2. ID.; ID.; ID.; ID.; NUMBER OF WITNESSES REQUIRED.

—
The probate of holographic wills may be uncontested or not. If
FIRST DIVISION uncontested, at least one identifying witness is required and, if no
witness is available, experts may be resorted to. If contested, at least
three identifying witnesses are required.
[G.R. No. L-58509. December 7, 1982.]
3. ID.; ID.; ID.; ID.; NOT POSSIBLE WHERE ORIGINAL WILL
HAS BEEN LOST OR DESTROYED AND NO OTHER COPY IS
IN THE MATTER OF THE PETITION TO APPROVE THE AVAILABLE; REASON. — If the holographic will has been lost or
WILL OF RICARDO B. BONILLA, deceased, MARCELA destroyed and no other copy is available, the will cannot be probated
RODELAS, petitioner-appellant, vs. AMPARO ARANZA, because the best and only evidence is the handwriting of the testator in
ET AL., oppositors-appellees, ATTY. LORENZO said will. It is necessary that there be a comparison between sample
SUMULONG, intervenor. handwritten statements of the testator and the handwritten will.
4. ID.; ID.; ID.; ID.; ID.; PHOTOSTATIC COPY OR XEROX
Luciano A. Joson for petitioner-appellant. COPY MAY BE ALLOWED; CASE AT BAR. — A photostatic copy or
xerox copy of the holographic will may be allowed because comparison
Cesar C. Paralejo for oppositor-appellee.
can be made with the standard writings of the testator. In the case of
Gan vs. Yap, 104 Phil. 509, the Court ruled that "the execution and the
contents of a lost or destroyed holographic will may not be proved by the
SYNOPSIS bare testimony of witnesses who have seen and/or read such will. The
will itself must be presented; otherwise, it shall produce no effect. The
The probate court ordered the dismissal of appellant's law regards the document itself as material proof of authenticity." But, in
petition for the allowance of the holographic will of deceased Footnote 8 of said decision, it says that "Perhaps it may be proved by a
Ricardo B. Bonilla on the ground that the alleged photostatic copy photographic or photostatic copy. Even a mimeographed or carbon copy;
of the will which was presented for probate, cannot stand in lieu of or by other similar means, if any, whereby the authenticity of the
the lost original, for the law regards the document itself as the handwriting of the deceased may be exhibited and tested before the
material proof of the authenticity of the said will, citing the case of probate court." Evidently, the photostatic or xerox copy of the lost or
Gan vs. Yap, 104 Phil. 509, 522. On appeal, the only question is destroyed holographic will may be admitted because then the
whether a holographic will which was lost or cannot be found can authenticity of the handwriting of the deceased can be determined by the
be proved by means of a photostatic copy. probate court.
The Supreme Court, in setting aside the lower court's
order of dismissal, held that a photostatic or xerox copy of a lost or
destroyed holographic will may be admitted because the DECISION
authenticity of the handwriting of the deceased can he determined
by the probate court, as comparison can be made with the
standard writings of the testator.
RELOVA, J p:
Assailed order of dismissal, set aside.
This case was certified to this Tribunal by the Court of
SYLLABUS Appeals for final determination pursuant to Section 3, Rule 50 of
the Rules of Court.
As found by the Court of Appeals:
1. CIVIL LAW; SUCCESSION; HOLOGRAPHIC WILLS;
PROBATE THEREOF; DEFINITION. — Pursuant to Article 811 of the ". . . On January 11, 1977, appellant filed a
Civil Code, probate of holographic wills is the allowance of the will by the petition with the Court of First Instance of Rizal for
Court after its due execution has been proved. the probate of the holographic will of Ricardo B.
Bonilla and the issuance of letters testamentary in rulings of the Supreme Court, to which the appellant
her favor. The petition, docketed as Sp. Proc. No. in turn filed an opposition. On July 23, 1979, the
8432, was opposed by the appellees Amparo court set aside its order of February 23, 1979 and
Aranza Bonilla, Wilferine Bonilla Treyes, Expedita dismissed the petition for the probate of the will of
Bonilla Frias and Ephraim Bonilla on the following Ricardo B. Bonilla. The court said:
grounds:
'. . . It is our considered opinion that
"(1) Appellant was estopped from claiming once the original copy of the holographic will
that the deceased left a will by failing to produce the is lost, a copy thereof cannot stand in lieu of
will within twenty days of the death of the testator as the original.
required by Rule 75, section 2 of the Rules of Court:
'In the case of Gan vs. Yap, 104
"(2) The alleged copy of the alleged Phil. 509, 522, the Supreme Court held that
holographic will did not contain a disposition of 'in the matter of holographic wills the law, it
property after death and was not intended to take is reasonable to suppose, regards the
effect after death, and therefore it was not a will; document itself as the material proof of
"(3) The alleged holographic will itself, and authenticity of said wills.
not an alleged copy thereof, must be produced, 'MOREOVER, this Court notes that
otherwise it would produce no effect, as held in Gan the alleged holographic will was executed
v. Yap, 104 Phil. 509; and on January 25, 1962 while Ricardo B.
"(4) The deceased did not leave any will, Bonilla died on May 13, 1976. In view of the
holographic or otherwise, executed and attested as lapse of more than 14 years from the time of
the execution of the will to the death of the
required by law.
decedent, the fact that the original of the will
"The appellees likewise moved for the could not be located shows to our mind that
consolidation of the case with another case (Sp. the decedent had discarded before his
Proc. No. 8275). Their motion was granted by the death his allegedly missing Holographic
court in an order dated April 4, 1977. Will.
"On November 13, 1978, following the Appellant's motion for reconsideration was denied. Hence,
consolidation of the cases, the appellees moved an appeal to the Court of Appeals in which it is contended that the
again to dismiss the petition for the probate of the dismissal of appellant's petition is contrary to law and well-settled
will. They argued that: jurisprudence.
"(1) The alleged holographic was not a last On July 7, 1980, appellees moved to forward the case to
will but merely an instruction as to the management this Court on the ground that the appeal does not involve question
and improvement of the schools and colleges of fact and alleged that the trial court committed the following
founded by decedent Ricardo B. Bonilla; and assigned errors:
"(2) Lost or destroyed holographic wills "I. THE LOWER COURT ERRED IN
cannot be proved by secondary evidence unlike HOLDING THAT A LOST HOLOGRAPHIC WILL
ordinary wills. MAY NOT BE PROVED BY A COPY THEREOF;
"Upon opposition of the appellant, the "II. THE LOWER COURT ERRED IN
motion to dismiss was denied by the court in its HOLDING THAT THE DECEDENT HAS
order of February 23, 1979. DISCARDED BEFORE HIS DEATH THE MISSING
"The appellees then filed a motion for HOLOGRAPHIC WILL;
reconsideration on the ground that the order was "III. THE LOWER COURT ERRED IN
contrary to law and settled pronouncements and DISMISSING APPELLANT'S WILL."
 The only question here is whether a holographic will which [G.R. No. 106720. September 15, 1994.]
was lost or can not be found can be proved by means of a
photostatic copy. Pursuant to Article 811 of the Civil Code, probate
SPOUSES ROBERTO AND THELMA
of holographic wills is the allowance of the will by the court after its
AJERO, petitioners, vs. THE COURT OF APPEALS AND
due execution has been proved. The probate may be uncontested
CLEMENTE SAND, respondents.
or not. If uncontested, at least one identifying witness is required
and, if no witness is available, experts may be resorted to. If
contested, at least three identifying witnesses are required.
However, if the holographic will has been lost or destroyed and no DECISION
other copy is available, the will can not be probated because the
best and only evidence is the handwriting of the testator in said
will. It is necessary that there be a comparison between sample
handwritten statements of the testator and the handwritten will. PUNO, J p:
But, a photostatic copy or xerox copy of the holographic will may
be allowed because comparison can be made with the standard This is an appeal by certiorari from the Decision of the Court of
writings of the testator. In the case of Gan vs. Yap, 104 Phil. 509, Appeals 1 in CA-G.R. CV No. 22840, dated March 30, 1992, the dispositive
the Court ruled that "the execution and the contents of a lost or portion of which reads:
destroyed holographic will may not be proved by the bare
testimony of witnesses who have seen and/or read such will. The "PREMISES CONSIDERED, the questioned
will itself must be presented; otherwise, it shall produce no effect. decision of November 19, 1988 of the trial court is hereby
The law regards the document itself as material proof of REVERSED and SET ASIDE, and the petition for probate
authenticity." But, in Footnote 8 of said decision, it says that is hereby DISMISSED. No costs."
"Perhaps it may be proved by a photographic or photostatic copy.
Even a mimeographed or carbon copy; or by other similar means, The earlier Decision was rendered by the RTC of Quezon City, Branch
if any, whereby the authenticity of the handwriting of the deceased 94, 2 in Sp. Proc. No. Q-37171, and the instrument submitted for probate
may be exhibited and tested before the probate court." Evidently, is the holographic will of the late Annie Sand, who died on November 25,
the photostatic or xerox copy of the lost or destroyed holographic 1982.
will may be admitted because then the authenticity of the In the will, decedent named as devisees, the following: petitioners
handwriting of the deceased can be determined by the probate Roberto and Thelma Ajero, private respondent Clemente Sand, Meriam S.
court. Arong, Leah Sand, Lilia Sand, Edgar Sand, Fe Sand, Lisa S. Sand, and Dr.
WHEREFORE, the order of the lower court dated October Jose Ajero, Sr., and their children. prLL
3, 1979, denying appellant's motion for reconsideration dated On January 20, 1983, petitioners instituted Sp. Proc. No. Q-37171,
August 9, 1979, of the Order dated July 23, 1979, dismissing her for allowance of decedent's holographic will. They alleged that at the time of
petition to approve the will of the late Ricardo B. Bonilla, is hereby its execution, she was of sound and disposing mind, not acting under duress,
SET ASIDE. fraud or undue influence, and was in every respect capacitated to dispose of
SO ORDERED. her estate by will.
Teehankee, Actg. C.J., Melencio-Herrera, Plana, Private respondent opposed the petition on the grounds that: neither
Vasquez and Gutierrez, Jr., JJ., concur. the testament's body nor the signature therein was in decedent's handwriting;
||| (In Re: Bonilla v. Aranza, G.R. No. L-58509, [December 7, 1982], 204 it contained alterations and corrections which were not duly signed by
PHIL 402-407) decedent; and, the will was procured by petitioners through improper
pressure and undue influence. The petition was likewise opposed by Dr.
Jose Ajero. He contested the disposition in the will of a house and lot located
in Cabadbaran, Agusan Del Norte. He claimed that said property could not
SECOND DIVISION be conveyed by decedent in its entirety, as she was not its sole owner.
 Notwithstanding the oppositions, the trial court admitted the holographic will in question was executed by the testatrix.
decedent's holographic will to probate. It found, inter alia: To be of sound mind, it is sufficient that the testatrix, at the
time of making the will, knew the value of the estate to be
"Considering then that the probate proceedings disposed of, the proper object of her bounty, and the
herein must decide only the question of identity of the will, character of the testamentary act . . . The will itself shows
its due execution and the testamentary capacity of the that the testatrix even had detailed knowledge of the
testatrix, this probate court finds no reason at all for the nature of her estate. She even identified the lot number
disallowance of the will for its failure to comply with the and square meters of the lots she had conveyed by will.
formalities prescribed by law nor for lack of testamentary The objects of her bounty were likewise identified
capacity of the testatrix. explicitly. And considering that she had even written a
nursing book which contained the law and jurisprudence
"For one, no evidence was presented to show that
on will and succession, there is more than sufficient
the will in question is different from the will actually
showing that she knows the character of the testamentary
executed by the testatrix. The only objections raised by the
act.
oppositors . . . are that the will was not written in the
handwriting of the testatrix which properly refers to the "In this wise, the question of identity of the will, its
question of its due execution, and not to the question of due execution and the testamentary capacity of the
identity of will. No other will was alleged to have been testatrix has to be resolved in favor of the allowance of
executed by the testatrix other than the will herein probate of the will submitted herein.
presented. Hence, in the light of the evidence adduced,
the identity of the will presented for probate must be "Likewise, no evidence was presented to show
accepted, i.e., the will submitted in Court must be deemed sufficient reason for the disallowance of herein holographic
to be the will actually executed by the testatrix. will. While it was alleged that the said will was procured by
undue and improper pressure and influence on the part of
"xxx xxx xxx the beneficiary or of some other person, the evidence
adduced have not shown any instance where improper
"While the fact that it was entirely written, dated
pressure or influence was exerted on the testatrix. (Private
and signed in the handwriting of the testatrix has been
respondent) Clemente Sand has testified that the testatrix
disputed, the petitioners, however, have satisfactorily
was still alert at the time of the execution of the will, i.e., at
shown in Court that the holographic will in question was
or around the time of her birth anniversary celebration in
indeed written entirely, dated and signed in the handwriting
1981. It was also established that she is a very intelligent
of the testatrix. Three (3) witnesses who have convincingly
person and has a mind of her own. Her independence of
shown knowledge of the handwriting of the testatrix have
character and to some extent, her sense of superiority,
been presented and have explicitly and categorically
which has been testified to in Court, all show the
identified the handwriting with which the holographic will in
unlikelihood of her being unduly influenced or improperly
question was written to be the genuine handwriting and
pressured to make the aforesaid will. It must be noted that
signature of the testatrix. Given then the aforesaid
the undue influence or improper pressure in question
evidence, the requirement of the law that the holographic
herein only refer to the making of a will and not as to the
will be entirely written, dated and signed in the handwriting
specific testamentary provisions therein which is the
of the testatrix has been complied with.
proper subject of another proceeding. Hence, under the
"xxx xxx xxx circumstances, this Court cannot find convincing reason
for the disallowance of the will herein.
"As to the question of the testamentary capacity of
the testatrix, (private respondent) Clemente Sand himself "Considering then that it is a well-established
has testified in Court that the testatrix was completely in doctrine in the law on succession that in case of doubt,
her sound mind when he visited her during her birthday testate succession should be preferred over intestate
celebration in 1981, at or around which time the succession, and the fact that no convincing grounds were
 presented and proven for the disallowance of the In the same vein, Article 839 of the New Civil Code reads:
holographic will of the late Annie Sand, the aforesaid will "Article 839: The will shall be disallowed in any of
submitted herein must be admitted to
the following cases:
probate." 3 (Emphasis omitted.)
(1) If the formalities required by law have not been
On appeal, said Decision was reversed, and the petition for probate
complied with;
of decedent's will was dismissed. The Court of Appeals found that, "the
holographic will fails to meet the requirements for its validity." 4 It held that (2 If the testator was insane, or otherwise mentally
the decedent did not comply with Articles 813 and 814 of the New Civil Code, incapable of making a will, at the time of its execution;
which read, as follows:
(3) If it was executed through force or under
"Article 813: When a number of dispositions duress, or the influence of fear, or threats;
appearing in a holographic will are signed without being
dated, and the last disposition has a signature and date, (4) If it was procured by undue and improper
such date validates the dispositions preceding it, whatever pressure and influence, on the part of the beneficiary or of
be the time of prior dispositions." some other person;

"Article 814: In case of insertion, cancellation, (5) If the signature of the testator was procured by
erasure or alteration in a holographic will, the testator must fraud;
authenticate the same by his full signature."
(6) If the testator acted by mistake or did not
It alluded to certain dispositions in the will which were either unsigned intend that the instrument he signed should be his will at
and undated, or signed but not dated. It also found that the erasures, the time of affixing his signature thereto."
alterations and cancellations made thereon had not been authenticated
by decedent. llcd These lists are exclusive; no other grounds can serve to disallow a
will. 5 Thus, in a petition to admit a holographic will to probate, the only
Thus, this appeal which is impressed with merit. issues to be resolved are: (1) whether the instrument submitted is, indeed,
the decedent's last will and testament; (2) whether said will was executed in
Section 9, Rule 76 of the Rules of Court provides that wills shall be
accordance with the formalities prescribed by law; (3) whether the decedent
disallowed in any of the following cases:
had the necessary testamentary capacity at the time the will was executed;
"(a) If not executed and attested as required by and, (4) whether the execution of the will and its signing were the voluntary
law; acts of the decedents. 6

(b) If the testator was insane, or otherwise In the case at bench, respondent court held that the holographic will
mentally incapable to make a will, at the time of its of Anne Sand was not executed in accordance with the formalities prescribed
execution; by law. It held that Articles 813 and 814 of the New Civil Code, ante, were
not complied with, hence, it disallowed the probate of said will. This is
(c) If it was executed under duress, or the erroneous. cdrep
influence of fear, or threats;
We reiterate what we held in Abangan vs. Abangan, 40 Phil. 476,
(d) If it was procured by undue and improper 479 (1919), that:
pressure and influence, on the part of the beneficiary, or of
some other person for his benefit; "The object of the solemnities surrounding the
execution of wills is to close the door against bad faith and
(e) If the signature of the testator was procured by fraud, to avoid substitution of wills and testaments and to
fraud or trick, and he did not intend that the instrument guaranty their truth and authenticity. Therefore, the laws
should be his will at the time of fixing his signature on this subject should be interpreted in such a way as to
thereto." attain these primordial ends. But, on the other hand, also
one must not lose sight of the fact that it is not the object of
 the law to restrain and curtail the exercise of the right to signature, 9 their presence does not invalidate the will itself. 10 The lack of
make a will. So when an interpretation already given authentication will only result in disallowance of such changes.
assures such ends, any other interpretation whatsoever,
that adds nothing but demands more requisites entirely It is also proper to note that the requirements of authentication of
unnecessary, useless and frustrative of the testator's last changes and signing and dating of dispositions appear in provisions (Articles
will, must be disregarded." 813 and 814) separate from that which provides for the necessary conditions
for the validity of the holographic will (Article 810). The distinction can be
For purposes of probating non-holographic wills, these formal traced to Articles 678 and 688 of the Spanish Civil Code, from which the
solemnities include the subscription, attestation, and acknowledgment present provisions covering holographic wills are taken. They read as
requirements under Articles 805 and 806 of the New Civil Code. follows:
In the case of holographic wills, on the other hand, what assures "Article 678: A will is called holographic when the
authenticity is the requirement that they be totally autographic or handwritten testator writes it himself in the form and with the requisites
by the testator himself, 7 as provided under Article 810 of the New Civil required in Article 688.
Code, thus:
"Article 688: Holographic wills may be executed
"A person may execute a holographic will which only by persons of full age.
must be entirely written, dated, and signed by the hand of
the testator himself. It is subject to no other form, and may "In order that the will be valid it must be drawn on
be made in or out of the Philippines, and need not be stamped paper corresponding to the year of its execution,
witnessed." (Emphasis supplied.) written in its entirety by the testator and signed by him, and
must contain a statement of the year, month and day of its
Failure to strictly observe other formalities will not result in the execution.
disallowance of a holographic will that is unquestionably handwritten by
the testator. "If it should contain any erased, corrected, or
A reading of Article 813 of the New Civil Code shows that its interlined words, the testator must identify them over his
requirement affects the validity of the dispositions contained in the signature.
holographic will, but not its probate. If the testator fails to sign and date some "Foreigners may execute holographic wills in their
of the dispositions, the result is that these dispositions cannot be effectuated. own language."
Such failure, however, does not render the whole testament void.
This separation and distinction adds support to the interpretation that
Likewise, a holographic will can still be admitted to probate, only the requirements of Article 810 of the New Civil Code — and not
notwithstanding non-compliance with the provisions of Article 814. In the those found in Articles 813 and 814 of the same Code — are essential to
case of Kalaw vs. Relova,132 SCRA 237, 242 (1984), this Court held: cdrep the probate of a holographic will.
"Ordinarily, when a number of erasures, The Court of Appeals further held that decedent Annie Sand could
corrections, and interlineations made by the testator in a not validly dispose of the house and lot located in Cabadbaran, Agusan del
holographic Will have not been noted under his signature, . Norte, in its entirety. This is correct and must be affirmed. LexLib
. . the Will is not thereby invalidated as a whole, but at
most only as respects the particular words erased, As a general rule, courts in probate proceedings are limited to pass
corrected or interlined. Manresa gave an identical only upon the extrinsic validity of the will sought to be probated. However, in
commentary when he said 'la omision de la salvedad no exceptional instances, courts are not powerless to do what the situation
anula el testamento, segun la regla de jurisprudencia constrains them to do, and pass upon certain provisions of the will. 11 In the
establecida en la sentencia de 4 de Abril de case at bench, decedent herself indubitably stated in her holographic will that
1895.'" 8 (Emphasis omitted.) the Cabadbaran property is in the name of her late father, John H. Sand
(which led oppositor Dr. Jose Ajero to question her conveyance of the same
Thus, unless the unauthenticated alterations, cancellations or in its entirety.). Thus, as correctly held by respondent court, she cannot
insertions were made on the date of the holographic will or on testator's
validly dispose of the whole property, which she shares with her father's turn, affixed their signatures below the attestation clause and on the left
other heirs. margin of pages 1, 2 and 4 of the Will in the presence of the testator and
of each other and the Notary Public. The Will was acknowledged before
IN VIEW WHEREOF, the instant petition is GRANTED. The Decision the Notary Public Romeo Escareal by the testator and his three attesting
of the Court of Appeals in CA-G.R. CV No. 22840, dated March 30, 1992, is witnesses.
REVERSED and SET ASIDE, except with respect to the invalidity of the
disposition of the entire house and lot in Cabadbaran, Agusan del Norte. The In the said Will, the testator named and appointed herein
Decision of the Regional Trial Court of Quezon City, Branch 94 in Sp. Proc. petitioner Sofia J. Nepomuceno as his sole and only executor of his
No. Q-37171, dated November 19, 1988, admitting to probate the estate. It is clearly stated in the Will that the testator was legally married
holographic will of decedent Annie Sand, is hereby REINSTATED, with the to a certain Rufina Gomez by whom he had two legitimate children,
above qualification as regards the Cabadbaran property. No costs. LexLib Oscar and Carmelita, but since 1952, he had been estranged from his
lawfully wedded wife and had been living with petitioner as husband and
SO ORDERED. wife. In fact, on December 5, 1952, the testator Martin Jugo and the
petitioner herein, Sofia J. Nepomuceno were married in Victoria, Tarlac
Narvasa, C.J., Padilla, Regalado and Mendoza, JJ., concur. before the Justice of the Peace. The testator devised to his forced heirs,
||| (Spouses Ajero v. Court of Appeals, G.R. No. 106720, [September 15, namely, his legal wife Rufina Gomez and his children Oscar and
Carmelita his entire estate and the free portion thereof to herein
1994], 306 PHIL 500-510)
petitioner. The Will reads in part: LibLex
"Art. III. That I have the following legal heirs,
FIRST DIVISION namely: my aforementioned legal wife, Rufina Gomez, and
our son, Oscar, and daughter Carmelita, both surnamed
Jugo, whom I declare and admit to be legally and properly
[G.R. No. L-62952. October 9, 1985.] entitled to inherit from me; that while I have been
estranged from my above-named wife for so many years, I
cannot deny that I was legally married to her or that we
SOFIA J. NEPOMUCENO, petitioner, vs. THE
have been separated up to the present for reasons and
HONORABLE COURT OF APPEALS, RUFINA GOMEZ,
justifications known fully well by them;
OSCAR JUGO ANG CARMELITA JUGO, respondents.
"Art IV. That since 1952, I have been living,
as man and wife, with one Sofia J. Nepomuceno, whom I
declare and avow to be entitled to may love and affection,
DECISION for all the things which she has done for me, now and in
the past; that while Sofia J. Nepomuceno has with my full
knowledge and consent, did comport and represent myself
GUTIERREZ, JR., J p: as her own husband, in truth and in fact, as well as in the
eyes of the law, I could not bind her to me in the holy
This is a petition for certiorari to set aside that portion of the bonds of matrimony because of my aforementioned
decision of the respondent Court of Appeals (now Intermediate Appellate previous marriage;"
Court) dated June 3, 1982, as amended by the resolution dated August On August 21, 1974, the petitioner filed a petition for the probate
10, 1982, declaring as null and void the devise in favor of the petitioner of the last Will and Testament of the deceased Martin Jugo in the Court
and the resolution dated December 28, 1982 denying petitioner's motion of First Instance of Rizal, Branch XXXIV, Caloocan City and asked for
for reconsideration. the issuance to her of letters testamentary.
Martin Jugo died on July 16, 1974 in Malabon, Rizal. He left a On May 13, 1975, the legal wife of the testator, Rufina Gomez
last Will and Testament duly signed by him at the end of the Will on page and her children filed an opposition alleging inter alia that the execution
three and on the left margin of pages 1, 2 and 4 thereof in the presence of the Will was procured by undue and improper influence on the part of
of Celestina Alejandro, Myrna C. Cortez, and Leandro Leaño, who in
the petitioner; that at the time of the execution of the Will, the testator testator has the mental capacity to execute the same. The petitioner
was already very sick and that petitioner having admitted her living in further contends that even if the provisions of paragraph 1 of Article 739
concubinage with the testator, she is wanting in integrity and thus letters of the Civil Code of the Philippines were applicable, the declaration of its
testamentary should not be issued to her. nullity could only be made by the proper court in a separate action
brought by the legal wife for the specific purpose of obtaining a
On January 6, 1976, the lower court denied the probate of the
declaration of the nullity of the testamentary provision in the Will in favor
Will on the ground that as the testator admitted in his Will to cohabiting
of the person with whom the testator was allegedly guilty of adultery or
with the petitioner from December 1952 until his death on July 16, 1974,
concubinage.
the Will's admission to probate will be an idle exercise because on the
face of the Will, the invalidity of its intrinsic provisions is evident. The respondents on the other hand contend that the fact that the
last Will and Testament itself expressly admits indubitably on its face the
The petitioner appealed to the respondent-appellate court.
meretricious relationship between the testator and the petitioner and the
On June 2, 1982, the respondent court set aside the decision of fact that petitioner herself initiated the presentation of evidence on her
the Court of First Instance of Rizal denying the probate of the Will. The alleged ignorance of the true civil status of the testator, which led private
respondent court declared the Will to be valid except that the devise in respondents to present contrary evidence, merits the application of the
favor of the petitioner is null and void pursuant to Article 739 in relation doctrine enunciated in Nuguid v. Felix Nuguid, et al. (17 SCRA 449)
with Article 1028 of the Civil Code of the Philippines. The dispositive and Felix Balanay, Jr. v. Hon. Antonio Martinez, et al (G.R. No. L-39247,
portion of the decision reads: June 27, 1975). Respondents also submit that the admission of the
testator of the illicit relationship between him and the petitioner put in
"WHEREFORE, the decision a quo is hereby set
issue the legality of the devise.
aside, the will in question declared valid except the devise
in favor of the appellant which is declared null and void. We agree with the respondents.
The properties so devised are instead passed on in
The respondent court acted within its jurisdiction when after
intestacy to the appellant in equal shares, without
declaring the Will to be validly drawn, it went on to pass upon the intrinsic
pronouncement as to costs."
validity of the Will and declared the devise in favor of the petitioner null
On June 15, 1982, oppositors Rufina Gomez and her children and void.
filed a "Motion for Correction of Clerical Error" praying that the word The general rule is that in probate proceedings, the court's area
"appellant" in the last sentence of the dispositive portion of the decision of inquiry is limited to an examination and resolution of the extrinsic
be changed to "appellees" so as to read: "The properties so devised are validity of the Will. The rule is expressed thus: LLphil
instead passed on intestacy to theappellees in equal shares, without
pronouncement as to costs." The motion was granted by the respondent xxx xxx xxx
court on August 10, 1982.
". . . It is elementary that a probate decree finally
On August 23, 1982, the petitioner filed a motion for and definitively settles all questions concerning capacity of
reconsideration. This was denied by the respondent court in a resolution the testator and the proper execution and witnessing of his
dated December 28, 1982. Cdpr last Will and testament, irrespective of whether its
provisions are valid and enforceable or otherwise."
The main issue raised by the petitioner is whether or not the
(Fernandez v. Dimagiba, 21 SCRA 428).
respondent court acted in excess of its jurisdiction when after declaring
the last Will and Testament of the deceased Martin Jugo validly drawn, it "The petition below being for the probate of a Will,
went on to pass upon the intrinsic validity of the testamentary provision in the court's area of inquiry is limited to the extrinsic validity
favor of herein petitioner. thereof. The testator's testamentary capacity and the
The petitioner submits that the validity of the testamentary compliance with the formal requisites or solemnities
provision in her favor cannot be passed upon and decided in the probate prescribed by law are the only questions presented for the
proceedings but in some other proceedings because the only purpose of resolution of the court. Any inquiry into theintrinsic validity
the probate of a Will is to establish conclusively as against everyone that or efficacy of the provisions of the will or the legality of any
a Will was executed with the formalities required by law and that the devise or legacy is premature.
 xxx xxx xxx for probate (which the lower court assumed to have been
filed with the petitioner's authorization), the trial court acted
"True or not, the alleged sale is no ground for the correctly in passing upon the will's intrinsic validity even
dismissal of the petition for probate. Probate is one thing; before its formal validity had been established. The
the validity of the testamentary provisions is another. The probate of a will might become an idle ceremony if on its
first decides the execution of the document and the face it appears to be intrinsically void. Where practical
testamentary capacity of the testator; the second relates to considerations demand that the intrinsic validity of the will
descent and distribution." (Sumilang v. Ramagosa 21 be passed upon, even before it is probated, the court
SCRA 1369). should meet the issue (Nuguid v. Nuguid, 64 O.G. 1527,
17 SCRA 449. Compare with Sumilang v. Ramagosa, L-
xxx xxx xxx
23135, December 26, 1967, 21 SCRA 1369; Cacho v.
"To establish conclusively as against everyone, Udan, L-19996, April 30, 1965, 13 SCRA 693).
and once for all, the facts that a will was executed with the
There appears to be no more dispute at this time over the
formalities required by law and that the testator was in a
extrinsic validity of the Will. Both parties are agreed that the Will of Martin
condition to make a will, is the only purpose of the
Jugo was executed with all the formalities required by law and that the
proceedings under the new code for the probate of a will.
testator had the mental capacity to execute his Will. The petitioner states
(Sec. 625). The judgment in such proceedings determines
that she completely agrees with the respondent court when in resolving
and can determine nothing more. In them the court has no
the question of whether or not the probate court correctly denied the
power to pass upon the validity of any provisions made in
probate of Martin Jugo's last Will and Testament, it ruled:
the will. It can not decide, for example, that a certain
legacy is void and another one valid. . . ." (Castañeda v. "This being so, the will is declared validly drawn."
Alemany, 3 Phil. 426) (Page 4, Decision, Annex A of Petition.)
The rule, however, is not inflexible and absolute. Given On the other hand the respondents pray for the affirmance of the
exceptional circumstances, the probate court is not powerless to do what Court of Appeals' decision in toto.
the situation constrains it to do and pass upon certain provisions of the
Will. The only issue, therefore, is the jurisdiction of the respondent
court to declare the testamentary provision in favor of the petitioner as
In Nuguid v. Nuguid (17 SCRA 449) cited by the trial court, the null and void.
testator instituted the petitioner as universal heir and completely
preterited her surviving forced heirs. A will of this nature, no matter how We sustain the respondent court's jurisdiction. As stated
valid it may appear extrinsically, would be null and void. Separate or in Nuguid v. Nuguid, (supra):
latter proceedings to determine the intrinsic validity of the testamentary "We pause to reflect. If the case were to be
provisions would be superfluous. remanded for probate of the will, nothing will be gained.
Even before establishing the formal validity of the will, the Court On the contrary, this litigation will be protracted. And for
in Balanay, Jr. v. Martinez (64 SCRA 452) passed upon the validity of its aught that appears in the record, in the event of probate or
intrinsic provisions. if the court rejects the will, probability exists that the case
will come up once again before us on the same issue of
Invoking "practical considerations", we stated: the intrinsic validity or nullity of the will. Result. waste of
time, effort, expense, plus added anxiety. These are the
"The basic issue is whether the probate court
practical considerations that induce us to a belief that we
erred in passing upon the intrinsic validity of the will,
might as well meet head-on the issue of the validity of the
before ruling on its allowance or formal validity, and in
provisions of the will in question. (Section 2, Rule 1, Rules
declaring it void.
of Court. Case, et al. v. Jugo, et al., 77 Phil. 517, 522).
"We are of the opinion that in view of certain After all, there exists a justiciable controversy crying for
unusual provisions of the will, which are of dubious solution.
legality, and because of the motion to withdraw the petition
 We see no useful purpose that would be served if we remand the 48. Nepomuceno now contends that she acted in good faith for 22 years
nullified provision to the proper court in a separate action for that in the belief that she was legally married to the testator. prcd
purpose simply because, in the probate of a will, the court does not
The records do not sustain a finding of innocence or good faith.
ordinarily look into the intrinsic validity of its provisions. cdphil
As argued by the private respondents:
Article 739 of the Civil Code provides:
"First. The last will and testament itself expressly
"The following donations shall be void: admits indubitably on its face the meretricious relationship
between the testator and petitioner, the devisee.
(1) Those made between persons who were guilty
of adultery or concubinage at the time of the donation; "Second. Petitioner herself initiated the
presentation of evidence on her alleged ignorance of the
(2) Those made between persons found guilty of true civil status of the testator, which led private
the same criminal offense, in consideration thereof; respondents to present contrary evidence.
(3) Those made to a public officer or his wife, "In short, the parties themselves dueled on the
descendants and ascendants, by reason of his office. intrinsic validity of the legacy given in the will to petitioner
by the deceased testator at the start of the proceedings.
"In the case referred to in No. 1, the action for
declaration of nullity may be brought by the spouse of the "Whether or not petitioner knew that testator
donor or donee; and the guilt of the donor and donee may Martin Jugo, the man he had lived with as man and wife,
be proved by preponderance of evidence in the same as already married was an important and specific issue
action. brought by the parties before the trial court, and passed
upon by the Court of Appeals.
Article 1028 of the Civil Code provides:
"The prohibitions mentioned in Article 739, "Instead of limiting herself to proving the extrinsic
concerning donations inter vivos shall apply to validity of the will, it was petitioner who opted to present
testamentary provisions." evidence on her alleged good faith in marrying the testator.
(Testimony of Petitioner, TSN of August 1, 1982, pp. 56-57
In Article III of the disputed Will, executed on August 15, 1968, or and pp. 62-64).
almost six years before the testator's death on July 16, 1974, Martin
Jugo stated that respondent Rufina Gomez was his legal wife from whom "Private respondents, naturally, presented
he had been estranged "for so many years." He also declared that evidence that would refute the testimony of petitioner on
respondents Carmelita Jugo and Oscar Jugo were his legitimate the point.
children. In Article IV, he stated that he had been living as man and wife
"Sebastian Jugo, younger brother of the deceased
with the petitioner since 1952. Testator Jugo declared that the petitioner
testator, testified at length on the meretricious relationship
was entitled to his love and affection. He stated that Nepomuceno
of his brother and petitioner. (TSN of August 18, 1975).
represented Jugo as her own husband but "in truth and in fact, as well as
in the eyes of the law, I could not bind her to me in the holy bonds of "Clearly, the good faith of petitioner was by option
matrimony because of my aforementioned previous marriage." of the parties made a decisive issue right at the inception
There is no question from the records about the fact of a prior of the case.
existing marriage when Martin Jugo executed his Will. There is also no "Confronted by the situation, the trial court had to
dispute that the petitioner and Mr. Jugo lived together in an ostensible make a ruling on the question.
marital relationship for 22 years until his death.
It is also a fact that on December 2, 1952, Martin Jugo and Sofia "When the court a quo held that the testator Martin
J. Nepomuceno contracted a marriage before the Justice of the Peace of Jugo and petitioner 'were deemed guilty of adultery or
Victoria, Tarlac. The man was then 51 years old while the woman was concubinage', it was a finding that petitioner was not the
innocent woman she pretended to be."
 xxx xxx xxx lived for 22 years as man and wife
was a married man with already two
"3' If a review of the evidence must be made children.
nonetheless, then private respondents respectfully offer
the following analysis: "FOURTH: Having admitted that she knew
the children of respondent Rufina
"FIRST: The secrecy of the marriage of Gomez, is it possible that she would
petitioner with the deceased testator not have asked Martin Jugo whether
in a town in Tarlac where neither she or not they were ms illegitimate or
nor the testator ever resided. If there legitimate children and by whom?
was nothing to hide from, why the That is un-Filipino.
concealment? Of course, it maybe "FIFTH: Having often gone to Pasig to the
argued that the marriage of the residence of the parents of the
deceased with private respondent deceased testator, is it possible that
Rufina Gomez was likewise done in she would not have known that the
secrecy. But it should be remembered mother of private respondent Oscar
that Rufina Gomez was already in the Jugo and Carmelita Jugo was
family way at that time and it would respondent Rufina Gomez,
seem that the parents of Martin Jugo considering that the houses of the
were not in favor of the marriage so parents of Martin Jugo (where he had
much so that an action in court was lived for many years) and that of
brought concerning the marriage. respondent Rufina Gomez were just a
(Testimony of Sebastian Jugo, TSN of few meters away?
August 18, 1975, pp. 29-30).
"Such pretentions of petitioner Sofia Nepomuceno
"SECOND: Petitioner was a sweetheart of are unbelievable. They are, to say the least, inherently
the deceased testator when they were improbable, for they are against the experience in common
still both single. That would be in 1922 life and the ordinary instincts and promptings of human
as Martin Jugo married respondent nature that a woman would not bother at all to ask the man
Rufina Gomez on November 29, 1923 she was going to marry whether or not he was already
(Exh. 3). Petitioner married the married to another, knowing that her groom had children. It
testator only on December 5, 1952. would be a story that would strain human credulity to the
There was a space of about 30 years limit if petitioner did not know that Martin Jugo was already
in-between. During those 30 years, a married man in view of the irrefutable fact that it was
could it be believed that she did not precisely his marriage to respondent Rufina Gomez that
even wonder why Martin Jugo did not led petitioner to break off with the deceased during their
marry her nor contact her anymore younger years."
after November, 1923 — facts that
should impel her to ask her groom Moreover, the prohibition in Article 739 of the Civil Code is
before she married him in secrecy, against the making of a donation between persons who are living in
especially so when she was already adultery or concubinage. It is the donation which becomes void. The
about 50 years old at the time of giver cannot give even assuming that the recipient may receive. The very
marriage. wordings of the Will invalidate the legacy because the testator admitted
"THIRD: The fact that petitioner broke off he was disposing the properties to a person with whom he had been
from Martin Jugo in 1923 is by itself living in concubinage. prcd
conclusive demonstration that she
knew that the man she had openly
 WHEREFORE, the petition is DISMISSED for lack of merit. The Since the withdrawal was in order, the respondent judge acted correctly
decision of the Court of Appeals, now Intermediate Appellate Court, is in hearing the probate of the will ex-parte, there being no other
AFFIRMED. No costs. opposition to the same.
SO ORDERED. 2. ID.; SPECIAL PROCEEDINGS; PROBATE OF WILL;
PROBATE COURT, SCOPE OF AUTHORITY. — As a general rule, the
Teehankee (Chairman), Melencio-Herrera, Plana, Relova, Dela
probate court's authority is limited only to the extrinsic validity of the will,
Fuente and Patajo, JJ., concur.
the due execution thereof, the testatrix's testamentary capacity and the
||| (Nepomuceno v. Court of Appeals, G.R. No. L-62952, [October 9, 1985], compliance with the requisites or solemnities prescribed by law. The
223 PHIL 418-429) intrinsic validity of the will normally comes only after the court has
declared that the will has been duly authenticated. However, where
practical considerations demand that the intrinsic validity of the will be
passed upon, even before it is probated, the court should meet the issue
FIRST DIVISION
(Maninang, v. Court of Appeals, 114 SCRA 478).
3. CIVIL LAW; WILLS AND SUCCESSION; INTRINSIC
[G.R. No. 54919. May 30, 1984.] VALIDITY OF WILLS GOVERNED BY THE NATIONAL LAW OF THE
DECEDENT; CASE AT BAR. — It is a settled rule that as regards the
POLLY CAYETANO, petitioner, vs. HON. TOMAS T. intrinsic validity of the provisions of the will, as provided for by Articles
LEONIDAS, in his capacity as the Presiding Judge of 16(2) and 1039 of the Civil Code, the national law of the decedent must
Branch XXXVIII, Court of First Instance of Manila and apply. In the case at bar, although on its face, the will appeared to have
NENITA CAMPOS PAGUIA, respondents. preterited the petitioner and thus, the respondent judge should have
denied its probate outright, the private respondents have sufficiently
established that Adoracion Campos was, at the time of her death, an
Ermelo P. Guzman for petitioner. American citizen and a permanent resident of Philadelphia,
Pennsylvania, U.S.A.. Therefore, the law governing Adoracion Campos'
Armando Z. Gonzales for private respondent. will is the law of Pennsylvania, U.S.A., which is the national law of the
decedent. Under the Pennsylvania law, no legitimes are provided for,
and all the estate may be given away by the testatrix to a complete
SYLLABUS stranger.
4. REMEDIAL LAW; SPECIAL PROCEEDINGS; SETTLEMENT
1. REMEDIAL LAW; SPECIAL CIVIL ACTION; CERTIORARI; OF ESTATE; COURT OF FIRST INSTANCE OF THE PROVINCE
GRAVE ABUSE OF DISCRETION; GRANT OF MOTION TO WHERE THE ESTATE IS LOCATED HAS JURISDICTION. — The
WITHDRAW OPPOSITION TO PROBATE OF WILL IN CASE AT BAR, settlement of the estate of Adoracion Campos was correctly filed with the
NOT A CASE OF. — We find no grave abuse of discretion on the part of Court of First Instance of Manila where she had an estate since it was
the respondent judge when he allowed withdrawal of petitioner's alleged and proven the Adoracion at the time of her death was a citizen
opposition to the probate of the will. No proof was adduced to support and permanent resident of Pennsylvania, United States of America and
petitioner's contention that the motion to withdraw was secured through not a "usual resident of Cavite" as alleged by the petitioner.
fraudulent means and that Atty. Franco Loyola was not his counsel of
record. The records show that after the filing of the contested motion, the 5. ID.; ID.; ID.; ID.; PETITIONER ESTOPPED FROM
petitioner at a later date, filed a manifestation wherein he confirmed that QUESTIONING JURISDICTION OF COURT IN CASE AT BAR. —
the Motion to Dismiss Opposition was his voluntary act and deed. Petitioner is now estopped from questioning the jurisdiction of the
Moreover, at the time the motion was filed, the petitioner's former probate court in the petition for relief. It is a settled rule that a party
counsel, Atty. Jose P. Lagrosa had long withdrawn from the case and cannot invoke the jurisdiction of a court to secure affirmative relief,
had been substituted by Atty. Franco Loyola who in turn filed the motion. against his opponent and after failing to obtain such relief, repudiate or
The present petitioner cannot, therefore, maintain that the old man's question that same jurisdiction (See Saulog Transit, Inc. v. Hon. Manuel
attorney of record was Atty. Lagrosa at the time of filing the motion. Lazaro, et al., G.R. No. 63284, April 4, 1984).
 DECISION On December 1, 1978, however, the petitioner through his
counsel, Atty. Franco Loyola, filed a Motion to Dismiss Opposition (With
Waiver of Rights or Interests) stating that he "has been able to verify the
veracity thereof (of the will) and now confirms the same to be truly the
GUTIERREZ, JR., J p: probated will of his daughter Adoracion." Hence, an ex-parte
presentation of evidence for the reprobate of the questioned will was
This is a petition for review on certiorari, seeking to annul the made.
order of the respondent judge of the Court of First Instance of Manila,
Branch XXXVIII, which admitted to and allowed the probate of the last On January 10, 1979, the respondent judge issued an order to
will and testament of Adoracion C. Campos, after an ex-parte wit:
presentation of evidence by herein private respondent.LLjur "At the hearing, it has been satisfactorily
On January 31, 1977, Adoracion C. Campos died, leaving her established that Adoracion C. Campos, in her lifetime, was
father, petitioner Hermogenes Campos and her sisters, private a citizen of the United States of America with a permanent
respondent Nenita C. Paguia, Remedios C. Lopez and Marieta C. residence at 4633 Ditman Street, Philadelphia, PA 19124,
Medina as the surviving heirs. As Hermogenes Campos was the only (Exhibit D); that when alive, Adoracion C. Campos
compulsory heir, he executed an Affidavit of Adjudication under Rule 74, executed a Last Will and Testament in the county of
Section I of the Rules of Court whereby he adjudicated unto himself the Philadelphia, Pennsylvania, U.S.A., according to the laws
ownership of the entire estate of the deceased Adoracion Campos. thereat (Exhibits E-3 to E-3-b); that while in temporary
sojourn in the Philippines, Adoracion C. Campos died in
Eleven months after, on November 25, 1977, Nenita C. Paguia the City of Manila (Exhibit C) leaving property both in the
filed a petition for the reprobate of a will of the deceased, Adoracion Philippines and in the United States of America; that the
Campos, which was allegedly executed in the United States and for her Last Will and Testament of the late Adoracion C. Campos
appointment as administratrix of the estate of the deceased testatrix. was admitted and granted probate by the Orphan's Court
In her petition, Nenita alleged that the testatrix was an American Division of the Court of Common Pleas, the probate court
citizen at the time of her death and was a permanent resident of 4633 of the Commonwealth of Pennsylvania, County of
Ditman Street, Philadelphia, Pennsylvania, U.S.A.; that the testatrix died Philadelphia, U.S.A., and letters of administration were
in Manila on January 31, 1977 while temporarily residing with her sister issued in favor of Clement J. McLaughlin, all in accordance
at 2167 Leveriza, Malate, Manila; that during her lifetime, the testatrix with the laws of the said foreign country on procedure and
made her last will and testament on July 10, 1975, according to the laws allowance of wills (Exhibits E to E-10); and that the
of Pennsylvania, U.S.A., nominating Wilfredo Barzaga of New Jersey as petitioner is not suffering from any disqualification which
executor; that after the testatrix' death, her last will and testament was would render her unfit as administratrix of the estate in the
presented, probated, allowed, and registered with the Registry of Wills at Philippines of the late Adoracion C. Campos.
the County of Philadelphia, U.S.A., that Clement L. McLaughlin, the "WHEREFORE, the Last Will and Testament of
administrator who was appointed after Dr. Barzaga had declined and the late Adoracion C. Campos is hereby admitted to and
waived his appointment as executor in favor of the former, is also a allowed probate in the Philippines, and Nenita Campos
resident of Philadelphia, U.S.A., and that therefore, there is an urgent Paguia is hereby appointed Administratrix of the estate of
need for the appointment of an administratrix to administer and said decedent; let Letters of Administration with the Will
eventually distribute the properties of the estate located in the annexed issue in favor of said Administratrix upon her
Philippines. Cdpr filing of a bond in the amount of P5,000.00 conditioned
On January 11, 1978, an opposition to the reprobate of the will under the provisions of Section I, Rule 81 of the Rules of
was filed by herein petitioner alleging among other things, that he has Court.
every reason to believe that the will in question is a forgery; that the
intrinsic provisions of the will are null and void; and that even if pertinent Another manifestation was filed by the petitioner on April 14,
American laws on intrinsic provisions are invoked, the same could not 1979, confirming the withdrawal of his opposition, acknowledging the
apply inasmuch as they would work injustice and injury to him. same to be his voluntary act and deed.
 On May 25, 1979, Hermogenes Campos filed a petition for relief, "1) He ruled the petitioner lost his standing in court
praying that the order allowing the will be set aside on the ground that deprived the Right to Notice (sic) upon the filing of the
the withdrawal of his opposition to the same was secured through Motion to Dismiss opposition with waiver of rights or
fraudulent means. According to him, the "Motion to Dismiss Opposition" interests against the estate of deceased Adoracion C.
was inserted among the papers which he signed in connection with two Campos, thus, paving the way for the ex-parte hearing of
Deeds of Conditional Sales which he executed with the Construction and the petition for the probate of decedent will.
Development Corporation of the Philippines (CDCP). He also alleged
that the lawyer who filed the withdrawal of the opposition was not his "2) He ruled that petitioner can waive, renounce or
counsel-of-record in the special proceedings case. repudiate (not made in a public or authenticated
instrument), or by way of a petition presented to the court
The petition for relief was set for hearing but the petitioner failed but by way of a motion presented prior to an order for the
to appear. He made several motions for postponement until the hearing distribution of the estate — the law especially providing
was set on May 29, 1980. that repudiation of an inheritance must be presented,
On May 18, 1980, petitioner filed another motion entitled "Motion within 30 days after it has issued an order for the
to Vacate and/or Set Aside the Order of January 10, 1979, and/or distribution of the estate in accordance with the rules of
dismiss the case for lack of jurisdiction. In this motion, the notice of Court.
hearing provided: "3) He ruled that the right of a forced heir to his
"Please include this motion in your calendar for legitime can be divested by a decree admitting a will to
hearing on May 29, 1980 at 8:30 in the morning for probate in which no provision is made for the forced heir in
submission for reconsideration and resolution of the complete disregard of Law of Succession.
Honorable Court. Until this Motion is resolved, may I also
request for the future setting of the case for hearing on the "4) He denied petitioner's petition for Relief on the
Oppositor's motion to set aside previously filed." ground that no evidence was adduced to support the
Petition for Relief when no Notice nor hearing was set to
The hearing of May 29, 1980 was re-set by the court for June 19, afford petitioner to prove the merit of his petition — a
1980. When the case was called for hearing on this date, the counsel for denial of the due process and a grave abuse of discretion
petitioner tried to argue his motion to vacate instead of adducing amounting to lack of jurisdiction.
evidence in support of the petition for relief. Thus, the respondent judge
issued an order dismissing the petition for relief for failure to present "5) He acquired no jurisdiction over the testate
evidence in support thereof. Petitioner filed a motion for reconsideration case, the fact that the Testator at the time of death was a
but the same was denied. In the same order, respondent judge also usual resident of Dasmariñas, Cavite, consequently Cavite
denied the motion to vacate for lack of merit. Hence, this petition. cdll Court of First Instance has exclusive jurisdiction over the
case (De Borja vs. Tan, G.R. No. L-7792, July 1955)."
Meanwhile, on June 6, 1982, petitioner Hermogenes Campos
died and left a will, which, incidentally has been questioned by the The first two issues raised by the petitioner are anchored on the
respondent, his children and forced heirs as, on its face patently null and allegation that the respondent judge acted with grave abuse of discretion
void, and a fabrication, appointing Polly Cayetano as the executrix of his when he allowed the withdrawal of the petitioner's opposition to the
last will and testament. Cayetano, therefore, filed a motion to substitute reprobate of the will.
herself as petitioner in the instant case which was granted by the court We find no grave abuse of discretion on the part of the
on September 13, 1982. respondent judge. No proof was adduced to support petitioner's
A motion to dismiss the petition on the ground that the rights of contention that the motion to withdraw was secured through fraudulent
the petitioner Hermogenes Campos merged upon his death with the means and that Atty. Franco Loyola was not his counsel of record. The
rights of the respondent and her sisters, only remaining children and records show that after the filing of the contested motion, the petitioner at
forced heirs was denied on September 12, 1983. a later date, filed a manifestation wherein he confirmed that the Motion to
Dismiss Opposition was his voluntary act and deed. Moreover, at the
Petitioner Cayetano persists with the allegations that the time the motion was filed, the petitioner's former counsel, Atty. Jose P.
respondent judge acted without or in excess of his jurisdiction when:
Lagrosa had long withdrawn from the case and had been substituted by the law which governs Adoracion Campo's will is the law of
Atty. Franco Loyola who in turn filed the motion. The present petitioner Pennsylvania, U.S.A., which is the national law of the decedent.
cannot, therefore, maintain that the old man's attorney of record was Although the parties admit that the Pennsylvania law does not provide for
Atty. Lagrosa at the time of filing the motion. Since the withdrawal was in legitimes and that all the estate may be given away by the testatrix to a
order, the respondent judge acted correctly in hearing the probate of the complete stranger, the petitioner argues that such law should not apply
will ex-parte, there being no other opposition to the same. LLpr because it would be contrary to the sound and established public policy
and would run counter to the specific provisions of Philippine Law.
The third issue raised deals with the validity of the provisions of
the will. As a general rule, the probate court's authority is limited only to It is a settled rule that as regards the intrinsic validity of the
the extrinsic validity of the will, the due execution thereof, the testatrix's provisions of the will, as provided for by Article 16 (2) and 1039 of the
testamentary capacity and the compliance with the requisites or Civil Code, the national law of the decedent must apply. This was
solemnities prescribed by law. The intrinsic validity of the will normally squarely applied in the case of Bellis v. Bellis (20 SCRA 358) wherein we
comes only after the court has declared that the will has been duly ruled:
authenticated. However, where practical considerations demand that the
"It is therefore evident that whatever public policy
intrinsic validity of the will be passed upon, even before it is probated, the
or good customs may be involved in our system of
court should meet the issue. (Maninang v. Court of Appeals, 114 SCRA
legitimes, Congress has not intended to extend the same
478).
to the succession of foreign nationals. For it has
In the case at bar, the petitioner maintains that since the specifically chosen to leave, inter alia, the amount of
respondent judge allowed the reprobate of Adoracion's will, Hermogenes successional rights, to the decedent's national law.
C. Campos was divested of his legitime which was reserved by the law Specific provisions must prevail over general ones.
for him.
xxx xxx xxx
This contention is without merit.
"The parties admit that the decedent, Amos G.
Although on its face, the will appeared to have preterited the Bellis, was a citizen of the State of Texas, U.S.A., and
petitioner and thus, the respondent judge should have denied its under the law of Texas, there are no forced heirs or
reprobate outright, the private respondents have sufficiently established legitimes. Accordingly, since the intrinsic validity of the
that Adoracion was, at the time of her death, an American citizen and a provision of the will and the amount of successional rights
permanent resident of Philadelphia, Pennsylvania, U.S.A. Therefore, are to be determined under Texas law, the Philippine Law
under Article 16 par. (2) and 1039 of the Civil Code which respectively on legitimes cannot be applied to the testacy of Amos G.
provide: Bellis."
Art. 16 par. (2).
As regards the alleged absence of notice of hearing for the
xxx xxx xxx petition for relief, the records will bear the fact that what was repeatedly
"However, intestate and testamentary scheduled for hearing on separate dates until June 19, 1980 was the
successions, both with respect to the order of succession petitioner's petition for relief and not his motion to vacate the order of
and to the amount of successional rights and to the January 10, 1979. There is no reason why the petitioner should have
intrinsic validity of testamentary provisions, shall be been led to believe otherwise. The court even admonished the
regulated by the national law of the person whose petitioner's failing to adduce evidence when his petition for relief was
succession is under consideration, whatever may be the repeatedly set for hearing. There was no denial of due process. The fact
nature of the property and regardless of the country that he requested "for the future setting of the case for hearing . . ." did
wherein said property may be found." not mean that at the next hearing, the motion to vacate would be heard
and given preference in lieu of the petition for relief. Furthermore, such
Art. 1039. request should be embodied in a motion and not in a mere notice of
hearing. prcd
"Capacity to succeed is governed by the law of the
nation of the decedent."
 Finally, we find the contention of the petition as to the issue of [G.R. No. L-2538. September 21, 1951.]
jurisdiction utterly devoid of merit. Under Rule 73, Section 1, of the Rules
of Court, it is provided that:
Testate Estate of the Deceased MARIANO MOLO Y
"SECTION 1. Where estate of deceased persons LEGASPI. JUANA JUAN VDA. DE MOLO, petitioner-
settled. — If the decedent is an inhabitant of the appellee, vs. LUZ, GLICERIA and CORNELIO
Philippines at the time of his death, whether a citizen or an MOLO, oppositor-appellants.
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 resided at the time of Claro M. Recto and Serafin C. Dizon, for appellants.
his death, and if he is an inhabitant of a foreign country,
the Court of First Instance of any province in which he had Delgado & Flores, for appellee.
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 SYLLABUS
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 1. WILLS; REVOCATION BY SUBSEQUENT WILL; EFFECT OF
be contested in a suit or proceeding, except in an appeal VOID REVOCATORY CLAUSE. — A subsequent will containing a
from that court, in the original case, or when the want of clause revoking a previous will, having been disallowed for the reason
jurisdiction appears on the record." that it was not executed in conformity with the provisions of section 618
Therefore, the settlement of the estate of Adoracion Campos of the Code of Civil Procedure as to the making of wills, cannot produce
was correctly filed with the Court of First Instance of Manila where she the effect of annuling the previous will, inasmuch as said revocatory
had an estate since it was alleged and proven the Adoracion at the time clause is void (Samson vs. Naval, 41 Phil., 838).
of her death was a citizen and permanent resident of Pennsylvania, 2. ID.; PROBATE; DEPENDENT RELATIVE REVOCATION. —
United States of America an not a "usual resident of Cavite" as alleged Even in the supposition that the destruction of the original will by the
by the petitioner. Moreover, petitioner is now estopped from questioning testator could be presumed from the failure of the petitioner to produce it
the jurisdiction of the probate court in the petition for relief. It is a settled in court, such destruction cannot have the effect of defeating the prior will
rule that a party cannot invoke the jurisdiction of a court to secure where it is founded on the mistaken belief that the later will has been
affirmative relief, against his opponent and after failing to obtain such validly executed and would be given due effect. The earlier will can still
relief, repudiate or question that same jurisdiction. (See Saulog Transit, be admitted to probate under the principle of "dependent relative
Inc. v. Hon. Manuel Lazaro, et al., G.R. No. 63284, April 4, 1984). LLphil revocation". The theory on which this principle is predicated is that the
testator did not intend to die intestate. And this intention is clearly
WHEREFORE, the petition for certiorari and prohibition is hereby manifest where he executed two wills on two different occasions and
dismissed for lack of merit. instituted his wife as his universal heir.
SO ORDERED.
Melencio-Herrera, Plana, Relova and De la Fuente, JJ ., concur.
DECISION
Teehankee, J ., took no part.
||| (Cayetano v. Leonidas, G.R. No. 54919, [May 30, 1984], 214 PHIL 460-
470)
BAUTISTA ANGELO, J p:

