RULE 73

REPUBLIC OF THE PHILIPPINES vs.COURT OF APPEALS and MAXIMO WONG

REGALADO, J.: G.R. No. 97906 May 21, 1992

Petitioner seeks to set aside the judgment of respondent Court of Appeals 1 in affirmance of the decision of the court a quo 2 granting the petition filed by herein private respondent Maximo Wong for the change of his name to Maximo Alcala, Jr. which was his name prior to his adoption by Hoong Wong and Concepcion Ty Wong. The facts are undisputed. Private respondent Maximo Wong is the legitimate son of Maximo Alcala, Sr. and Segundina Y. Alcala. When he was but two and a half years old and then known as Maximo Alcala, Jr., and his sister Margaret Alcala, was then nine years old, they were, with the consent of their natural parents 3 and by order of the court in Special Case No. 593 4 issued on September 9, 1967, adopted by spouses Hoong Wong and Concepcion Ty Wong, both naturalized Filipinos. Hoong Wong, now deceased, was an insurance agent while Concepcion Ty Wong was a high school teacher. They decided to adopt the children as they remained childless after fifteen years of marriage. The couples showered their adopted children with parental love and reared them as their own children. Upon reaching the age of twenty-two, herein private respondent, by then married and a junior Engineering student at Notre Dame University, Cotabato City, filed a petition to change his name to Maximo Alcala, Jr. It was averred that his use of the surname Wong embarrassed and isolated him from his relatives and friends, as the same suggests a Chinese ancestry when in truth and in fact he is a Muslim Filipino residing in a Muslim community, and he wants to erase any implication whatsoever of alien nationality; that he is being ridiculed for carrying a Chinese surname, thus hampering his business and social life; and that his adoptive mother does not oppose his desire to revert to his former surname. As earlier stated, on July 2, 1986, the matter was resolved in favor of private respondent, the trial court decreeing that, the jurisdictional requirements having been fully complied with, petitioner's prayer to change his name from Maximo Wong to Maximo Alcala, Jr. was granted. 5 On appeal to respondent court, and over the opposition of petitioner Republic through the Solicitor General, the decision of the court below was affirmed in full, hence, this petition for review on certiorari. The lone issue to be settled is whether or not the reasons given by private respondent in his petition for change of name are valid, sufficient and proper to warrant the granting of said petition. The Solicitor General contends that private respondent's allegations of ridicule and/or isolation from family and friends were unsubstantiated and cannot justify the petition for change of name. He claims that for private respondent to cast aside the name of his adoptive father is crass ingratitude to the memory of the latter and to his adoptive mother who is still alive, despite her consent to the petition for change of name. Further, the Solicitor General posits that the reversion of Maximo Wong to his old name violates Articles 341 and 365 of the Civil Code, which requires an adopted child to use the surname of the adopter, and would identify him with his parents by nature, thus giving the impression that he has severed his relationship with his adoptive parents. 6 In refutation, private respondent argues that he did as the law required, that is, upon adoption he used the surname of the adopter. However, being already emancipated, he can now decide what is best for and by himself. It is at this time that he realized that the Chinese name he carries causes him undue ridicule and embarrassment and affects his business and social life. In fact, his adoptive mother, being aware of his predicament, gave her consent to the petition for change of name, albeit making it clear that the same shall in no way affect the legal adoption, and even underwent the rigors of trial to substantiate her sworn statement. If his adoptive mother does not take offense nor feel any resentment, abhorrence or insecurity about his desire to change his name, private respondent avers that there can be no possible prejudice on her, much less the State. 7 We feel that we should preface our review of this case with a clear comprehension of the legal significance of a person's name. For all practical and legal purposes, a man's name is the designation by which he is known and called in the community in which be lives and is best known. It is defined as the word or combination of words by which a person is distinguished from other individuals and, also, as the label or appellation which he bears for the convenience of the world at large addressing him, of in speaking of or dealing with him. 8 Names are used merely as one method of indicating the identity of persons; they are descriptive of persons for identification, since, the identity is the essential thing and it has frequently been held that, when identity is certain, a variance in, or misspelling of, the name is immaterial. 9 The names of individuals usually have two parts: the given name or proper name, and the surname or family name. The given or proper name is that which is given to the individual at birth or baptism, to distinguish him from other individuals. The name or family name is that which identifies the family to which he belongs and is continued from parent to child. The given name may be freely selected by the parents for the child; but the surname to which the child is entitled is fixed by law. 10 A name is said to have the following characteristics: (1) It is absolute, intended to protect the individual from being confused with others. (2) It is obligatory in certain respects, for nobody can be without a name. (3) It is fixed, unchangeable, or immutable, at least at the start, and may be changed only for good cause and by judicial proceedings. (4) It is outside the commerce of man, and, therefore, inalienable and intransmissible by act inter vivos or mortis causa. (5) It is imprescriptible. 