CASIANO v. MALOTO (1977) J.

Fernandez FACTS: Adriana Maloto died on October 20, 1963 in Iloilo City, her place of residence. Believing that she died intestate, her niece and nephews commenced an intestate proceeding before the CFI of Iloilo, where they executed an extrajudicial Partition of her estate, adjudicating it unto themselves. CFI approved the EJ Partition Subsequently, on April 1, 1967, a document purporting to be the last will and testament (dated Jan. 3, 1940) of Adriana Maloto was delivered to the CFI of Iloilo. Aldina et al. were all named as heirs but Aldina and Constancio appeared to have bigger shares in the will than what they received in the extrajudicial partition. There were also dispositions in favor of Asilo de Molo, the Roman Catholic Church of Molo, and Purificacion Miraflor.

Aldino and Constancio, along with the other devisees and legatees, filed a motion in S.P. No. 1736 for, among others, the allowance of the will of Adriana Maloto. CFI denied the motion on the ground that the said motion had been filed out of time. Petitioners (Aldino et al.) filed a petition for certiorari and mandamus with the SC but it was denied on the ground of improper remedy. The petitioners then commenced S.P. No. 2176 in the CFI of Iloilo for the probate of the alleged last will and testament. Probate court dismissed the petition on the basis of the finding of said court in S.P. No. 1736 that the alleged will sought to be probated had been destroyed and revoked by the testatrix. ISSUE/HELD: WON the dismissal of S.P. No. 2176 by the CFI of Iloilo was proper NO The probate court had no jurisdiction to entertain the petition for the probate of the alleged will of Adriana Maloto in Special Proceeding No. 1736. Indeed, the motion to reopen was denied because the same was filed out of time. Moreover, it is not proper to make a finding in an intestate estate proceeding that the discovered will has been revoked. As a matter of fact, the probate court in Special Proceeding No. 1736 stated in the order of November 16, 1968 that "Movants should have filed a separate action for the probate of the Will." And this court stated in its resolution of May 14, 1969 that "The more appropriate remedy of the petitioners in the premises stated in the petition is for petitioners to initiate a separate proceeding for the probate of the alleged with in question." In view of the foregoing, the order of November 16, 1968 in Special Proceeding No. 1736 is not a bar to the present petition for the probate of the alleged will of Adriana Maloto.