This is an appeal from an order of the Court of First Instance of

EN BANC Rizal admitting to probate the last will and testament of the deceased
Mariano Molo y Legaspi executed on August 17, 1918. The oppositors-
appellants brought the case on appeal to this Court for the reason that proceeding No. 8022, in order to enable her to obtain the
the value of the properties involved exceeds P50,000. probate of another alleged will of Molo dated 1918.
Mariano Molo y Legaspi died on January 24, 1941, in the "II. The court a quo erred in not holding that the
municipality of Pasay, province of Rizal, without leaving any forced heir petitioner is now estopped from seeking the probate of
either in the descending or ascending line. He was survived, however, by Molo's alleged will of 1918.
his wife, the herein petitioner Juana Juan Vda. de Molo, and by his "III. The lower court erred in not holding that
nieces and nephew, the oppositors-appellants, Luz, Gliceria and
petitioner herein has come to court with 'unclean hands'
Cornelio, all surnamed Molo, who were the legitimate children of
and as such is not entitled to relief.
Candido Molo y Legaspi, deceased brother of the testator. Mariano Molo
y Legaspi left two wills, one executed on August 17, 1918, (Exhibit A) "IV. The probate court erred in not holding that
and another executed on June 20, 1939, (Exhibit I). The latter will Molo's alleged will of August 17, 1918 was not executed in
contains a clause which expressly revokes the will executed in 1918. the manner required by law.
On February 7, 1941, Juana Juan Vda. de Molo filed in the Court "V. The probate court erred in not holding that the
of First Instance of Rizal a petition, which was docketed as special alleged will of 1918 was deliberately revoked by Molo
proceeding No. 8022, seeking the probate of the will executed by the himself.
deceased on June 20, 1939. There being no opposition, the will was "VI. The lower court erred in not holding that
probated. However, upon petition filed by the herein oppositors, the order Molo's will of 1918 was subsequently revoked by the
of the court admitting the will to probate was set aside and the case was decedent's will of 1939."
reopened. After hearing, at which both parties presented their evidence,
the court rendered decision denying the probate of said will on the In their first assignment of error, counsel for oppositors contend
ground that the petitioner failed to prove that the same was executed in that the probate court erred in not holding that the petitioner voluntarily
accordance with law. and deliberately frustrated the probate of the will dated June 20, 1939, in
order to enable her to obtain the probate of the will executed by the
In view of the disallowance of the will executed on June 20, deceased on August 17, 1918, pointing out certain facts and
1939, the widow on February 24, 1944, filed another petition for the circumstances which in their opinion indicate that petitioner connived
probate of the will executed by the deceased on August 17, 1918, which with witness Canuto Perez in an effort to defeat and frustrate the probate
was docketed as special proceeding No. 56, in the same court. Again, of the 1939 will because of her knowledge that said will was intrinsically
the same oppositors filed an opposition to the petition based on three defective in that "the one and only testamentary disposition thereof was a
grounds: (1) that petitioner is now estopped from seeking the probate of 'disposición captatoria'". These circumstances, counsel for the appellants
the will of 1918; (2) that said will has not been executed in the manner contend, constitute a series of steps deliberately taken by petitioner with
required by law and (3) that the will has been subsequently revoked. But a view to insuring the realization of her plan of securing the probate of
before the second petition could be heard, the battle for liberation came the 1918 will which she believed would better safeguard her right to
and the records of the case were destroyed. Consequently, a petition for inherit from the deceased.
reconstitution was filed, but the same was found to be impossible
because neither petitioner nor oppositors could produce the copies These imputations of fraud and bad faith allegedly committed in
required for its reconstitution. As a result, petitioner filed a new petition connection with special proceedings No. 8022, now closed and
on September 14, 1946, similar to the one destroyed, to which the terminated, are vigorously met by counsel for petitioner who contends
oppositors filed an opposition based on the same grounds as those that to raise them in these proceedings which are entirely new and
contained in their former opposition. Then, the case was set for trial, and distinct and completely independent from the other is improper and unfair
on May 28, 1948, the court issued an order admitting the will to probate as they find no support whatsoever in any evidence submitted by the
as already stated in the early part of this decision. From this order the parties in this case. They are merely based on presumptions and
oppositors appealed assigning six errors, to wit: conjectures not supported by any proof. For this reason, counsel
contends, the lower court was justified in disregarding them and in
"I. The probate court erred in not holding that the passing them sub silentio in its decision.
present petitioner voluntarily and deliberately frustrated the
probate of the will dated June 20, 1939, in special A careful examination of the evidence available in this case
seems to justify this contention. There is indeed no evidence which may
justify the insinuation that petitioner had deliberately intended to frustrate unexpected happened. Over her vigorous opposition, the herein
the probate of the 1939 will of the deceased to enable her to seek the appellants filed a petition for reopening, and over her vigorous objection,
probate of another will other than a mere conjecture drawn from the the same was granted and the case was reopened. Her motion for
apparently unexpected testimony of Canuto Perez that he went out of the reconsideration was denied. Is it her fault that the case was reopened? Is
room to answer an urgent call of nature when Artemio Reyes was it her fault that the order admitting the will to probate was set aside? That
signing the will and the failure of petitioner later to impeach the character was a contingency which petitioner never expected. Had appellants not
of said witness in spite of the opportunity given her by the court to do so. filed their opposition to the probate of the will and had they limited their
Apart from this insufficiency of evidence, the record discloses that this objection to the intrinsic validity of said will, their plan to defeat the will
failure has been explained by petitioner when she informed the court that and secure the intestacy of the deceased would have perhaps been
she was unable to impeach the character of her witness Canuto Perez accomplished. But they failed in their strategy. If said will was denied
because of her inability to find witnesses who may impeach him, and this probate it is due to their own effort. It is now unfair to impute bad faith to
explanation stands uncontradicted. Whether this explanation is petitioner simply because she exerted every effort to protect her own
satisfactory or not, it is not now for us to determine. It is an incident that interest and prevent the intestacy of the deceased to happen.
comes within the province of the former case. The failure of petitioner to Having reached the foregoing conclusions, it is obvious that the
present the testimony of Artemio Reyes at the rehearing has also been
court did not commit the second and third errors imputed to it by the
explained, and it appears that petitioner has failed because his
counsel for appellants. Indeed, petitioner cannot be considered guilty of
whereabouts could not be found. Whether this is true or not is not also
estoppel which would prevent her from seeking the probate of the 1918
for this Court to determine. It is likewise within the province and function
will simply because her effort to obtain the allowance of the 1939 will has
of the court in the former case. And the unfairness of this imputation failed considering that in both the 1918 and 1939 wills she was instituted
becomes more glaring when we take stock of the developments that had by her husband as his universal heir. Nor can she be charged with bad
taken place in these proceedings which show in bold relief the true
faith far having done so because of her desire to prevent the intestacy of
nature of the conduct, behavior and character of the petitioner so bitterly
her husband. She cannot be blamed for being zealous in protecting her
assailed and held in disrepute by the oppositors.
interest.
It should be recalled that the first petition for the probate of the
The next contention of appellants refers to the revocatory clause
will executed on June 20, 1939, was filed on February 7, 1941, by the
contained in the 1939 will of the deceased which was denied probate.
petitioner. There being no opposition, the will was probated.
They contend that, notwithstanding the disallowance of said will, the
Subsequently, however, upon petition of the herein oppositors, the order
revocatory clause is valid and still has the effect of nullifying the prior will
of the court admitting said will to probate was set aside, over the
of 1918.
vigorous opposition of the herein petitioner, and the case was reopened.
The reopening was ordered because of the strong opposition of the Counsel for petitioner meets this argument by invoking the
oppositors who contended that the will had not been executed as doctrine laid down in the case of Samson vs. Naval, (41 Phil., 838). He
required by law. After the evidence of both parties had been presented, contends that the facts involved in that case are on all fours with the
the oppositors filed an extensive memorandum wherein they reiterated facts of this case. Hence, the doctrine in that case is here controlling.
their view that the will should be denied probate. And on the strength of There is merit in this contention. We have carefully read the facts
this opposition, the court disallowed the will. involved in the Samson case and we are indeed impressed by their
If petitioner then knew that the 1939 will was inherently defective striking similarity with the facts of this case. We do not need to recite
and would make the testamentary disposition in her favor invalid and here what those facts are; it is enough to point out that they contain
ineffective, because it is a "disposición captatoria", which knowledge she many points and circumstances in common. No reason, therefore, is
may easily acquire through consultation with a lawyer, there was no seen why the doctrine laid down in that case (which we quote hereunder)
need for her to go through the ordeal of filing the petition for the probate should not apply and control the present case.
of the will. She could accomplish her desire by merely suppressing the "A subsequent will, containing a clause revoking a
will or tearing or destroying it, and then take steps leading to the probate previous will, having been disallowed, for the reason that it
of the will executed in 1918. But her conscience was clear and bade her was not executed in conformity with the provisions of
to take the only proper step possible under the circumstances, which is section 618 of the Code of Civil Procedure as to the
to institute the necessary proceedings for the probate of the 1939 will. making of wills, cannot produce the effect of annulling the
This she did and the will was admitted to probate. But then the
 previous will, inasmuch as said revocatory clause is void." subsequently prepared but not executed in the manner
(41 Phil., 838.) required for a will.
Apropos of this question, counsel for oppositors make the "SEC. 472. Subsequent Unexecuted, Invalid, or
remark that, while they do not disagree with the soundness of the ruling Ineffective Will or Codicil. — A will which is invalid because
laid down in the Samson case, there is reason to abandon said ruling of the incapacity of the testator or of undue influence can
because it is archaic or antiquated and runs counter to the modern trend have no effect whatever as a revoking will. Moreover, a will
prevailing in American jurisprudence. They maintain that said ruling is no is not revoked by the unexecuted draft of a later one. Nor
longer controlling but merely represents the point of view of the minority is a will revoked by a defectively executed will or codicil,
and should, therefore, be abandoned, more so if we consider the fact even though the latter contains a clause expressly
that section 623 of our Code of Civil Procedure, which governs the revoking the former will, in a jurisdiction where it is
revocation of wills, is of American origin and as such should follow the provided by a controlling statute that no writing other than
prevailing trend of the majority view in the United States. A long line of a testamentary instrument is sufficient to revoke a will, for
authorities is cited in support of this contention. And these authorities the simple reason that there is no revoking will. Similarly
hold the view, that "an express revocation is immediately effective upon where the statute provides that a will may be revoked by a
the execution of the subsequent will, and does not require that it first subsequent will or other writing executed with the same
undergo the formality of a probate proceeding". (p 63, appellants' brief). formalities as are required in the execution of wills, a
While there are many cases which uphold the view entertained defectively executed will does not revoke a prior will, since
by counsel for oppositors, and that view appears to be controlling in the it cannot be said that there is a writing which complies with
the statute. Moreover, a will or codicil which, on account of
states where the decisions had been promulgated, however, we are
the manner in which it is executed, is sufficient to pass
reluctant to fall in line with the assertion that is now the prevailing view in
only personally does not affect dispositions of real estate
the United States. In the search we have made of American authorities
on the subject, we found ourselves in a pool of conflicting opinions made by a former will, even though it may expressly
perhaps because of the peculiar provisions contained in the statutes purport to do so. The intent of the testator to revoke is
immaterial, if he has not complied with the statute." (57
adopted by each State on the subject of revocation of wills. But the
Am. Jur., 328, 329.)
impression we gathered from a review and study of the pertinent
authorities is that the doctrine laid down in the Samson case is still a We find the same opinion in the American Law Reports,
good law. On page 328 of the American Jurisprudence, Vol. 57, which is Annotated, edited in 1939. On page 1400, Volume 123, there appear
a revision published in 1948, we found the following passages which in many authorities on the "application of rules where second will is invalid",
our opinion truly reflect the present trend of American jurisprudence on among which a typical one is the following:
this matter affecting the revocation of prior wills:
"It is universally agreed that where the second will
"SEC. 471. Observance of Formalities in is invalid on account of not being executed in accordance
Execution of Instrument. — Ordinarily, statutes which with the provisions of the statute, or where the testator has
permit the revocation of a will by another writing provide not sufficient mental capacity to make a will or the will is
that to be effective as a revocation, the writing must be procured through undue influence, or the such, in other
executed with the same formalities which are required to words, where the second will is really no will, it does not
be observed in the execution of a will. Accordingly, where, revoke the first will or affect it in any manner." Mort vs.
under the statutes, attestation is necessary to the making Baker University (1935) 229 Mo. App., 632, 78 S. W. (2d),
of a valid will, an unattested nontestamentary writing is not 498."
effective to revoke a prior will. It has been held that a
These treaties cannot be mistaken. They uphold the view on
writing fails as a revoking instrument where it is not
which the ruling in the Samson case is predicated. They reflect the
executed with the formalities requisite for the execution of opinion that this ruling is sound and good and for this reason we see no
a will, even though it is inscribed on the will itself, although justification for abandoning it as now suggested by counsel for the
it may effect a revocation by cancellation or obliteration of
oppositors.
the words of the will. A testator cannot reserve to himself
the power to modify a will by a written instrument
 It is true that our law on the matter (sec. 623, Code of Civil that said earlier will was destroyed by the testator in the honest belief
Procedure) provides that a will may be revoked "by some will, codicil, or that it was no longer necessary because he had expressly revoked it in
other writing executed as provided in case of wills"; but it cannot be said his will of 1939? In other words, can we not say that the destruction of
that the 1939 will should be regarded, not as a will within the meaning of the earlier will was but the necessary consequence of the testator's belief
said word, but as "other writing executed as provided in the case of that the revocatory clause contained in the subsequent will was valid and
wills", simply because it was denied probate. And even if it be regarded the latter would be given effect? If such is the case, then it is our opinion
as any other writing within the meaning of said clause, there is authority that the earlier will can still be admitted to probate under the principle of
for holding that unless said writing is admitted to probate, it cannot have "dependent relative revocation".
the effect of revocation. (See 57 Am. Jur. pp. 329-330). "This doctrine is known as that of dependent
But counsel for oppositors contend that, regardless of said relative revocation, and is usually applied where the
revocatory clause, said will of 1918 cannot still be given effect because testator cancels or destroys a will or executes an
of the presumption that it was deliberately revoked by the testator instrument intended to revoke a will with a present
himself. The oppositors contend that the testator, after executing the intention to make a new testamentary disposition as a
1939 will, and with full knowledge of the revocatory clause contained in substitute for the old, and the new disposition is not made
said will, himself deliberately destroyed the original of the 1918 will, and or, if made, fails of effect for some reason. The doctrine is
that for this reason the will submitted by petitioner for probate in these not limited to the existence of some other document,
proceedings is only a duplicate of said original. however, and has been applied where a will was
There is no evidence which may directly indicate that the testator destroyed as a consequence of a mistake of law . . .." (68
deliberately destroyed the original of the 1918 will because of his C. J. p. 799).
knowledge of the revocatory clause contained in the will he executed in "The rule is established that where the act of
1939. The only evidence we have is that when the first will was executed destruction is connected with the making of another will so
in 1918, Juan Salcedo, who prepared it, gave the original and copies to as fairly to raise the inference that the testator meant the
the testator himself and apparently they remained in his possession until revocation of the old to depend upon the efficacy of the
he executed his second will in 1939. And when the 1939 will was denied new disposition intended to be substituted, the revocation
probate on November 29, 1943, and petitioner was asked by her will be conditional and dependent upon the efficacy of the
attorney to look for another will, she found the duplicate copy (Exhibit A) new disposition; and if, for any reason, the new will
among the papers or files of the testator. She did not find the original. intended to be made as a substitute is inoperative, the
revocation fails and the original will remains in full force."
If it can be inferred that the testator deliberately destroyed the
(Gardner, pp. 232, 233.)
1918 will because of his knowledge of the revocatory clause of the 1939
will, and it is true that he gave a duplicate copy thereof to his wife, the "This is the doctrine of dependent relative
herein petitioner, the most logical step for the testator to take is to recall revocation. The failure of the new testamentary
said duplicate copy in order that it may likewise be destroyed. But this disposition, upon whose validity the revocation depends, is
was not done as shown by the fact that said duplicate copy remained in equivalent to the non-fulfillment of a suspensive condition,
the possession of petitioner. It is possible that because of the long lapse and hence prevents the revocation of the original will. But
of twenty-one (21) years since the first will was executed, the original of a mere intent to make at some time a will in place of that
the will had been misplaced or lost, and forgetting that there was a copy, destroyed will not render the destruction conditional. It
the testator deemed it wise to execute another will containing exactly the must appear that the revocation is dependent upon the
same testamentary dispositions. Whatever may be the conclusion we valid execution of a new will." (1 Alexander, p. 751;
may draw from this chain of circumstances, the stubborn fact is that Gardner, p. 233.)
there is no direct evidence of voluntary or deliberate destruction of the
We hold, therefore, that even in the supposition that the
first will by the testator. This matter cannot be left to mere inference or destruction of the original will by the testator could be presumed from the
conjecture. failure of the petitioner to produce it in court, such destruction cannot
Granting for the sake of argument that the earlier will was have the effect of defeating the prior will of 1918 because of the fact that
voluntarily destroyed by the testator after the execution of the second it is founded on the mistaken belief that the will of 1939 has been validly
will, which revoked the first, could there be any doubt, under this theory, executed and would be given due effect. The theory on which this
 principle is predicated is that the testator did not intend to die intestate. 1. REMEDIAL LAW; SPECIAL PROCEEDINGS; RESPONDENT
And this intention is clearly manifest when he executed two wills on two JUDGE COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING
different occasions and instituted his wife as his universal heir. There can TO LACK OF JURISDICTION WHEN HE GRANTED THE OMNIBUS
therefore be no mistake as to his intention of dying testate. MOTION FOR RECONSIDERATION. — We do not hesitate to rule that
the respondent Judge committed grave abuse of discretion amounting to
The remaining question to be determined refers to the sufficiency
lack of jurisdiction when he granted the Omnibus Motion for
of the evidence to prove the due execution of the will.
Reconsideration and thereafter set aside the probate judgment of 13
The will in question was attested, as required by law, by three November 1972 in Sp. Proc. No. 3309-R, declared the subject will of the
witnesses, Lorenzo Morales, Rufino Enriquez, and Angel Cuenca. The testatrix a forgery, nullified the testamentary dispositions therein and
first two witnesses died before the commencement of the present ordered the conversion of the testate proceedings into one of intestacy. It
proceedings. So the only instrumental witness available was Angel is not disputed that private respondents filed on the date of the initial
Cuenca and under our law and precedents, his testimony is sufficient to hearing of the petition their "Withdrawal of Opposition To Allowance of
prove the due execution of the will. However, petitioner presented not Probate (sic) Will" wherein they unequivocally state that they have no
only the testimony of Cuenca but placed on the witness stand Juan objection to the allowance of the will. For all legal intents and purposes,
Salcedo, the notary public who prepared and notarized the will upon the they became proponents of the same. After the probate court rendered
express desire and instruction of the testator. The testimony of these its decision on 13 November 1972, and there having been no claim
witnesses shows that the will had been executed in the manner required presented despite publication of notice to creditors, petitioner Fran
by law. We have read their testimony and we were impressed by their submitted a Project of Partition which private respondent Maria M. Vda.
readiness and sincerity. We are convinced that they told the truth. de Gandiongco voluntarily signed and to which private respondent
Wherefore, the order appealed from is hereby affirmed, with Espina expressed her conformity through a certification filed with the
costs against the appellants. probate court. Assuming for the sake of argument that private
respondents did not receive a formal notice of the decision as they claim
Paras, C.J., Feria, Pablo, Bengzon, Tuason and Jugo, in their Omnibus Motion for Reconsideration, these acts nevertheless
JJ., concur. constitute indubitable proof of their prior actual knowledge of the same.
Reyes, J., concurs in the result. 2. RECEPTION OF EVIDENCE BY THE CLERK OF COURT
||| (Vda. de Molo v. Molo, G.R. No. L-2538, [September 21, 1951], 90 PHIL UPHELD; DOCTRINE LAID DOWN IN LIM TANHU V. RAMOLETE NOT
37-49) APPLICABLE; NEW DOCTRINE SHOULD BE APPLIED
PROSPECTIVELY. — Neither do We give any weight to the contention
that the reception of evidence by the Clerk of Court is null and void per
the doctrine laid down in Lim Tanhu v. Ramolete. In the first place, Lim
THIRD DIVISION Tanhu was decided on 29 August 1975, nearly four (4) years after the
probate court authorized the Clerk of Court to receive the evidence for
[G.R. No. 53546. June 25, 1992.] the petitioner in this case. A month prior to Lim Tanhu, or on 30 July
1975, this Court, in Laluan vs. Malpaya, recognized and upheld the
practice of delegating the reception of evidence to Clerks of Court. Thus:
THE HEIRS OF THE LATE JESUS FRAN and CARMEN "No provision of law or principle of public policy prohibits a court from
MEJIA RODRIGUEZ, petitioner, vs. HON. BERNARDO authorizing its clerk of court to receive the evidence of a party litigant.
LL. SALAS, CONCEPCION MEJIA ESPINA and MARIA After all, the reception of evidence by the clerk of court constitutes but a
MEJIA GANDIONGCO, respondents. ministerial task — the taking down of the testimony of the witnesses and
the marking of the pieces of documentary evidence, if any, adduced by
the party present. This task of receiving evidence precludes, on the part
of the clerk of court, the exercise of judicial discretion usually called for
SYLLABUS
when the other party who is present objects to questions propounded
and to the admission of the documentary evidence proffered. More
importantly, the duty to render judgment on the merits of the case still
rests with the judge who is obliged to personally and directly prepare the
decision based upon the evidence reported. But where the proceedings silent as to the specific manner of bringing the jurisdictional allegations
before the clerk of court and the concomitant result thereof, i.e., the before the court, by practice the jurisprudence have established that they
judgment rendered by the court based on the evidence presented in should be made in the form of an application and filed with the original of
such limited proceedings, prejudice the substantial rights of the the will attached thereto. It has been the practice in some courts to
aggrieved party, then there exists sufficient justification to grant the latter permit attachment of a mere copy of the will to the application, without
complete opportunity to thresh out his case in court." Monserrate prejudice to producing the original thereof at the hearing or when the
vs. Court of Appeals, decided on 29 September 1989, reiterated this court so requires. This precaution has been adopted by some attorneys
rule. Lim Tanhu then cannot be used as authority to nullify the order of to forestall its disappearance, which has taken place in certain cases."
the probate court authorizing the Clerk of Court to receive the evidence That the annexing of the original will to the petition is not a jurisdictional
for the rule is settled that "when a doctrine of this Court is overruled and requirement is clearly evident in Section 1, Rule 76 of the Rules of Court
a different view is adopted, the new doctrine should be applied which allows the filing of a petition for probate by the person named
prospectively, and should not apply to parties who had relied on the old therein regardless of whether or not he is in possession of the will, or the
doctrine and acted on the faith thereof." same is lost or destroyed.
3. CLERK OF COURT NEED NOT TAKE ANOTHER OATH OF 5. COURSES OF ACTION OPENED TO AN AGGRIEVED
OFFICE TO RECEIVE EVIDENCE. — The alternative claim that the PARTY TO ATTACK A FINAL JUDGMENT; PRIVATE RESPONDENTS
proceedings before the Clerk of Court were likewise void because said HAD LOST THE RIGHT TO FILE A PETITION FOR RELIEF FROM
official did not take an oath is likewise untenable. The Clerk of Court JUDGMENT; REASON. — In Our jurisdiction, the following courses of
acted as such when he performed the delegated task of receiving action are open to an aggrieved party to set aside or attack the validity of
evidence. It was not necessary for him to take an oath for that purpose; a final judgment: (1) Petition for relief under Rule 38 of the Rules of Court
he was bound by his oath of office as a Clerk of Court. Private which must be filed within sixty (60) days after learning of the decision,
respondents are obviously of the impression that by the delegation of the but not more than six (6) months after such decision is entered; (2) By
reception of evidence to the Clerk of Court, the latter became direct action, via a special civil action for certiorari, or by collateral attack,
a commissioner as defined under Rule 33 of the Rules of Court entitled assuming that the decision is void for want of jurisdiction; (3) By an
Trial by Commissioner. This is not correct; as this Court said in Laluan: independent civil action under Article 1114 of the Civil Code, assuming
"The provisions of Rule 33 of the Rules of Court invoked by both parties that the decision was obtained through fraud and Rule 38 can not be
properly relate to the reference by a court of any or all of the issues in a applied. It is not difficult to see that private respondents had lost their
case to a person so commissioned to act or report thereon. These right to file a petition for relief from judgment, it appearing that their
provisions explicitly spell out the rules governing the conduct of the court, omnibus motion for reconsideration was filed exactly six (6) years, ten
the commissioner, and the parties before, during, and after the reference (10) months and twenty-two (22) days after the rendition of the decision,
proceedings. Compliance with these rules of conduct becomes and six (6) years, one (1) month and thirteen (13) days after the court
imperative only when the court formally orders a reference of the case to issued the order approving the Project of Partition, to which they
a commissioner. Strictly speaking then, the provisions of Rule 33 find no voluntarily expressed their conformity through their respective
application to the case at bar where the court a quo merely directed the certifications, and closing the testate proceedings.
clerk of court to take down the testimony of the witnesses presented and
6. DECREE OF PROBATE IS CONCLUSIVE AS TO DUE
the mark the documentary evidence proffered on a date previously set
EXECUTION OF THE WILL; CAN BE IMPUGNED ONLY ON
for hearing."
GROUNDS OF FRAUD. — The probate judgment of 13 November 1972,
4. ANNEXING OF THE ORIGINAL WILL TO THE PETITION long final and undistributed by any attempt to unsettle it, had inevitably
NOT A JURISDICTIONAL REQUIREMENT. — In Santos passed beyond the reach of the court below to annul or set the same
vs. Castillo and Salazar vs. Court of First Instance of Laguna, decided aside, by mere motion, on the ground that the will is a forgery. Settled in
six (6) months apart in 1937, this Court already ruled that it is not the rule that the decree of probate is conclusive with respect to the due
necessary that the original of the will be attached to the petition. In the execution of the will and it cannot be impugned on any of the grounds
first, it ruled: "The original of said document [the will] must be authorized by law, except that of fraud, in any separate or independent
presented or sufficient reasons given to justify the nonpresentation of action or proceeding. We wish also to advert to the related doctrine
said original and the acceptance of the copy or duplicate thereof." In the which holds that final judgments are entitled to respect and should not be
second case, this Court was more emphatic in holding that: "The law is disturbed; otherwise, there would be a wavering of trust in the courts.
In Lee Bun Ting vs. Aligaen, this Court had the occasion to state the months and eighteen (18) days after the probate judgment
rationale of this doctrine, thus: "Reasons of public policy, judicial was rendered and six (6) years and twenty-one (21) days
orderliness, economy and judicial time and the interests of litigants, as after the testate proceedings was declared closed and
well as the peace and order of society, all require that stability be terminated; and
accorded the solemn and final judgments of the courts or tribunals of
competent jurisdiction." 2. The Order of 2 June 1980 finding the signature of the
testatrix in the last will and testament to be a forgery and
7. NON-DISTRIBUTION OF THE ESTATE NOT A GROUND (a) declaring the testatrix as having died intestate; (b)
FOR THE RE-OPENING OF THE TESTATE PROCEEDINGS. — The declaring the testamentary dispositions in said last will and
non-distribution of the estate, which is vigorously denied by the testament as null and void; (c) setting aside the order
petitioners, is not a ground for the re-opening of the testate proceedings. dated 10 September 1973 declaring the testate
A seasonable motion for execution should have been filed. InDe Jesus proceedings closed and terminated; (d) revoking the
vs. Daza, this Court ruled that if the executor or administrator has appointment of Jesus Fran as executor while appointing
possession of the share to be delivered, the probate court would have respondent Concepcion M. Espina as administratrix; and
jurisdiction within the same estate proceeding to order him to transfer (e) ordering the conversion of the proceedings to one of
that possession to the person entitled thereto. This is authorized under intestacy. 2 This Order effectively annulled and set aside
Section 1, Rule 90 of the Rules of Court. However, under Section 1, Rule the probate judgment of 13 November 1972.
90 of the Rules of Court. However, if no motion for execution is filed
within the reglementary period, a separate action for the recovery of the Petitioners would also have this Court nullify all other actions of
shares would be in order. As We see it, the attack of 10 September 1973 respondent Judge in said Sp. Proc. No. 3309-R; restore the status
on the Order was just a clever ploy to give a semblance of strength and quo therein prior to the issuance of the foregoing orders; and
substance to the Omnibus Motion for Reconsideration by depicting permanently enjoin respondent Judge from reopening said proceedings.
therein a probate court committing a series of fatal, substantive and
The following facts are not controverted:
procedural blunders, which We find to be imaginary, if not deliberately
fabricated. Remedios M. Vda. de Tiosejo, a widow, died on 10 July 1972 in
Cebu City with neither descendants nor ascendants; she left real and
personal properties located in Cebu City, Ormoc City and Puerto Bello,
Merida, Leyte. Earlier, on 23 April 1972, she executed a last will and
testament 3 wherein she bequeathed to her collateral relatives (brothers,
DECISION sisters, nephews and nieces) all her properties, and designated Rosario
Tan or, upon the latter's death, Jesus Fran, as executor to serve without
bond. Instrumental witnesses to the will were Nazario Pacquiao, Alcio
Demerre and Primo Miro. LLpr
DAVIDE, JR., J p: On 15 July 1972, Jesus Fran filed a petition with the Court of
First Instance of Cebu for the probate of Remedios' last will and
This is a petition for certiorari and prohibition under Rule 65 of testament. 4 The case was raffled to the original Branch VIII thereof
the Revised Rules of Court, with payer for a writ of preliminary injunction, which was then presided over by Judge Antonio D. Cinco. The petition
to annul and set aside, for having been issued without jurisdiction or with alleged that Rosario Tan is not physically well and, therefore, will not be
grave abuse of discretion amounting to lack of jurisdiction, the following assuming the position of administratix. Tan signed a waiver in favor of
Orders of the respondent Judge in Special Proceedings No. 3309-R of Jesus Fran on the third page of the said petition. The probate court
Branch VIII of the then Court of First Instance (now Regional Trial Court) issued an order setting the petition for hearing on 18 September 1972.
of Cebu entitled "In The Matter of the Petition for Probate of the Last Will Meanwhile, on 31 July 1972, the court appointed petitioner Jesus Fran
and Testament of Remedios Mejia Vda. de Tiosejo:" as special administrator.
1. The Order of 26 February 1980 setting for hearing On 10 August 1972, the private respondents, who are sisters to
private respondents' Omnibus Motion for the deceased, filed a manifestation 5 alleging that they needed time to
Reconsideration 1 which was filed six (6) years, ten (10) study the petition because some heirs who are entitled to receive their
respective shares have been intentionally omitted therein, and praying The requisite notice to creditors was issued, but despite the
that they be given ample time to file their opposition, after which the expiration of the period therein fixed, no claim was presented against the
hearing be reset to another date. estate.
Private respondents did not file any opposition. Instead, they On 4 January 1973, petitioner Fran filed an Inventory of the
filed on 18 September 1972 a "Withdrawal of Opposition to the Estate; 9 copies thereof were furnished each of the private respondents.
Allowance of Probate (sic) of the Will" wherein they expressly
Subsequently, a Project of Partition based on the dispositions
manifested, with their "full knowledge and consent that . . . they have no
made in the will and signed by all the devisees and legatees, with the
objection of (sic) the allowance of the . . . will of the late Remedios Mejia
exception of Luis Fran, Remedios C. Mejia and respondent Concepcion
Vda. de Tiosejo," and that they have "no objection to the issuance of
M. Espina, was submitted by the executor for the court's
letters testamentary in favor of petitioner, Dr. Jesus Fran." 6
approval. 10 Said legatees and devisees submitted certificates wherein
No other party filed an opposition. The petition thus became they admit receipt of a copy of the Project of Partition together with the
uncontested. notice of hearing, and state that they had no objection to its approval. 11
During the initial hearing, petitioner Fran introduced the requisite The notice of hearing referred to in these certifications is the 6
evidence to establish the jurisdictional facts. August 1973 notice issued by the Clerk of Court setting the hearing on
the Project of Partition for 29 August 1973. 12
Upon a determination that the court had duly acquired
jurisdiction over the uncontested petition for probate, Judge Cinco issued After the hearing on the Project of Partition, the court issued its
in open court an order directing counsel for petitioner to present Order of 10 September 1973 13 approving the same, declaring the
evidence proving the authenticity and due execution of the will before the parties therein as the only heirs entitled to the estate of Remedios Mejia
Clerk of Court who was, accordingly, so authorized to receive the same. Vda. de Tiosejo, directing the administrator to deliver to the said parties
their respective shares and decreeing the proceedings closed. The
The reception of evidence by the Clerk of Court immediately
dispositive portion thereof reads:
followed. Petition Fran's first witness was Atty. Nazario R. Pacquiao, one
of the subscribing witnesses to the will. The original of the will, marked "WHEREFORE, the signers (sic) to the project of partition
as Exhibit "F", and its English translation, marked as Exhibit "F- are declared the only heirs entitled to the estate; the
Translation", were submitted to the Clerk of Court.7 Petition Fran was the project of partition submitted is ordered approved and the
second and also the last witness. He enumerated the names of the administrator is ordered to deliver to each one of them
surviving heirs of the deceased. their respective aliquot parts as distributed in the said
project of partition. It is understood that if there are
On 13 November 1972, the probate court rendered a decision
expenses incurred or to be incurred as expenses of
admitting to probate the will of the testatrix, Remedios Mejia Vda. de
partition, Section 3 of Rule 90 shall be followed.
Tiosejo, and appointing petitioner Fran as executor thereof. 8 The
dispositive portion of the decision reads: Let this proceedings be now declared closed.
"WHEREFORE, in view of all the foregoing, judgment is SO ORDERED."
hereby rendered declaring the last will and testament of
the deceased Remedios Mejia Vda. de Tiosejo marked as Thereafter, the aforesaid Branch VIII of the Court of First
Exhibit F as admitted to probate. Dr. Jesus Fran is hereby Instance of Cebu was converted to a Juvenile and Domestic Relations
appointed as executor of the will. Let letters testamentary Court. On November 1978, by virtue of Presidential Decree No. 1439,
be issued in favor of Dr. Jesus Fran. The special Branch XVII (Danao City) of the Court of First Instance of Cebu, presided
administrator's bond put up by Dr. Jesus Fran as special over by herein respondent Judge, was officially transferred to Cebu City
administrator duly approved by this Court shall serve and and renumbered as Branch VIII.
be considered as the executor's bond considering that the
special administrator and executor are one and the same On 1 October 1979, private respondents filed with the new
person." Branch VIII an Omnibus Motion for Reconsideration of the probate
judgment of 13 November 1972 and on the Order of partition of 10
September 1973; in said motion, they ask the court to declare the
proceedings still open and admit their opposition to the allowance of the Consequently, on 8 April 1980, the instant petition was filed
will, 14 which they filed on 1 October 1979. They allege that: (a) they challenging the jurisdiction of the lower court in taking cognizance of the
were not furnished with a copy of the will; (b) the will is a forgery; (c) they Omnibus Motion for Reconsideration considering that the probate
were not notified of any resolution or order on their manifestation judgment and the order approving the Project of Partition and terminating
requesting time within which to file their opposition, or of the order the proceedings had long become final and had in fact been executed.
authorizing the clerk of court to receive the evidence for the petitioner, or Private respondents had long lost their right to appeal therefrom. The
of the order closing the proceedings; (d) the reception of evidence by the Omnibus Motion for Reconsideration cannot likewise be treated as a
clerk of court was void per the ruling in Lim Tanhu vs. Ramolete; 15 (e) petition for relief from judgment for under Rule 38 of the Revised Rules
the project of partition contains no notice of hearing and they were not of Court, the same must be filed within sixty (60) days from receipt of
notified thereof; (f) the petitioner signed the project of partition as notice of the judgment/order and within six (6) months from the date of
administrator and not as executor, thereby proving that the decedent said judgment. Therefore, this remedy can no longer be availed
died intestate; (g) the petitioner did not submit any accounting as of. LexLib
required by law; and (h) the petitioner never distributed the estate to the
On 8 April 1980, the date the instant petition was filed,
devisees and legatees.
respondent Judge proceeded with the hearing of the Omnibus Motion for
In a detailed opposition 16 to the above Omnibus Motion for Reconsideration. He received the testimonies of private respondents and
Reconsideration, petitioner Fran refuted all the protestations of private one Romeo O. Varena, an alleged handwriting expert fro the Philippine
respondents. Among other reasons, he stresses therein that: (a) private Constabulary, who averred that the signature of the testatrix on the will is
respondents are in estoppel to question the will because they filed their a forgery. The respondent Judge likewise issued an Order on the same
Withdrawal Of Opposition To The Allowance of Will which states that date stating that unless he received a restraining order from this Court
after thoroughly studying the petition, to which was attached a copy of within twenty (20) days therefrom, he will reopen Sp. Proc. No. 3309-R.
the English translation of the will, they have no objection to its allowance;
On 14 April 1980, petitioners filed a Supplemental Petition asking
the order directing the clerk of court to receive the evidence was dictated
this Court to restrain respondent Judge from reopening the case. 20
in open court in the presence of private respondents; private respondent
Maria M. Gandiongco signed the Project of Partition and private In their voluminous Comments and Opposition to the petition and
respondent Concepcion M. Espina submitted a certification stating Supplemental Petition, 21 private respondents not only amplify in great
therein that she received the notice of hearing therefore and has no detail the grounds raised in their Omnibus Motion for Reconsideration,
objection to its approval; (b) except for some properties, either covered they also squarely raise for the first time the following issues:
by a usufruct under the will or agreed upon by the parties to be held in
(a) The probate court never acquired jurisdiction over the
common by reason of its special circumstance, there was an actual
case since petitioner Jesus Fran failed to submit to the
distribution of the estate in accordance with the Project of Partition;
court the original of the will.
insofar as private respondents are concerned, they not only received
their respective shares, they even purchased the shares of the other (b) They were deprived of the opportunity to examine the
devisees. To top it all, private respondents' children, namely Rodrigo M. will as petitioner Jesus Fran did not attach it to the petition;
Gandiongco, Jr. and Victor Espina, mortgaged their respective shares in what was attached was only the English translation of the
favor of a bank. will.
Notwithstanding petitioners' objections, respondent Judge issued
(c) Even assuming that the probate judge could validly
on 26 February 1980 an Order setting for hearing the said Omnibus
delegate the reception of evidence to the Clerk of Court,
Motion for Reconsideration on 8 April 1980 so that "the witnesses and
the proceeding before the latter would sill be void as he
the exhibits (may be) properly ventilated." 17
failed to take an oath of office before entering upon his
On 25 March 1980, petitioners filed a Motion to Dismiss the duties as commissioner and failed to render a report on
Omnibus Motion and to Reconsider the 26 February 1980 Order setting it the matters submitted to him.
for hearing on 17 April 1980, 18 but the respondent Judge prematurely
denied it for lack of merit in his Order of 31 March 1980. 19 (d) Respondent Maria M. Vda. de Gandiongco was
defrauded into (sic) signing the Project of Partition and
respondent Concepcion M. Espina, her certification, when
 they were misled by petitioner Fran into believing that the probate court by petitioner's counsel; (c) she received the notice of
Agreement of Partition to be submitted to the court is the hearing of the petition for probate and because she was convinced that
Extra Judicial Patrician they signed on 7 May 1973. the signature of the testatrix was genuine, she, together with Concepcion
M. Espina, withdrew her opposition; (d) she received her share of the
(e) Petitioner Fran is guilty of fraud in undervaluing the estate of the late Remedios Media Vda. de Tiosejo which was distributed
estate of the late Remedios Media Vda. de Tiosejo by in accordance with the provisions of the latter's will; and (e) she did not
reporting properties worth only P400,000.00 when in truth authorize Atty. Numeriano Estenzo or other lawyers to present a motion
and in fact the estate has an aggregate value of to this Court after 25 February 1981 when Estenzo withdrew as counsel
P2,094,333.00. for private respondents. She then asks this Court to consider as
withdrawn her Opposition to the Allowance of the Will, her participation in
In the Resolution dated 2 June 1980, We issued a restraining
the Omnibus Motion for Reconsideration and her Opposition to this
order enjoining respondent Judge from reopening Sp. Proc. No. 3309-
petition.
R. 22
Due to the development, We required private respondent
However, on the same date, before the restraining order was
Concepcion M. Espina to comment on the affidavit of private respondent
served on him, respondent Judge issued the impugned order declaring
Maria M. Vda. de Gandiongco.
the testamentary dispositions of the will void, finding the signature of the
late Remedios Media Vda. de Tiosejo to be a forgery, decreeing the On 17 August 1985, private respondents filed a joint
reopening of Sp. Proc. No. 3309-R and converting the same into an manifestation 29 wherein they claim that Maria M. Vda. de Gandiongco
intestate proceeding. 23 does not remember executing the affidavit. A few weeks before the
affidavit was filed, particularly on 17 June 1985, Maria M. Vda. de
Hence, on 6 June 1980, petitioners filed their Second
Gandiongco was confined in the hospital; she could not recall having
Supplemental Petition 24 asking this Court to declare as null and void
signed, during this period, any affidavit or recognized her sisters and
the Order of 2 June 1980 and, pending such declaration, to restrain
other relatives.
respondent Judge from enforcing the same. Private respondents filed
their Comment and Opposition to the Second Supplemental Petition on 9 On 19 September 1985, respondent Maria M. Vda. de
July 1980. Gandiongco, through special counsel, filed a Manifestation/Motion with a
second Affidavit attached thereto 30 confessing that she signed the Joint
Thereafter, as mandated in the resolution of 30 June
Manifestation dated 16 August 1985 "without knowing or being informed
1980, 25 this Court gave due course to this case and required the parties
of its contents, and only upon Mrs. Concepcion Espina's request." She
to file their respective Memoranda, which private respondents complied
reiterated her desire to withdraw from the Omnibus Motion for
with on 16 August 1980; 26 petitioners filed theirs on 27 August
Reconsideration filed in Sp. Proc. No. 3309-R as well as from the instant
1980. 27 Consequently, the parties continued to file several pleadings
petition.
reiterating substantially the same allegations and arguments earlier
submitted to this Court. Despite the valiant attempt of private respondent Concepcion M.
Espina to influence and control the action of Maria Gandiongco, there is
On 22 March 1984, counsel for petitioners filed a manifestation
nothing in the records that would cast any doubt on the irrevocability of
informing this Court of the death of petitioner Fran on 29 February 1984
the latter's decision to withdraw her participation in the Omnibus Motion
and enumerating therein his surviving heirs. On 2 April 1984, this Court
for Reconsideration and Opposition to this case. That decision, however,
resolved to have said heirs substitute him in this case.
is not a ground for dropping her as a private respondent as the
Over a year later, respondent Maria M. Vda. de Gandiongco filed respondent Judge had already issued the abovementioned Order of 2
an affidavit, 28 sworn to before the acting Clerk of Court of the Regional June 1980.
Trial Court in Cebu City, disclosing the following material facts: (a) she
The petition and the supplemental petitions are impressed with
signed the Omnibus Motion for Reconsideration dated 1 October 1979
merit.
without knowing or reading the contents thereof; (b) she saw the will of
the late Remedios Media Vda. de Tiosejo written in the Cebuano dialect We do not hesitate to rule that the respondent Judge committed
after the same was executed by the latter; the said will bearing the grave abuse of discretion amounting to lack of jurisdiction when he
authentic signature of Remedios was the very one presented to the granted the Omnibus Motion for Reconsideration and thereafter set aside
the probate judgment of 13 November 1972 in Sp. Proc. No. 3309-R, any, adduced by the party present. This task of receiving
declared the subject will of the testatrix a forgery, nullified the evidence precludes, on the part of the clerk of court, the
testamentary dispositions therein and ordered the conversion of the exercise of judicial discretion usually called for when the
testate proceedings into one of intestacy. other party who is present objects to questions
propounded and to the admission of the documentary
It is not disputed that private respondents filed on the date of the
evidence proffered. 33 More importantly, the duty to render
initial hearing of the petition their "Withdrawal of Opposition To
judgment on the merits of the case still rests with the judge
Allowance of Probate (sic) Will" wherein they unequivocally state that
who is obliged to personally and directly prepare the
they have no objection to the allowance of the will. For all legal intents
decision based upon the evidence reported. 34
and purposes, they became proponents of the same.
After the probate court rendered its decision on 13 November But where the proceedings before the clerk of court and
1972, and there having been no claim presented despite publication of the concomitant result thereof, i.e., the judgment rendered
notice to creditors, petitioner Fran submitted a Project of Partition which by the court based on the evidence presented in such
private respondent Maria M. Vda. de Gandiongco voluntarily signed and limited proceedings, prejudice the substantial rights of the
to which private respondent Espina expressed her conformity through a aggrieved party, then there exists sufficient justification to
certification filed with the probate court. Assuming for the sake of grant the latter complete opportunity to thresh out his case
argument that private respondents did not receive a formal notice of the in court." 35
decision as they claim in their Omnibus Motion for Reconsideration, Monserrate vs. Court of Appeals, 36 decided on 29 September 1989,
these acts nevertheless constitute indubitable proof of their prior actual reiterated this rule. Lim Tanhu then cannot be used as authority to nullify
knowledge of the same. A formal notice would have been an idle the order of the probate court authorizing the Clerk of Court to receive
ceremony. In testate proceedings, a decision logically precedes the the evidence for the rule is settled that "when a doctrine of this Court is
project of partition, which is normally an implementation of the will and is overruled and a different view is adopted, the new doctrine should be
among the last operative acts to terminate the proceedings. If private applied prospectively, and should not apply to parties who had relied on
respondents did not have actual knowledge of the decision, they should the old doctrine and acted on the faith thereof." 37 It may also be
have desisted from performing the above acts and instead demanded emphasized in this connection that Lim Tanhu did not live long; it was
from petitioner Fran the fulfillment of his alleged promise to show them subsequently overruled in Gochangco vs. Court of First Instance of
the will. The same conclusion refutes and defeats the plea that they were Negros Occidental, 38 wherein this Court, en banc, through Justice, now
not notified of the order authorizing the Clerk of Court to receive the Chief Justice, Andres R. Narvasa, in reference to what the trial court
evidence and that the Clerk of Court did not notify them of the date of the termed as "the doctrinal rule laid down in the recent case in Lim Tan Hu
reception of evidence. Besides, such plea must fail because private (sic) vs. Ramolete," ruled:
respondents were present when the court dictated the said order.
"Now, that declaration does not reflect long observed and
Neither do We give any weight to the contention that the established judicial practice with respect to default cases.
reception of evidence by the Clerk of Court is null and void per the It is not quite consistent, too, with the several explicitly
doctrine laid down in Lim Tanhu v.Ramolete. 31 In the first place, Lim authorized instances under the Rules where the function of
Tanhu was decided on 29 August 1975, nearly four (4) years after the receiving evidence and even of making recommendatory
probate court authorized the Clerk of Court to receive the evidence for findings of facts on the basis thereof may be delegated to
the petitioner in this case. A month prior to Lim Tanhu, or on 30 July commissioners, inclusive of the Clerk of Court. These
1975, this Court, in Laluan vs. Malpaya, 32 recognized and upheld the instances are set out in Rule 33, . . .; Rules 67 and 69, . . .;
practice of delegating the reception of evidence to Clerks of Court. Thus: Rule 86, . . .; Rule 136, . . . In all these instances, the
"No provision of law or principle of public policy prohibits a competence of the clerk of court is assumed. Indeed, there
court from authorizing its clerk of court to receive the would seem, to be sure, nothing intrinsically wrong in
evidence of a party litigant. After all, the reception of allowing presentation of evidenceex parte before a Clerk of
evidence by the clerk of court constitutes but a ministerial Court. Such a procedure certainly does not foreclose relief
task — the taking down of the testimony of the witnesses to the party adversely affected who, for valid cause and
and the marking of the pieces of documentary evidence, if upon appropriate and seasonable application, may bring
about the undoing thereof or the elimination of prejudice
 thereby caused to him; and it is, after all, the Court itself Belatedly realizing the absence of substance of the above
which is duty bound and has the ultimate responsibility to grounds, private respondents now claim in their Comments to the
pass upon the evidence received in this manner, Petition and the Supplemental Petition that the trial court never acquired
discarding in the process such proofs as are incompetent jurisdiction over the petition because only the English translation of the
and then declare what facts have thereby been will — and not a copy of the same — was attached to the petition; the will
established. In considering and analyzing the evidence was not even submitted to the court for their examination within twenty
preparatory to rendition of judgment on the merits, it may (20) days after the death of the testatrix; and that there was fraud in the
not unreasonably be assumed that any serious error in procurement of the probate judgment principally because they were not
the ex-parte presentation of evidence, prejudicial to any given any chance to examine the signature of the testatrix and were
absent party, will be detected and duly remedied by the misled into signing the withdrawal of their opposition on the assurance of
Court, and/or may always, in any event, be drawn to its petitioner Fran and their sister, Rosario M. Tan, that the will would be
attention by any interested party. shown to them during the trial. These two grounds easily serve as the
bases for the postulation that the decision is null and void and so,
xxx xxx xxx therefore, their omnibus motion became all the more timely and proper.
It was therefore error for the Court a quo to have declared The contentions do not impress this Court.