11 Title XIII, Book I of the Civil Code, in Articles 364 to 380, provides the substantive rules which regulate the use of surnames. Considering the subject and personalities involved in this present review, particular attention must be called to Article 365 which mandates that "(a)n adopted child shall bear the surname of the adopter," in correlation with Article 341 on the effects of adoption, among which is to"(e)ntitle the adopted person to use the adopter's surname." This same entitlement of an adopted child is maintained in Article 39(3), Title II of Presidential Decree No. 603, otherwise known as the Child and Youth Welfare Code. More recently, Executive Order No. 209, as amended by Executive Order No. 227, or the Family Code, echoes the same statutory right of an adopted child to use the surname of the adopter. 12 Clearly, from the very wordings of the law, it may be inferred that this use of the surname of the adopter by the adopted child is both an obligation and a right. Under Article 376 by the Civil Code, "(n)o person can change his name or surname without judicial authority." The application for change of name thereunder involves a special proceeding governed by and conducted under the strictures of Rule 103 of the Rules of Court and one which involves substantial changes, with the declared objective of such judicial proceedings being the prevention of fraud. The purpose of the statutory procedure authorizing a change of personal name is simply to have, wherever possible, a record of the change, and in keeping with the object of the statute, court to which application is made should normally make its decree recording such change of name. 13 A change of name is a special proceeding to establish the status of a person involving his relation with others, that is, his legal position in, or with regard to, the rest of the community. It is a proceeding in rem 14 and, as such, strict compliance with all jurisdictional requirements, particularly on publication, is essential in order to vest the court with jurisdiction thereover. 15 For this purpose, the only name that may be changed is the true or official name recorded in the civil register. 16 To digress a little for purposes of clarification, the change of name contemplated under Article 376 and reglementarily implemented by Rule 103 must not be confused with and cannot be effected through the summary proceeding proposed in Article 412 of the some Code, as procedurally regulated by Rule 108 of the Rules, which refers only to correction of clerical errors, such as those which are visible to the eye or obvious to the understanding, or an error made by a clerk or transcriber, or a mistake in copying or writing, or some harmless or innocuous change, 17 and not those which will involve substantial changes. 18 Turning now to the case at bar, we are guided by the jurisprudential dictum that the State has an interest in the names borne by individuals and entities for the purpose of identification, and a change of name is not a matter of right but of sound judicial discretion, to be exercised in the light of reasons adduced and the consequences that will likely follow; 19 it is a privilege which may be granted only upon a showing of a proper or reasonable cause or compelling reason therefor. 20 We find unacceptable the assertion of the Solicitor General that private respondent's allegation of ridicule and embarrassment due to the use of his present surname is unsubstantiated. The testimony of private respondent in the lower court bears out the existence of valid cause in his bid for change of name: ATTY. DUMAMBA: Q Now, after adoption, when you went to school, what did you use as your surname? A "Wong," sir. Q Now, after you adopted the surname "Wong?" in your studies, what did you observe?

A I observed that "Wong" as a surname embarrassed me to my friends and when I go with Chinese friends I cannot talk Chinese. I am living in Campo Muslim, a Muslim community but no one can believe that I am Muslim. I have a little business of Furniture but I have little (sic) customer because no one believes me that I am Muslim. Q You want to inform this Honorable Court that this family name you are using which is "Wong" embarrassed you from ( sic) your friends and relatives and also cause(d) damage to your business? A Yes sir. xxx xxx xxx ATTY. DUMAMBA: Q Now, considering that according to you, you are embarrassed because of the family name you are using, your friends shy away from you and it is a handicap in your business, what is your desire for the Court to do in order to help you? A Change my family name. Q From "Wong" to what do you want your surname changed? A "Alcala, Jr.", sir. xxx xxx xxx COURT: Q What is your purpose in changing your family name from Maximo Wong to Maximo Alcala, Jr.? A I feel embarrassed to my friends and also to my relatives and as I said I have a little business of furniture and only a few customers buying for the fact that they don't believe I am Muslim. Cross. ATTY. SERO: With the permission of the Honorable Court. Q Your father's name is Maximo Alcala, Sr., is he still alive? A Yes, sir. Q And what does your father say to this proposed changed (sic) of your name, your family name to your real family name given to you? A Yes, sir. Q They have no objection to it? A No, sir. Q Stated before this Honorable Court, the purpose why you wanted to change your name from "Wong" to "Alcala" is so that to avoid embarrassment because you are a Muslim and your Muslim relatives think that you are Chinese. A Yes, sir. Q Not for the purpose to hide anything