in the opinion of the Court.

Petition for certiorari to review the decision of respondent

Cuenco, Consuelo Cuenco Reyes

364 SUPREME COURT REPORTS ANNOTATED

and Teresita Cuenco Gonzales, all of legal age and residing

In the meantime, or specifically on 12 March 1964, (a week

instance of Rizal (Quezon City) for the probate of the

1 1964 was a leap year.

VOL. 53, OCTOBER 26, 1973 365

will and testament. The said proceeding was docketed as

In its order of 11 April 1964, the Quezon City court

3 Cited in Annex „C‰, page 46, Record.

366 SUPREME COURT REPORTS ANNOTATED

opposition and motion to dismiss reads as follows: Âthat

5 Id., Id., Id., emphasis supplied.

VOL. 53, OCTOBER 26, 1973 367

As per the order issued by it subsequently on 15 May 1964,

„(a) That the will was not executed and attested as

pressure and inf luence on the part of the

The Quezon City court further noted that the requisite

6 Order of 11 May 1964, Annex B, p. 36, Record.

368 SUPREME COURT REPORTS ANNOTATED

34104-R) to bar the Rizal court from proceeding with case

The dispositive part of respondent appellate courtÊs

„ACCORDINGLY, the writ of prohibition will issue, commanding

VOL. 53, OCTOBER 26, 1973 369

Tengco to refrain perpetually from proceeding and taking any action

PetitionerÊs motion for reconsideration was denied in a

been satisfied as to its due execution and authenticity.

370 SUPREME COURT REPORTS ANNOTATED

proceedings and annulling and setting aside all its orders

„Section 1 1. Where estate of deceased persons settled. If the decedent

It is equally conceded that the residence of the deceased or

7 Republic Act No. 2961, sec. 44 (e).

VOL. 53, OCTOBER 26, 1973 371

„We are not unaware of existing decisions to the effect that in

It should be noted that the Rule on venue does not state

10 Source of Rule 73 (formerly Rule 75), section 1 of the Revised Rules

372 SUPREME COURT REPORTS ANNOTATED

the court with whom the estate or intestate petition is first

estate in order to exercise jurisdiction over it to the exclusion