the judgment by default to be fatally flawed by the fact that
the plaintiff's evidence had been received not by the Judge In Santos vs. Castillo 39 and Salazar vs. Court of First Instance
himself but by the clerk of court." of Laguna, 40 decided six (6) months apart in 1937, this Court already
ruled that it is not necessary that the original of the will be attached to the
The alternative claim that the proceedings before the Clerk of petition. In the first, it ruled: "The original of said document [the will] must
Court were likewise void because said official did not take an oath is be presented or sufficient reasons given to justify the nonpresentation of
likewise untenable. The Clerk of Court acted as such when he performed said original and the acceptance of the copy or duplicate thereof ." 41 In
the delegated task of receiving evidence. It was not necessary for him to the second case, this Court was more emphatic in holding that:
take an oath for that purpose; he was bound by his oath of office as a "The law is silent as to the specific manner of bringing the
Clerk of Court. Private respondents are obviously of the impression that jurisdictional allegations before the court, but through
by the delegation of the reception of evidence to the Clerk of Court, the practice the jurisprudence have established that they
latter became a commissioner as defined under Rule 33 of the Rules of should be made in the form of an application and filed with
Court entitled Trial by Commissioner. This is not correct; as this Court the original of the will attached thereto. It has been the
said inLaluan: practice in some courts to permit attachment of a mere
"The provisions of Rule 33 of the Rules of Court invoked copy of the will to the application, without prejudice to
by both parties properly relate to the reference by a court producing the original thereof at the hearing or when the
of any or all of the issues in a case to a person so court so requires. This precaution has been adopted by
commissioned to act or report thereon. These provisions some attorneys to forestall its disappearance, which has
explicitly spell out the rules governing the conduct of the taken place in certain cases." 42
court, the commissioner, and the parties before, during,
and after the reference proceedings. Compliance with That the annexing of the original will to the petition is not a
these rules of conduct becomes imperative only when the jurisdictional requirement is clearly evident in Section 1, Rule 76 of the
court formally orders a reference of the case to a Rules of Court which allows the filing of a petition for probate by the
commissioner. Strictly speaking then, the provisions of person named therein regardless of whether or not he is in possession of
Rule 33 find no application to the case at bar where the the will, or the same is lost or destroyed. The section reads in full as
court a quo merely directed the clerk of court to take down follows:
the testimony of the witnesses presented and to mark the "SECTION 1. Who may petition for the allowance of will. —
documentary evidence proffered on a date previously set Any executor, devisee, or legatee named in a will, or any
for hearing." 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, whether the same be "9. That an examination of the alleged will of our deceased
in his possession or not, or is lost or destroyed." sister has revealed that the signatures at the left hand
margin of Exhibit "F", are written by (sic) different person
In the instant case, a copy of the original will and its English than the signature appearing at the bottom of said alleged
translation were attached to the petition as Annex "A" and Annex "A-1", will . . ." 47
respectively, and made integral part of the same. It is to be presumed
that upon the filing of the petition the Clerk of Court, or his duly The availability of the will since 18 September 1972 for their
authorized subordinate, examined the petition and found that the examination renders completely baseless the private respondents' claim
annexes mentioned were in fact attached thereto. If they were not, the of fraud on petitioner Fran's part in securing the withdrawal of their
petition cannot be said to have been properly presented and the Clerk of opposition to the probate of the will. If indeed such withdrawal was
Court would not have accepted it for docketing. Under Section 6, Rule conditioned upon Fran's promise that the private respondents would be
136 of the Rules of Court, the Clerk of Court shall receive and file all shown the will during the trial, why weren't the appropriate steps taken by
pleadings and other papers properly presented, endorsing on each such the latter to confront Fran about this promise before certifications of
paper the time when it was filed. The presumption of regularity in the conformity to the project of partition were filed?
performance of official duty militates against private respondents' claim
Granting for the sake of argument that the non-fulfillment of said
that Annex "A" of the petition was not in fact attached thereto.
promise constitutes fraud, such fraud is not of the kind which provides
The certification of the Assistant Clerk of Court issued on 8 April sufficient justification for a motion for reconsideration or a petition for
1980, 43 or SIX (6) months after the filing of the motion for relief from judgment under Rule 37 and Rule 38, respectively, of the
reconsideration, to the effect that as per examination of the records of Rules of Court, or even a separate action for annulment of judgment. It is
Sp. Proc. No. 3309-R, "the copy of the Will mentioned in the petition as settled that for fraud to be invested with such sufficiency, it must be
Annex "A" is not found to be attached as of this date in the said petition; extrinsic or collateral to the matters involved in the issues raised during
only the English Translation of said Will is attached thereof (sic) as the trial which resulted in such judgment. 48
Annex "A-1" does not even save the day for private respondents. It is not
In Our jurisdiction, the following courses of action are open to an
conclusive because it fails to state the fact that as hereafter shown, the
aggrieved party to set aside or attack the validity of a final judgment:
pages of the records which correspond to the four (4) pages of Annex "A"
were missing or were detached therefrom. As emphatically asserted by (1) Petition for relief under Rule 38 of the Rules of Court
the petitioners in their Reply to the Comments of private which must be filed within sixty (60) days after learning of
respondents, 44 duly supported by a certification of the former Clerk of the decision, but not more than six (6) months after such
Court of the original Branch VIII of the court below, 45 and which private decision is entered;
respondents merely generally denied in their motion for reconsideration
with comments and opposition to consolidated reply, 46 the four-page (2) By direct action, via a special civil action for certiorari,
xerox copy of the will, marked as Annex "A" of the petition, became, as or by collateral attack, assuming that the decision is void
properly marked by the personnel of the original Branch VIII of the court for want of jurisdiction;
below upon the filing of the petition, pages 5, 6, 7 and 8 while the
(3) By an independent civil action under Article 1114 of the
translation thereof, marked as Annex "A-1", became pages 9, 10, 11 and
Civil Code, assuming that the decision was obtained
12 of the records. The markings were done in long hand. The records of
through fraud and Rule 38 can not be applied. 49
the case were thereafter sent to the Clerk of Court, 14th Judicial District,
Cebu City on 9 February 1978. These records, now in the possession of It is not difficult to see that private respondents had lost their
the respondent Judge, show that said pages 5, 6, 7 and 8 in long hand right to file a petition for relief from judgment, it appearing that their
are missing. As a consequence thereof, petitioners filed with the omnibus motion for reconsideration was filed exactly six (6) years, ten
Executive Judge of the court below an administrative complaint. (10) months and twenty-two (22) days after the rendition of the decision,
It is not likewise disputed that the original of the will was and six (6) years, one (1) month and thirteen (13) days after the court
submitted in evidence and marked as Exhibit "F". It forms part of the issued the order approving the Project of Partition, to which they
records of the special proceedings — a fact which private respondents voluntarily expressed their conformity through their respective
admit in their Omnibus Motion for Reconsideration, thus: certifications, and closing the testate proceedings.
 Private respondents did not avail of the other two (2) modes of 10 September 1973 on the Order was just a clever ploy to give a
attack. semblance of strength and substance to the Omnibus Motion for
Reconsideration by depicting therein a probate court committing a series
The probate judgment of 13 November 1972, long final and
of fatal, substantive and procedural blunders, which We find to be
undistributed by any attempt to unsettle it, had inevitably passed beyond
imaginary, if not deliberately fabricated.
the reach of the court below to annul or set the same aside, by mere
motion, on the ground that the will is a forgery. Settled in the rule that the WHEREFORE, the instant petition and supplemental petitions
decree of probate is conclusive with respect to the due execution of the are GRANTED. The Order of respondent Judge of 2 June 1980 and all
will and it cannot be impugned on any of the grounds authorized by law, other orders issued by him in Sp. Proc. No. 3309-R, as well as all other
except that of fraud, in any separate or independent action or proceedings had therein in connection with or in relation to the Omnibus
proceeding. 50 We wish also to advert to the related doctrine which Motion for Reconsideration, are hereby ANNULLED and SET ASIDE.
holds that final judgments are entitled to respect and should not be
The restraining order issued on 2 June 1980 is hereby made
disturbed; otherwise, there would be a wavering of trust in the
PERMANENT.
courts. 51 In Lee Bun Ting vs. Aligaen, 52 this Court had the occasion to
state the rationale of this doctrine, thus: Costs against private respondent Concepcion M. Espina.
"Reasons of public policy, judicial orderliness, economy SO ORDERED.
and judicial time and the interests of litigants, as well as
the peace and order of society, all require that stability be Gutierrez, Jr., Bidin and Romero, JJ ., concur.
accorded the solemn and final judgments of the courts or Feliciano, J ., took no part.
tribunals of competent jurisdiction."
||| (Heirs of Fran v. Salas, G.R. No. 53546, [June 25, 1992], 285 PHIL 789-
This is so even if the decision is incorrect 53 or, in criminal case, 814)
the penalty imposed is erroneous. 54
Equally baseless and unmeritorious is private respondents'
contention that the order approving the Project of Partition and closing SECOND DIVISION
the proceedings is null and void because the Project of Partition did not
contain a notice of hearing and that they were not notified of the hearing
[G.R. No. 103554. May 28, 1993.]
thereon. In truth, in her own certification 55dated 5 September 1973,
private respondent Concepcion M. Espina admitted that she "received a
copy of the Project of Partition and the Notice of Hearing in the above- TEODORO CANEDA, LORENZA CANEDA, TERESA
entitled proceeding, and that she has no objection to the approval of the CANEDA, JUAN CABALLERO, AUREA CABALLERO,
said Project of Partition." The notice of hearing she referred to is the OSCAR LAROSA, HELEN CABALLERO, SANTOS
Notice of Hearing For Approval of Project of Partition issued on 6 August CABALLERO, PABLO CABALLERO, VICTOR RAGA,
1973 by the Clerk of Court. 56 Private respondent Espina was lying MAURICIA RAGA, QUIRICA RAGA, RUPERTO ABAPO,
through her teeth when she claimed otherwise. represented herein by his Attorney-in-Fact,
ARMSTICIA * ABAPO VELANO, and CONSESO
The non-distribution of the estate, which is vigorously denied by
CANEDA, represented herein by his heirs, JESUS
the petitioners, is not a ground for the re-opening of the testate
CANEDA, NATIVIDAD CANEDA and ARTURO
proceedings. A seasonable motion for execution should have been filed.
CANEDA,petitioners, vs. HON. COURT OF APPEALS
In De Jesus vs. Daza, 57 this Court ruled that if the executor or
and WILLIAM CABRERA, as Special Administrator of
administrator has possession of the share to be delivered, the probate
the Estate of Mateo Caballero, respondents.
court would have jurisdiction within the same estate proceeding to order
him to transfer that possession to the person entitled thereto. This is
authorized under Section 1, Rule 90 of the Rules of Court. However,
Palma, Palma & Associates for petitioners.
under Section 1, Rule 90 of the Rules of Court. However, if no motion for
execution is filed within the reglementary period, a separate action for Emilio Lumontad, Jr. for private respondent.
the recovery of the shares would be in order. As We see it, the attack of
 SYLLABUS constitute an actual and legal publication; but to subscribe a paper published
as a will is only to write on the same paper the names of the witnesses, for
the sole purpose of identification (Hill vs. Davis, 167 P. 465, 466, 64 Okl.
1. CIVIL LAW; SUCCESSION; WILL; DEFINED. — A will has been defined 253, L.R.A. 1918 B 687).
as a species of conveyance whereby a person is permitted, with the
formalities prescribed by law, to control to a certain degree the disposition of 5. ID.; ID.; ID.; ID.; REQUIREMENTS; PURPOSES THEREOF. — Under the
his estate after his death (Rivera vs. Palmanori, 40 Phil. 116 (1919); Art. 810, third paragraph of Article 805, such a clause, the complete lack of which
Civil Code). would result in the invalidity of the will, should state (1) the number of pages
used upon which the will is written; (2) that the testator signed, or expressly
2. ID.; ID.; ID.; KINDS; REQUIREMENTS FOR EACH. — Under the Civil
caused another to sign, the will and every page thereof in the presence of the
Code, there are two kinds of wills which a testator may execute. The first kind
attesting witnesses; and (3) that the attesting witnesses witnessed the
is the ordinary or attested will, the execution of which is governed by Articles
signing by the testator of the will and all its pages,and that said witnesses
804 to 809 of the Code. In addition to the requirements under Article 805, the also signed the will and every page thereof in the presence of the testator
ordinary will must be acknowledged before a notary public by the testator and of one another. The purpose of the law in requiring the clause to state
and the attesting witnesses (Art. 806, Civil Code), hence it is likewise known
the number of pages on which the will is written is to safeguard against
as a notarial will. Where the testator is deaf or a deaf-mute, Article 807
possible interpolation or omission of one or some of its pages and to prevent
requires that he must personally read the will, if able to do so. Otherwise, he
any increase or decrease in the pages; (In the matter of the Estate of
should designate two persons who will read the will and communicate its
Sanguinsin, 41 Phil. 875 [1920]; In re Will of Andrada, 42 Phil. 180 [1921])
contents to him in a practicable manner. On the other hand, if the testator is whereas the subscription of the signatures of the testator and the attesting
blind, the will should be read to him twice; once, by anyone of the witnesses witnesses is made for the purpose of authentication and identification, and
thereto, and then again, by the notary public before whom it is acknowledged
thus indicates that the will is the very same instrument executed by the
(Art. 808, Civil Code). The other kind of will is the holographic will, which
testator and attested to by the witnesses. (Testate Estate of Paula Toray, 87
Article 810 defines as one that is entirely written, dated, and signed by the
Phil. 611 [1938]). Further, by attesting and subscribing to the will, the
hand of the testator himself. This kind of will, unlike the ordinary type,
witnesses thereby declare the due execution of the will as embodied in the
requires no attestation by witnesses. A common requirement in both kinds of attestation clause. (Gonzales vs. Gonzales de Carungcong, 90 Phil. 444
wills is that they should be in writing and must have been executed in a [1951]). The attestation clause, therefore, provides strong legal guaranties for
language or dialect known to the testator (Art. 804, Civil Code). the due execution of a will and to insure the authenticity thereof ( Echevarria
3. ID.; ID.; ID.; ATTESTATION CLAUSE; CONSTRUED. — An attestation vs. Sarmiento, 66 Phil. 611 [1938]). As it appertains only to the witnesses
clause refers to that part of an ordinary will whereby the attesting witnesses and not to the testator, it need be signed only by them (Abangan vs.
certify that the instrument has been executed before them and to the manner Abangan, 40 Phil. 476 [1919]). Where it is left unsigned, it would result in the
of the execution of the same (Testate Estate of Paula Toray, 87 Phil. 139 invalidation of the will as it would be possible and easy to add the clause on
[1950]). It is a separate memorandum or record of the facts surrounding the a subsequent occasion in the absence of the testator and the witnesses.
conduct of execution and once signed by the witnesses, it gives affirmation to (Cagro vs. Cagro, 92 Phil. 1032 [1953]). In Taboada vs. Rosal, (118 SCRA
the fact that compliance with the essential formalities required by law has 195 [1982]), we clarified that attestation consists in witnessing the testator's
been observed. (Vda. de Ramos, et al. vs. Court of Appeals, et. al., 81 SCRA execution of the will in order to see and take note mentally that those things
393 [1978]). It is made for the purpose of preserving in a permanent form a are done which the statute requires for the execution of a will and that the
record of the facts that attended the execution of a particular will, so that in signature of the testator exists as a fact. On the other hand, subscription is
case of failure of the memory of the attesting witnesses, or other casualty, the signing of the witnesses' names upon the same paper for the purpose of
such facts may still be proved (Leynez vs. Leynez, 68 Phil. 745 [1939]). identification of such paper as the will which was executed by the testator. As
it involves a mental act, there would be no means, therefore, of ascertaining
4. ID.; ID.; ID.; ID.; ATTESTATION AND SUBSCRIPTION, by a physical examination of the will whether the witnesses had indeed
DIFFERENTIATED. — It will be noted that Article 805 requires that the signed in the presence of the testator and of each other unless this is
witnesses should both attest and subscribe to the will in the presence of the substantially expressed in the attestation.
testator and of one another. "Attestation" and "subscription" differ in
meaning. Attestation is that act of the senses, while subscription is the act of 6. ID.; ID.; ID.; ID.; ID.; NOT SATISFIED IN CASE AT BAR. — What is fairly
the hand. The former is mental, the latter mechanical, and to attest a will is to apparent upon a careful reading of the attestation clause herein assailed is
know that it was published as such, and to certify the facts required to the fact that while it recites that the testator indeed signed the will and all its
pages in the presence of the three attesting witnesses and states as well the an overall appreciation of the contents of the will yields no basis whatsoever
number of pages that were used, the same does not expressly state therein from which such facts may be plausibly deduced. What private respondent
the circumstance that said witnesses subscribed their respective signatures insists on are the testimonies of his witnesses alleging that they saw the
to the will in the presence of the testator and of each other. The phrase "and compliance with such requirements by the instrumental witnesses, oblivious
he has signed the same and every page thereof, on the spaces provided for of the fact that he is thereby resorting to extrinsic evidence to prove the same
his signature and on the left hand margin," obviously refers to the testator and would accordingly be doing by indirection what in law he cannot do
and not the instrumental witnesses as it is immediately preceded by the directly. It may thus be stated that the rule, as it now stands, is that
words "as his Last Will and Testament." On the other hand, although the omissions which can be supplied by an examination of the will itself, without
words "in the presence of the testator and in the presence of each and all of the need of resorting to extrinsic evidence, will not be fatal and,
us" may, at first blush, appear to likewise signify and refer to the witnesses, it correspondingly, would not obstruct the allowance to probate of the will being
must however, be interpreted as referring only to the testator signing in the assailed. However, those omissions which cannot be supplied except by
presence of the witnesses since said phrase immediately follows the words evidence aliunde would result in the invalidation of the attestation clause and
"he has signed the same and every page thereof, on the spaces provided ultimately, of the will itself.
for his signature and on the left hand margin." What is then clearly lacking, in
the final logical analysis, is the statement that the witnesses signed the will
and every page thereof in the presence of the testator and of one another. It
is our considered view that the absence of that statement required by law is a
fatal defect or imperfection which must necessarily result in the disallowance
DECISION
of the will that is here sought to be admitted to probate. Petitioners are
correct in pointing out that the aforestated defect in the attestation clause
obviously cannot be characterized as merely involving the form of the will or
the language used therein which would warrant the application of the REGALADO, J p:
substantial compliance rule, as contemplated in Article 809 of the Civil Code.
Where the attestation clause totally omits the fact that the attesting witnesses Presented for resolution by this Court in the present petition for review on
signed each and every page of the will in the presence of the testator and of certiorari is the issue of whether or not the attestation clause contained in the
each other, the defect is not only in the form or the language of the last will and testament of the late Mateo Caballero complies with the
attestation clause but the total absence of a specific element required by requirements of Article 805, in relation to Article 809, of the Civil Code.
Article 805 to be specifically stated in the attestation clause of a will. That is
precisely the defect complained of in the present case since there is no The records show that on December 5, 1978, Mateo Caballero, a widower
plausible way by which we can read into the questioned attestation clause without any children and already in the twilight years of his life, executed a
any statement, or an implication thereof, that the attesting witnesses did last will and testament at his residence in Talisay, Cebu before three
actually bear witness to the signing by the testator of the will and all its pages attesting witnesses, namely, Cipriano Labuca, Gregorio Cabando and
and that said instrumental witnesses also signed the will and every page Flaviano Toregosa. The said testator was duly assisted by his lawyer, Atty.
thereof in the presence of the testator and of one another. Emilio Lumontad, and a notary public, Atty. Filoteo Manigos, in the
preparation of that last will. 1 It was declared therein, among other things,
7. ID.; ID.; ID.; ID.; ID.; RULE ON SUBSTANTIAL COMPLIANCE UNDER that the testator was leaving by way of legacies and devises his real and
ART. 809 OF THE CIVIL CODE; NOT APPLICABLE IN CASE AT BAR. — personal properties to Presentacion Gaviola, Angel Abatayo, Rogelio
The rule on substantial compliance in Article 809 cannot be invoked or relied Abatayo, Isabelito Abatayo, Benoni G. Cabrera and Marcosa Alcantara, all of
on by respondents since it presupposes that the defects in the attestation whom do not appear to be related to the testator. 2
clause can be cured or supplied by the text of the will or a consideration of
matters apparent therefrom which would provide the data not expressed in Four months later, or on April 4, 1979, Mateo Caballero himself filed a
the attestation clause or from which it may necessarily be gleaned or clearly petition docketed as Special Proceeding No. 3899-R before Branch II of the
inferred that the acts not stated in the omitted textual requirements were then Court of First Instance of Cebu seeking the probate of his last will and
actually complied with in the execution of the will. In other words, the defects testament. The probate court set the petition for hearing on August 20, 1979
must be remedied by intrinsic evidence supplied by the will itself. In the case but the same and subsequent scheduled hearings were postponed for one
at bar, contrarily, proof of the acts required to have been performed by the reason or another. On May 29, 1980, the testator passed away before his
attesting witnesses can be supplied only by extrinsic evidence thereof, since petition could finally be heard by the probate court. 3 On February 25, 1981,
Benoni Cabrera, one of the legatees named in the will, sought his Will and Testament now marked Exhibit 'C' on December
appointment as special administrator of the testator's estate, the estimated 5, 1978. Moreover, the fact that it was Mateo Caballero
value of which was P24,000.00, and he was so appointed by the probate who initiated the probate of his Will during his lifetime
court in its order of March 6, 1981. 4 when he caused the filing of the original petition now
marked Exhibit 'D' clearly underscores the fact that this
Thereafter, herein petitioners, claiming to be nephews and nieces of the was indeed his Last Will. At the start, counsel for the
testator, instituted a second petition, entitled "In the Matter of the Intestate oppositors manifested that he would want the signature of
Estate of Mateo Caballero" and docketed as Special Proceeding No. 3965-R, Mateo Caballero in Exhibit 'C' examined by a handwriting
before Branch IX of the aforesaid Court of First Instance of Cebu. On expert of the NBI but it would seem that despite their
October 18, 1982, herein petitioners had their said petition for intestate avowal and intention for the examination of this signature
proceedings consolidated with Special Proceeding No. 3899-R in Branch II of of Mateo Caballero in Exhibit 'C', nothing came out of it
the Court of First Instance of Cebu and opposed thereat the probate of the because they abandoned the idea and instead presented
testator's will and the appointment of a special administrator for his estate. 5 Aurea Caballero and Helen Caballero Campo as
witnesses for the oppositors.
Benoni Cabrera died on February 8, 1982 hence the probate court, now
known as Branch XV of the Regional Trial Court of Cebu, appointed William "All told, it is the finding of this Court that Exhibit `C' is the
Cabrera as special administrator on June 21, 1983. Thereafter, on July 20, Last Will and Testament of Mateo Caballero and that it
1983, it issued an order for the return of the records of Special Proceeding was executed in accordance with all the requisites of
No. 3965-R to the archives since the testate proceedings for the probate of law." 9
the will had to be heard and resolved first. On March 26, 1984 the case was
reraffled and eventually assigned to Branch XII of the Regional Trial Court of Undaunted by said judgment of the probate court, petitioners elevated the
Cebu where it remained until the conclusion of the probate proceedings. 6 case to the Court of Appeals in CA-G.R. CV No. 19669. They asserted
therein that the will in question is null and void for the reason that its
In the course of the hearing in Special Proceeding No. 3899-R, herein attestation clause is fatally defective since it fails to specifically state that the
petitioners appeared as oppositors and objected to the allowance of the instrumental witnesses to the will witnessed the testator signing the will in
testator's will on the ground that on the alleged date of its execution, the their presence and that they also signed the will and all the pages thereof in
testator was already in a poor state of health such that he could not have the presence of the testator and of one another.
possibly executed the same. Petitioners likewise reiterated the issue as to
the genuineness of the signature of the testator therein. 7 On October 15, 1991, respondent court promulgated its decision 10 affirming
that of the trial court, and ruling that the attestation clause in the last will of
On the other hand, one of the attesting witnesses, Cipriano Labuca, and the Mateo Caballero substantially complies with Article 805 of the Civil Code,
notary public, Atty. Filoteo Manigos, testified that the testator executed the thus:
will in question in their presence while he was of sound and disposing mind
and that, contrary to the assertions of the oppositors, Mateo Caballero was in "The question therefore is whether the attestation clause in
good health and was not unduly influenced in any way in the execution of his question may be considered as having substantially
will. Labuca also testified that he and the other witnesses attested and complied with the requirements of Art. 805 of the Civil
signed the will in the presence of the testator and of each other. The other Code. What appears in the attestation clause which the
two attesting witnesses were not presented in the probate hearing as they oppositors claim to be defective is `we do certify that the
had died by then. 8 testament was read by him and the testator, Mateo
Caballero, has published unto us the foregoing will
On April 5, 1988, the probate court rendered a decision declaring the will in consisting of THREE PAGES, including the
question as the last will and testament of the late Mateo Caballero, on the acknowledgment, each page numbered correlatively in
ratiocination that: letters on the upper part of each page, as his Last Will and
Testament, and he has signed the same and every page
". . . The self-serving testimony of the two witnesses of the
thereof, on the spaces provided for his signature and on
oppositors cannot overcome the positive testimonies of
the left hand margin in the presence of the said testator
Atty. Filoteo Manigos and Cipriano Labuca who clearly told
and in the presence of each and all of us' (emphasis
the Court that indeed Mateo Caballero executed this Last
supplied).
 "To our thinking, this is sufficient compliance and no signed the will and every page thereof, or caused some
evidence need be presented to indicate the meaning that other person to write his name, under his express
the said will was signed by the testator and by them (the direction, in the presence of the instrumental witnesses,
witnesses) in the presence of all of them and of one and that the latter witnessed and signed the will and all the
another. Or as the language of the law would have it that pages thereof in the presence of the testator and of one
the testator signed the will 'in the presence of the another. LLphil
instrumental witnesses, and that the latter witnessed and
signed the will and all the pages thereof in the presence of If the attestation clause is in a language not known to the
the testator and of one another.' If not completely or ideally witnesses, it shall be interpreted to them."
perfect in accordance with the wordings of Art. 805 but
(sic) the phrase as formulated is in substantial compliance
with the requirement of the law." 11 In addition, the ordinary will must be acknowledged before a notary public by
the testator and the attesting witnesses, 15 hence it is likewise known as a
Petitioners moved for the reconsideration of said ruling of respondent court,
notarial will. Where the testator is deaf or a deaf-mute, Article 807 requires
but the same was denied in the latter's resolution of January 14, 1992, 12
that he must personally read the will, if able to do so. Otherwise, he should
hence this appeal now before us. Petitioners assert that respondent court
designate two persons who will read the will and communicate its contents to
has ruled upon said issue in a manner not in accord with the law and the
him in a practicable manner. On the other hand, if the testator is blind, the
settled jurisprudence on the matter and are now questioning once more, on
will should be read to him twice; once, by anyone of the witnesses thereto,
the same ground as that raised before respondent court, the validity of the
and then again, by the notary public before whom it is acknowledged. 16
attestation clause in the last will of Mateo Caballero.
The other kind of will is the holographic will, which Article 810 defines as one
We find the present petition to be meritorious, as we shall shortly hereafter
that is entirely written, dated, and signed by the hand of the testator himself.
explain, after some prefatory observations which we feel should be made in
This kind of will, unlike the ordinary type, requires no attestation by
aid of the rationale for our resolution of the controversy.
witnesses. A common requirement in both kinds of wills is that they should
1. A will has been defined as a species of conveyance whereby a person is be in writing and must have been executed in a language or dialect known to
permitted, with the formalities prescribed by law, to control to a certain the testator. 17
degree the disposition of his estate after his death. 13 Under the Civil Code,
However, in the case of an ordinary or attested will, its attestation clause
there are two kinds of wills which a testator may execute. 14 The first kind is
need not be written in a language or dialect known to the testator since it
the ordinary or attested will, the execution of which is governed by Articles
does not form part of the testamentary disposition. Furthermore, the
804 to 809 of the Code. Article 805 requires that:
language used in the attestation clause likewise need not even be known to
"Art. 805. Every will, other than a holographic will, must be the attesting witnesses. 18 The last paragraph of Article 805 merely requires
subscribed at the end thereof by the testator himself or by that, in such a case, the attestation clause shall be interpreted to said
the testator's name written by some other person in his witnesses.
presence, and by his express direction, and attested and
An attestation clause refers to that part of an ordinary will whereby the
subscribed by three or more credible witnesses in the
attesting witnesses certify that the instrument has been executed before
presence of the testator and of one another.
them and to the manner of the execution of the same. 19 It is a separate
The testator or the person requested by him to write his memorandum or record of the facts surrounding the conduct of execution
name and the instrumental witnesses of the will, shall also and once signed by the witnesses, it gives affirmation to the fact that
sign, as aforesaid, each and every page thereof, except compliance with the essential formalities required by law has been
the last, on the left margin, and all the pages shall be observed. 20 It is made for the purpose of preserving in a permanent form a
numbered correlatively in letters placed on the upper part record of the facts that attended the execution of a particular will, so that in
of each page. case of failure of the memory of the attesting witnesses, or other casualty,
such facts may still be proved. 21
The attestation shall state the number of pages used upon
which the will is written, and the fact that the testator
Under the third paragraph of Article 805, such a clause, the complete lack of attestation clause in question, on the other hand, is recited in the English
which would result in the invalidity of the will, 22 should state (1) the number language and is likewise signed at the end thereof by the three attesting
of pages usedupon which the will is written; (2) that the testator signed, or witnesses thereto. 3 0 Since it is the proverbial bone of contention, we
expressly caused another to sign, the will and every page thereof in the reproduce it again for facility of reference:
presence of the attesting witnesses; and (3) that the attesting witnesses
witnessed the signing by the testator of the will and all its "We, the undersigned attesting Witnesses, whose
pages, and that said witnesses also signed the will and every page thereof in Residences and postal addresses appear on the Opposite
the presence of the testator and of one another. of our respective names, we do hereby certify that the
Testament was read by him and the testator, MATEO
The purpose of the law in requiring the clause to state the number of pages CABALLERO, has published unto us the foregoing Will
on which the will is written is to safeguard against possible interpolation or consisting of THREE PAGES, including the
omission of one or some of its pages and to prevent any increase or Acknowledgment, each page numbered correlatively in
decrease in the pages; 23 whereas the subscription of the signatures of the letters on the upper part of each page, as his Last Will and
testator and the attesting witnesses is made for the purpose of authentication Testament and he has signed the same and every page
and identification, and thus indicates that the will is the very same instrument thereof, on the spaces provided for his signature and on
executed by the testator and attested to by the witnesses. 24 the left hand margin, in the presence of the said testator
and in the presence of each and all of us."
Further, by attesting and subscribing to the will, the witnesses thereby
declare the due execution of the will as embodied in the attestation It will be noted that Article 805 requires that the witnesses should both attest
clause. 25 The attestation clause, therefore, provides strong legal guaranties and subscribe to the will in the presence of the testator and of one another.
for the due execution of a will and to insure the authenticity thereof. 26 As it "Attestation" and "subscription" differ in meaning. Attestation is that act of the
appertains only to the witnesses and not to the testator, it need be signed senses, while subscription is the act of the hand. The former is mental, the
only by them. 27 Where it is left unsigned, it would result in the invalidation of latter mechanical, and to attest a will is to know that it was published as such,
the will as it would be possible and easy to add the clause on a subsequent and to certify the facts required to constitute an actual and legal publication;
occasion in the absence of the testator and the witnesses. 28 but to subscribe a paper published as a will is only to write on the same
paper the names of the witnesses, for the sole purpose of identification. 31
In its report, the Code Commission commented on the reasons of the law for
requiring the formalities to be followed in the execution of wills, in the In Taboada vs. Rosal, 32 we clarified that attestation consists in witnessing
following manner: cdll the testator's execution of the will in order to see and take note mentally that
those things are done which the statute requires for the execution of a will
"The underlying and fundamental objectives permeating and that the signature of the testator exists as a fact. On the other hand,
the provisions on the law on wills in this Project consists in subscription is the signing of the witnesses' names upon the same paper for
the liberalization of the manner of their execution with the the purpose of identification of such paper as the will which was executed by
end in view of giving the testator more freedom in the testator. As it involves a mental act, there would be no means, therefore,
expressing his last wishes, but with sufficient safeguards of ascertaining by a physical examination of the will whether the witnesses
and restrictions to prevent the commission of fraud and the had indeed signed in the presence of the testator and of each other unless
exercise of undue and improper pressure and influence this is substantially expressed in the attestation.
upon the testator.
It is contended by petitioners that the aforequoted attestation clause, in
"This objective is in accord with the modern tendency with contravention of the express requirements of the third paragraph of Article
respect to the formalities in the execution of wills. . . ." 29 805 of the Civil Code for attestation clauses, fails to specifically state the fact
that the attesting witnesses witnessed the testator sign the will and all its
2. An examination of the last will and testament of Mateo Caballero shows
pages in their presence and that they, the witnesses, likewise signed the will
that it is comprised of three sheets all of which have been numbered
and every page thereof in the presence of the testator and of each other. We
correlatively, with the left margin of each page thereof bearing the respective
agree.
signatures of the testator and the three attesting witnesses. The part of the
will containing the testamentary dispositions is expressed in the Cebuano- What is fairly apparent upon a careful reading of the attestation clause herein
Visayan dialect and is signed at the foot thereof by the testator. The assailed is the fact that while it recites that the testator indeed signed the will
and all its pages in the presence of the three attesting witnesses and states various days or occasions and in various combinations, the will cannot be
as well the number of pages that were used, the same does not expressly stamped with the imprimatur of effectivity. 33
state therein the circumstance that said witnesses subscribed their
respective signatures to the will in the presence of the testator and of each We believe that the following comment of former Justice J.B.L.
other. Reyes 34 regarding Article 809, wherein he urged caution in the application
of the substantial compliance rule therein, is correct and should be applied in
The phrase "and he has signed the same and every page thereof, on the the case under consideration, as well as to future cases with similar
spaces provided for his signature and on the left hand margin," obviously questions:
refers to the testator and not the instrumental witnesses as it is immediately
preceded by the words "as his Last Will and Testament." On the other hand, ". . . The rule must be limited to disregarding those defects
although the words "in the presence of the testator and in the presence of that can be supplied by an examination of the will itself:
each and all of us" may, at first blush, appear to likewise signify and refer to whether all the pages are consecutively numbered;
the witnesses, it must however, be interpreted as referring only to the testator whether the signatures appear in each and every page;
signing in the presence of the witnesses since said phrase immediately whether the subscribing witnesses are three or the will was
follows the words "he has signed the same and every page thereof, on the notarized. All these are facts that the will itself can reveal,
spaces provided for his signature and on the left hand margin." What is then and defects or even omissions concerning them in the
clearly lacking, in the final logical analysis, is the statement that the attestation clause can be safely disregarded. But the total
witnesses signed the will and every page thereof in the presence of the number of pages, and whether all persons required to sign
testator and of one another. cdll did so in the presence of each other must substantially
appear in the attestation clause, being the only check
It is our considered view that the absence of that statement required by law is against perjury in the probate proceedings." (Emphasis
a fatal defect or imperfection which must necessarily result in the ours.)
disallowance of the will that is here sought to be admitted to probate.
Petitioners are correct in pointing out that the aforestated defect in the 3. We stress once more that under Article 809, the defects or imperfections
attestation clause obviously cannot be characterized as merely involving the must only be with respect to the form of the attestation or the language
form of the will or the language used therein which would warrant the employed therein. Such defects or imperfections would not render a will
application of the substantial compliance rule, as contemplated in the invalid should it be proved that the will was really executed and attested in
pertinent provision thereon in the Civil Code, to wit: compliance with Article 805. In this regard, however, the manner of proving
the due execution and attestation has been held to be limited to merely an
"Art. 809. In the absence of bad faith, forgery, or fraud, or examination of the will itself without resorting to evidence aliunde, whether
undue and improper pressure and influence, defects and oral or written.
imperfections in the form of attestation or inthe
language used therein shall not render the will invalid if it is The foregoing considerations do not apply where the attestation
proved that the will was in fact executed and attested in clause totally omits the fact that the attesting witnesses signed each and
substantial compliance with all the requirements of article every page of the will in the presence of the testator and of each other. 35 In
805" (Emphasis supplied.) such a situation, the defect is not only in the form or the language of the
attestation clause but the total absence of a specific element required by
Article 805 to be specifically stated in the attestation clause of a will. That is
precisely the defect complained of in the present case since there is no
While it may be true that the attestation clause is indeed subscribed at the plausible way by which we can read into the questioned attestation clause
end thereof and at the left margin of each page by the three, attesting any statement, or an implication thereof, that the attesting witnesses did
witnesses, it certainly cannot be conclusively inferred therefrom that the said actually bear witness to the signing by the testator of the will and all its pages
witnesses affixed their respective signatures in the presence of the testator and that said instrumental witnesses also signed the will and every page
and of each other since, as petitioners correctly observed, the presence of thereof in the presence of the testator and of one another. cdphil
said signatures only establishes the fact that it was indeed signed, but it does
not prove that the attesting witnesses did subscribe to the will in the Furthermore, the rule on substantial compliance in Article 809 cannot be
presence of the testator and of each other. The execution of a will is invoked or relied on by respondents since it presupposes that the defects in
supposed to be one act so that where the testator and the witnesses sign on the attestation clause can be cured or supplied by the text of the will or a
consideration of matters apparent therefrom which would provide the data Gumban vs. Gorecho, et al., 48 provided the Court with the occasion to
not expressed in the attestation clause or from which it may necessarily be clarify the seemingly conflicting decisions in the aforementioned cases. In
gleaned or clearly inferred that the acts not stated in the omitted textual said case of Gumban, the attestation clause had failed to state that the
requirements were actually complied with in the execution of the will. In other witnesses signed the will and each and every page thereof on the left margin
words, the defects must be remedied by intrinsic evidence supplied by the in the presence of the testator. The will in question was disallowed, with
will itself. these reasons therefor: LLjur
In the case at bar, contrarily, proof of the acts required to have been "In support of their argument on the assignment of error
performed by the attesting witnesses can be supplied only by extrinsic above-mentioned, appellants rely on a series of cases of
evidence thereof, since an overall appreciation of the contents of the will this court beginning with (I)n the Matter of the (E)state of
yields no basis whatsoever from which such facts may be plausibly deduced. Saguinsin ([1920], 41 Phil., 875), continuing with In re Will
What private respondent insists on are the testimonies of his witnesses of Andrada [1921], 42 Phil., 180), Uy Coque vs. Navas L.
alleging that they saw the compliance with such requirements by the Sioca [1922], 43 Phil. 405), and In re Estate of Neumark
instrumental witnesses, oblivious of the fact that he is thereby resorting to ([1923], 46 Phil., 841), and ending with Sano vs. Quintana
extrinsic evidence to prove the same and would accordingly be doing by ([1925], 48 Phil., 506). Appellee counters with the citation
indirection what in law he cannot do directly. of a series of cases beginning with Abangan vs. Abangan
([1919], 40 Phil., 476), continuing through Aldaba vs.
4. Prior to the advent of the Civil Code on August 30, 1950, there was a Roque ([1922], 43 Phil., 378), and Fernandez vs. Vergel
divergence of views as to which manner of interpretation should be followed de Dios ([1924], 46 Phil., 922), and culminating in Nayve
in resolving issues centering on compliance with the legal formalities required vs. Mojal and Aguilar ([1924], 47 Phil., 152). In its last
in the execution of wills. The formal requirements were at that time embodied analysis, our task is to contrast and, if possible, conciliate,
primarily in Section 618 of Act No. 190, the Code of Civil Procedure. Said the last two decisions cited by opposing counsel, namely,
section was later amended by Act No. 2645, but the provisions respecting those of Sano vs. Quintana, supra, and Nayve vs. Mojal
said formalities found in Act No. 190 and the amendment thereto were and Aguilar, supra.
practically reproduced and adopted in the Civil Code.
"In the case of Sano vs. Quintana, supra, it was decided
One view advanced the liberal or substantial compliance rule. This was first that an attestation clause which does not recite that the
laid down in the case of Abangan vs. Abangan, 36 where it was held that the witnesses signed the will and each and every page thereof
object of the solemnities surrounding the execution of wills is to close the on the left margin in the presence of the testator is
door against bad faith and fraud, to avoid substitution of wills and testaments defective, and such a defect annuls the will. The case of
and to guarantee their truth and authenticity. Therefore, the laws on this Uy Coque vs. Sioca, supra, was cited, but the case of
subject should be interpreted in such a way as to attain these primordial Nayve vs. Mojal and Aguilar, supra, was not mentioned. In
ends. Nonetheless, it was also emphasized that one must not lose sight of contrast, is the decision in Nayve vs. Mojal and
the fact that it is not the object of the law to restrain and curtail the exercise Aguilar, supra, wherein it was held that the attestation
of the right to make a will, hence when an interpretation already given clause must state the fact that the testator and the
assures such ends, any other interpretation whatsoever that adds nothing but witnesses reciprocally saw the signing of the will, for such
demands more requisites entirely unnecessary, useless and frustrative of the an act cannot be proved by the mere exhibition of the will,
testator's last will, must be disregarded. The subsequent cases of Avera vs. if it is not stated therein. It was also held that the fact that
Garcia, 37 Aldaba vs. Roque, 38 Unson vs. Abella, 39 Pecson vs. the testator and the witnesses signed each and every
Coronel, 40 Fernandez vs. Vergel de Dios, et al., 41 and Nayve vs. Mojal, et page of the will can be proved also by the mere
al., 42 all adhered to this position. examination of the signatures appearing on the document
itself, and the omission to state such evident facts does
The other view which advocated the rule that statutes which prescribe the
not invalidate the will.
formalities that should be observed in the execution of wills are mandatory in
nature and are to be strictly construed was followed in the subsequent cases "It is a habit of courts to reaffirm or distinguish previous
of In the Matter of the Estate of Saguinsin, 43 In re Will of Andrada, 44 Uy cases; seldom do they admit inconsistency in doctrine. Yet
Coque vs. Sioca, 45 In re Estate of Neumark, 46 and Sano vs. Quintana. 47 here, unless aided by casuistry of the extreme type, it
would be impossible to reconcile the Mojal and Quintana But after the Gumbanclarificatory pronouncement, there were decisions of
decisions. They are fundamentally at variance. If we rely the Court that once more appeared to revive the seeming diversity of view
on one, we affirm. If we rely on the other, we reverse. that was earlier threshed out therein. The cases of Quinto vs.
Morata, 49 Rodriguez vs. Alcala, 50 Echevarria vs.
"In resolving this puzzling question of authority, three Sarmiento, 51 and Testate Estate of Toray 52 went the way of the ruling as
outstanding points may be mentioned. In the first place, restated in Gumban. But De Gala vs. Gonzales, et al., 53 Rey vs.
the Mojal decision was concurred in by only four members Cartagena, 54 De Ticson vs. De Gorostiza, 55 Sebastian vs.
of the court, less than a majority, with two strong Panganiban, 56 Rodriguez vs. Yap, 57 Grey vs. Fabia, 58 Leynez vs.
dissenting opinions; the Quintana decision was concurred Leynez, 59 Martir vs. Martir, 60 Alcala vs. De Villa, 61 Sabado vs.
in by seven members of the court, a clear majority, with Fernandez, 62 Mendoza vs. Pilapil, 63 and Lopez vs. Liboro, 64 veered away
one formal dissent. In the second place, the Mojal decision from the strict interpretation rule and established a trend toward an
was promulgated in December, 1924, while the Quintana application of the liberal view.
decision was promulgated in December 1925; the
Quintana decision was thus subsequent in point of time. The Code Commission, cognizant of such a conflicting welter of views and of
And in the third place, the Quintana decision is believed the undeniable inclination towards a liberal construction, recommended the
more nearly to conform to the applicable provisions of the codification of the substantial compliance rule, as it believed this rule to be in
law. accord with the modern tendency to give a liberal approach to the
interpretation of wills. Said rule thus became what is now Article 809 of the
Civil Code, with this explanation of the Code Commission:
"The right to dispose of property by will is governed "The present law provides for only one form of executing a
entirely by statute. The law of the case is here found in will, and that is, in accordance with the formalities
section 61 of the Code of Civil Procedure, as amended prescribed by Section 618 of the Code of Civil
byAct No. 2645, and in section 634 of the same Code, as Procedureas amended by Act No. 2645. The Supreme
unamended. It is in part provided in section 61, as Court of the Philippines had previously upheld the strict
amended that 'No will . . . shall be valid . . . unless . . . .' It compliance with the legal formalities and had even said
is further provided in the same section that `The that the provisions of Section 618 of the Code of Civil
attestation shall state the number of sheets or pages used, Procedure, as amended regarding the contents of the
upon which the will is written, and the fact that the testator attestation clause were mandatory, and non-compliance
signed the will and every page thereof, or caused some therewith invalidated the will (Uy Coque vs. Sioca, 43 Phil.
other person to write his name, under his express 405). These decisions necessarily restrained the freedom
direction, in the presence of three witnesses, and the latter of the testator in disposing of his property.
witnessed and signed the will and all pages thereof in the
presence of the testator and of each other.' Codal section "However, in recent years the Supreme Court changed its
634 provides that 'The will shall be disallowed in either of attitude and has become more liberal in the interpretation
the following cases: 1. If not executed and attested as in of the formalities in the execution of wills. This liberal view
this Act provided.' The law not alone carefully makes use is enunciated in the cases of Rodriguez vs. Yap, G.R. No.
of the imperative, but cautiously goes further and makes 45924, May 18, 1939; Leynez vs. Leynez, G.R. No. 46097,
use of the negative, to enforce legislative intention. It is not October 18, 1939; Martir vs. Martir, G.R. No. 46995, June
within the province of the courts to disregard the legislative 21, 1940; and Alcala vs. Villa, G.R. No. 47351, April 18,
purpose so emphatically and clearly expressed. 1941.
"We adopt and reaffirm the decision in the case of Sano "In the above mentioned decisions of our Supreme Court,
vs. Quintana, supra, and, to the extent necessary, modify it has practically gone back to the original provisions of
the decision in the case of Nayve vs. Mojal and Section 618 of the Code of Civil Procedure before its
Aguilar, supra." (Emphases in the original text). amendment by Act No. 2645 in the year 1916. To turn this
attitude into a legislative declaration and to attain the main
objective of the proposed Code in the liberalization of the
 manner of executing wills, article 829 of the Project is [G.R. No. 116668. July 28, 1997.]
recommended, which reads:
'ART. 829. In the absence of bad faith, forgery, or ERLINDA A. AGAPAY, petitioner, vs. CARLINA
fraud, or undue and improper pressure and (CORNELIA) V. PALANG and HERMINIA P. DELA
influence, defects and imperfections in the form of CRUZ, respondent.
attestation or in the language used therein shall
not render the will invalid if it is proved that the will
was in fact executed and attested in substantial Simplicio M. Sevilleja for petitioner.
compliance with all the requirements of article
Ray L. Basbas & Fe Fernandez-Bautista for respondents.
829.'" 65
The so-called liberal rule, the Court said in Gil vs. Murciano, 66 "does not
offer any puzzle or difficulty, nor does it open the door to serious SYNOPSIS
consequences. The later decisions do tell us when and where to stop; they
draw the dividing line with precision. They do not allow evidence aliunde to fill Miguel Palang married on July 16, 1949. It was his first marriage.
a void in any part of the document or supply missing details that should Their only child, Herminia, was born on May 12, 1950.
appear in the will itself. They only permit a probe into the will, an exploration
into its confines, to ascertain its meaning or to determine the existence or On July 15, 1973, Miguel, then 63 years old, contracted his second
absence of the requisite formalities of law. This clear, sharp limitation marriage with Erlinda Agapay, 19, herein petitioner. Two months earlier,
eliminates uncertainty and ought to banish any fear of dire results." Miguel and Erlinda purchased a piece of riceland. Transfer Certificate of Title
No. 101736 was issued in their names.
It may thus be stated that the rule, as it now stands, is that omissions which
can be supplied by an examination of the will itself, without the need of On September 23, 1975, a house and lot was purchased allegedly
resorting to extrinsic evidence, will not be fatal and, correspondingly, would by Erlinda as the sole vendee. TCT No. 143120 was later issued in her
not obstruct the allowance to probate of the will being assailed. However, name.
those omissions which cannot be supplied except by evidence aliunde would
result in the invalidation of the attestation clause and ultimately, of the will Miguel and Erlinda's cohabitation produced a son, Kristoper A.
itself. 67 Palang, born on December 6, 1977. In 1979, Miguel and Erlinda were
convicted of concubinage upon Carlina' s complaint. Two years later, Miguel
WHEREFORE, the petition is hereby GRANTED and the impugned decision died.
of respondent court is hereby REVERSED and SET ASIDE. The court a
quo is accordingly directed to forthwith DISMISS its Special Proceeding No. On July 11, 1981, Carlina Palang and her daughter Herminia Palang
3899-R (Petition for the Probate of the Last Will and Testament of Mateo de la Cruz, herein private respondents, instituted an action for recovery of
Caballero) and to REVIVE Special Proceeding No. 3965-R (In the Matter of ownership and possession with damages against petitioner. Private
the Intestate Estate of Mateo Caballero) as an active case and thereafter respondents sought to get back the riceland and the house and lot allegedly
duly proceed with the settlement of the estate of the said decedent. purchased by Miguel during his cohabitation with petitioner.

SO ORDERED. After trial on the merits, the lower court dismissed the complaint
declaring that there was little evidence to prove that the subject properties
Narvasa, C .J ., Padilla and Nocon, JJ ., concur. pertained to the conjugal property of Carlina and Miguel Palang.
||| (Caneda v. Court of Appeals, G.R. No. 103554, [May 28, 1993]) On appeal, the Court of Appeals reversed the trial court's decision.
Hence, this petition.
The sale of the riceland was made in favor of Miguel and Erlinda.
SECOND DIVISION
The application law is Art. 148 of the Family Code on the cohabitation of a
man and a woman under a void marriage or without the benefit of marriage.
The marriage of Miguel and Erlinda was patently void because the earlier
marriage of Miguel and Carlina was still subsisting. Under Art. 148, only the by the Court of Appeals, revert to the conjugal partnership property of the
properties acquired by both of the parties through their actual joint deceased Miguel and private respondent Carlina Palang.
contribution of money, property or industry shall be owned by them in
common in proportion to their respective contributions. Actual contribution is 2. ID.; ID.; SEPARATION OF PROPERTY OF THE SPOUSES
required by this provision, in contrast to Art. 147. If the actual contribution of DURING MARRIAGE; JUDICIAL ORDER, REQUIRED. — Separation of
the party is not proved, there will be no co-ownership and no presumption of property between spouses during the marriage shall not take place except by
equal shares. Since petitioner failed to prove that she contributed money to judicial order or without judicial conferment when there is an express
the purchase price ,of the riceland, we find no basis to justify her co- stipulation in the marriage settlements. [Article 134 of the Family Code] The
ownership with Miguel over the same. Consequently, the riceland should judgment which resulted from the parties' compromise was not specifically
revert to the conjugal partnership property of the deceased Miguel and and expressly for separation of property and should not be so inferred.
private respondent Carlina Palang.
3. ID.; ID.; DONATION; BETWEEN PERSONS GUILTY OF
As regards Kristopher Palang's heirship and filiation, the same ADULTERY OR CONCUBINAGE; VOID; RATIONALE; CASE AT BAR. —
should be ventilated in the proper probate court or in a special proceeding With respect to the house and lot, Erlinda allegedly bought the same for
instituted for the purpose, and cannot be adjudicated in an ordinary civil P20,000.00 on September 23, 1975 when she was only 22 years old. The
action for recovery of ownership and possession. testimony of the notary public who prepared the deed of conveyance for the
property reveals the falsehood of this claim. Atty. Constantino Sagun testified
The decision of the Court of Appeals is affirmed. that Miguel Palang provided the money for the purchase price and directed
that Erlinda's name alone be placed as the vendee. The transaction was
properly a donation made by Miguel to Erlinda, but one which was clearly
SYLLABUS void and inexistent by express provision of law because it was made
between persons guilty of adultery or concubinage at the time of the
donation, under Article 739 of the Civil Code. Moreover, Article 87 of the
1. CIVIL LAW; FAMILY CODE; PROPERTY REGIME OF UNIONS Family Code expressly provides that the prohibition against donations
WITHOUT MARRIAGE; PROOF OF ACTUAL CONTRIBUTION BY BOTH between spouses now applies to donations between persons living together
PARTIES, REQUIRED; ABSENCE THEREOF IN CASE AT BAR. — The
as husband and wife without a valid marriage, for otherwise, the condition of
provision of law applicable here is Article 148 of the Family Code providing
those who incurred guilt would turn out to be better than those in legal union.
for cases of cohabitation when a man and a woman who are not capacitated
to marry each other live exclusively with each other as husband and wife 4. ID.; ID.; HEIRSHIP AND FILIATION; CANNOT BE
without the benefit of marriage or under a void marriage. While Miguel and ADJUDICATED IN AN ORDINARY CIVIL ACTION FOR RECOVERY OF
Erlinda contracted marriage on July 15, 1973, said union was patently void OWNERSHIP; CASE AT BAR. — The issue concerning Kristopher Palang's
because the earlier marriage of Miguel and Carlina was still subsisting and status and claim as an illegitimate son and heir to Miguel's estate is here
unaffected by the latter's de facto separation. Under Article 148, only the resolved in favor of respondent court's correct assessment that the trial court
properties acquired by both of the parties through their actual joint erred in making pronouncements regarding Kristopher's heirship and filiation
contribution of money, property or industry shall be owned by them in "inasmuch as questions as to who are the heirs of the decedent, proof of
common in proportion to their respective contributions. It must be stressed filiation of illegitimate children and the determination of the estate of the latter
that actual contribution is required by this provision, in contrast to Article 147 and claims thereto should be ventilated in the proper probate court or in a
which states that efforts in the care and maintenance of the family and special proceeding instituted for the purpose and cannot be adjudicated in
household, are regarded as contributions to the acquisition of common the instant ordinary civil action which is for recovery of ownership and
property by one who has no salary or income or work or industry. If the actual possession." Kristopher, not having been impleaded, was not a party to the
contribution of the party is not proved, there will be no co-ownership and no case at bar. His mother, Erlinda, cannot be called his guardian ad litem for he
presumption of equal shares. Even assuming that the subject property was was not involved in the case at bar.
bought before cohabitation, the rules of co-ownership would still apply and
proof of actual contribution would still be essential. Since petitioner failed to
prove that she contributed money to the purchase price of the riceland in
Binalonan, Pangasinan, we find no basis to justify her co-ownership with DECISION
Miguel over the same. Consequently, the riceland should, as correctly held
ROMERO, J p: before the Regional Trial Court in Urdaneta, Pangasinan (Civil Case No. U-
4265). Private respondents sought to get back the riceland and the house
Before us is a petition for review of the decision of the Court of and lot both located at Binalonan, Pangasinan allegedly purchased by Miguel
Appeals in CA-G.R. CV No. 24199 entitled "Erlinda Agapay v. Carlina during his cohabitation with petitioner.
(Cornelia) Palang and Herminia P. Dela Cruz" dated June 22, 1994 involving
the ownership of two parcels of land acquired during the cohabitation of Petitioner, as defendant below, contented that while the riceland
petitioner and private respondent's legitimate spouse. covered by TCT No. 101736 is registered in their names (Miguel and
Erlinda), she had already given her half of the property to their son Kristopher
Miguel Palang contracted his first marriage on July 16, 1949 when Palang. She added that the house and lot covered by TCT No. 143120 is her
he took private respondent Carlina (or Cornelia) Vallesterol as a wife at the sole property, having bought the same with her own money. Erlinda added
Pozorrubio Roman Catholic Church in Pangasinan. A few months after the that Carlina is precluded from claiming aforesaid properties since the latter
wedding, in October 1949, he left to work in Hawaii. Miguel and Carlina's had already donated their conjugal estate to Herminia.
only child, Herminia Palang, was born on May 12, 1950.
After trial on the merits, the lower court rendered its decision on June
Miguel returned in 1954 for a year. His next visit to the Philippines 30, 1989 dismissing the complaint after declaring that there was little
was in 1964 and during the entire duration of his year-long sojourn he stayed evidence to prove that the subject properties pertained to the conjugal
in Zambales with his brother, not in Pangasinan with his wife and child. The property of Carlina and Miguel Palang. The lower court went on to provide for
trial court found evidence that as early as 1957, Miguel had attempted to the intestate shares of the parties, particularly of Kristopher Palang, Miguel's
divorced Carlina in Hawaii. 1 When he returned for good in 1972, he refused illegitimate son. The dispositive portion of the decision reads:
to live with private respondents, but stayed alone in a house in Pozorrubio,
Pangasinan. "WHEREFORE, premises considered, judgment is
hereby rendered —
On July 15, 1973, the then sixty-three-year-old Miguel contracted his
second marriage with nineteen-year-old Erlinda Agapay, herein 1) Dismissing the complaint, with cost against
petitioner. 2 Two months earlier, on May 17, 1973, Miguel and Erlinda, as plaintiffs;
evidenced by the Deed of Sale, jointly purchased a parcel of agricultural land 2) Confirming the ownership of defendant Erlinda
located at San Felipe, Binalonan, Pangasinan with an area of 10,080 square Agapay of the residential lot located at Poblacion,
meters. Consequently, Transfer Certificate of Title No. 101736 covering said Binalonan, Pangasinan, as evidenced by TCT No. 143120,
rice land was issued in their names. Lot 290-B including the old house standing therein;
A house and lot in Binalonan, Pangasinan was likewise purchased 3) Confirming the ownership of one half (1/2)
on September 23, 1975, allegedly by Erlinda as the sole vendee. TCT No. portion of that piece of agricultural land situated at Balisa,
143120 covering said property was later issued in her name. San Felipe, Binalonan, Pangasinan, consisting of 10,080
On October 30, 1975, Miguel and Cornelia Palang executed a Deed square meters and as evidenced by TCT No. 101736, Lot
of Donation as a form of compromise agreement to settle and end a case 1123-A to Erlinda Agapay;
filed by the latter. 3The parties therein agreed to donate their conjugal 4) Adjudicating to Kristopher Palang as his
property consisting of six parcels of land to their only child, Herminia inheritance from his deceased father, Miguel Palang, the
Palang. 4 one-half (1/2) of the Agricultural land situated at Balisa,
Miguel and Erlinda's cohabitation produced a son, Kristopher A. San Felipe, Binalonan, Pangasinan, under TCT No.
Palang, born on December 6, 1977. In 1979, Miguel and Erlinda were 101736 in the name of Miguel Palang, provided that the
convicted of concubinage upon Carlina's complaint. 5 Two years later, on former (Kristopher) executes, within 15 days after this
February 15, 1981, Miguel died. decision becomes final and executory, a quit-claim forever
renouncing any claims to annul/reduce the donation to
On July 11, 1981, Carlina Palang and her daughter Herminia Palang Herminia Palang de la Cruz of all conjugal properties of
de la Cruz, herein private respondents, instituted the case at bar, an action her parents, Miguel Palang and Carlina Vallesterol Palang,
for recovery of ownership and possession with damages against petitioner dated October 30, 1975, otherwise, the state of deceased
 Miguel Palang will have to be settled in another separate transfer of ownership from the original owners of the riceland and the house
action; and lot, Corazon Ilomin and the spouses Cespedes, respectively, were valid.
5) No pronouncement as to damages and The sale of the riceland on May 17, 1973, was made in favor of
attorney's fees. Miguel and Erlinda. The provision of law applicable here is Article 148 of the
Family Code providing for cases of cohabitation when a man or woman who
SO ORDERED." 6 are not capacitated to marry each other live exclusively with each other as
husband and wife without the benefit of marriage or under a void marriage.
On appeal, respondent court reversed the trial court's decision. The
While Miguel and Erlinda contracted marriage on July 15, 1973, said union
Court of Appeals rendered its decision on July 22, 1994 within the following
was patently void because the earlier marriage of Miguel and Carlina was still
dispositive portion:
subsisting and unaffected by the latter's de facto separation.
"WHEREFORE, PREMISES CONSIDERED, the
Under Article 148, only the properties acquired by both of the parties
appealed decision is hereby REVERSED and another one
through their actual joint contribution of money, property or industry shall be
entered:
owned by them in common in proportion to their respective contributions. It
1. Declaring plaintiffs-appellants the owner of the must be stressed that actual contribution is required by this provision, in
properties in question; contrast to Article 147 which states that efforts in the care and maintenance
of the family and household, are regarded as contributions to the acquisition
2. Ordering defendant-appellee to vacate and of common property by one who has no salary or income or work or industry.
deliver the properties in question to herein plaintiffs- If the actual contribution of the party is not proved, there will be no co-
appellants; ownership and no presumption of equal shares. 9 cda
3. Ordering the Register of Deeds of Pangasinan In the case at bar, Erlinda tried to establish by her testimony that she
to cancel Transfer Certificate of Title Nos. 143120 and is engaged in the business of buy and sell and had a sari-sari store 10 but
101736 and to issue in lieu thereof another certificate of failed to persuade to us that she actually contributed money to buy the
title in the name of the plaintiffs-appellants. subject riceland. Worth noting is the fact that on the date of the conveyance,
May 17, 1973, petitioner was only around twenty years of age and Miguel
No pronouncement as to costs." 7 Palang was already sixty-four and a pensioner of the U.S. Government.
Hence, this petition. Considering her youthfulness, it is unrealistic to conclude that in 1973 she
contributed P3,750.00 as her share in the purchase price of subject
Petitioner claims that the Court of Appeals erred in not sustaining the property, 11 there being no proof of the same.
validity of two deeds of absolute sale covering the riceland and the house
and lot, the first in favor of Miguel Palang and Erlinda Agapay and the Petitioner now claims that the riceland was bought two months
second, in favor of Erlinda Agapay alone. Second, petitioner contends that before Miguel and Erlinda actually cohabited. In the nature of an
respondent appellate court erred in not declaring Kristopher A. Palang as afterthought, said added assertion was intended to exclude their case from
Miguel Palang's illegitimate son and thus entitled to inherit from Miguel's operation of Article 148 of the Family Code. Proof of the precise date when
estate. Third, respondent court erred, according to petitioner, "in not finding they commenced their adulterous cohabitation not having been adduced, we
that there is a sufficient pleading and evidence that Kristoffer A. Palang or cannot state definitively that the riceland was purchased even before they
Christopher A. Palang should be considered as party defendant in Civil Case started living together. In any case, even assuming that the subject property
No. U-4625 before the trial court and in CA-G.R. No. 24199. 8 was bought before cohabitation, the rules of co-ownership would still apply
and proof of actual contribution would still be essential.
After studying the merits of the instant case, as well as the pertinent
provision of law and jurisprudence, the Court denies the petition and affirms Since petitioner failed to prove that she contributed money to the
the questioned decision of the Court of Appeals. purchase price of the riceland in Binalonan, Pangasinan, we find no basis to
justify her co-ownership with Miguel over the same. Consequently, the
The first and principal issue is the ownership of the two pieces of riceland should, as correctly held by the Court of Appeals, revert to the
property subject of this action. Petitioner assails the validity of the deeds of conjugal partnership property of the deceased Miguel and private respondent
conveyance over the same parcels of land. There is no dispute that the Carlina Palang.
 Furthermore, it is immaterial that Miguel and Carlina previously the illegitimate son of Miguel, in order to avoid multiplicity of
agreed to donate their conjugal property in favor of their daughter Herminia in suits. 19 Petitioner's grave error has been discussed in the preceding
1975. The trial court erred in holding that the decision adopting their paragraph where the need for probate proceedings to resolve the settlement
compromise agreement "in effect partakes the nature of judicial confirmation of Miguel's estate and Kristopher's successional rights has been pointed out.
of the separation of property between spouses and the termination of the
conjugal partnership." 12 Separation of property between spouse during the WHEREFORE, the instant petition is hereby DENIED. The
marriage shall not take place except by judicial order or without judicial questioned decision of the Court of Appeals is AFFIRMED. Costs against
conferment when there is an express stipulation in the marriage petitioner.
settlements. 13 The judgment which resulted from the parties' compromise
SO ORDERED.
was not specifically and expressly for separation of property and should not
be so inferred. Regalado, Puno and Mendoza, JJ ., concur.
With respect to the house and lot, Erlinda allegedly bought the same Torres, Jr., J ., is on leave.
for P20,000.00 on September 23, 1975 when she was only 22 years old. The
testimony of the notary public who prepared the deed of conveyance for the ||| (Agapay v. Palang, G.R. No. 116668, [July 28, 1997], 342 PHIL 302-314)
property reveals the falsehood of this claim. Atty. Constantino Sagun testified
that Miguel Palang provided the money for the purchase price and directed
that Erlinda's name alone be placed as the vendee. 14 SECOND DIVISION
The transaction was properly a donation made by Miguel to Erlinda,
but one which was clearly void and inexistent by express provision of law [G.R. No. 124099. October 30, 1997.]
because it was made between persons guilty of adultery or concubinage at
the time of the donation, under Article 739 of the Civil Code.
Moreover, Article 87 of the Family Code expressly provides that the MANUEL G. REYES, MILA G. REYES, DANILO G.
prohibition against donation between spouses now applies to donations REYES, LYN AGAPE, MARITES AGAPE, ESTEBANA
between persons living together as husband and wife without a valid GALOLO, and CELSA AGAPE, petitioners, vs. COURT
marriage, 15 for otherwise, the condition of those who incurred guilt would OF APPEALS AND JULIO VIVARES, respondents.
turn out to be better than those in legal union. 16
The second issue concerning Kristopher Palang's status and claim Quimpo Willkom Borja Neri Galejesan Oclarit Law Offices for
as an illegitimate son and heir to Miguel's estate is here resolved in favor of petitioners.
respondent court's correct assessment that the trial court erred in making
pronouncements regarding Kristopher's heirship and filiation "inasmuch as Algarra Mutia and Trinidad Law Offices for private respondents.
questions as to who are the heirs of the decedent, proof of filiation of
illegitimate children and the determination of the estate of the latter and
claims thereto should be ventilated in the proper probate court or in a special SYNOPSIS
proceeding instituted for the purpose and cannot be adjudicated in the instant
ordinary civil action which is for recovery of ownership and possession." 17 Torcuato Reyes executed a last will and testament wherein he stated
that he was bequeathing some of his personal and real properties to his wife,
As regards the third issue, petitioner contends that Kristopher Palang
Asuncion "Oning" Reyes, and designating private respondent as executor.
should be considered as party-defendant in the case at bar following the trial
After his death, private respondent filed a petition for the probate of the will
court's decision which expressly found that Kristopher had not been
which was opposed by petitioners, Torcuato's natural children, and their
impleaded as party defendant but theorized that he had submitted to the
mothers claiming, among others, that Asuncion Reyes was never married to
court's jurisdiction through his mother/guardian ad litem. 18 The trial court
the testator because she was already married to Lupo Ebarle and that their
erred gravely. Kristopher, not having been impleaded, was therefore, not a
marriage was not annulled. The will was admitted to probate but the
party to the case at bar. His mother, Erlinda, cannot be called his
disposition to Asuncion Reyes was declared by the trial court as null and void
guardian ad litem for he was not involved in the case at bar. Petitioner adds
for being contrary to law and morals. On appeal, the Court of Appeals
that there is no need for Kristopher to file another action to prove that he is
modified the trial court's decision declaring valid the assailed disposition on 2. ID.; ID.; ID.; CASE AT BAR. — The case at bar arose from the
the ground that the oppositors failed to present competent evidence that institution of the petition for the probate of the will of the late Torcuato Reyes.
Asuncion Reyes was legally married to another. Hence, this recourse of Perforce, the only issues to be settled in the said proceeding were: (1)
petitioners who belatedly presented a copy of the marriage certificate of whether or not the testator had animus testandi; (2) whether or not vices of
Asuncion Reyes and Lupo Abarle. consent attended the execution of the will; and (3) whether or not the
formalities of the will had been complied with. Thus, the lower court was not
As a general rule, courts in probate proceedings are limited to pass asked to rule upon the intrinsic validity or efficacy of the provisions of the will.
upon only the extrinsic validity of wills and without jurisdiction to determine As a result, the declaration of the testator that Asuncion "Oming" Reyes was
validity or efficacy of the will's provisions. The propriety of the institution of his wife did not have to be scrutinized during the probate proceedings. The
Oning Reyes as one of the devisees/legatees already involved inquiry on the propriety of the institution of Oning Reyes as one of the devisees/legatees
will's intrinsic validity and which need not be inquired upon by the probate already involved inquiry on the will's intrinsic validity and which need not be
court. inquired upon by the probate court.
Their failure to present the said certificate before the probate court to 3. ID.; ID.; ID.; DOCTRINE IN NEPOMUCENO v. COURT OF
support their position that Asuncion Reyes had an existing marriage with APPEALS (139 SCRA 206) NOT APPLICABLE TO CASE AT BAR. — The
Ebarle constituted a waiver and the same evidence can no longer be lower court erroneously invoked the ruling in Nepomuceno vs. Court of
entertained on appeal, much less in this petition for review. IaSAHC Appeals (139 SCRA 206) in the instant case. In the case aforesaid, the
testator himself, acknowledged his illicit relationship with the devisee. Thus,
This Court would not try the case anew or settle factual issues since
the very tenor of the will invalidates the legacy because the testator admitted
its jurisdiction is confined to resolving questions of law which have been
he was disposing of the properties to a person with whom he had been living
passed upon by the lower courts.
in concubinage. To remand the case would only be a waste of time and
money since the illegality or defect was already patent. This case is different
from the Nepomuceno case. Testator Torcuato Reyes merely stated in his
SYLLABUS
will that he was bequeathing some of his personal and real properties to his
wife, Asuncion "Oning" Reyes. There was never an open admission of any
1. REMEDIAL LAW; PROBATE COURT; PROCEEDINGS LIMITED illicit relationship. In the case of Nepomuceno, the testator admitted that he
TO EXTRINSIC VALIDITY OF WILL; EXCEPTIONS. — As a general rule, was already previously married and that he had an adulterous relationship
courts in probate proceedings are limited to pass only upon the extrinsic with the devisee.
validity of the will sought to be probated. Thus, the court merely inquires on
its due execution, whether or not it complies with the formalities prescribed 4. ID.; EVIDENCE; UNCORROBORATED TESTIMONIAL
by law, and the testamentary capacity of the testator. It does not determine EVIDENCE, HEARSAY. — We agree with the Court of Appeals that the trial
nor even by implication prejudge the validity or efficacy of the will's court relied on uncorroborated testimonial evidence that Asuncion Reyes
provisions. The intrinsic validity is not considered since the consideration was still married to another during the time she cohabited with the testator.
thereof usually comes only after the will has been proved and allowed. There The testimonies of the witnesses were merely hearsay and even uncertain as
are, however, notable circumstances wherein the intrinsic validity was first to the whereabouts or existence of Lupo Ebarle, the supposed husband of
determined as when the defect of the will is apparent on its face and the Asunsion.
probate of the will may become a useless ceremony if it is intrinsically invalid.
5. CIVIL LAW; SUCCESSION; WILL, THE TESTATOR SPEAKING
The intrinsic validity of a will may be passed upon because "practical AFTER DEATH. — In the elegant language of Justice Moreland written
considerations" demanded it as when there is preterition of heirs or the decades ago, he said — "A will is the testator speaking after death. Its
testamentary provisions are of doubtful legality. Where the parties agree that
provisions have substantially the same force and effect in the probate court
the intrinsic validity be first determined, the probate court may also do so.
as if the testator stood before the court in full like making the declarations by
Parenthetically, the rule on probate is not inflexible and absolute. Under
word of mouth as they appear in the will. That was the special purpose of the
exceptional circumstances, the probate court is not powerless to do what the
law in the creation of the instrument known as the last will and testament.
situation constrains it to do and pass upon certain provisions of the Men wished to speak after they were dead and the law, by the creation of
will. cdrep that instrument, permitted them to do so . . . All doubts must be resolved in
favor of the testator's having meant just what he said." (Santos vs. SET ASIDE, said paragraph II and subparagraphs (a) and
Manarang, 27 Phil. 209). (b) are declared VALID. Except as above modified, the
judgment appealed from is AFFIRMED.
6. REMEDIAL LAW; EVIDENCE; FAILURE TO PRESENT
EVIDENCE TO SUPPORT ALLEGATION THAT DEVISEE/LEGATEE HAD SO ORDERED." 2
AN EXISTING MARRIAGE WITH ANOTHER, CONSTITUTES WAIVER. —
Petitioner tried to refute this conclusion of the Court of Appeals by presenting The antecedent facts:
belatedly a copy of the marriage certificate of Asuncion Reyes and Lupo
On January 3, 1992, Torcuato J. Reyes executed his last will and
Ebarle. Their failure to present the said certificate before that pro- bate court
testament declaring therein in part, to wit:
to support their position that Asuncion Reyes had an existing marriage with
Ebarle constituted a waiver and the same evidence can no longer be "xxx xxx xxx
entertained on appeal, much less in this petition for review.
II. I give and bequeath to my wife Asuncion "Oning" R. Reyes the
7. ID.; ID.; FACTUAL FINDINGS OF THE COURT OF APPEALS, following properties to wit:
GENERALLY NOT DISTURBED ON APPEAL. — This Court would not try
the case anew or settle factual issues since its jurisdiction is confined to a. All my shares of our personal properties
resolving questions of law which have been passed upon by the lower courts. consisting among others of jewelries, coins, antiques,
The settled rule is that the factual findings of the appellate court will not be statues, tablewares, furnitures, fixtures and the building;
disturbed unless shown to be contrary to the evidence on the record, which b. All my shares consisting of one half (1/2) or
petitioners have not shown in this case. Considering the foregoing premises, 50% of all the real estates I own in common with my
we sustain the findings of the appellate court it appearing that it did not brother Jose, situated in Municipalities of Mambajao,
commit a reversible error in issuing the challenged decision. cda Mahinog, Guinsiliban, Sagay all in Camiguin; real estates
in Lunao, Gingoog, Caamulan, Sugbongcogon, Boloc-
DECISION Boloc, Kinoguitan, Balingoan, Sta. Ines, Caesta,
Talisayan, all in the province of Misamis Oriental. 3 "

TORRES, JR., J p:
The will consisted of two pages and was signed by Torcuato Reyes
Unless legally flawed, a testator's intention in his last will and in the presence of three witnesses: Antonio Veloso, Gloria Borromeo, and
testament is its "life and soul" which deserves reverential observance. Soledad Gaputan. Private respondent Julio A. Vivares was designated the
executor and in his default or incapacity, his son Roch Alan S. Vivares.
The controversy before us deals with such a case.
Reyes died on May 12, 1992 and on May 21, 1992, private
Petitioners Manuel G. Reyes, Mila G. Reyes, Danilo G. Reyes, Lyn respondent filed a petition for probate of the will before the Regional Trial
Agape, Marites Agape, Estebana Galolo and Celsa Agape, the oppositors in Court of Mambajao, Camiguin. The petition was set for hearing and the order
Special Proceedings No. 112 for the probate of the will of Torcuato J. Reyes, was published in the Mindanao Daily Post, a newspaper of general
assail in this petition for review the decision of the Court of Appeals 1 dated circulation, once a week for three consecutive weeks. Notices were likewise
November 29, 1995, the dispositive portion of which reads: sent to all the persons named in the petition.

"WHEREFORE, premises considered, the On July 21, 1992, the recognized natural children of Torcuato Reyes
judgment appealed from allowing or admitting the will of with Estebana Galolo, namely Manuel, Mila, and Danilo all surnamed Reyes,
Torcuato J. Reyes to probate and directing the issuance of and the deceased's natural children with Celsa Agape, namely Lyn and
Letters Testamentary in favor of petitioner Julio A. Vivares Marites Agape, filed an opposition with the following allegations: a) that the
as executor without bond is AFFIRMED but modified in last will and testament of Reyes was not executed and attested in
that the declaration that paragraph II of the Torcuato accordance with the formalities of law; and b) that Asuncion Reyes Ebarle
Reyes' last will and testament, including subparagraphs (a) exerted undue and improper influence upon the testator at the time of the
and (b) are null and void for being contrary to law is hereby execution of the will. The opposition further averred that Reyes was never
married to and could never marry Asuncion Reyes, the woman he claimed to gravely erred in striking down paragraph II (a) and (b) of
be his wife in the will, because the latter was already married to Lupo Ebarle the subject Last Will and Testament, as void for being
who was still then alive and their marriage was never annulled. Thus, contrary to law and morals. Said declarations are not
Asuncion can not be a compulsory heir for her open cohabitation with Reyes sufficient to destroy the presumption of marriage. Nor is it
was violative of public morals. enough to overcome the very declaration of the testator
that Asuncion Reyes is his wife." 5
On July 22, 1992, the trial court issued an order declaring that it had
acquired jurisdiction over the petition and, therefore, allowed the presentation Dissatisfied with the decision of the Court of Appeals, the oppositors
of evidence. After the presentation of evidence and submission of the filed this petition for review.
respective memoranda, the trial court issued its decision on April 23, 1993.
Petitioners contend that the findings and conclusion of the Court of
The trial court declared that the will was executed in accordance with Appeals was contrary to law, public policy and evidence on record. Torcuato
the formalities prescribed by law. It, however, ruled that Asuncion Reyes, Reyes and Asuncion "Oning" Reyes were collateral relatives up to the fourth
based on the testimonies of the witnesses, was never married to the civil degree. Witness Gloria Borromeo testified that Oning Reyes was her
deceased Reyes and, therefore, their relationship was an adulterous one. cousin as her mother and the latter's father were sister and brother. They
Thus: were also nieces of the late Torcuato Reyes. Thus, the purported marriage of
the deceased Reyes and Oning Reyes was void ab initio as it was against
"The admission in the will by the testator to the public policy pursuant to Article 38 (1) of the Family Code. Petitioners further
illicit relationship between him and ASUNCION REYES alleged that Oning Reyes was already married to Lupo Ebarle at the time she
EBARLE who is somebody else's wife, is further bolstered, was cohabiting with the testator hence, she could never contract any valid
strengthened, and confirmed by the direct testimonies of marriage with the latter. Petitioners argued that the testimonies of the
the petitioner himself and his two "attesting" witnesses witnesses as well as the personal declaration of the testator, himself, were
during the trial. sufficient to destroy the presumption of marriage. To further support their
contention, petitioners attached a copy of the marriage certificate of Asuncion
In both cases, the common denominator is the
Reyes and Lupo Ebarle. 6 cdasia
immoral, meretricious, adulterous and illicit relationship
existing between the testator and the devisee prior to the The petition is devoid of merit.
death of the testator, which constituted the sole and
primary consideration for the devise or legacy, thus As a general rule, courts in probate proceedings are limited to pass
making the will intrinsically invalid." 4 only upon the extrinsic validity of the will sought to be probated. 7 Thus, the
court merely inquires on its due execution, whether or not it complies with the
The will of Reyes was admitted to probate except for paragraph II (a) formalities prescribed by law, and the testamentary capacity of the testator. It
and (b) of the will which was declared null and void for being contrary to law does not determine nor even by implication prejudge the validity or efficacy of
and morals. Hence, Julio Vivares filed an appeal before the Court of Appeals the will's provisions. 8 The intrinsic validity is not considered since the
with the allegation that the oppositors failed to present any competent consideration thereof usually comes only after the will has been proved and
evidence that Asuncion Reyes was legally married to another person during allowed. There are, however, notable circumstances wherein the intrinsic
the period of her cohabitation with Torcuato Reyes. validity was first determined as when the defect of the will is apparent on its
face and the probate of the will may become a useless 9 ceremony if it is
On November 29, 1995, the Court of Appeals promulgated the
intrinsically invalid. The intrinsic validity of a will may be passed upon
assailed decision which affirmed the trial court's decision admitting the will for
because "practical considerations" demanded it as when there is preterition
probate but with the modification that paragraph II including subparagraphs
of heirs or the testamentary provisions are of doubtful legality. 10 Where the
(a) and (b) were declared valid. The appellate court stated:
parties agree that the intrinsic validity be first determined, the probate court
"Considering that the oppositors never showed may also do so. 11 Parenthetically, the rule on probate is not inflexible and
any competent evidence, documentary or otherwise during absolute. Under exceptional circumstances, the probate court is not
the trial to show that Asuncion "Oning" Reyes' marriage to powerless to do what the situation constrains it to do and pass upon certain
the testator was inexistent or void, either because of a pre- provisions of the will. 12
existing marriage or adulterous relationship, the trial court
 The case at bar arose from the institution of the petition for the "The foregoing testimony cannot go against the
probate of the will of the late Torcuato Reyes. Perforce, the only issues to be declaration of the testator that Asuncion "Oning" Reyes is
settled in the said proceeding were: (1) whether or not the testator his wife. In Alvarado v. City Government of Tacloban
had animus testandi; (2) whether or not vices of consent attended the (supra) the Supreme Court stated that the declaration of
execution of the will; and (3) whether or not the formalities of the will had the husband is competent evidence to show the fact of
been complied with. Thus, the lower court was not asked to rule upon the marriage.
intrinsic validity or efficacy of the provisions of the will. As a result, the
declaration of the testator that Asuncion "Oning" Reyes was his wife did not Considering that the oppositors never showed any competent
have to be scrutinized during the probate proceedings. The propriety of the evidence, documentary or otherwise during the trial to show that Asuncion
institution of Oning Reyes as one of the devisees/legatees already involved "Oning” Reyes' marriage to the testator was inexistent or void, either
inquiry on the will's intrinsic validity and which need not be inquired upon by because of a pre-existing marriage or adulterous relationship, the trial court
the probate court. gravely erred in striking down paragraph II (a) and (b) of the subject Last Will
and Testament, as void for being contrary to law and morals. Said
The lower court erroneously invoked the ruling in Nepomuceno vs. declarations are not sufficient to destroy the presumption of marriage. Nor is
Court of Appeals (139 SCRA 206) in the instant case. In the case aforesaid, it enough to overcome the very declaration of the testator that Asuncion
the testator himself, acknowledged his illicit relationship with the devisee, to Reyes is his wife." 14
wit:
In the elegant language of Justice Moreland
"Art. IV. That since 1952, I have been living, as written decades ago, he said —
man and wife, with one Sofia J. Nepomuceno, whom I
"A will is the testator speaking after death. Its
declare and avow to be entitled to my love and affection,
provisions have substantially the same force and effect in
for all the things which she has done for me, now and in the probate court as if the testator stood before the court in
the past; that while Sofia J. Nepomuceno has with my full
full life making the declarations by word of mouth as they
knowledge and consent, did comfort and represent myself
appear in the will. That was the special purpose of the law
as her own husband, in truth and in fact, as well as in the
in the creation of the instrument known as the last will and
eyes of the law, I could not bind her to me in the holy
testament. Men wished to speak after they were dead and
bonds of matrimony because of my aforementioned the law, by the creation of that instrument, permitted them
previous marriage." to do so. . . . All doubts must be resolved in favor of the
Thus, the very tenor of the will invalidates the legacy because the testator's having meant just what he said." (Santos vs.
testator admitted he was disposing of the properties to a person with whom Manarang, 27 Phil. 209).
he had been living in concubinage. 13 To remand the case would only be a Petitioners tried to refute this conclusion of the Court of Appeals by
waste of time and money since the illegality or defect was already patent. presenting belatedly a copy of the marriage certificate of Asuncion Reyes
This case is different from the Nepomuceno case. Testator Torcuato Reyes
and Lupo Ebarle. Their failure to present the said certificate before the
merely stated in his will that he was bequeathing some of his personal and
probate court to support their position that Asuncion Reyes had an existing
real properties to his wife, Asuncion "Oning" Reyes. There was never an
marriage with Ebarle constituted a waiver and the same evidence can no
open admission of any illicit relationship. In the case of Nepomuceno, the longer be entertained on appeal, much less in this petition for review. This
testator admitted that he was already previously married and that he had an Court would not try the case anew or settle factual issues since its jurisdiction
adulterous relationship with the devisee. is confined to resolving questions of law which have been passed upon by
We agree with the Court of Appeals that the trial court relied on the lower courts. The settled rule is that the factual findings of the appellate
uncorroborated testimonial evidence that Asuncion Reyes was still married to court will not be disturbed unless shown to be contrary to the evidence on the
another during the time she cohabited with the testator. The testimonies of record, which petitioners have not shown in this case. 15
the witnesses were merely hearsay and even uncertain as to the
Considering the foregoing premises, we sustain the findings of the
whereabouts or existence of Lupo Ebarle, the supposed husband of
appellate court it appearing that it did not commit a reversible error in issuing
Asuncion. Thus:
the challenged decision. cdasia
 ACCORDINGLY, decision appealed from dated November 29, 1995, requisites concur: (1) the writ is directed against a tribunal, board or office
is hereby AFFIRMED and the instant petition for review is DENIED for lack of exercising judicial functions; (2) such tribunal, board or officer has acted
merit. without or in excess of jurisdiction or with grave abuse of discretion
amounting to lack or excess of jurisdiction; and (3) there is no appeal or any
SO ORDERED. plain, speedy and adequate remedy in the ordinary course of law. After a
thorough review of the case at bar, the Court is convinced that all these
Regalado, Romero, Puno and Mendoza, JJ ., concur.
requirements were met and thus hold that the questioned decision and
||| (Reyes v. Court of Appeals, G.R. No. 124099, [October 30, 1997], 346 resolutions of the trial court may be challenged through a special civil action
PHIL 266-276) under Rule 65 of the Rules of Court. At the very least, this case is a clear
exception to the general rule thatcertiorari is not a substitute for a lost appeal
because the trial court's decision and resolutions were issued without or
excess of jurisdiction, which may thus be challenged or attacked at any time.
THIRD DIVISION
Anent the second issue regarding the necessity of judicial approval
in a compromise agreement, the Court ruled that such contention lacks merit.
[G.R. No. 108947. September 29, 1997.]
Being a consensual contract, it is perfected upon the meeting of the minds of
the parties. Judicial approval is not required for its perfection hence, the court
ROLANDO SANCHEZ, FLORIDA MIERLY SANCHEZ, affirmed the validity of the parties' compromise agreement. In view of the
ALFREDO T. SANCHEZ and MYRNA T. foregoing, the instant petition is denied and the assailed decision of the Court
SANCHEZ, petitioners, vs. THE HONORABLE COURT of Appeals is affirmed.
OF APPEALS, ROSALIA S. LUGOD, ARTURO S.
LUGOD, EVELYN LUGOD-RANISES and ROBERTO S.
LUGOD, respondents. SYLLABUS

1. REMEDIAL LAW; SPECIAL CIVIL

Napoleon M. Malamas for petitioners.
ACTIONS; CERTIORARI; REQUISITES THEREOF. — A petition
Ramon Quisumbing, Jr. Law Office for private respondents. for certiorari under Rule 65 of the Rules of Court is appropriate and allowable
when the following requisites concur: (1) the writ is directed against a
tribunal, board or officer exercising judicial or quasi-judicial functions; (2)
SYNOPSIS such tribunal, board or officer has acted without or in excess of jurisdiction, or
with grave abuse of discretion amounting to lack or excess of jurisdiction;
and (3) there is no appeal or any plain, speedy and adequate remedy in the
This is a petition for review on certiorari filed by petitioners Rolando ordinary course of law.
Sanchez, Florida Mierly Sanchez, Alfredo T. Sanchez and Myrna Sanchez
assailing the November 23, 1992 decision of the Court of Appeals in CA G.R. 2. ID.; ID.; ID.; CERTIORARI IS NOT A SUBSTITUTE FOR A LOST
SP No. 28761 which annulled the decision of the trial court and which APPEAL; EXCEPTIONS THEREOF. — Doctrinally entrenched is the general
declared the modified compromise agreement among the parties valid and rule that certiorari is not a substitute for a lost appeal. However, Justice
binding even without the trial court's approval. Petitioners in this case are Florenz D. Regalado lists several exceptions to this rule, viz.: "(1) where the
asserting that the respondent Court of Appeals erred in granting the petition appeal does not constitute a speedy and adequate remedy (Salvadades vs.
for certiorari under Rule 65 considering that the special civil action Pajarillo et al. 78 Phil. 77) as where 33 appeals were involved from orders
of certiorari may not be availed as a substitute for an appeal and in annulling issued in a single proceeding which will inevitably result in a proliferation of
the decision of the lower court declaring the compromise agreement more appeals (PCIB vs. Escolin et al. L-27860 and 27896 Mar. 29 1974); (2)
executed by both parties on October 30, 1969 void and unenforceable the where the orders were also issued either in excess of or without
same not having been approved by the intestate court. HSTAcI jurisdiction(Aguilar vs. Tan L-23600 June 30 1970 Cf. Bautista et al. vs.
Sarmiento et al. L-45137 Sept. 23 1985); (3) for certain special consideration,
The Supreme Court ruled that a petition for certiorari under Rule 65 as public welfare or public policy (See Jose vs. Zulueta et al., 16598 May 31
of the Rules of Court is appropriate and allowable when the following
1961 and the cases cited therein); (4) where in criminal actions, the court 7. ID.; SPECIAL PROCEEDINGS; REQUISITES FOR A VALID
rejects rebuttal evidence for the prosecution as, in case of acquittal there PARTITION. — For a partition to be valid. Section 1, Rule 74 of the Rules of
could be no remedy (People vs. Abalos L-029039 Nov. 28 1968); (5) where Court, requires the concurrence of the following conditions: (1) the decedent
the order is a patent nullity (Marcelo vs. De Guzman et al. L-29077 June 29 left no will; (2) the decedent left no debts, or if there were debts left, all had
1982); and (6) where the decision in the certiorari case will avoid future been paid; (3) the heirs and liquidators are all of age, or if they are minors,
litigations (St. Peter Memorial Park Inc. vs. Campos et al. L-38280 Mar. 21, the latter are represented by their judicial guardian or legal representatives,
1975)." Even in a case where the remedy of appeal was lost, the Court has and (4) the partition was made by means of a public instrument or affidavit
issued the writ of certiorari where the lower court patently acted in excess of duly filed with the Register of Deeds.
or outside its jurisdiction, as in the present case.
8. ID.; SPECIAL PROCEEDINGS; JURISDICTION OF PROBATE
3. ID.; ID,; ID.; AN ACT DONE BY A PROBATE COURT IN EXCESS COURT; DOCTRINE THAT IN SPECIAL PROCEEDINGS FOR THE
OF ITS JURISDICTION MAY BE CORRECTED BY CERTIORARI. — The PROBATE OF A WILL, THE QUESTION OF OWNERSHIP IS AN
issues herein clearly involve not only the correctness of the trial court's EXTRANEOUS MATTER WHICH THE PROBATE COURT CANNOT
decision but also the latter's jurisdiction. They encompass plain errors of RESOLVE WITH FINALITY, LIKEWISE APPLICABLE TO AN INTESTATE
jurisdiction and grave abuse of discretion, not merely errors of judgment. PROCEEDING; CASE AT BAR. — As a probate court, the trial court was
Since the trial court exceeded its jurisdiction, a petition for certiorari is exercising judicial functions when it issued its assailed resolution. The said
certainly a proper remedy. Indeed, it is well-settled that "(a)n act done by a court had jurisdiction to act in the intestate proceedings involved in this case
probate court in excess of its jurisdiction may be corrected by certiorari." with the caveat that, due to its limited jurisdiction, it could resolve questions
of title only provisionally. It is hornbook doctrine that "in a special proceeding
4. ID.; ID.; ID.; FACTUAL MATTERS, NOT REVIEWABLE BY THE for the probate of a will, the question of ownership is an extraneous matter
COURT UNDER RULE 45. — In any event, these alleged errors and which the probate court cannot resolve with finality. This pronouncement no
deficiencies regarding the delivery of shares provided in the compromise, doubt applies with equal force to an intestate proceeding as in the case at
concealment of properties and fraud in the deeds of sale are factual in nature bar." In the instant case, the trial court-rendered a decision declaring as
which, as a rule, are not reviewable by this Court in petitions under Rule 45. simulated and fictitious all the deeds of absolute sale which, on July 26, 1963
and June 26, 1967, Juan C. Sanchez and Maria Villafranca executed in favor
5. ID.; JUDGMENT; A VOID JUDGMENT FOR WANT OF
of their daughter, Rosalia Sanchez Lugod; and grandchildren, namely, Arturo
JURISDICTION IS NO JUDGMENT AT ALL. — A void judgment for want of
S. Lugod, Evelyn S. Lugod and Roberto S. Lugod. The trial court ruled
jurisdiction is no judgment at all. It cannot be the source of any right nor the
further that the properties covered by the said sales must be subject to
creator of any obligation. All acts performed pursuant to it and all claims
collation. Citing Article 1409 (2) of the Civil Code, the lower court nullified
emanating from it have no legal effect. Hence, it can never become final and
said deeds of sale and determined with finality the ownership of the
any writ of execution based on it is void; . . . it may be said to be a lawless
properties subject thereof. In doing so, it clearly overstepped its Jurisdiction
thing which can be treated as an outlaw and slain at sight, or ignored
as a probate court.
wherever and whenever it exhibits its head. "
9. CIVIL LAW; OBLIGATIONS AND CONTRACTS; FRAUD; NOT
6. ID.; ID.; APPEAL; ISSUE RAISED FOR THE FIRST TIME ON
ESTABLISHED IN CASE AT BAR. — Petitioners' allegations of fraud in the
APPEAL AND NOT RAISED TIMELY IN THE PROCEEDINGS IN LOWER
execution of the questioned deeds of sale are bereft of substance, in view of
COURT IS BARRED BY ESTOPPEL. — The issue of minority was first
the palpable absence of evidence to support them. The legal presumption of
raised only in petitioners' Motion for Reconsideration of the Court of Appeals'
validity of the questioned deeds of absolute sale, being duly notarized public
Decision; thus, it "is as if it was never duly raised in that court at all." Hence,
documents, has not been overcome. On the other hand, fraud is not
this Court cannot now, for the first time on appeal, entertain this issue, for to
presumed. It must be proved by clear and convincing evidence, and not by
do so would plainly violate the basic rule of fair play, justice and due process.
mere conjectures or speculations.
We take this opportunity to reiterate and emphasize the well-settled rule that
"(a)n issue raised for the first time on appeal and not raised timely in the 10. ID.; COMPROMISES; A FORM OF AMICABLE SETTLEMENT
proceedings in the lower court is barred by estoppel. Questions raised on THAT IS NOT ONLY ALLOWED BUT ALSO ENCOURAGED. —
appeal must be within the issues framed by the parties and, consequently, Compromise is a form of amicable settlement that is not only allowed but
issues not raised in the trial court cannot he raised for the first time on also encouraged in civil cases. Article 2029 of the Civil Code mandates that a
appeal."
"court shall endeavor to persuade the litigants in a civil case to agree upon 14. ID.; SUCCESSION; COLLATION; PROPERTIES
some fair compromise." CONVEYED INTER VIVOS BY THE DECEDENT TO AN HEIR BY WAY OF
SALE, NOT SUBJECT TO COLLATION. — We stress that these deeds of
11. ID.; ID.; JUDICIAL APPROVAL IS NOT REQUIRED FOR THE sale did not involve gratuitous transfers of future inheritance; these were
PERFECTION THEREOF. — Article 2028 of the Civil Code defines a contracts of sale perfected by the decedents during their lifetime. Hence, the
compromise agreement as "a contract whereby the parties, by making properties conveyed thereby are not collationable because, essentially,
reciprocal concessions, avoid a litigation or put an end to one already collation mandated under Article 1061 of the Civil Code contemplates
commenced.'' Being a consensual contract, it is perfected upon the meeting properties conveyed inter vivos by the decedent to an heir by way of
of the minds of the parties. Judicial approval is not required for its perfection. donation or other gratuitous title. HSCATc
Petitioners' argument that the compromise was not valid for lack of judicial
approval is not novel; the same was raised in Mayuga vs. Court of
Appeals, where the Court, through Justice Irene R. Cortes, ruled: "It is
alleged that the lack of judicial approval is fatal to the compromise. A DECISION
compromise is a consensual contract. As such, it is perfected upon the
meeting of the minds of the parties to the contract. (Hernandez v. Barcelon
23 Phil. 599 [1912]; see also De los Reyes v. de Ugarte, 75 Phil. 505[1945])
And from that moment not only does it become binding upon the parties (De PANGANIBAN, J p:
los Reyes v. De Ugarte supra) it also has upon them the effect and authority
of res judicata (Civil Code, Art. 2037), even not judicially Is a petition for certiorari, in lieu of appeal, the proper remedy to
approved (Meneses v. De la Rosa, 77 Phil. 34 [1946]; Vda. De Guilas v. correct orders of a probate court nullifying certain deeds of sale and, thus,
David, 132 Phil. 241, L-24280,2.3 SCRA 762 [May 27,1968]; Cochingyan v. effectively passing upon title to the properties subject of such deeds? Is a
Cloribel, L-27070-71 [April 22, 1977], 76 SCRA. 361)." compromise agreement partitioning inherited properties valid even without
the approval of the trial court hearing the intestate estate of the deceased
12. ID.; ID.; A PARTY TO A COMPROMISE AGREEMENT owner? cdasia
CANNOT ASK FOR A RESCISSION AFTER IT HAS ENJOYED ITS
BENEFITS. — It is also significant that all the parties, including the then These questions are answered by this Court as it resolves the
minors, had already consummated and availed themselves of the benefits of petition for review on certiorari before us assailing the November 23, 1992
their compromise. This Court has consistently ruled that a party to a Decision 1 of the Court of Appeals 2 in CA-G.R. SP No. 28761 which
compromise cannot ask for a rescission after it has enjoyed its benefits." By annulled the decision 3 of the trial court 4 and which declared the
their acts, the parties are ineludibly estopped from questioning the validity of compromise agreement among the parties valid and binding even without the
their compromise agreement. Bolstering this conclusion is the fact that said trial court's approval. The dispositive portion of the assailed Decision
petitioners questioned the compromise only nine years after its execution, reads:
when they filed with the trial court their Motion to Defer Approval of
Compromise Agreement, dated October 26, 1979." "WHEREFORE, for the reasons hereinabove set
forth and discussed, the instant petition is GRANTED and
13. ID.; ID.; A COMPROMISE ENTERED INTO AND CARRIED the challenged decision as well as the subsequent orders
OUT IN GOOD FAITH WILL NOT BE DISCARDED EVEN IF THERE WAS A of the respondent court are ANNULLED and SET ASIDE.
MISTAKE OF LAW OR FACT. — Courts have no jurisdiction to look into the The temporary restraining order issued by this Court on
wisdom of a compromise or to render a decision different therefrom. It is a October 14, 1992 is made PERMANENT. The compromise
well-entrenched doctrine that "the law does not relieve a party from the agreement dated October 30, 1969 as modified by the
effects of an unwise, foolish, or disastrous contract, entered into with all the memorandum of agreement of April 13, 1970 is
required formalities and with full awareness of what he was doing" and "a DECLARED valid and binding upon herein parties. And
compromise entered into and carried out in good faith will not be discarded Special Proceedings No. 44-M and 1022 are deemed
even if there was a mistake of law or fact, (McCarthy vs. Barber Steamship CLOSED and TERMINATED.
Lines, 45 Phil. 488) because courts have no power to relieve parties from
obligations voluntarily assumed, simply because their contracts turned out to SO ORDERED." 5
be disastrous deals or unwise investments. Volenti non fit injuria. The Antecedent Facts
The facts are narrated by the Court of Appeals as follows: On January 19, 1970, [herein petitioners] filed a
motion to require administratrix, [herein private
"[Herein private respondent] Rosalia S. Lugod is respondent] Rosalia, to deliver deficiency of 24 hectares
the only child of spouses Juan C. Sanchez and Maria and or to set aside compromise agreement (Annex 'E',
Villafranca while [herein private respondents] Arturo S. Petition).
Lugod, Evelyn L. Ranises and Roberto S. Lugod are the
legitimate children of [herein private respondent] Rosalia. Under date of April 13, 1970, (herein private
respondent) Rosalia and [herein petitioners] entered into
[Herein petitioners] Rolando, Florida Mierly, and executed a memorandum of agreement which
Alfredo and Myrna, all surnamed Sanchez, are the modified the compromise agreement (Annex 'F', Petition)
illegitimate children of Juan C. Sanchez.
On October 25, 1979, or nine years later, [herein
Following the death of her mother, Maria petitioners] filed, thru counsel, a motion to require [herein
Villafranca, on September 29, 1967, [herein private private respondent] Rosalia to submit a new inventory and
respondent] Rosalia filed on January 22, 1968, thru to render an accounting over properties not included in the
counsel, a petition for letters of administration over the compromise agreement (Annex 'G', Petition). They
estate of her mother and the estate of her father, Juan C. likewise filed a motion to defer the approval of the
Sanchez, who was at the time in state of senility (Annex compromise agreement (Annex 'H', Ibid), in which they
'B', Petition). prayed for the annulment of the compromise agreement on
the ground of fraud.
On September 30, 1968, [herein private
respondent] Rosalia, as administratrix of the intestate On February 4, 1980, however, counsel for [herein
estate of her mother, submitted an inventory and appraisal petitioners] moved to withdraw his appearance and the two
of the real and personal estate of her late mother (Annex motions he filed, Annex 'G' and 'H' (Annex 'I', Petition).
'C', Petition).
On February 28, 1980, the [trial] court issued an
Before the administration proceedings in Special order directing [herein private respondent] Rosalia to
Proceedings No. 44-M could formally be terminated and submit a new inventory of properties under her
closed, Juan C. Sanchez, [herein private respondent] administration and an accounting of the fruits thereof,
Rosalia's father, died on October 21, 1968. which prompted [herein private respondent] Rosalia to file
a rejoinder on March 31, 1980 (Annex 'K', Petition).
On January 14, 1969, [herein petitioners] as heirs
of Juan C. Sanchez, filed a petition for letters of On May 12, 1980, [herein petitioners], thru new
administration (Special Proceedings No. 1022) over the counsel, filed a motion to change administratrix (Annex 'L',
intestate estate of Juan C. Sanchez, which petition was Petition) to which [herein private respondent] Rosalia filed
opposed by (herein private respondent) Rosalia. 6 an opposition (Annex 'M', Ibid).
On October 30, 1969, however, [herein private The parties were subsequently ordered to submit
respondent] Rosalia and [herein petitioners] assisted by their respective position papers, which they did (Annexes
their respective counsels executed a compromise 'N' and 'O', Petition). On September 14, 1989, former
agreement (Annex 'D', Petition) wherein they agreed to counsel of (herein petitioners) entered his re-appearance
divide the properties enumerated therein of the late Juan as counsel for (herein petitioners).
C. Sanchez.
On the bases of memoranda submitted by the
On November 3, 1969, petitioner Rosalia was parties, the [trial court], this time presided by Judge
appointed by [the trial court], and took her oath as the Vivencio A. Galon, promulgated its decision on June 26,
administratrix of her father's intestate estate. 1991, the dispositive portion of which states:
 'WHEREFORE, premises considered, appointing the Community Environment and
judgment is hereby rendered as follows by Natural Resources Officer (CENRO) of Gingoog
declaring and ordering: City as members thereof, with the task to prepare
the project of partition and deliver to all heirs their
1. That the entire intestate estate of Maria respective shares within ninety (90) days from the
Villafranca Sanchez under Special Proceedings finality of said decision;
No. 44-M consists of all her paraphernal properties
and one-half (1/2) of the conjugal properties which 6. That within thirty (30) days from receipt
must be divided equally between Rosalia Sanchez of this decision, Administratrix Rosalia Sanchez
de Lugod and Juan C. Sanchez; Vda. de Lugod is hereby ordered to submit two (2)
separate certified true and correct accounting, one
2. That the entire intestate estate of Juan for the income of all the properties of the entire
C. Sanchez under Special Proceedings No. 1022 intestate estate of Maria Villafranca under Special
consists of all his capital properties, one-half (1/2) Proceedings No. 44-M, and another for the
from the conjugal partnership of gains and one- properties of the entire intestate estate of Juan C.
half (1/2) of the intestate estate of Maria Sanchez under Special Proceedings No. 1022
Villafranca under Special Proceedings No. 44-M; duly both signed by her and both verified by a
Certified Public Accountant and distribute and
3. That one-half (1/2) of the entire
deliver to her six (6) illegitimate brothers and
intestate estate of Juan C. Sanchez shall be
sisters in equal shares, one-half (1/2) of the net
inherited by his only legitimate daughter, Rosalia
income of the estate of Juan C. Sanchez from
V. Sanchez de Lugod while the other one-half
October 21, 1968 up to the finality of this decision;
(1/2) shall be inherited and be divided equally by,
between and among the six (6) illegitimate 7. For failure to render an accounting
children, namely: Patricia Alburo, Maria Ramuso report and failure to give cash advances to the
Sanchez, Rolando Pedro T. Sanchez, Florida illegitimate children of Juan C. Sanchez during
Mierly T. Sanchez, Alfredo T. Sanchez and Myrna their minority and hour of need from the net
T. Sanchez; income of the estate of Juan C. Sanchez, which
adversely prejudiced their social standing and
4. That all the Deed (sic) of Absolute
pursuit of college education, (the trial court)
Sales executed by Juan C. Sanchez and Maria
hereby orders Rosalia Sanchez Vda. de Lugod to
Villafranca in favor of Rosalia Sanchez Lugod,
pay her six (6) illegitimate brothers and sisters the
Arturo S. Lugod, Evelyn S. Lugod and Roberto S.
sum of Five Hundred Thousand (P500,000.00)
Lugod on July 26, 1963 and June 26, 1967 are all
Pesos, as exemplary damages, and also the sum
declared simulated and fictitious and must be
of One Hundred Fifty Thousand (P150,000.00)
subject to collation and partition among all heirs;
Pesos for attorney's fees;
5. That within thirty (30) days from finality
8. Upon release of this decision and
of this decision, Rosalia Sanchez Lugod is hereby
during its pendency, should appeal be made, the
ordered to prepare a project of partition of the
Register of Deeds and Assessors of the Provinces
intestate estate of Juan C. Sanchez under Special
and Cities where the properties of Juan C.
Proceedings No. 1022 and distribute and deliver to
Sanchez and Maria Villafranca are located, are all
all heirs their corresponding shares. If she fails to
ordered to register and annotate in the title and/or
do so within the said thirty (30) days, then a Board
tax declarations, the dispositive portion of this
of Commissioners is hereby constituted, who are
decision for the protection of all heirs and all those
all entitled to honorarium and per diems and other
who may be concerned.
necessary expenses chargeable to the estate to
be paid by Administratrix Rosalia S. Lugod, SO ORDERED.'
 [Herein private respondent] Rosalia filed a motion [The trial court judge] defied without rhyme or
for reconsideration dated July 17, 1991 (Annex 'P', reason well-established and entrenched jurisprudence
Petition) on August 6, 1991. when he determined facts sans any evidence thereon.
On August 13, 1991, [herein petitioners] filed a V
motion for execution and opposition to [herein private
respondent] Rosalia's motion for reconsideration (Annex [The trial court] grossly misinterpreted [herein
'Q', Petition). private respondent] Rosalia S. Lugod's right to appeal." 8

On September 3, 1991, [the trial court] issued an For clarity's sake, this Court hereby reproduces verbatim the
Omnibus Order (Annex 'S', Petition) declaring, among compromise agreement 9 of the parties:
other things, that the decision at issue had become final
"COMPROMISE AGREEMENT
and executory.
COME NOW, the parties in the above-entitled
[Herein private respondent] Rosalia then filed a
case, motivated by their mutual desire to preserve and
motion for reconsideration of said Omnibus Order (Annex
maintain harmonious relations between and among
'T', Petition). Said [herein private respondent] was allowed
themselves, for mutual valuable consideration and in the
to file a memorandum in support of her motion (Annex 'V',
spirit of good will and fair play, and, for the purpose of this
Petition).
Compromise Agreement, agree to the following:
On June 26, 1991, [the trial court] issued and
1. That the deceased Juan C. Sanchez who died
Order denying petitioner Rosalia's motion for
intestate on October 21, 1968 was legally married to Maria
reconsideration (Annex 'W', Petition)." 7
Villafranca de Sanchez, who predeceased him on
Thereafter, private respondents elevated the case to the Court of September 29, 1967, out of whose wedlock Rosalia
Appeals via a petition for certiorari and contended: Sanchez Lugod, Oppositor herein, was born, thus making
her the sole and only surviving legitimate heir of her
"I deceased parents;
The [trial court] has no authority to disturb the 2. That the said deceased Juan C. Sanchez, left
compromise agreement. illegitimate children, Intervenors-Oppositors and
Petitioners, respectively, herein namely;
II
(1) Patricio Alburo, born out of wedlock on March
The [trial court] has arbitrarily faulted [herein 17, 1926 at Cebu City, Philippines to
private respondent] Rosalia S. Lugod for alleged failure to Emilia Alburo;
render an accounting which was impossible.
(2) Maria Ramoso Sanchez, born out of wedlock
III on May 9, 1937 at Gingoog, Misamis
Oriental, now, Gingoog City, to Alberta
The [trial court] acted without jurisdiction in
Ramoso;
derogation of the constitutional rights of [herein private
respondents] Arturo S. Lugod, Evelyn L. Ranises and (3) (a) Rolando Pedro Sanchez, born on May 19,
Roberto S. Lugod when [the trial court] decided to annul 1947,
the deed of sale between the said [herein private
respondents] and Juan C. Sanchez without affording them (b) Florida Mierly Sanchez, born on February 16,
their day in court. 1949,
IV (c) Alfredo Sanchez, born on July 21, 1950, and
 (d) Myrna Sanchez, born on June 16, 1952, all FOUR THOUSAND SIX HUNDRED
born out of wedlock to Laureta Tampus in (104,600) sq. ms. more or less.
Gingoog City, Philippines.
P11,580.00
3. That the deceased Juan C. Sanchez left the
following properties, to wit: (3) Agricultural Land. Covered by Tax Decl. No.
06449, Cad. Lot No. 2319, Case 2,
I. SEPARATE CAPITAL OF JUAN C. SANCHEZ located at Murallon, Gingoog City and
bounded on the North by Lot No. 1061;
NATURE, DESCRIPTION AND AREA ASSESSED VALUE South by Hinopolan Creek, East by Lot
No. 1044; and West by Lot No. 1041,
(1) Agricultural Land. Covered by Tax. Decl. No.
containing an area of THREE THOUSAND
06458, Cad. Lot No. 1041 C-2, located at
TWO HUNDRED TWENTY FIVE (3,225)
Murallon, Gingoog City and bounded on
sq. ms. more or less.
the North by Lot Nos. 1033, 1035, 1036,
1037, 1039, 1040, 1042 & 1043; South by (4) Agricultural Land. Covered by Tax Decl. No.
Lot No. 1080, 1088, 1087 & 1084; East by 06452, Cad. Lot No. 3272, C-7 Part 4
Lot Nos. 1089, 1061 & 2319; West by Lot located at Panyangan, Lunao, Gingoog
Nos. 954, 1038, 1057 & 1056, containing City and bounded on the North by Lot
an area of ONE HUNDRED EIGHTY Nos. 3270 & 3273; East by Panyangan
THREE THOUSAND SIX HUNDRED River; South by Panyangan River; and
SEVENTY TWO (183,672) sq. ms. more West by Lot Nos. 3270 & 3271, containing
or less. an area of FIFTY FIVE THOUSAND SIX
HUNDRED (55,600) sq. ms. more or less,
P21,690.00
being claimed by Damian Querubin.
II. CONJUGAL PROPERTY OF JUAN C.
P2,370.00
SANCHEZ AND MARIA VILLAFRANCA DE SANCHEZ
(5) Agricultural Land. Covered by Tax Decl. No.
(1) Agricultural Land. Covered by Tax Decl. No.
06453, Cad. Lot No. 3270 Case 7, located
06447, Cad. Lot No. 2745, C-7 located at
at Sunog, Lunao, Gingoog City and
Agay-ayan, Gingoog City and bounded on
bounded on the North by Samay Creek &
the North by Lot Nos. 2744, 2742, 2748;
Lot 3267; South by Lot Nos. 3271 & 3272;
South by Lot No. 2739; East by Lot No.
East by Lot Nos. 3269 & 3273; and West
2746; West by Lot No. 2741, containing
by Samay Creek, containing an area of
an area of FOURTEEN THOUSAND
FOUR HUNDRED EIGHTY THREE
SEVEN HUNDRED (14,700) sq. ms. more
THOUSAND SIX HUNDRED (483,600)
or less.
sq. ms. more or less.
P1,900.00
P61,680.00
(2) Agricultural Land. Covered by Tax Decl. No.
(6) Agricultural Land. Covered by Tax Decl. No.
06449, Cad, Lot No. 3271 C-7 located at
06457, Cad. Lot No. 3273, C-7 Part 2
Panyangan, Lanao, Gingoog City and
located at Panyangan, Lunao, Gingoog
bounded on the North by Lot No. 3270;
City and bounded on the North by Lot No.
South by Lot Nos. 2900 & 3462; East by
3269; South by Lot No. 3272; East by
Panyangan River & F. Lumanao; and Part
Panyangan River; and West by Lot No.
of Lot 3272; and West by Samay Creek,
3270, containing an area of THIRTY
containing an area of ONE HUNDRED
 FOUR THOUSAND THREE HUNDRED SEVENTY SEVEN THOUSAND SEVEN
(34,300) sq. ms. more or less, being HUNDRED SEVENTY SIX (77,776) sq.
claimed by Miguel Tuto. cdpr ms. more or less.
P3,880.00 P1,350.00
(7) Agricultural Land. Covered by Tax Decl. No. (11) A Commercial Land. Covered by Tax Decl.
12000, Cad. Lot No. 2806, Case 7 located No. 06454, Cad. Lot No. 61-C-1 located at
at Agayayan, Gingoog City and bounded Guno-Condeza Sts., Gingoog City and
on the North by Agayayan River; South by bounded on the North by Lot 64; South by
Victoriano Barbac; East by Isabelo Road-Lot 613 Condeza St; East by Lot
Ramoso; and West by Restituto Baol, Nos. 63, and 62; West by Road-Lot 614-
containing an area of SIX THOUSAND Guno St., containing an area of ONE
SIX HUNDRED SEVENTY SIX (6,676) sq. THOUSAND FORTY TWO (1,042) sq. ms.
ms. more or less. more or less.
P380.00 P9,320.00

(8) Agricultural Land. Covered by Tax Decl. No. (12) A Commercial Land. Covered by Tax Decl.
12924, Cad. Lot No. 1206 C-1 located at No. 06484, Lot No. 5, Block 2, located at
Cahulogan, Gingoog City and bounded on Cabuyoan, Gingoog City and bounded on
the NW., by Lot No. 1209; SW., by Lot No. the North by Lot No. 4, block 2; South by
1207; East by National Highway; and Lot No. 8, block 2; East by Lot No. 6, block
West by Lot No. 1207; containing an area 2, West by Subdivision Road, containing
of FOUR THOUSAND FIVE HUNDRED an area of FOUR HUNDRED (400) sq.
THIRTEEN (4,513) sq. ms. more or less. ms. more or less.
P740.00 P12,240.00
(9) Agricultural Land. Covered by Tax Decl. No. (13) A Commercial Land. Covered by Tax Decl.
12925, Cad. Lot No. 5554, located at No. 15798, Block No. 7-A-16-0 located at
Tinaytayan, Pigsalohan, Gingoog City and Cabuyoan, Gingoog City and bounded on
bounded on the North by Lot Nos. 5559 & the North by Lot No. 7-A-16-0; South by
5558; South by Lot No. 3486; East by Lot Lot No. 7-16-0; East by Lot No. 7-A-18-
No. 5555; and West by Lot No. 5355, Road; West by Lot No. 8, PSU-120704-
containing an area of EIGHTEEN Julito Arengo vs. Restituto Baol,
THOUSAND FIVE HUNDRED TWENTY containing an area of TWO HUNDRED
EIGHT (18,528) sq. ms. more or less. cdpr SIXTEEN (216) sq. ms. more or less.
P320.00 P1,050.00

(10) Agricultural Land. Covered by Tax Decl. No. (14) Agricultural Land. Covered by Tax Decl. No.
12926, Cad. Lot No. 5555 C-7 located at 06789, Cad. Lot No. 5157-C-7, located at
Tinaytayan, Pigsalojan, Gingoog City and Kiogat, Agayayan, Gingoog City and
bounded on the North by Tinaytayan bounded on the North by Lot No. 5158,
Creek & Lot Nos. 5557 & 5558; South by 5159, 5156; South by SE-Steep Bank;
Lot Nos. 3486, 3487, 3488, 3491 & 3496; East by NW, by Lot No. 5158, Villafranca;
East by Cr. & Lot No. 3496; and West by containing an area of NINETY SIX
Lot No. 5554, containing an area of
 THOUSAND TWO HUNDRED (96,200) 30217, which two shares she is ceding in
sq. ms. more or less. favor of Patricio Alburo;
P3,370.00 (2) The house and lot designated as Lot No. 5,
Block 2 together with the improvements
III. PERSONAL ESTATE (CONJUGAL) thereon and identified as parcel No. II-12,
lot covered by Tax Decl. No. 15798
identified as Parcel No. II-13 in the above
NATURE AND DESCRIPTION LOCATION APPRAISAL enumerated, and Cad. Lot No. 5157-C-7
1. Fifty (50) shares of stock together with the improvements thereon,
Rural Bank of Gingoog, Inc. which is identified as parcel No. II-14 of
the above-enumeration of properties,
at P100.00 per share P5,000.00 which said Rosalia S. Lugod is likewise
ceding and renouncing in favor of Rolando
2. Four (4) shares of Preferred Stock Pedro, Florida Mierly, Alfredo and Myrna,
all surnamed Sanchez, in equal pro-
with San Miguel Corporation 400.00 indiviso shares;
4. That, the parties hereto have agreed to divide the above
enumerated properties in the following manner, to wit: 5. That Rolando Pedro, Florida Mierly, Alfredo and
Myrna, all surnamed Sanchez hereby acknowledge to
(a) To Patricio Alburo, Maria Ramoso Sanchez, have received jointly and severally in form of advances
Roland Pedro T. Sanchez, Florida Mierly after October 21, 1968 the aggregate sum of EIGHT
Sanchez, Alfredo T. Sanchez and Myrna THOUSAND FIVE HUNDRED THIRTY-THREE PESOS
T. Sanchez, in equal pro-indiviso shares, (P8,533.94) and NINETY-FOUR CENTAVOS;
considering not only their respective areas
but also the improvements existing 6. That the parties hereto likewise acknowledge
thereon, to wit: and recognize in the indebtedness of the deceased Juan
C. Sanchez and his deceased wife Maria Villafranca
Agricultural Land. Covered by Tax Decl. No. Sanchez to the Lugod Enterprises, Inc. in the sum of
06453, Cad. Lot No. 3270 Case 7, located P43,064.99;
at Sunog, Lunao, Gingoog City and
bounded on the North by Samay Creek & 7. That the parties hereto shall be responsible for
Lot 3267; South by Lot Nos. 3271 and the payment of the estate and inheritance taxes
3272; East by Lot Nos. 3269 & 3273; and proportionate to the value of their respective shares as
West by Samay Creek, containing an area may be determined by the Bureau of Internal Revenue and
of FOUR HUNDRED EIGHTY THREE shall likewise be responsible for the expenses of survey
THOUSAND SIX HUNDRED (483,600) and segregation of their respective shares;
sq. ms. and assessed in the sum of
8. That Patricio Alburo, Maria Ramoso Sanchez,
P61,680.00.
Roland Pedro Sanchez, Florida Mierly Sanchez, Alfredo
(b) To Rosalia Sanchez Lugod all the rest of the Sanchez and Myrna Sanchez hereby waive, relinquish and
properties, both real and personal, renounce, jointly and individually, in a manner that is
enumerated above with the exception of absolute and irrevocable, all their rights and interests,
the following: share and participation which they have or might have in
all the properties, both real and personal, known or
(1) Two Preferred Shares of Stock in the San unknown and/or which may not be listed herein, or in
Miguel Corporation, indicated in San excess of the areas listed or mentioned herein, and/or
Miguel Corporation Stock Certificate No. which might have been, at one time or another, owned by,
registered or placed in the name of either of the spouses ceded to petitioners and intervenors immediately after the
Juan C. Sanchez or Maria Villafranca de Sanchez or both, signing of this agreement and that the latter also mutually
and which either one or both might have sold, ceded, agree among themselves to have the said lot subdivided
transferred, or donated to any person or persons or entity and partitioned immediately in accordance with the
and which parties hereto do hereby confirm and ratify proportion of one sixth (1/6) part of every petitioner and
together with all the improvements thereon, as well as all intervenor and that in the meantime that the partition and
the produce and proceeds thereof, and particularly of the subdivision is not yet effected, the administrations of said
properties, real and personal listed herein, as well as parcel of land shall be vested jointly with Laureta Tampos,
demandable obligations due to the deceased spouses guardian ad litem of petitioners and Maria Ramoso, one of
Juan C. Sanchez, before and after the death of the the intervenors who shall see to it that each petitioner and
aforementioned spouses Juan C. Sanchez and Maria intervenor is given one sixth (1/6) of the net proceeds of all
Villafranca de Sanchez, in favor of oppositor Rosalia S. agricultural harvest made thereon.
Lugod;
WHEREFORE, it is most respectfully prayed that
9. That the expenses of this litigation including the foregoing compromise agreement be approved.
attorney's fees shall be borne respectively by the parties
hereto; Medina, Misamis Oriental, October 30, 1969.

10. That Laureta Tampus for herself and guardian (Sgd.) (Sgd.)
ad litem of her minor children, namely: Florida Mierly,
Alfredo, and Myrna, all surnamed Sanchez, hereby declare PATRICIO ALBURO ROSALIA S. LUGOD
that she has no right, interest, share and participation
whatsoever in the estate left by Juan C. Sanchez and/or Intervenor-Oppositor Oppositor
Maria Villafranca de Sanchez, or both, and that she (Sgd.)
likewise waives, renounces, and relinquishes whatever
rigid, share, participation or interest therein which she has
MARIA RAMOSO SANCHEZ ASSISTED BY:
or might have in favor of Rosalia S. Lugod;
Intervenor-Oppositor
11. That, the parties hereto mutually waive and
renounce in favor of each other any whatever claims or
actions, arising from, connected with, and as a result of (Sgd.)
Special Proceedings Nos. 44-M and 1022 of the Court of ASSISTED BY: PABLO S. REYES
First Instance of Misamis Oriental, Rosalia S. Lugod, R-101 Navarro Bldg.
warranting that the parcel of land ceded to the other
parties herein contains 48 hectares and 36 ares. (Sgd.) Don A. Velez St.
REYNALDO L. FERNANDEZ Cagayan de Oro City
12. That, Rosalia S. Lugod shall assume as she
Gingoog City
hereby assumes the payment to Lugod Enterprises, Inc.,
of the sum of P51,598.93 representing the indebtedness of (Sgd.) (Sgd.)
the estate of Juan C. Sanchez and Maria Villafranca de
Sanchez and the advances made to Rolando Pedro,
ROLANDO PEDRO T. SANCHEZ ALFREDO T. SANCHEZ
Mierly, Alfredo, and Myrna all surnamed Sanchez,
mentioned in paragraphs 5 hereto agree to have letters of Petitioner Petitioner
administration issued in favor of Rosalia S. Lugod without
any bond. (Sgd.) (Sgd.)
That Rosalia S. Lugod likewise agrees to deliver
possession and enjoyment of the parcel of land herein
FLORIDA MIERLY T. SANCHEZ MYRNA T. SANCHEZ September 14, 1992 and September 25, 1992, respectively, 11 Respondent
Petitioner Petitioner Court thereafter reinstated private respondents' petition in a
resolution 12 dated October 14, 1992.

(Sgd.) In due course, the Court of Appeals, as earlier stated, rendered its
assailed Decision granting the petition, setting aside the trial court's decision
and declaring the modified compromise agreement valid and binding.
LAURETA TAMPUS
For herself and as Guardian Hence, this appeal to this Court under Rule 45 of the Rules of Court.
Ad-Litem of the minors The Issues
Florida Mierly, Alfredo, and In this appeal, petitioners invite the Court's attention to the following
Myrna, all surnamed Sanchez issues:
ASSISTED BY: "I
The respondent court grossly erred in granting the
TEOGENES VELEZ, JR. petition for certiorari under Rule 65 considering that the
special civil action of certiorari may not be availed of as a
Counsel for Petitioners substitute for an appeal and that, in any event, the grounds
invoked in the petition are merely alleged errors of
Cagayan de Oro City
judgment which can no longer be done in view of the fact
The Clerk of Court that the decision of the lower court had long become final
and executory.
Court of First Instance II
Branch III, Medina, Mis. Or.
Prescinding from the foregoing, the respondent
Greetings: court erred in annulling the decision of the lower court for
Please set the foregoing compromise agreement for the the reason that a compromise agreement or partition as
approval of the Honorable Court today, Oct. 30, 1969. the court construed the same to be, executed by the
parties on October 30, 1969 was void and unenforceable
(Sgd.) the same not having been approved by the intestate court
PABLO S. REYES and that the same having been seasonably repudiated by
(Sgd.) petitioners on the ground of fraud.

TEOGENES VELEZ, JR.

(Sgd.) III
REYNALDO L. FERNANDEZ" The respondent court grossly erred in ignoring and
The Memorandum of Agreement dated April 13, 1970, which the disregarding findings of facts of the lower court that the
parties entered into with the assistance of their counsel, amended the above alleged conveyances of real properties made by the
compromise. (It will be reproduced later in our discussion of the second issue spouses Juan C. Sanchez and Maria Villafranca just
raised by the petitioners.) before their death in favor of their daughter and
grandchildren, private respondents herein, are tainted with
The Court of Appeals, in a Resolution 10 dated September 4, 1992, fraud or made in contemplation of death, hence,
initially dismissed private respondent's petition. Acting, however, on a motion collationable.
for reconsideration and a supplemental motion for reconsideration dated
 IV several exceptions to this rule, viz.: "(1) where the appeal does not constitute
a speedy and adequate remedy (Salvadades vs. Pajarillo, et al., 78 Phil. 77),
In any event, the respondent court grossly erred in as where 33 appeals were involved from orders issued in a single proceeding
treating the lower court's declaration of fictitiousness of the which will inevitably result in a proliferation of more appeals (PCIB
deeds of sale as a final adjudication of annulment. vs. Escolin, et al., L-27860 and 27896, Mar. 29, 1974; (2) where the orders
were also issued either in excess of or without jurisdiction (Aguilar vs. Tan, L-
V
23600, Jun. 30, 1970, Cf . Bautista, et al. vs. Sarmiento, et al., L-45137,
The respondent court grossly erred in declaring Sept.231985); (3) for certain special consideration, as public welfare or public
the termination of the intestate proceedings even as the policy (See Jose vs. Zulueta, et al., L-16598, May 31, 1961 and the cases
lower court had not made a final and enforceable cited therein); (4) where in criminal actions, the court rejects rebuttal
distribution of the estate of the deceased Juan C. evidence for the prosecution as, in case of acquittal, there could be no
Sanchez. remedy (People vs. Abalos, L-029039, Nov. 28, 1968); (5) where the order is
a patent nullity (Marcelo vs. De Guzman, et al., L-29077, June 29, 1982); and
VI (6) where the decision in the certiorari case will avoid future
litigations(St. Peter Memorial Park, Inc. vs. Campos, et al., L-38280, Mar. 21,
Prescinding from the foregoing, the respondent 1975)." 16 Even in a case where the remedy of appeal was lost, the Court
court grossly erred in not at least directing respondent has issued the writ of certiorari where the lower court patently acted in
Rosalia S. Lugod to deliver the deficiency of eight (8) excess of or outside its jurisdiction, 17 as in the present case.
hectares due petitioners under the compromise agreement
and memorandum of agreement, and in not further A petition for certiorari under Rule 65 of the Rules of Court is
directing her to include in the inventory properties appropriate and allowable when the following requisites concur: (1) the writ is
conveyed under the deeds of sale found by the lower court directed against a tribunal, board or officer exercising judicial or quasi-judicial
to be part of the estate of Juan C. Sanchez." 13 functions; (2) such tribunal, board or officer has acted without or in excess of
jurisdiction, or with grave abuse of discretion amounting to lack or excess of
The salient aspects of some issues are closely intertwined; hence, jurisdiction; and (3) there is no appeal or any plain, speedy and adequate
they are hereby consolidated into three main issues specifically dealing with remedy in the ordinary course of law. 18After a thorough review of the case
the following subjects: (1) the propriety of certiorari as a remedy before the at bar, we are convinced that all these requirements were met.
Court of Appeals, (2) the validity of the compromise agreement, and (3) the
presence of fraud in the execution of the compromise and/or collation of the As a probate court, the trial court was exercising judicial functions
properties sold. when it issued its assailed resolution. The said court had jurisdiction to act in
the intestate proceedings involved in this case with the caveat that, due to its
The Court's Ruling limited jurisdiction, it could resolve questions of title only provisionally. 19 It is
The petition is not meritorious. hornbook doctrine that "in a special proceeding for the probate of a will, the
question of ownership is an extraneous matter which the probate court
First Issue: Propriety of Certiorari cannot resolve with finality. This pronouncement no doubt applies with equal
Before the Court of Appeals force to an intestate proceeding as in the case at bar." 20 In the instant case,
the trial court rendered a decision declaring as simulated and fictitious all the
Since private respondents had neglected or failed to file an ordinary
deeds of absolute sale which, on July 26, 1963 and June 26, 1967, Juan C.
appeal within the reglementary period, petitioners allege that the Court of
Sanchez and Maria Villafranca executed in favor of their daughter, Rosalia
Appeals erred in allowing private respondent's recourse to Rule 65 of the
Sanchez Lugod; and grandchildren, namely, Arturo S. Lugod, Evelyn S.
Rules of Court. They contend that private respondent's invocation of
Lugod and Roberto S. Lugod. The trial court ruled further that the properties
certiorari was "procedurally defective." 14They further argue that private
covered by the said sales must be subject to collation. Citing Article 1409 (2)
respondents, in their petition before the Court of Appeals, alleged errors of
of the Civil Code, the lower court nullified said deeds of sale and determined
the trial court which, being merely errors of judgment and not errors of
with finality the ownership of the properties subject thereof. In doing so, it
jurisdiction, were not correctable by certiorari. 15 This Court disagrees.
clearly overstepped its jurisdiction as a probate court. Jurisprudence teaches:
Doctrinally entrenched is the general rule that certiorari is not a
substitute for a lost appeal. However, Justice Florenz D. Regalado lists
 "[A] probate court or one in charge of proceedings the instant petition [for review on certiorari] is all the more
whether testate or intestate cannot adjudicate or determine warranted under the circumstances." 28
title to properties claimed to be a part of the estate and
which are claimed to belong to outside parties. All that the We thus hold that questioned decision and resolutions of the trial
said court could do as regards said properties is to court may be challenged through a special civil action for certiorari under
determine whether they should or should not be included Rule 65 of the Rules of Court. At the very least, this case is a clear exception
in the inventory or list of properties to be administered by to the general rule that certiorari is not a substitute for a lost appeal because
the administrator. If there is not dispute, well and good, but the trial court's decision and resolutions were issued without or in excess of
if there is, then the parties, the administrator, and the jurisdiction, which may thus be challenged or attacked at any time. "A void
opposing parties have to resort to an ordinary action for a judgment for want of jurisdiction is no judgment at all. It cannot be the source
final determination of the conflicting claims of title because of any right nor the creator of any obligation. All acts performed pursuant to it
the probate court cannot do so." 21 and all claims emanating from it have no legal effect. Hence, it can never
become final and any writ of execution based on it is void; '. . . it may be said
Furthermore, the trial court committed grave abuse of discretion to be a lawless thing which can be treated as an outlaw and slain at sight, or
when it rendered its decision in disregard of the parties' compromise ignored wherever and whenever it exhibits its head.' " 29
agreement. 22 Such disregard, on the ground that the compromise
agreement "was not approved by the court," 23 is tantamount to "an evasion Second Issue: Validity of Compromise Agreement
of positive duty or to a virtual refusal to perform the duty enjoined or to act in Petitioners contend that, because the compromise agreement was
contemplation and within the bounds of law." 24 executed during the pendency of the probate proceedings, judicial approval
is necessary to shroud it with validity. They stress that the probate court had
The foregoing issues clearly involve not only the correctness of
jurisdiction over the properties covered by said agreement. They add that
the trial court's decision but also the latter's jurisdiction. They encompass Petitioners Florida Mierly, Alfredo and Myrna were all minors represented
plain errors of jurisdiction and grave abuse of discretion, not merely
only by their mother/natural guardian, Laureta Tampus. 30
errors of judgment. 25 Since the trial court exceeded its jurisdiction, a
petition for certiorari is certainly a proper remedy. Indeed, it is well- These contentions lack merit. Article 2028 of the Civil Code
settled that "(a)n act done by a probate court in excess of its jurisdiction defines a compromise agreement as "a contract whereby the parties, by
may be corrected by certiorari." 26 making reciprocal concessions, avoid a litigation or put an end to one
Consistent with the foregoing, the following disquisition by already commenced." Being a consensual contract, it is perfected upon
respondent appellate court is apt: the meeting of the minds of the parties. Judicial approval is not required
for its perfection. 31 Petitioners' argument that the compromise was not
"As a general proposition, appeal is the proper valid for lack of judicial approval is not novel; the same was raised
remedy of petitioner Rosalia here under Rule 109 of the in Mayuga vs. Court of Appeals, 32 where the Court, through Justice
Revised Rules of Court. But the availability of the ordinary Irene R. Cortes, ruled:
course of appeal does not constitute sufficient ground to
[prevent] a party from making use of the extraordinary "It is alleged that the lack of judicial approval is fatal to the
remedy of certiorari where appeal is not an adequate compromise. A compromise is a consensual contract. As such, it is
remedy or equally beneficial, speedy and sufficient perfected upon the meeting of the minds of the parties to the contract.
(Echauz vs. Court of Appeals, 199 SCRA 381). Here, (Hernandez v. Barcelon, 23 Phil. 599 [1912]; see also De los Reyes v. de
considering that the respondent court has disregarded the Ugarte, 75 Phil. 505 [1945].) And from that moment not only does it
compromise agreement which has long been executed as become binding upon the parties (De los Reyes v. De Ugarte, supra), it
early as October, 1969 and declared null and void the also has upon them the effect and authority of res judicata (Civil Code,
deeds of sale with finality, which as a probate court, it has Art. 2037), even if not judicially approved(Meneses v. De la Rosa, 77
no jurisdiction to do, We deem ordinary appeal is Phil. 34 [1946]; Vda. De Guilas v. David, 132 Phil. 241, L-24280, 23
inadequate. Considering further the [trial court's] granting SCRA 762 [May 27, 1968]; Cochingyan v. Cloribel, L-27070-71 [April 22,
of [herein petitioners'] motion for execution of the assailed 1977], 76 SCRA 361)." (emphasis found in the original.)
decision, 27 [herein private respondent] Rosalia's resort to
In the case before us, it is ineludible that the parties knowingly and
freely entered into a valid compromise agreement. Adequately assisted by
their respective counsels, they each negotiated its terms and provisions for II Are the properties which are the object of the sale by the
four months; in fact, said agreement was executed only after the fourth draft. deceased spouses to their legitimate daughter
As noted by the trial court itself, the first and second drafts were prepared also collationable?
successively in July, 1969; the third draft on September 25, 1969; and the
fourth draft, which was finally signed by the parties on October 30, III The first and second issues being resolved, how much
1969, 33 followed. Since this compromise agreement was the result of a long then is the rightful share of the four (4) recognized
drawn out process, with all the parties ably striving to protect their respective illegitimate children?" 39
interests and to come out with the best they could, there can be no doubt that
Furthermore, the 27-page Memorandum dated February 17, 1990
the parties entered into it freely and voluntarily. Accordingly, they should be
filed by petitioners before the Regional Trial Court 40 readily reveals that
bound thereby. 34 To be valid, it is merely required under the law to be
they never questioned the validity of the compromise. In their comment
based on real claims and actually agreed upon in good faith by the parties
before the Court of Appeals, 41 petitioners based their objection to said
thereto. 35 cdphil
compromise agreement on the solitary "reason that it was tainted with fraud
Indeed, compromise is a form of amicable settlement that is not and deception," zeroing specifically on the alleged fraud committed by
only allowed but also encouraged in civil cases. 36 Article 2029 of the private respondent Rosalia S. Lugod. 42 The issue of minority was first
Civil Code mandates that a "court shall endeavor to persuade the raised only in petitioners' Motion for Reconsideration of the Court of Appeals'
litigants in a civil case to agree upon some fair compromise." Decision; 43 thus, it "is as if it was never duly raised in that court at
all."44 Hence, this Court cannot now, for the first time on appeal, entertain
In opposing the validity and enforcement of the compromise this issue, for to do so would plainly violate the basic rule of fair play, justice
agreement, petitioners harp on the minority of Florida Mierly, Alfredo and and due process. 45We take this opportunity to reiterate and emphasize the
Myrna. Citing Article 2032 of the Civil Code, they contend that the court's well-settled rule that "(a)n issue raised for the first time on appeal and not
approval is necessary in compromises entered into by guardians and raised timely in the proceedings in the lower court is barred by estoppel.
parties in behalf of their wards or children.37 Questions raised on appeal must be within the issues framed by the parties
However, we observe that although denominated a compromise and, consequently, issues not raised in the trial court cannot be raised for the
agreement, the document in this case is essentially a deed of partition, first time on appeal." 46
pursuant to Article 1082 of the Civil Code which provides that "[e]very act
which is intended to put an end to indivision among co-heirs and The petitioners likewise assail as void the provision on waiver
legatees or devisees is deemed to be partition, although it should purport contained in No. 8 of the aforequoted compromise, because it allegedly
to be a sale, an exchange, a compromise, or any other transaction." constitutes a relinquishment by petitioners of "a right to properties which
were not known." 47 They argue that such waiver is contrary to law,
For a partition to be valid, Section 1, Rule 74 of the Rules of public policy, morals or good custom. The Court disagrees. The assailed
Court, requires the concurrence of the following conditions: (1) the waiver pertained to their hereditary right to properties belonging to the
decedent left no will; (2) the decedent left no debts, or if there were debts decedent's estate which were not included in the inventory of the estate's
left, all had been paid; (3) the heirs and liquidators are all of age, or if properties. It also covered their right to other properties originally
they are minors, the latter are represented by their judicial guardian or belonging to the spouses Juan Sanchez and Maria Villafranca de
legal representatives; and (4) the partition was made by means of a Sanchez which have been transferred to other persons. In addition, the
public instrument or affidavit duly filed with the Register of Deeds. 38 We parties agreed in the compromise to confirm and ratify said transfers.
find that all the foregoing requisites are present in this case. We The waiver is valid because, contrary to petitioner's protestation, the
therefore affirm the validity of the parties' compromise parties waived a known and existing interest — their hereditary right
agreement/partition in this case. which was already vested in them by reason of the death of their
In any event, petitioners neither raised nor ventilated this issue in father. Article 777 of the Civil Code provides that "(t)he rights to the
the trial court. This new question or matter was manifestly beyond the succession are transmitted from the moment of death of the decedent."
pale of the issues or questions submitted and threshed out before the Hence, there is no legal obstacle to an heir's waiver of his/her hereditary
lower court which are reproduced below, viz.: share "even if the actual extent of such share is not determined until the
subsequent liquidation of the estate." 48 At any rate, such waiver is
"I Are the properties which are the object of the sale by the consistent with the intent and letter of the law advocating compromise as
deceased spouses to their grandchildren a vehicle for the settlement of civil disputes. 49
collationable?
 Finally, petitioners contend that Private Respondent Rosalia T. to the contrary, the allegation of fraud and deception
Lugod's alleged fraudulent acts, specifically her concealment of some of the cannot be successfully imputed to [herein private
decedent's properties, attended the actual execution of the compromise respondent] Rosalia who must be presumed to have acted
agreement. 50 This argument is debunked by the absence of any substantial in good faith." 51
and convincing evidence on record showing fraud on her part. As aptly
observed by the appellate court: The memorandum of agreement freely and validly entered into by
the parties on April 13, 1970 and referred to above reads:
"[Herein petitioners] accuse [herein private
respondent] Rosalia of fraud or deception by alleging, inter "MEMORANDUM OF AGREEMENT
alia, that the parcel of land given to them never conformed
The parties assisted by their respective counsel
to the stated area, i.e., forty-eight (48) hectares, as stated
have agreed as they hereby agree:
in the compromise agreement. We find this argument
unconvincing and unmeritorious. [Herein petitioners'] 1. To amend the compromise agreement executed
averment of fraud on the part of [herein private by them on October 30, 1969 so as to include the
respondent] Rosalia becomes untenable when We following:
consider the memorandum of agreement they later
executed with [herein private respondent] Rosalia wherein a. Correction of the actual area being
said compromise agreement was modified by correcting given to the petitioners and intervenors, all
the actual area given to [herein petitioners] from forty-eight illegitimate children of the late Juan C. Sanchez,
(48) hectares to thirty-six (36) hectares only. If the actual forty-eight (48) hectares, thirty-six (36) ares as
area allotted to them did not conform to the 48 hectare embodied in the aforementioned compromise
area stated in the compromise agreement, then why did agreement to thirty-six (36) hectares only, thus
they agree to the memorandum of agreement whereby enabling each of them to get six (6) hectares each.
their share in the estate of their father was even reduced
to just 36 hectares? Where is fraud or deception there? b. That the said 36-hectare area shall be
Considering that [herein petitioners] were ably represented taken from that parcel of land which is now
by their lawyers in executing these documents and who covered by O.C.T. No. 146 (Patent No. 30012)
presumably had explained to them the import and and the adjoining areas thereof designated as Lot
consequences thereof, it is hard to believe their charge A and Lot C as reflected on the sketch plan
that they were defrauded and deceived by [herein private attached to the record of this case prepared by
respondent] Rosalia. Geodetic Engineer Olegario E. Zalles pursuant to
the Court's commission of March 10, 1970
If the parcel of land given to [herein petitioners], provided, however, that if the said 36-hectare area
when actually surveyed, happened to be different in area could not be found after adding thereto the areas
to the stated area of 48 hectares in the compromise of said lots A and C, then the additional area shall
agreement, this circumstance is not enough proof of fraud be taken from what is designated as Lot B,
or deception on [herein private respondent] Rosalia's part. likewise also reflected in the said sketch plan
Note that Tax Declaration No. 06453 plainly discloses that attached to the records;
the land transferred to [herein petitioners] pursuant to the
compromise agreement contained an area of 48 hectares c. That the partition among the six
(Annex 'A', Supplemental Reply). And when [herein illegitimate children of the late Juan C. Sanchez
petitioners] discovered that the land allotted to them (petitioners and intervenors) shall be effective
actually contained only 24 hectares, a conference between among themselves in such a manner to be agreed
the parties took place which led to the execution and upon by them, each undertaking to assume
signing of the memorandum of agreement wherein [herein redemption of whatever plants found in their
petitioners'] distributive share was even reduced to 36 respective shares which need redemption from the
hectares. In the absence of convincing and clear evidence tenants thereof as well as the continuity of the
 tenancy agreements now existing and covering compromise. 53 This Court has consistently ruled that "a party to a
the said shares or areas. compromise cannot ask for a rescission after it has enjoyed its
benefits." 54 By their acts, the parties are ineludibly estopped from
d. The subdivision survey shall be at the questioning the validity of their compromise agreement. Bolstering this
expense of the said petitioners and intervenors conclusion is the fact that petitioners questioned the compromise only nine
prorata. years after its execution, when they filed with the trial court their Motion to
Defer Approval of Compromise Agreement, dated October 26, 1979. 55 In
e. That the administratrix agrees to deliver
hindsight, it is not at all farfetched that petitioners filed said motion for the
temporary administration of the area designated
sole reason that they may have felt shortchanged in their compromise
as Lot 5 of the Valles Sketch Plan pending final
agreement or partition with private respondents, which in their view was
survey of the said 36 hectare area.
unwise and unfair. While we may sympathize with this rueful sentiment of
Cagayan de Oro City, April 13, 1970. petitioners, we can only stress that this alone is not sufficient to nullify or
disregard the legal effects of said compromise which, by its very nature as a
(Sgd.) perfected contract, is binding on the parties. Moreover, courts have no
jurisdiction to look into the wisdom of a compromise or to render a decision
LAURETA TAMPOS different therefrom. 56 It is a well-entrenched doctrine that "the law does not
For herself and as Guardian relieve a party from the effects of an unwise, foolish, or disastrous contract,
ad-litem of Rolando, Mierly, entered into with all the required formalities and with full awareness of what
Alfredo and Myrna, all he was doing" 57 and "a compromise entered into and carried out in good
surnamed Sanchez faith will not be discarded even if there was a mistake of law or fact,
Assisted by: (McCarthy vs. Barber Steamship Lines, 45 Phil. 488) because courts have no
(Sgd.) power to relieve parties from obligations voluntarily assumed, simply
because their contracts turned out to be disastrous deals or unwise
TEOGENES VELEZ, Jr. investments." 58 Volenti non fit injuria.
Counsel for Petitioners
Corollarily, the petitioners contend that the Court of Appeals gravely
(Sgd.) abused its discretion in deeming Special Proceedings Nos. 44-M and 1022
"CLOSED and TERMINATED," arguing that there was as yet no order of
ROSALIA S. LUGOD distribution of the estate pursuant to Rule 90 of the Rules of Court. They add
Administratrix that they had not received their full share thereto. 59 We disagree. Under
Assisted by: Section 1, Rule 90 of the Rules of Court, an order for the distribution of the
estate may be made when the "debts, funeral charges, and expenses of
(Sgd.) administration, the allowance to the widow, and inheritance tax, if any," had
been paid. This order for the distribution of the estate's residue must contain
PABLO S. REYES the names and shares of the persons entitled thereto. A perusal of the whole
Counsel for Administratrix record, particularly the trial court's conclusion, 60 reveals that all the
(Sgd.) foregoing requirements already concurred in this case. The payment of the
indebtedness of the estates of Juan C. Sanchez and Maria Villafranca in the
MARIA RABOSO SANCHEZ amount of P51,598.93 was shouldered by Private Respondent Rosalia, who
Intervenor" 52 also absorbed or charged against her share the advances of Rolando T.
Lugod in the sum of P8,533.94, in compliance with Article 1061 of the Civil
Not only did the parties knowingly enter into a valid compromise Code on collation. 61 Furthermore, the compromise of the parties, which is
agreement; they even amended it when they realized some errors in the the law between them, already contains the names and shares of the heirs to
original. Such correction emphasizes the voluntariness of said deed. the residual estate, which shares had also been delivered. On this point, we
agree with the following discussion of the Court of Appeals:
It is also significant that all the parties, including the then minors, had
already consummated and availed themselves of the benefits of their
 "But what the (trial court) obviously overlooked in for the petitioners, "to bring records of his relocation survey." 66 However,
its appreciation of the facts of this case are the Geodetic Engineer Idulsa did not comply with the court's subpoena duces
uncontroverted facts that (herein petitioners) have been in tecum and ad testificandum. Neither did he furnish the required relocation
possession and ownership of their respective distributive survey. 67 No wonder, even after a thorough scrutiny of the records, this
shares as early as October 30, 1969 and they have Court cannot find any evidence to support petitioner's allegations of fraud
received other properties in addition to their distributive against Private Respondent Rosalia.
shares in consideration of the compromise agreement
which they now assail. Proofs thereof are Tax Declarations Similarly, petitioners' allegations of fraud in the execution of the
No. 20984, 20985, 20986, 20987, 20988, 20989 and questioned deeds of sale are bereft of substance, in view of the palpable
20990 (Annexes 'B' to 'H', Supplemental Reply) in the absence of evidence to support them. The legal presumption of validity of the
respective names of (herein petitioners), all for the year questioned deeds of absolute sale, being duly notarized public documents,
1972. (Herein petitioners) also retained a house and lot, a has not been overcome. 68 On the other hand, fraud is not presumed. It
residential lot and a parcel of agricultural land (Annexes 'I', must be proved by clear and convincing evidence, and not by mere
'J' and 'K', Ibid.) all of which were not considered in the conjectures or speculations. We stress that these deeds of sale did not
compromise agreement between the parties. Moreover, in involved gratuitous transfers of future inheritance; these were contracts of
the compromise agreement per se, it is undoubtedly stated sale perfected by the decedents during their lifetime. 69 Hence, the
therein that cash advances in the aggregate sum of properties conveyed thereby are not collationable because, essentially,
P8,533.94 were received by (herein petitioners) after collation mandated under Article 1061 of the Civil Code contemplates
October 21, 1968 (Compromise Agreement, par. 5)" 62 properties conveyed inter vivos by the decedent to an heir by way of
donation or other gratuitous title.
All the foregoing show clearly that the probate court had essentially
finished said intestate proceedings which, consequently, should be deemed In any event, these alleged errors and deficiencies regarding the
closed and terminated. In view of the above discussion, the Court sees no delivery of shares provided in the compromise, concealment of properties
reversible error on the part of the Court of Appeals. and fraud in the deeds of sale are factual in nature which, as a rule, are not
reviewable by this Court in petitions under Rule 45. 70 Petitioners have failed
Third Issue: Fraud and Collation to convince us that this case constitutes an exception to such rule. All in all,
Petitioners fault Respondent Court for not ordering Private we find that the Court of Appeals has sufficiently addressed the issues raised
Respondent Rosalia T. Lugod to deliver to them the deficiency as allegedly by them. Indeed, they have not persuaded us that said Court committed any
provided under the compromise agreement. They further contend that said reversible error to warrant a grant of their petition. liblex
court erred in not directing the provisional inclusion of the alleged deficiency WHEREFORE, the petition is hereby DENIED and the assailed
in the inventory for purposes of collating the properties subject of the Decision of the Court of Appeals is AFFIRMED.
questioned deeds of sale. 63 We see no such error. In the trial court, there
was only one hearing conducted, and it was held only for the reception of the SO ORDERED.
evidence of Rosalia S. Lugod to install her as administratrix of the estate of
Maria Villafranca. There was no other evidence, whether testimonial or Narvasa, C .J ., Romero, Melo and Francisco, JJ ., concur.
otherwise, "received, formally offered to, and subsequently admitted by the
||| (Sanchez v. Court of Appeals, G.R. No. 108947, [September 29, 1997],
probate court below"; nor was there "a trial on the merits of the parties'
conflicting claims." 64 In fact, the petitioners "moved for the deferment of the 345 PHIL 155-194)
compromise agreement on the basis of alleged fraudulent concealment of
properties — NOT because of any deficiency in the land conveyed to them
under the agreements." 65 Hence, there is no hard evidence on record to THIRD DIVISION
back up petitioners' claims.
In any case, the trial court noted Private Respondent Rosalia's [G.R. No. 123968. April 24, 2003.]
willingness to reimburse any deficiency actually proven to exist. It
subsequently ordered the geodetic engineer who prepared the certification
and the sketch of the lot in question, and who could have provided evidence
 URSULINA GANUELAS, METODIO GANUELAS and ruling of this Court in Alejandro v. Geraldez is illuminating: If the donation is
ANTONIO GANUELAS, petitioners, vs. HON. ROBERT made in contemplation of the donor's death, meaning that the full or naked
T. CAWED, Judge of the Regional Trial Court of San ownership of the donated properties will pass to the donee only because of
Fernando, La Union (Branch 29), LEOCADIA G. the donor's death, then it is at that time that the donation takes effect, and it
FLORES, FELICITACION G. AGTARAP, CORAZON G. is a donation mortis causawhich should be embodied in a last will and
SIPALAY and ESTATE OF ROMANA GANUELASDE LA testament. But if the donation takes effect during the donor's lifetime or
ROSA, represented by GREGORIO DELA ROSA, independently of the donor's death, meaning that the full or naked ownership
Administrator, respondents. (nuda proprietas) of the donated properties passes to the donee during the
donor's lifetime, not by reason of his death but because of the deed of
donation, then the donation is inter vivos. The distinction between a
Tañada Vivo & Tan for petitioners. transfer inter vivos and mortis causa is important as the validity or revocation
of the donation depends upon its nature. If the donation is inter vivos, it must
be executed and accepted with the formalities prescribed by Articles 748 and
SYNOPSIS 749 of the Civil Code, except when it is onerous in which case the rules on
contracts will apply. If it is mortis causa, the donation must be in the form of a
will, with all the formalities for the validity of wills, otherwise it is void and
The late Celestina Ganuelas executed a Deed of Donation of Real
cannot transfer ownership.
Property in favor of Ursulina Ganuelas. Private respondents alleged that the
deed was a void disposition mortis causa as it lacks the legal requirement of 2. ID.; ID.; SUCCESSION; DONATION MORTIS CAUSA;
acknowledgment by attesting witnesses thereto before the notary public. DISTINGUISHING CHARACTERISTICS. — The distinguishing
Petitioners, however, insist that the donation was inter vivos. characteristics of a donation mortis causa are the following: 1. It conveys no
title or ownership to the transferee before the death of the transferor; or, what
Whether the donation was inter vivos or mortis causa, the Court
amounts to the same thing, that the transferor should retain the ownership
ruled that, it was mortis causa. It noted that there was nothing in the
(full or naked) and control of the property while alive; 2. That before his
Donation which indicates that any right, title or interest in the donated death, the transfer should be revocable by the transferor at will, ad nutum;
properties was to be transferred to Ursulina prior to the death of Celestina. but revocability may be provided for indirectly by means of a reserved power
The phrase therein "to become effective upon the death of the DONOR"
in the donor to dispose of the properties conveyed; 3. That the transfer
admits no other interpretation but that Celestina intended to transfer the
should be void if the transferor should survive the transferee. CTAIDE
ownership of the properties to Ursulina on her death, not during her lifetime.
It was also provided therein that if the donee should die before the donor, the 3. ID.; ID.; ID.; ID.; ID.; PRESENT IN CASE AT BAR. — In the
donation shall be deemed rescinded and of no further force and effect. The donation subject of the present case, there is nothing therein which indicates
deed even contains an attestation clause expressly confirming the donation that any right, title or interest in the donated properties was to be transferred
as mortis causa. Nevertheless, as there was failure to comply with the to Ursulina prior to the death of Celestina. The phrase "to become effective
formalities of a will, the Court ruled that the donation was void. upon the death of the DONOR" admits of no other interpretation but that
Celestina intended to transfer the ownership of the properties to Ursulina on
her death, not during her lifetime. More importantly, the provision in the deed
SYLLABUS stating that if the donee should die before the donor, the donation shall be
deemed rescinded and of no further force and effect shows that the donation
1. CIVIL LAW; MODES OF ACQUIRING OWNERSHIP; DONATION is a postmortem disposition. As stated in a long line of cases, one of the
INTER VIVOS DISTINGUISHED FROM DONATION MORTIS CAUSA. — decisive characteristics of a donation mortis causa is that the transfer should
Crucial in the resolution of the issue whether the donation is inter be considered void if the donor should survive the donee. More. The deed
vivos or mortis causa is the determination of whether the donor intended to contains an attestation clause expressly confirming the donation as mortis
transfer the ownership over the properties upon the execution of the deed. causa.
Donation inter vivos differs from donation mortis causa in that in the former, 4. ID.; ID.; ID.; ID.; MOTIVATION. — To classify the donation as inter
the act is immediately operative even if the actual execution may be deferred vivos simply because it is founded on considerations of love and affection is
until the death of the donor, while in the latter, nothing is conveyed to or erroneous. That the donation was prompted by the affection of the donor for
acquired by the donee until the death of the donor-testator. The following
the donee and the services rendered by the latter is of no particular that the DONEE should die before the DONOR, the
significance in determining whether the deed constitutes a transfer inter present donation shall be deemed rescinded and of no
vivos or not, because a legacy may have an identical motivation. In other further force and effect.
words, love and affection may also underline transfers mortis causa.
xxx xxx xxx. 3
5. ID.; ID.; ID.; ID.; REQUIRES FORMALITIES OF A WILL. — As the
subject deed then is in the nature of a mortis causa disposition, the On June 10, 1967, Celestina executed a document denominated as
formalities of a will under Article 728 of the Civil Code should have been Revocation of Donation 4 purporting to set aside the deed of donation. More
complied with, failing which the donation is void and produces no effect. As than a month later or on August 18, 1967, Celestina died without issue and
noted by the trial court, the attesting witnesses failed to acknowledge the any surviving ascendants and siblings. cDSAEI
deed before the notary public, thus violating Article 806 of the Civil Code
After Celestina's death, Ursulina had been sharing the produce of the
which provides: Art. 806. Every will must be acknowledged before a notary
donated properties with private respondents Leocadia G. Flores, et
public by the testator and the witnesses. The notary public shall not be
al., nieces of Celestina.
required to retain a copy of the will, or file another with the office of the Clerk
of Court. (Italics supplied) TcICEA In 1982, or twenty-four years after the execution of the Deed of
Donation, Ursulina secured the corresponding tax declarations, in her name,
over the donated properties, to wit: Tax Declarations Nos. 18108, 18109,
18110, 18111, 18112, 18113 and 18114, and since then, she refused to give
DECISION private respondents any share in the produce of the properties despite
repeated demands.
Private respondents were thus prompted to file on May 26, 1986 with
CARPIO MORALES, J p: the RTC of San Fernando, La Union a complaint 5 against Ursulina, along
with MetodioGanuelas and Antonio Ganuelas who were alleged to be
The present petition for review under Rule 45 of the Rules of Court unwilling plaintiffs. The complaint alleged that the Deed of Donation executed
assails, on a question of law, the February 22, 1996 decision 1 of the by Celestina in favor of Ursulina was void for lack of acknowledgment by the
Regional Trial Court of San Fernando, La Union, Branch 29, in Civil Case attesting witnesses thereto before notary public Atty. Henry Valmonte, and
No. 3947, an action for declaration of nullity of a deed of donation. the donation was a disposition mortis causawhich failed to comply with the
The facts, as culled from the records of the case, are as follows: provisions of the Civil Code regarding formalities of wills and testaments,
hence, it was void. The plaintiffs-herein private respondents thus prayed that
On April 11, 1958, Celestina Ganuelas Vda. de Valin (Celestina) judgment be rendered ordering Ursulina to return to them as intestate heirs
executed a Deed of Donation of Real Property 2 covering seven parcels of the possession and ownership of the properties. They likewise prayed for the
land in favor of her niece Ursulina Ganuelas (Ursulina), one of herein cancellation of the tax declarations secured in the name of Ursulina, the
petitioners. partition of the properties among the intestate heirs of Celestina, and the
rendering by Ursulina of an accounting of all the fruits of the properties since
The pertinent provision of the deed of donation reads, 1982 and for her to return or pay the value of their shares.
quoted verbatim:
The defendants-herein petitioners alleged in their Answer 6 that the
xxx xxx xxx donation in favor of Ursulina was inter vivos as contemplated under Article
729 of the Civil Code, 7 hence, the deed did not have to comply with the
That, for and in consideration of the love and requirements for the execution of a valid will; the Revocation of Donation is
affection which the DONOR has for the DONEE, and of null and void as the ground mentioned therein is not among those provided
the faithful services the latter has rendered in the past to by law to be the basis thereof; and at any rate, the revocation could only be
the former, the said DONOR does by these presents legally enforced upon filing of the appropriate complaint in court within the
transfer and convey, by way of DONATION, unto the prescriptive period provided by law, which period had, at the time the
DONEE the property above, described, to become complaint was filed, already lapsed.
effective upon the death of the DONOR; but in the event
 By Decision of February 22, 1996, the trial court, holding that the III. . . . IN RENDERING ITS DECISION ADVERSE TO
provision in the Deed of Donation that in the event that the DONEE should PETITIONER URSULINA GANUELAS. 14
predecease the DONOR, the "donation shall be deemed rescinded and of no
further force and effect" is an explicit indication that the deed is a Petitioners argue that the donation contained in the deed is inter
donation mortis causa, 8 found for the plaintiffs-herein private respondents, vivos as the main consideration for its execution was the donor's affection for
thus: the donee rather than the donor's death; 15 that the provision on the
effectivity of the donation — after the donor's death — simply meant that
WHEREFORE the Court renders judgment absolute ownership would pertain to the donee on the donor's death; 16 and
declaring null and void the Deed of Donation of Real that since the donation is inter vivos, it may be revoked only for the reasons
Property executed by Celestina Ganuelas, and orders the provided in Articles 760, 17 764 18 and 765 19 of the Civil Code.
partition of the estate of Celestina among the intestate
heirs. In a letter of March 16, 1992, 20 private respondent Corazon
Sipalay, reacting to this Court's January 28, 1998 Resolution requiring
SO ORDERED. 9 private respondents "to SHOW CAUSE why they should not be disciplinarily
dealt with or held in contempt" for failure to submit the name and address of
The trial court also held that the absence of a reservation clause in their new counsel, explains that they are no longer interested in pursuing the
the deed implied that Celestina retained complete dominion over her case and are "willing and ready to waive whatever rights" they have over the
properties, thus supporting the conclusion that the donation is mortis properties subject of the donation. Petitioners, who were required to
causa, 10 and that while the deed contained an attestation clause and an comment on the letter, by Comment of October 28, 1998, 21 welcome private
acknowledgment showing the intent of the donor to effect a postmortem respondents' gesture but pray that "for the sake of enriching jurisprudence,
disposition, the acknowledgment was defective as only the donor and donee their [p]etition be given due course and resolved."
appear to have acknowledged the deed before the notary public, thereby
rendering the entire document void. 11 The issue is thus whether the donation is inter vivos or mortis causa.

Lastly, the trial court held that the subsequent execution by Celestina Crucial in the resolution of the issue is the determination of whether
of the Revocation of Donation showed that the donor intended the the donor intended to transfer the ownership over the properties upon the
revocability of the donation ad nutum, thus sustaining its finding that the execution of the deed. 22
conveyance was mortis causa. 12
Donation inter vivosdiffers from donation mortis causa in that in the
On herein petitioners' argument that the Revocation of Donation was former, the act is immediately operative even if the actual execution may be
void as the ground mentioned therein is not one of those allowed by law to deferred until the death of the donor, while in the latter, nothing is conveyed
be a basis for revocation, the trial court held that the legal grounds for such to or acquired by the donee until the death of the donor-testator. 23 The
revocation as provided under the Civil Code arise only in cases of following ruling of this Court inAlejandro v. Geraldez is illuminating: 24
donations inter vivos, but not in donations mortis causa which are revocable
at will during the lifetime of the donor. The trial court held, in any event, that If the donation is made in contemplation of the
given the nullity of the disposition mortis causa in view of a failure to comply donor's death, meaning that the full or naked ownership of
with the formalities required therefor, the Deed of Revocation was a the donated properties will pass to the donee only because
superfluity. 13 of the donor's death, then it is at that time that the donation
takes effect, and it is a donation mortis causa which should
Hence, the instant petition for review, petitioners contending that the be embodied in a last will and testament.
trial court erred:
But if the donation takes effect during the donor's
I. . . . WHEN IT DECLARED NULL AND VOID THE lifetime or independently of the donor's death, meaning
DONATION EXECUTED BY that the full or naked ownership (nuda proprietas) of the
CELESTINA GANUELAS; donated properties passes to the donee during the donor's
lifetime, not by reason of his death but because of the
II. . . . WHEN IT UPHELD THE REVOCATION OF deed of donation, then the donation is inter vivos.
DONATION;
 The distinction between a transfer inter vivos and mortis causa is mortis causa, consisting of two (2) pages and on the left
important as the validity or revocation of the donation depends upon its margin of each and every page thereof in the joint
nature. If the donation is inter vivos, it must be executed and accepted with presence of all of us who at her request and in her
the formalities prescribed by Articles 748 25 and 749 26 of the Civil Code, presence and that of each other have in like manner
except when it is onerous in which case the rules on contracts will apply. If it subscribed our names as witnesses. 31 (Emphasis
is mortis causa, the donation must be in the form of a will, with all the supplied)
formalities for the validity of wills, otherwise it is void and cannot transfer
ownership. 27 To classify the donation as inter vivos simply because it is founded
on considerations of love and affection is erroneous. That the donation was
The distinguishing characteristics of a donation mortis causa are the prompted by the affection of the donor for the donee and the services
following: rendered by the latter is of no particular significance in determining whether
the deed constitutes a transfer inter vivos or not, because a legacy may have
1. It conveys no title or ownership to the transferee an identical motivation. 32 In other words, love and affection may also
before the death of the transferor; or, what amounts to the underline transfers mortis causa. 33
same thing, that the transferor should retain the ownership
(full or naked) and control of the property while alive; In Maglasang v. Heirs of Cabatingan, 34 the deeds of donation
contained provisions almost identical to those found in the deed subject of
2. That before his death, the transfer should be the present case:
revocable by the transferor at will, ad nutum; but
revocability may be provided for indirectly by means of a That for and in consideration of the love and
reserved power in the donor to dispose of the properties affection of the DONOR for the DONEE, . . . the DONOR
conveyed; does hereby, by these presents, transfer, convey, by way
of donation, unto the DONEE the above-described
3. That the transfer should be void if the transferor property, together with the buildings and all improvements
should survive the transferee. 28 existing thereon, to become effective upon the death of the
DONOR; PROVIDED, HOWEVER, that in the event that
In the donation subject of the present case, there is nothing therein
the DONEE should die before the DONOR, the present
which indicates that any right, title or interest in the donated properties was to
donation shall be deemed automatically rescinded and of
be transferred to Ursulina prior to the death of Celestina. CTSDAI
no further force and effect. (Emphasis supplied)
The phrase "to become effective upon the death of the DONOR"
In that case, this Court held that the donations were mortis causa, for the
admits of no other interpretation but that Celestina intended to transfer the
above-quoted provision conclusively establishes the donor's intention to
ownership of the properties to Ursulina on her death, not during her
transfer the ownership and possession of the donated property to the
lifetime. 29
donee only after the former's death. Like in the present case, the deeds
More importantly, the provision in the deed stating that if the donee therein did not contain any clear provision that purports to pass
should die before the donor, the donation shall be deemed rescinded and of proprietary rights to the donee prior to the donor's death. CcTIDH
no further force and effect shows that the donation is a postmortem As the subject deed then is in the nature of a mortis
disposition. causa disposition, the formalities of a will under Article 728 of the Civil Code
should have been complied with, failing which the donation is void and
As stated in a long line of cases, one of the decisive characteristics
produces no effect. 35
of a donation mortis causa is that the transfer should be considered void if
the donor should survive the donee. 30 As noted by the trial court, the attesting witnesses failed to
acknowledge the deed before the notary public, thus violating Article 806 of
More. The deed contains an attestation clause expressly confirming
the Civil Code which provides:
the donation as mortis causa:
Art. 806. Every will must be acknowledged before
SIGNED by the above-named donor,
a notary public by the testator and the witnesses. The
Celestina Ganuelas, at the foot of this deed of donation
notary public shall not be required to retain a copy of the
 will, or file another with the office of the Clerk of Court. UNLAWFULLY WITHHOLDING POSSESSION FROM THE PLAINTIFF. — It
(Emphasis supplied) is settled that in an action for unlawful detainer, to allege that the defendant
is unlawfully withholding possession from the plaintiff is deemed sufficient,
The trial court did not thus commit any reversible error in declaring and a complaint for unlawful detainer is sufficient if it alleges that the
the Deed of Donation to be mortis causa. withholding of possession or the refusal to vacate is unlawful without
necessarily employing the terminology of the law.
WHEREFORE, the petition is hereby DENIED for lack of
merit. STECAc 3. ID.; ID.; ID.; PROPER WHEN A PERSON WHO OCCUPIES, OUT
OF GENEROSITY, THE LAND OF ANOTHER AND FAILS TO VACATE
SO ORDERED.
THE SAME UPON DEMAND BY THE OWNER; CASE AT BAR. — More
Panganiban, Sandoval-Gutierrez and Corona, JJ., concur. than once has this Court adjudged that a person who occupies the land of
another at the latter's tolerance or permission without any contract between
Puno, J., took no part. Knows one of the parties. them is necessarily bound by an implied promise that he will vacate upon
demand, failing which a summary action for ejectment is the proper remedy
||| (Ganuelas v. Cawed, G.R. No. 123968, [April 24, 2003], 449 PHIL 465- against him, The situation is not much different from that of a tenant whose
477) lease expires but who continues in occupancy by tolerance of the owner, in
which case there is deemed to be an unlawful deprivation or withholding of
possession as of the date of the demand to vacate. In other words, one
THIRD DIVISION whose stay is merely tolerated becomes a deforciant illegally occupying the
land or property the moment he is required to leave. Thus, in Asset
Privatization Trust vs. Court of Appeals, 229 SCRA 627, 636 [1994] where a
[G.R. No. 110427. February 24, 1997.] company, having lawfully obtained possession of a plant upon its undertaking
to buy the same, refused to return it after failing to fulfill its promise of
The Incompetent, CARMEN CAÑIZA, represented by payment despite demands this Court held that "(a)fter demand and its
her legal guardian, AMPARO repudiation, . . . (its) continuing possession . . . became illegal and the
EVANGELISTA, petitioner, vs. COURT OF APPEALS complaint for unlawful detainer filed by the . . . (plant's owner) was its proper
(SPECIAL FIRST DIVISION), PEDRO ESTRADA and his remedy." It may not be amiss to point out in this connection that where there
wife, LEONORA ESTRADA, respondents. had been more than one demand to vacate, the one-year period for filing the
complaint for unlawful detainer must be reckoned from the date of the last
demand the reason being that the lessor has the option to waive his right of
Priscilla A. Villacorta for petitioner. action based on previous demands and let the lessee remain meanwhile in
the premises.
Montilla Law Office for private respondents.
4. CIVIL LAW; SUCCESSION; A WILL HAS NO EFFECT
WHATEVER AND NO RIGHT CAN BE CLAIMED THEREUNDER UNTIL IT
SYLLABUS IS ADMITTED TO PROBATE. — A will is essentially ambulatory; at any time
prior to the testator's death, it may be changed or revoked; and until admitted
to probate, it has no effect whatever and no right can be claimed thereunder,
1. REMEDIAL LAW; JURISDICTION; DETERMINED BY THE the law being quite explicit: "No will shall pass either real or personal
ALLEGATIONS IN THE COMPLAINT. — It is axiomatic that what determines property unless it is proved and allowed in accordance with the Rules of
the nature of an action as well as which court has jurisdiction over it, are the Court" (ART. 838, CIVIL CODE). An owner's intention to confer title on the
allegations of the complaint and the character of the relief sought. An inquiry future to persons possessing property by his tolerance, is not inconsistent
into the averments of the amended complaint in the Court of origin is thus in with the former's taking back possession in the meantime for any reason
order. deemed sufficient. And that in this case there was sufficient cause for the
owner's resumption of possession is apparent: she needed to generate
2. ID.; PROVISIONAL REMEDIES; ACTION FOR UNLAWFUL income from the house on account of the physical infirmities afflicting her,
DETAINER; IT IS SUFFICIENT TO ALLEGE THAT THE DEFENDANT IS arising from her extreme age.
 5. REMEDIAL LAW; SPECIAL PROCEEDINGS; GUARDIANSHIP; College of Chemistry and Pharmacy of the University of the Philippines, was
DUTIES OF THE GUARDIAN; CASE AT BAR. — Amparo Evangelista was declared incompetent by judgment 1 of the Regional Trial Court of Quezon
appointed by a competent court the general guardian of both the person and City, Branch 107, 2 in a guardianship proceeding instituted by her niece,
the estate of her aunt, Carmen Cañiza. Her Letters of Guardianship dated Amparo A. Evangelista. 3 She was so adjudged because of her advanced
December 19, 1989 clearly installed her as the "guardian over the person age and physical infirmities which included cataracts in both eyes and
and properties of the incompetent CARMEN CAÑIZA with full authority to senile dementia. Amparo A. Evangelista was appointed legal guardian of her
take possession of the property of said incompetent in any province or person and estate.
provinces in which it may be situated and to perform all other acts necessary
for the management of her properties . . ." By that appointment, it became Cañiza was the owner of a house and lot at No. 61 Tobias St.,
Evangelista's duty to care for her aunt's person, to attend to her physical and Quezon City. On September 17, 1990, her guardian Amparo Evangelista
spiritual needs, to assure her well-being, with right to custody of her person commenced a suit in the Metropolitan Trial Court (MetroTC) of Quezon City
in preference to relatives and friends. It also became her right and duty to get (Branch 35) to eject the spouses Pedro and Leonora Estrada from said
possession of, and exercise control over, Cañiza's property, both real and premises. 4 The complaint was later amended to identify the incompetent
personal, it being recognized principle that the ward has no right to Cañiza as plaintiff, suing through her legal guardian, Amparo Evangelista.
possession or control of his property during his incompetency. That right to
The amended Complaint 5 pertinently alleged that plaintiff Cañiza
manage the ward's estate carried with it right to take possession thereof and
was the absolute owner of the property in question, covered by TCT No.
recover it from anyone who retains it and bring and defend such actions as
27147; that out of kindness, she had allowed the Estrada Spouses, their
may be needful for this purpose. Actually, in bringing the action ofdesahucio,
children, grandchildren and sons-in-law to temporarily reside in her house,
Evangelista was merely discharging the duty to attend to "the comfortable
rent-free; that Cañiza already had urgent need of the house on account of
and suitable maintenance of the ward" explicitly imposed on her by Section
her advanced age and failing health, "so funds could be raised to meet her
4, Rule 96 of the Rules of Court.
expenses for support, maintenance and medical treatment.;" that through her
6. ID.; PROVISIONAL REMEDIES; EJECTMENT CASE; EFFECT guardian, Cañiza had asked the Estradas verbally and in writing to vacate
OF THE DEATH OF A PARTY; CASE AT BAR. — While it is indeed well- the house but they had refused to do so; and that "by the defendants' act of
established rule that the relationship of guardian and ward is necessarily unlawfully depriving plaintiff of the possession of the house in question, they .
terminated by the death of either the guardian or the ward, the rule affords no . . (were) enriching themselves at the expense of the incompetent, because,
advantage to the Estradas. Amparo Evangelista, as niece of Carmen Cañiza, while they . . . (were) saving money by not paying any rent for the house, the
is one of the latter's only two (2) surviving heirs, the other being Cañiza's incompetent . . . (was) losing much money as her house could not be rented
nephew, Ramon C. Nevado. On their motion and by resolution of this Court by others." Also alleged was that the complaint was "filed within one (1) year
of June 20, 1994, they were in fact substituted as parties in the appeal at bar from the date of first letter of demand dated February 3, 1990."
in place of the deceased, in accordance with Section 17, Rule 3 of the Rules
In their Answer with Counterclaim, the defendants declared that they
of Court. To be sure, an EJECTMENT case survives the death of a party.
had been living in Cañiza's house since the 1960's; that in consideration of
Cañiza's demise did not extinguish the desahucio suit instituted by her
their faithful service they had been considered by Cañiza as her own family,
through her guardian. That action, not being a purely personal one, survived
and the latter had in fact executed a holographic will on September 4, 1988
her death; her heirs have taken her place and now represent her interests in
by which she "bequeathed" to the Estradas the house and lot in question.
the appeal at bar.
Judgment was rendered by the MetroTC on April 13, 1992 in
Cañiza's favor, 6 the Estradas being ordered to vacate the premises and pay
Cañiza P5,000.00 by way of attorney's fees.
DECISION
But on appeal, 7 the decision was reversed by the Quezon City
Regional Trial Court, Branch 96. 8 By judgment rendered on October 21,
1992, 9 the RTC held that the "action by which the issue of defendants'
NARVASA, C .J p: possession should be resolved is accion publiciana, the obtaining factual and
legal situation . . . demanding adjudication by such plenary action for
On November 20, 1989, being then ninety-four (94) years of age, recovery of possession cognizable in the first instance by the Regional Trial
Carmen Cañiza, a spinster, a retired pharmacist, and former professor of the Court." cdphil
 Cañiza sought to have the Court of Appeals reverse the decision of I
October 21, 1992, but failed in that attempt. In a decision 10 promulgated on It is axiomatic that what determines the nature of an action as well as
June 2, 1993, the Appellate Court 11 affirmed the RTC's judgment in toto . It
which court has jurisdiction over it, are the allegations of the complaint and
ruled that (a) the proper remedy for Cañiza was indeed an accion
the character of the relief sought. 17 An inquiry into the averments of the
publiciana in the RTC, not an accion interdictal in the MetroTC, since the
amended complaint in the Court of origin is thus in order. 18
"defendants have not been in the subject premises as mere tenants or
occupants by tolerance, they have been there as a sort of adopted family of The amended Complaint alleges:19
Carmen Cañiza," as evidenced by what purports to be the holographic will of
the plaintiff; and (b) while "said will, unless and until it has passed probate by "6. That the plaintiff, Carmen Cañiza, is the sole
the proper court, could not be the basis of defendants' claim to the property, . and absolute owner of a house and lot at No. 61 Scout
. . it is indicative of intent and desire on the part of Carmen Cañiza that Tobias, Quezon City, which property is now the subject of
defendants are to remain and are to continue in their occupancy and this complaint;
possession, so much so that Cañiza's supervening incompetency can not be
said to have vested in her guardian the right or authority to drive the xxx xxx xxx
defendants out." 12 9. That the defendants, their children,
Through her guardian, Cañiza came to this Court praying for reversal grandchildren and sons-in-law, were allowed to live
of the Appellate Court's judgment. She contends in the main that the latter temporarily in the house of plaintiff, Carmen Cañiza, for
erred in (a) holding that she should have pursued an accion publiciana, and free, out of her kindness;
not an accion interdictal; and in (b) giving much weight to "a xerox copy of an 10. That the plaintiff, through her legal guardian,
alleged holographic will, which is irrelevant to this case." 13 has duly notified the defendants, for them to vacate the
In the responsive pleading filed by them on this Court's said house, but the two (2) letters of demand were ignored
requirement, 14 the Estradas insist that the case against them was really not and the defendants refused to vacate the same. . .
one of unlawful detainer; they argue that since possession of the house had 11. That the plaintiff, represented by her legal
not been obtained by them by any "contract, express or implied," as guardian, Amparo Evangelista, made another demand on
contemplated by Section 1, Rule 70 of the Rules of Court, their occupancy of the defendants for them to vacate the premises, before
the premises could not be deemed one "terminable upon mere demand (and Barangay Captain Angelina A. Diaz of Barangay Laging
hence never became unlawful) within the context of the law." Neither could Handa, Quezon City, but after two (2) conferences, the
the suit against them be deemed one of forcible entry, they add, because result was negative and no settlement was reached. A
they had been occupying the property with the prior consent of the "real photocopy of the Certification to File Action dated July 4,
owner," Carmen Cañiza, which "occupancy can even ripen into full 1990; issued by said Barangay Captain is attached,
ownership once the holographic will of petitioner Carmen Cañiza is admitted marked Annex "D" and made an integral part hereof;
to probate." They conclude, on those postulates, that it is beyond the power
of Cañiza's legal guardian to oust them from the disputed premises. 12. That the plaintiff has given the defendants
more than thirty (30) days to vacate the house, but they
Carmen Cañiza died on March 19, 1994, 15 and her heirs — the still refused to vacate the premises, and they are up to this
aforementioned guardian, Amparo Evangelista, and Ramon C. Nevado, her time residing in the said place;
niece and nephew, respectively — were by this Court's leave, substituted for
her. 16 13. That this complaint is filed within one (1) year
from the date of first letter of demand dated February 3,
Three issues have to be resolved: (a) whether or not an ejectment 1990 (Annex "B") sent by the plaintiff to the defendants, by
action is the appropriate judicial remedy for recovery of possession of the her legal guardian — Amparo Evangelista;
property in dispute; (b) assuming desahucio to be proper, whether or not
Evangelista, as Cañiza's legal guardian had authority to bring said action; 14. By the defendants' act of unlawfully depriving
and (c) assuming an affirmative answer to both questions, whether or not the plaintiff of the possession of the house in question,
Evangelista may continue to represent Cañiza after the latter's death. they are enriching themselves at the expense of the
 incompetent plaintiff, because, while they are saving 3) that through her general guardian, Cañiza requested the
money by not paying any rent for the house, the plaintiff is Estradas several times, orally and in writing, to
losing much money as her house could not be rented by give back possession of the house;
others;
4) that the Estradas refused and continue to refuse to give
15. That the plaintiff's health is failing and she back the house to Cañiza, to her continuing
needs the house urgently, so that funds could be raised to prejudice; and
meet her expenses for her support, maintenance and
medical treatment; 5) that the action was filed within one (1) year from the last
demand to vacate.
16. That because of defendants' refusal to vacate
the house at No. 61 Scout Tobias, Quezon City, the Undoubtedly, a cause of action for desahucio has been adequately
plaintiff, through her legal guardian, was compelled to go set out. It is settled that in an action for unlawful detainer, it suffices to allege
to court for justice, and she has to spend P10,000.00 as that the defendant is unlawfully withholding possession from the plaintiff is
attorney's fees." deemed sufficient, 21 and a complaint for unlawful detainer is sufficient if it
alleges that the withholding of possession or the refusal to vacate is unlawful
Its prayer 20 is quoted below: without necessarily employing the terminology of the law. 22

"WHEREFORE, in the interest of justice and the The Estradas' first proffered defense derives from a literal
rule of law, plaintiff, Carmen Cañiza, represented by her construction of Section 1, Rule 70 of the Rules of Court which inter
legal guardian. Amparo Evangelista, respectfully prays to alia authorizes the institution of an unlawful detainer suit when "the
this Honorable Court, to render judgment in favor of possession of any land or building is unlawfully withheld after the expiration
plaintiff and against the defendants as follows: or termination of the right to hold possession, by virtue of any contract,
express or implied." They contend that since they did not acquire possession
1. To order the defendants, their children, of the property in question "by virtue of any contract, express or implied" —
grandchildren, sons-in-law and other persons claiming they having been, to repeat, "allowed to live temporarily . . . (therein) for free,
under them, to vacate the house and premises at No. 61 out of . . . (Cañiza's) kindness" — in no sense could there be an "expiration
Scout Tobias, Quezon City, so that its possession can be or termination of . . . (their) right to hold possession, by virtue of any contract,
restored to the plaintiff, Carmen Cañiza: and express or implied." Nor would an action for forcible entry lie against them,
since there is no claim that they had "deprived (Cañiza) of the possession of
2. To pay attorney's fees in the amount of
. . . (her property) by force, intimidation, threat, strategy, or stealth."
P10,000.00;
The argument is arrant sophistry. Cañiza's act of allowing the
3. To pay the costs of the suit."
Estradas to occupy her house, rent-free, did not create a permanent and
In essence, the amended complaint states: indefeasible right of possession in the latter's favor. Common sense, and the
most rudimentary sense of fairness clearly require that act of liberality be
1) that the Estradas were occupying Cañiza's house by implicitly, but no less certainly, accompanied by the necessary burden on the
tolerance — having been "allowed to live Estradas of returning the house to Cañiza upon her demand. More than once
temporarily . . . (therein) for free, out of . . . has this Court adjudged that a person who occupies the land of another at
(Cañiza's) kindness;" the latter's tolerance or permission without any contract between them is
necessarily bound by an implied promise that he will vacate upon demand,
2) that Cañiza needed the house "urgently" because her failing which a summary action for ejectment is the proper remedy against
"health . . . (was) failing and she . . . (needed) him. 23 The situation is not much different from that of a tenant whose lease
funds . . . to meet her expenses for her support, expires but who continues in occupancy by tolerance of the owner, in which
maintenance and medical treatment;" case there is deemed to be an unlawful deprivation or withholding of
possession as of the date of the demand to vacate. 24 In other words, one
whose stay is merely tolerated becomes a deforciant illegally occupying the
land or property the moment he is required to leave. 25 Thus, in Asset
Privatization Trust vs. Court of Appeals, 26 where a company, having lawfully II
obtained possession of a plant upon its undertaking to buy the same, refused The Estradas insist that the devise of the house to them by Cañiza
to return it after failing to fulfill its promise of payment despite demands, this
clearly denotes her intention that they remain in possession thereof, and
Court held that "(a)fter demand and its repudiation, . . . (its) continuing
legally incapacitated her judicial guardian, Amparo Evangelista, from evicting
possession . . . became illegal and the complaint for unlawful detainer filed
them therefrom, since their ouster would be inconsistent with the ward's will.
by the . . . (plant's owner) was its proper remedy."
A will is essentially ambulatory; at any time prior to the testator's
It may not be amiss to point out in this connection that where there
death, it may be changed or revoked; 29 and until admitted to probate, it has
had been more than one demand to vacate, the one-year period for filing the
no effect whatever and no right can be claimed thereunder, the law being
complaint for unlawful detainer must be reckoned from the date of the last
quite explicit: "No will shall pass either real or personal property unless it is
demand, 27 the reason being that the lessor has the option to waive his right
proved and allowed in accordance with the Rules of Court" (ART.
of action based on previous demands and let the lessee remain meanwhile in 838, Id.). 30 An owner's intention to confer title in the future to persons
the premises. 28 Now, the complaint filed by Cañiza's guardian alleges that
possessing property by his tolerance, is not inconsistent with the former's
the same was "filed within one (1) year from the date of the first letter of
taking back possession in the meantime for any reason deemed sufficient.
demand dated February 3, 1990." Although this averment is not in accord
And that in this case there was sufficient cause for the owner's resumption of
with law because there is in fact a second letter of demand to vacate, dated
possession is apparent: she needed to generate income from the house on
February 27, 1990, the mistake is inconsequential, since the complaint was
account of the physical infirmities afflicting her, arising from her extreme age.
actually filed on September 17, 1990, well within one year from the second
(last) written demand to vacate. Amparo Evangelista was appointed by a competent court the general
guardian of both the person and the estate of her aunt, Carmen Cañiza. Her
The Estradas' possession of the house stemmed from the owner's
Letters of Guardianship 31 dated December 19, 1989 clearly installed her as
express permission. That permission was subsequently withdrawn by the the "guardian over the person and properties of the incompetent CARMEN
owner, as was her right; and it is immaterial that the withdrawal was made
CAÑIZA with full authority to take possession of the property of said
through her judicial guardian, the latter being indisputably clothed with
incompetent in any province or provinces in which it may be situated and to
authority to do so. Nor is it of any consequence that Carmen Cañiza had
perform all other acts necessary for the management of her properties . .
executed a will bequeathing the disputed property to the Estradas; that
." 32 By that appointment, it became Evangelista's duty to care for her aunt's
circumstance did not give them the right to stay in the premises after demand person, to attend to her physical and spiritual needs, to assure her well-
to vacate on the theory that they might in future become owners thereof, that being, with right to custody of her person in preference to relatives and
right of ownership being at best inchoate, no transfer of ownership being
friends. 33 It also became her right and duty to get possession of, and
possible unless and until the will is duly probated.
exercise control over, Cañiza's property, both real and personal, it being
Thus, at the time of the institution of the action of desahucio, the recognized principle that the ward has no right to possession or control of his
Estradas had no legal right to the property, whether as possessors by property during her incompetency. 34 That right to manage the ward's estate
tolerance or sufferance, or as owners. They could not claim the right of carries with it the right to take possession thereof and recover it from anyone
possession by sufferance, that had been legally ended. They could not who retains it, 35 and bring and defend such actions as may be needful for
assert any right of possession flowing from their ownership of the house; this purpose. 36
their status as owners is dependent on the probate of the holographic will by Actually, in bringing the action of desahucio, Evangelista was merely
which the property had allegedly been bequeathed to them — an event discharging the duty to attend to "the comfortable and suitable maintenance
which still has to take place; in other words; prior to the probate of the will,
of the ward" explicitly imposed on her by Section 4, Rule 96 of the Rules of
any assertion of possession by them would be premature and inefficacious.
Court, viz.:
In any case, the only issue that could legitimately be raised under the "SEC. 4. Estate to be managed frugally, and
circumstances was that involving the Estradas' possession by tolerance, i.e., proceeds applied to maintenance of ward. — A guardian
possession de facto, not de jure. It is therefore incorrect to postulate that the
must manage the estate of his ward frugally and without
proper remedy for Cañiza is not ejectment but accion publiciana, a plenary
waste, and apply the income and profits thereof, so far as
action in the RTC or an action that is one for recovery of the right to
maybe necessary, to the comfortable and suitable
possession de jure. maintenance of the ward and his family, if there be any;
 and if such income and profits be insufficient for that deceased, without requiring the appointment of an
purpose, the guardian may sell or encumber the real executor or administrator and the court may appoint
estate, upon being authorized by order to do so, and apply guardian ad litem for the minor heirs.
to such of the proceeds as may be necessary to such
maintenance." To be sure, an ejectment case survives the death of a party.
Cañiza's demise did not extinguish the desahucio suit instituted by her
Finally, it may be pointed out in relation to the Estradas' defenses in through her guardian. 41 That action, not being a purely personal one,
the ejectment action, that as the law now stands, even when, in forcible entry survived her death; her heirs have taken her place and now represent her
and unlawful detainer cases, the defendant raises the question of ownership interests in the appeal at bar.
in his pleadings and the question of possession cannot be resolved without
deciding the issue of ownership, the Metropolitan Trial Courts, Municipal Trial WHEREFORE, the petition is GRANTED. The Decision of the Court
Courts, and Municipal Circuit Trial Courts nevertheless have the undoubted of Appeals promulgated on June 2, 1993 — affirming the Regional Trial
competence to resolve. "the issue of ownership . . . only to determine the Court's judgment and dismissing petitioner's petition for certiorari — is
issue of possession." 37 REVERSED and SET ASIDE, and the Decision dated April 13, 1992 of the
Metropolitan Trial Court of Quezon City, Branch 35, in Civil Case No. 3410 is
III REINSTATED and AFFIRMED. Costs against private respondents. cda
As already stated, Carmen Cañiza passed away during the SO ORDERED.
pendency of this appeal. The Estradas thereupon moved to dismiss the
petition, arguing that Cañiza's death automatically terminated the Davide, Jr., Melo, Francisco and Panganiban, JJ., concur.
guardianship, Amparo Evangelista lost all authority as her judicial guardian,
and ceased to have legal personality to represent her in the present appeal. ||| (Cañiza v. Court of Appeals, G.R. No. 110427, [February 24, 1997], 335
The motion is without merit. PHIL 1107-1121)

While it is indeed well-established rule that the relationship of

guardian and ward is necessarily terminated by the death of either the
SECOND DIVISION
guardian or the ward, 38 the rule affords no advantage to the Estradas.
Amparo Evangelista, as niece of Carmen Cañiza, is one of the latter's only
two (2) surviving heirs, the other being Cañiza's nephew, Ramon C. Nevado. [G.R. No. 156536. October 31, 2006.]
On their motion and by Resolution of this Court 39 of June 20, 1994, they
were in fact substituted as parties in the appeal at bar in place of the
deceased, in accordance with Section 17, Rule 3 of the Rules of Court, JOSEPH CUA, petitioner, vs. GLORIA A. VARGAS,
viz.: 40 AURORA VARGAS, RAMON VARGAS, MARITES
VARGAS, EDELINA VARGAS AND GEMMA
"SEC. 17. Death of a party. — After a party dies VARGAS,respondents.
and the claim is not thereby extinguished, the court shall
order, upon proper notice, the legal representative of the
deceased to appear and be substituted for the deceased
within a period of thirty (30) days, or within such time as DECISION
may be granted. If the legal representative fails to appear
within said time, the court may order the opposing party to
procure the appointment of a legal representative of the
AZCUNA, J p:
deceased within a time to be specified by the court, and
the representative shall immediately appear for and on
This is a petition for review under Rule 45 of the Rules of
behalf of the interest of the deceased. The court charges
Court seeking the reversal of the decision 1 dated March 26, 2002, and
involved in procuring such appointment, if defrayed by the
the resolution 2 dated December 17, 2002, of the Court of Appeals in
opposing party, may be recovered as costs. The heirs of
CA-G.R. SP No. 59869 entitled "Gloria A. Vargas, Aurora Vargas,
the deceased may be allowed to be substituted for the
Ramon Vargas, Marites Vargas, Edelina Vargas and Gemma Vargas v. I understand that a document "Extra Judicial Settlement
Joseph Cua." Among Heirs with Sale" was executed by some of my
client's co-heirs and alleged representatives of other co-
The facts are as follows:
heirs, by virtue of which document you acquired by
A parcel of residential land with an area of 99 square meters purchase from the signatories to the said document, five
located in San Juan, Virac, Catanduanes was left behind by the late (5) shares with a total area of fifty-five square meters of
Paulina Vargas. On February 4, 1994, a notarized Extra Judicial the above-described land.
Settlement Among Heirs was executed by and among Paulina Vargas'
heirs, namely Ester Vargas, Visitacion Vargas, Juan Vargas, Zenaida V. This is to serve you notice that my client shall exercise her
Matienzo, Rosario V. Forteza, Andres Vargas, Gloria Vargas, Antonina right of legal redemption of said five (5) shares as well as
Vargas and Florentino Vargas, partitioning and adjudicating unto other shares which you may likewise have acquired by
themselves the lot in question, each one of them getting a share of 11 purchase. And you are hereby given an option to agree to
square meters. Florentino, Andres, Antonina and Gloria, however, did legal redemption within a period of fifteen (15) days from
not sign the document. Only Ester, Visitacion, Juan, Zenaida and your receipt hereof.
Rosario signed it. The Extra Judicial Settlement Among Heirs was Should you fail to convey to me your agreement within
published in the Catanduanes Tribune for three consecutive weeks. 3 said 15-day-period, proper legal action shall be taken by
On November 15, 1994, an Extra Judicial Settlement Among my client to redeem said shares.
Heirs with Sale 4 was again executed by and among the same heirs over
the same property and also with the same sharings. Once more, only Thank you.
Ester, Visitacion, Juan, Zenaida and Rosario signed the document and Very truly yours,
their respective shares totaling 55 square meters were sold to Joseph
Cua, petitioner herein. (Sgd.)
According to Gloria Vargas, the widow of Santiago Vargas and JUAN G. ATENCIA
one of respondents herein, she came to know of the Extra Judicial
Settlement Among Heirs with Sale dated November 16, 1994 only when When the offer to redeem was refused and after having failed to
the original house built on the lot was being demolished sometime in reach an amicable settlement at the barangay level, 9 Gloria Vargas filed
May 1995. 5 She likewise claimed she was unaware that an earlier Extra a case for annulment of Extra Judicial Settlement and Legal Redemption
Judicial Settlement Among Heirs dated February 4, 1994 involving the of the lot with the Municipal Trial Court (MTC) of Virac, Catanduanes
same property had been published in the Catanduanes Tribune. 6 against petitioner and consigned the amount of P100,000 which is the
amount of the purchase with the Clerk of Court on May 20,
After knowing of the sale of the 55 square meters to petitioner,
1996. 10 Joining her in the action were her children with Santiago,
Gloria Vargas tried to redeem the property, with the following
namely, Aurora, Ramon, Marites, Edelina and Gemma, all surnamed
letter 7 sent to petitioner on her behalf: HTSAEa
Vargas.
29th June 1995
Subsequently, Carlos Gianan, Jr. and Gloria Arcilla, heirs of the
Mr. Joseph Cua alleged primitive owner of the lot in question, Pedro Lakandula,
intervened in the case. 11
Capilihan, Virac, Catanduanes
Respondents claimed that as co-owners of the property, they
Sir: may be subrogated to the rights of the purchaser by reimbursing him the
price of the sale. They likewise alleged that the 30-day period following a
This is in behalf of my client, Ms. Aurora Vargas, 8 (c/o written notice by the vendors to their co-owners for them to exercise the
Atty. Prospero V. Tablizo) one of the lawful heirs of the late right of redemption of the property had not yet set in as no written notice
Paulina Vargas, original owner of Lot No. 214 of Virac, was sent to them. In effect, they claimed that the Extra Judicial
Poblacion covered by ARP No. 031-0031 in her name. Settlement Among Heirs and the Extra Judicial Settlement Among Heirs
with Sale were null and void and had no legal and binding effect on an heir to his co-heirs in connection with the sale of
them. 12 hereditary rights to a stranger before partition under Article
1088 of the Civil Code 17 can be dispensed with when
After trial on the merits, the MTC rendered a decision 13 in favor
such co-heirs have actual knowledge of the sale such that
of petitioner, dismissing the complaint as well as the complaint-in-
the 30-day period within which a co-heir can exercise the
intervention for lack of merit, and declaring the Deed of Extra Judicial
right to be subrogated to the rights of a purchaser shall
Settlement Among Heirs with Sale valid and binding. The MTC upheld
commence from the date of actual knowledge of the sale.
the sale to petitioner because the transaction purportedly occurred after
the partition of the property among the co-owner heirs. The MTC opined Petitioner argues, as follows:
that the other heirs could validly dispose of their respective shares.
Moreover, the MTC found that although there was a failure to strictly Firstly, the acquisition by petitioner of the subject property
comply with the requirements under Article 1088 of the Civil Code 14 for subsequent to the extrajudicial partition was valid because the partition
a written notice of sale to be served upon respondents by the vendors was duly published. The publication of the same constitutes due notice to
prior to the exercise of the former's right of redemption, this deficiency respondents and signifies their implied acquiescence thereon.
was cured by respondents' actualknowledge of the sale, which was more Respondents are therefore estopped from denying the validity of the
than 30 days before the filing of their complaint, and their consignation of partition and sale at this late stage. Considering that the partition was
the purchase price with the Clerk of Court, so that the latter action came valid, respondents no longer have the right to redeem the property.
too late. Finally, the MTC ruled that respondents failed to establish by Secondly, petitioner is a possessor and builder in good faith.
competent proof petitioner's bad faith in purchasing the portion of the
property owned by respondents' co-heirs. 15 Thirdly, the MTC had no jurisdiction over the complaint because
its subject matter was incapable of pecuniary estimation. The complaint
On appeal, the Regional Trial Court (RTC), Branch 42, of Virac, should have been filed with the RTC.
Catanduanes affirmed the MTC decision in a judgment dated November
25, 1999. The matter was thereafter raised to the Court of Appeals Fourthly, there was a non-joinder of indispensable parties, the
(CA). ASHEca co-heirs who sold their interest in the subject property not having been
impleaded by respondents.
The CA reversed the ruling of both lower courts in the assailed
decision dated March 26, 2002, declaring that the Extra Judicial Fifthly, the appeal to the CA should have been dismissed as it
Settlement Among Heirs and the Extra Judicial Settlement Among Heirs was not properly verified by respondents. Gloria Vargas failed to indicate
with Sale, dated February 4, 1994 and November 15, 1994, respectively, that she was authorized to represent the other respondents (petitioners
were void and without any legal effect. The CA held that, pursuant to therein) to initiate the petition. Moreover, the verification was inadequate
Section 1, Rule 74 of the Rules of Court, 16 the extrajudicial settlement because it did not state the basis of the alleged truth and/or correctness
made by the other co-heirs is not binding upon respondents considering of the material allegations in the petition.
the latter never participated in it nor did they ever signify their consent to The petition lacks merit.
the same.
The procedure outlined in Section 1 of Rule 74 is an ex
His motion for reconsideration having been denied, petitioner parte proceeding. The rule plainly states, however, that persons who do
filed the present petition for review. not participate or had no notice of an extrajudicial settlement will not be
The issues are: bound thereby. 18 It contemplates a notice that has been sent out or
issued before any deed of settlement and/or partition is agreed upon
Whether heirs are deemed constructively notified (i.e., a notice calling all interested parties to participate in the said deed
and bound, regardless of their failure to participate therein, of extrajudicial settlement and partition), and not after such an
by an extrajudicial settlement and partition of estate when agreement has already been executed 19 as what happened in the
the extrajudicial settlement and partition has been duly instant case with the publication of the first deed of extrajudicial
published; and, settlement among heirs.
Assuming a published extrajudicial settlement and The publication of the settlement does not constitute constructive
partition does not bind persons who did not participate notice to the heirs who had no knowledge or did not take part in it
therein, whether the written notice required to be served by because the same was notice after the fact of execution. The
requirement of publication is geared for the protection of creditors and best position to know the other co-owners who, under the law, must be
was never intended to deprive heirs of their lawful participation in the notified of the sale. 24 This will remove all uncertainty as to the fact of
decedent's estate. In this connection, the records of the present case the sale, its terms and its perfection and validity, and quiet any doubt that
confirm that respondents never signed either of the settlement the alienation is not definitive. 25 As a result, the party notified need not
documents, having discovered their existence only shortly before the entertain doubt that the seller may still contest the alienation. 26
filing of the present complaint. Following Rule 74, these extrajudicial
Considering, therefore, that respondents' co-heirs failed to
settlements do not bind respondents, and the partition made without their
comply with this requirement, there is no legal impediment to allowing
knowledge and consent is invalid insofar as they are concerned. TASCDI
respondents to redeem the shares sold to petitioner given the former's
This is not to say, though, that respondents' co-heirs cannot obvious willingness and capacity to do so.
validly sell their hereditary rights to third persons even before the
Likewise untenable is petitioner's contention that he is a builder
partition of the estate. The heirs who actually participated in the
in good faith. Good faith consists in the belief of the builder that the land
execution of the extrajudicial settlements, which included the sale to
the latter is building on is one's own without knowledge of any defect or
petitioner of their pro indiviso shares in the subject property, are bound
flaw in one's title. 27 Petitioner derived his title from the Extra Judicial
by the same. Nevertheless, respondents are given the right to redeem
Settlement Among Heirs With Sale dated November 15, 1994. He was
these shares pursuant to Article 1088 of the Civil Code.The right to
very much aware that not all of the heirs participated therein as it was
redeem was never lost because respondents were never notified in
evident on the face of the document itself. Because the property had not
writing of the actual sale by their co-heirs. Based on the provision, there
yet been partitioned in accordance with the Rules of Court, no particular
is a need for written notice to start the period of redemption, thus:
portion of the property could have been identified as yet and delineated
Should any of the heirs sell his hereditary rights to as the object of the sale. This is because the alienation made by
a stranger before the partition, any or all of the co-heirs respondents' co-heirs was limited to the portion which may be allotted to
may be subrogated to the rights of the purchaser by them in the division upon the termination of the co-ownership. Despite
reimbursing him for the price of the sale, provided they this glaring fact, and over the protests of respondents, petitioner still
do so within the period of one month from the time constructed improvements on the property. For this reason, his claim of
they were notified in writing of the sale by the vendor. good faith lacks credence.
(Emphasis supplied.)
As to the issue of lack of jurisdiction, petitioner is estopped from
It bears emphasis that the period of one month shall be reckoned raising the same for the first time on appeal. Petitioner actively
from the time that a co-heir is notified in writing by the vendor of the participated in the proceedings below and sought affirmative ruling from
actual sale. Written notice is indispensable and mandatory, 20 actual the lower courts to uphold the validity of the sale to him of a portion of
knowledge of the sale acquired in some other manner by the the subject property embodied in the extrajudicial settlement among
redemptioner notwithstanding. It cannot be counted from the time heirs. Having failed to seasonably raise this defense, he cannot, under
advance notice is given of an impending or contemplated sale. The law the peculiar circumstances of this case, be permitted to challenge the
gives the co-heir thirty days from the time written notice of the actual sale jurisdiction of the lower court at this late stage. While it is a rule that a
within which to make up his or her mind and decide to repurchase or jurisdictional question may be raised at any time, an exception arises
effect the redemption. 21 where estoppel has already supervened.
Though the Code does not prescribe any particular form of Estoppel sets in when a party participates in all stages of a case
written notice nor any distinctive method for written notification of before challenging the jurisdiction of the lower court. One cannot
redemption, the method of notification remains exclusive, there being no belatedly reject or repudiate its decision after voluntarily submitting to its
alternative provided by law. 22 This proceeds from the very purpose of jurisdiction, just to secure affirmative relief against one's opponent or
Article 1088, which is to keep strangers to the family out of a joint after failing to obtain such relief. The Court has, time and again, frowned
ownership, if, as is often the case, the presence of outsiders be upon the undesirable practice of a party submitting a case for decision
undesirable and the other heir or heirs be willing and in a position to and then accepting the judgment, only if favorable, and attacking it for
repurchase the share sold. 23 lack of jurisdiction when adverse. 28
It should be kept in mind that the obligation to serve written Petitioner's fourth argument, that there is a non-joinder of
notice devolves upon the vendor co-heirs because the latter are in the indispensable parties, similarly lacks merit. An indispensable party is a
party-in-interest without whom there can be no final determination of an Court deems it sufficient that she signed the petition on their behalf and
action and who is required to be joined as either plaintiff or as their representative.
defendant. 29 The party's interest in the subject matter of the suit and in
WHEREFORE, the petition is DENIED for lack of merit. Costs
the relief sought is so inextricably intertwined with the other parties that
against petitioner.
the former's legal presence as a party to the proceeding is an absolute
necessity. Hence, an indispensable party is one whose interest will be SO ORDERED.
directly affected by the court's action in the litigation. In the absence of
Puno, Sandoval-Gutierrez, Corona and Garcia, JJ., concur.
such indispensable party, there cannot be a resolution of the controversy
before the court which is effective, complete, or equitable. 30 ||| (Cua v. Vargas, G.R. No. 156536, [October 31, 2006], 536 PHIL 1082-
In relation to this, it must be kept in mind that the complaint filed 1097)
by respondents ultimately prayed that they be allowed to redeem the
shares in the property sold by their co-heirs. Significantly, the right of the
other heirs to sell their undivided share in the property to petitioner is not THIRD DIVISION
in dispute. Respondents concede that the other heirs acted within their
hereditary rights in doing so to the effect that the latter completely and
effectively relinquished their interests in the property in favor of [G.R. No. 175720. September 11, 2007.]
petitioner. Petitioner thus stepped into the shoes of the other heirs to
become a co-owner of the property with respondents. As a result, only CRESENCIANA TUBO RODRIGUEZ (now
petitioner's presence is absolutely required for a complete and final deceased),substituted by SUSANA A.
determination of the controversy because what respondents seek is to LLAGAS, petitioner,vs.EVANGELINE RODRIGUEZ,
be subrogated to his rights as a purchaser. ECHSDc BELEN RODRIGUEZ and BUENAVENTURA
Finally, petitioner contends that the petition filed by respondents RODRIGUEZ, respondents.
with the CA should have been dismissed because the verification and
certificate of non-forum shopping appended to it were defective, citing
specifically the failure of respondent Gloria Vargas to: (1) indicate that
DECISION
she was authorized to represent her co-respondents in the petition, and
(2) state the basis of the alleged truth of the allegations.
The general rule is that the certificate of non-forum shopping
must be signed by all the plaintiffs or petitioners in a case and the YNARES-SANTIAGO, J p:
signature of only one of them is insufficient. 31 Nevertheless, the rules
on forum shopping, which were designed to promote and facilitate the This petition for review on certiorari assails the Decision 1 of the
orderly administration of justice, should not be interpreted with such Court of Appeals in CA-G.R. SP No. 91442 dated June 27, 2006, which
absolute literalness as to subvert their own ultimate and legitimate set aside the Decision of the Regional Trial Court (RTC) of Makati City,
objective. Strict compliance with the provisions regarding the certificate Branch 134, in Civil Case No. 03-517, and reinstated the Decision of the
of non-forum shopping merely underscores its mandatory nature in that Metropolitan Trial Court (MTC) of Makati City, Branch 63, in Civil Case
the certification cannot be altogether dispensed with or its requirements No. 75717, dismissing the complaint for ejectment; as well as the
completely disregarded. 32 Under justifiable circumstances, the Court Resolution denying the motion for reconsideration.
has relaxed the rule requiring the submission of such certification Juanito Rodriguez owned a five-door apartment located at San
considering that although it is obligatory, it is not jurisdictional. 33 Jose Street, Guadalupe Nuevo, Makati City, and covered by TCT No.
Thus, when all the petitioners share a common interest and 144865. 2 On October 27, 1983, Juanito executed a "Huling Habilin at
invoke a common cause of action or defense, the signature of only one Testamento" giving petitioner Cresenciana Tubo Rodriguez, his live-in
of them in the certification against forum shopping substantially complies partner, apartments D and E, and his children Benjamin Rodriguez (the
with the rules. 34 The co-respondents of respondent Gloria Vargas in deceased husband of respondent Evangeline Rodriguez),apartment A,
this case were her children. In order not to defeat the ends of justice, the respondent Buenaventura Rodriguez, apartment B, and respondent
Belen Rodriguez, apartment C. 3 SHIcDT
 However, on June 14, 1984, Juanito executed a Deed of relied heavily on the "Huling Habilin at Testamento," which was not
Absolute Sale over the property in favor of petitioner. 4 Thus, TCT No. probated hence has no effect and no right can be claimed therein. The
144865 was cancelled and a new TCT No. 150431 was issued in the Partition Agreement which was allegedly entered into pursuant to
name of the petitioner. 5 aEIcHA the Huling Habilin at Testamento should not also be considered. Thus:
The case arose when petitioner filed on September 20, 2001 a WHEREFORE, premises considered, the decision
complaint for unlawful detainer against the respondents, alleging that she rendered by the Metropolitan Trial Court, Branch 63,
is the lawful and registered owner of the property; and that in 1984, she Makati City, is hereby ordered REVERSED AND SET
allowed respondents Evangeline, Buenaventura and Belen, out of ASIDE. Consequently, judgment is hereby rendered
kindness and tolerance, to personally occupy units A, B and D, ordering the defendants and all persons claiming rights
respectively. However, without her knowledge and consent, respondents under them to vacate the premises and surrender the
separately leased the units to Montano Magpantay, Mel Navarro and possession thereof to the plaintiff. Defendants are likewise
Socorro Escota, who despite repeated demands, failed and refused to ordered to pay jointly and severally the plaintiff an amount
vacate the premises and to pay the rentals thereof. 6 of P5,000.00 a month per unit beginning 13 August 2001
until they finally vacate the premises and the costs of this
In their Answer, respondents claimed ownership over the subject
suit. HETDAC
property by succession. They alleged that while petitioner is the
registered owner of the property, however, she is not the lawful owner SO ORDERED. 9
thereof because the June 14, 1984 Deed of Absolute Sale was simulated
and void. As in Civil Case No. 01-1641 now pending before the RTC of Aggrieved, respondents filed a petition for review before the
Makati City, Branch 141, which they filed to assail the validity of the said Court of Appeals which reversed and set aside the decision of the RTC
sale, respondents maintain that petitioner exerted undue influence over and reinstated the decision of the MTC. It held that the MTC correctly
their father, who at that time was seriously ill, to agree to the sale of the received evidence on ownership since the question of possession could
property for only P20,000.00 after knowing that only two apartments not be resolved without deciding the issue of ownership. Further,
were given to her in the Huling Habilin at Testamento. Further, she had the Huling Habilin at Testamento transmitted ownership of the specific
no cause of action against them for being a party to the August 23, 1990 apartments not only to the respondents but also to the petitioner; and
Partition Agreement wherein they recognized each other as co-owners pursuant thereto, the parties executed the Partition Agreement in
and partitioned the property in accordance with the provision of the last accordance with the wishes of the testator, thus:
will and testament. 7
WHEREFORE, this Court resolves to REVERSE
On February 26, 2002, the MTC rendered a judgment in favor of and SET ASIDE the Decision of the Regional Trial Court.
the respondents and held that the deed of sale was simulated otherwise The decision dated February 26, 2002 of the Metropolitan
petitioner would not have entered into the Partition Agreement, which Trial Court, Branch 63, Makati City in Civil Case No. 75717
legally conferred upon each heir exclusive ownership over their dismissing the complaint for ejectment is hereby
respective shares, thus: REINSTATED. cHECAS
WHEREFORE, the Complaint is DISMISSED. SO ORDERED. 10
Plaintiff is ordered to pay attorney's fees of P10,000.00
and the costs of suit in favor of defendants. The motion for reconsideration was denied hence, petitioner filed
the present petition for review raising the following errors:
SO ORDERED. 8
I.
On appeal, the RTC reversed the decision of the MTC. It held THE COURT OF APPEALS COMMITTED A
that petitioner's certificate of title is a conclusive evidence of ownership of REVERSIBLE ERROR OF LAW AND GRAVE ABUSE OF
the land described therein; and that unless and until said title has been DISCRETION IN REVERSING AND SETTING ASIDE
annulled by a court of competent jurisdiction, such title is existing and THE DECISION OF THE REGIONAL TRIAL COURT AND
valid. This is true also with respect to the deed of sale. The present REINSTATING THE DECISION OF THE
action, which involves only the issue of physical or material possession, METROPOLITAN TRIAL COURT DISMISSING
is not the proper action to challenge it. Further, the MTC erred when it
 PETITIONER'S COMPLAINT FOR UNLAWFUL provide an expeditious means of protecting actual possession or right to
DETAINER. aTIEcA possession of property, the question of title is not involved 14 and should
be raised by the affected party in an appropriate action in the proper
II. court. 15 HIAcCD
THE COURT OF APPEALS COMMITTED A However, when the issue of ownership is raised the court is not
REVERSIBLE ERROR OF LAW AND GRAVE ABUSE OF ousted of its jurisdiction. Section 16 of Rule 70 of the Rules of
DISCRETION IN DECLARING THAT THE PROPERTY, A Court provides:
PARCEL OF LAND UPON WHICH A FIVE-UNIT
APARTMENT STANDS, BECAME THE SUBJECT OF SEC 16. Resolving defense of ownership. —
JUANITO RODRIGUEZ'S HULING HABILIN AT When the defendant raises the defense of ownership in his
TESTAMENTO WHEREIN THE PROPERTY WAS pleadings and the question of possession cannot be
DISTRIBUTED TO HIS HEIRS (HEREIN resolved without deciding the issue of ownership, the issue
RESPONDENTS) INCLUDING THE RESPONDENT of ownership shall be resolved only to determine the issue
(PETITIONER HEREIN). 11 of possession. TcSAaH

Petitioner alleges that as the registered owner of the subject Thus, all that the trial court can do is to make an initial determination of
property, she enjoys the right of possession thereof and that question of who is the owner of the property so that it can resolve who is entitled to
ownership cannot be raised in an ejectment case unless it is intertwined its possession absent other evidence to resolve ownership. 16 But this
with the issue of possession. While the court may look into the evidence adjudication is only provisional and does not bar or prejudice an action
of title or ownership and possession de jure to determine the nature of between the same parties involving title to the property. 17
possession, it cannot resolve the issue of ownership because the In the case at bar, petitioner's cause of action for unlawful
resolution of said issue would effect an adjudication on ownership which detainer was based on her alleged ownership of land covered by TCT
is not proper in the summary action for unlawful detainer. Petitioner No. 150431 and that she merely tolerated respondents' stay thereat.
insists that the Court of Appeals erred in ruling that the Huling Habilin at However, when respondents leased the apartments to other persons
Testamentotransmitted ownership of the specific apartments without her consent, their possession as well as those persons claiming
disregarding the fact that the same is not probated yet and that the right under them became unlawful upon their refusal to vacate the
testator changed or revoked his will by selling the property to petitioner premises and to pay the rent. On the other hand, respondents assailed
prior to his death. petitioner's title by claiming that the deed of sale upon which it was
Contrarily, respondents pray that the instant petition for review based was simulated and void. They insisted that they were co-owners
be dismissed since the resolution of the question of ownership by the thus, they have the right to possess the said property. To prove their
MTC and the Court of Appeals was provisional only to resolve the issue claim, they presented the Huling Habilin at Testamento of Juanito
of possession. Petitioner can always avail of legal remedies to have the Rodriguez and the Partition Agreement. CTcSIA
issue of ownership passed upon by the proper court. Aware of the The lower courts considered the following documentary evidence
provisional nature of the resolution on ownership in ejectment cases, in arriving at their respective decisions, albeit the RTC decision
respondents filed Civil Case No. 01-1641 to assail the validity of the contradicts that of the MTC and Court of Appeals: 1) Huling Habilin at
deed of sale of the property and the registration thereof in petitioner's Testamento executed by Juanito Rodriguez on October 27, 1983; 2)
name. DHITSc Deed of Sale of the property executed by Juanito Rodriguez and the
The petition has merit. petitioner on June 14, 1984; 3) TCT No. 150431 in the name of the
petitioner; and 4) the August 23, 1990 Partition Agreement executed by
An action for unlawful detainer exists when a person unlawfully both the respondents and the petitioner. cEAHSC
withholds possession of any land or building against or from a lessor,
vendor, vendee or other persons, after the expiration or termination of Based on the foregoing documentary evidence, we find that
the right to hold possession, by virtue of any contract, express or there is preponderance of evidence in favor of the petitioner's claim.
implied. 12 The sole issue to be resolved is the question as to who is Respondents failed to prove their right of possession, as the Huling
entitled to the physical or material possession of the premises or Habilin at Testamento and the Partition Agreement have no legal effect
possession de facto. 13 Being a summary proceeding intended to since the will has not been probated. Before any will can have force or
validity it must be probated. This cannot be dispensed with and is a to guarantee the integrity of land titles and to protect their
matter of public policy. 18 Article 838 of the Civil Code mandates indefeasibility once the claim of ownership is established
that "[n]o will shall pass either real or personal property unless it is and recognized. IaTSED
proved and allowed in accordance with the Rules of Court." As the will
was not probated, the Partition Agreement which was executed pursuant It is settled that a Torrens Certificate of title is
thereto can not be given effect. Thus, the fact that petitioner was a party indefeasible and binding upon the whole world unless and
to said agreement becomes immaterial in the determination of the issue until it has been nullified by a court of competent
of possession. ECcTaH jurisdiction. Under existing statutory and decisional law,
the power to pass upon the validity of such certificate of
Moreover, at the time the deed of sale was executed in favor of title at the first instance properly belongs to the Regional
the petitioner, Juanito Rodriguez remained the owner thereof since Trial Courts in a direct proceeding for cancellation of
ownership would only pass to his heirs at the time of his death. Thus, as title. aIcDCA
owner of the property, he had the absolute right to dispose of it during his
lifetime. Now, whether or not the disposition was valid is an issue that As the registered owner, petitioner had a right to
can be resolved only in Civil Case No. 01-1641, an action instituted by the possession of the property, which is one of the
the respondents for that purpose. DCcIaE attributes of ownership. ...
We are, thus, left with the deed of sale and the certificate of title We emphasize, however, that our ruling on the issue of
over the property to consider. ownership is only provisional to determine who between the parties has
We agree with the RTC that a certificate of title is a conclusive the better right of possession. It is, therefore, not conclusive as to the
evidence of ownership of the land described therein; the validity of which issue of ownership, which is the subject matter of Civil Case No. 01-
shall not be subject to a collateral attack, especially in an ejectment case 1641. Our ruling that petitioner has a better right of possession was
which is summary in nature. DSATCI arrived at on the basis of evidence without prejudice to the eventual
outcome of the annulment case, where the issue as to who has title to
In Ross Rica Sales Center, Inc. v. Ong, 19 the Court held that: the property in question is fully threshed out. As the law now stands, in
The long settled rule is that the issue of ownership an ejectment suit, the question of ownership may be provisionally ruled
cannot be subject of a collateral attack. IcTEAD upon for the sole purpose of determining who is entitled to possession de
facto. EScAID
In Apostol v. Court of Appeals, this Court had the WHEREFORE, in view of the foregoing, the Decision of the
occasion to clarify this: Court of Appeals in CA-G.R. SP No. 91442 dated June 27, 2006 is
. . . Under Section 48 of Presidential REVERSED and SET ASIDE. The Decision of the Regional Trial Court
Decree No. 1529, a certificate of title shall not be of Makati City, Branch 134, in Civil Case No. 03-517, reversing the
subject to collateral attack. It cannot be altered, Decision of the Metropolitan Trial Court (MTC) of Makati City, Branch 63,
modified or cancelled, except in a direct in Civil Case No. 75717, is REINSTATED.
proceeding for that purpose in accordance with SO ORDERED.
law. The issue of the validity of the title of the
respondents can only be assailed in an action Austria-Martinez, Chico-Nazario, Nachura and Reyes,
expressly instituted for that purpose. Whether or JJ., concur.
not the petitioners have the right to claim ||| (Rodriguez v. Rodriguez, G.R. No. 175720, [September 11, 2007], 559
ownership over the property is beyond the power PHIL 398-408)
of the court a quo to determine in an action for
unlawful detainer. SECcIH
Further, in Co v. Militar, 20 it was held that:
[T]he Torrens System was adopted in this country
because it was believed to be the most effective measure