or what not? A No, sir. 21 The foregoing testimony of private respondent is materially corroborated by the testimony of private respondent's adoptive mother: Q Now, what did you observe to (sic) your son Maximo Wong after you and your husband adopted him? A When I adopted him and he used the surname "Wong" I observed that some of his relatives, cousins and friends seem to shy away from him and despise him in school that is why I agreed to change his name. 22 We uphold these observations in the decision of respondent appellate court: The purpose of the law an allowing of change of name as contemplated by the provisions of Rule 103 of the Rules of Court is to give a person an opportunity to improve his personality and to provide his best interest. (Calderon vs. Republic, 19 SCRA 721). In granting or denying the petition for change of name, the question of proper and reasonable cause is left to the discretion of the court. The evidence presented need only be satisfactory to the court and not all the best evidence available is required. (Uy vs. Republic, L-22712, Nov. 25, 1965; Nacionales vs. Republic, L-18067, April 29, 1966; both cases cited in 1 SCRA 843). In the present case, We believe that the court a quo had exercised its discretion judiciously when it granted the petition. From the testimony of petitioner-appellee and of his adopter mother Concepcion Ty-Wong, We discern that said appellee was prompted to file the petition for change of name because of the embarrassment and ridicule his family name "Wong" brings in his dealings with his relatives and friends, he being a Muslim Filipino and living in a Muslim community. Another cause is his desire to improve his social and business life. It has been held that in the absence of prejudice to the state or any individual, a sincere desire to adopt a Filipino name to erase signs of a former alien nationality which only hamper(s) social and business life, is a proper and reasonable cause for change of name (Uy vs. Republic, L-22712, Nov. 25, 1965, Que Liong Sian vs. Republic, L-23167, Aug. 17, 1967, 20 SCRA 1074). Justice dictates that a person should be allowed to improve his social standing as long as in doing so, he does not cause prejudice or injury to the interest of the State or other persons (Calderon vs. Republic, supra). Nothing whatsoever is shown in the record of this case that such prejudice or injury to the interest of the state or of other persons would result in the change of petitioner's name. 23 It bears stressing at this point that to justify a request for change of name, petitioner must show not only some proper or compelling reason therefor but also that he will be prejudiced by the use of his true and official name. 24Among the grounds for change of name which have been held valid are: (a) When the name is ridiculous, dishonorable or extremely difficult to write or pronounce; (b) When the change results as a legal consequence, as in legitimation; (c) When the change will avoid confusion; 25 (d) Having continuously used and been known since childhood by a Filipino name, unaware of her alien parentage; 26 (e) A sincere desire to adopt a Filipino name to erase signs of former alienage, all in good faith and without prejudicing anybody; 27 and (f) When the surname causes embarrassment and there is no showing that the desired change of name was for a fraudulent purpose or that the change of name would prejudice public interest. 28 In granting or denying petitions for change of name, the question of proper and reasonable cause is left to the sound discretion of the court. The evidence presented need only be satisfactory to the court and not all the best evidence available. 29 Summarizing, in special proceedings for change of name, what is involved is not a mere matter of allowance or disallowance of the request, but a judicious evaluation of the sufficiency and propriety of the justifications advanced in support thereof, mindful of the consequent results in the event of its grant and with the sole prerogative for making such determination being lodged in the courts. While it is true that the statutory fiat under Article 365 of the Civil Code is to the effect that an adopted child shall bear the surname of the adopter, it must nevertheless be borne in mind that the change of the surname of the adopted child is more an incident rather than the object of adoption proceedings. 30 The act of adoption fixes a status, viz., that of parent and child. More technically, it is an act by which relations of paternity and affiliation are recognized as legally existing between persons not so related by nature. It has been defined as the taking into one's family of the child of another as son or daughter and heir and conferring on it a title to the rights and privileges of such. The purpose of an adoption proceeding is to effect this new status of relationship between the child and its adoptive parents, the change of name which frequently accompanies adoption being more an incident than the object of the proceeding. 31 The welfare of the child is the primary consideration in the determination of an application for adoption. On this point, there is unanimous agreement. 32 It is the usual effect of a decree of adoption to transfer from the natural parents to the adoptive parents the custody of the child's person, the duty of obedience owing by the child, and all other legal consequences and incidents of the natural relation, in the same manner as if the child had been born of such adoptive parents in lawful wedlock, subject, however, to such limitations and restrictions as may be by statute imposed. 33 More specifically under the present state of our law, the Family Code, superseding the pertinent provisions of the Civil Code and of the Child and Youth Welfare Code on the matter, 34 relevantly provides in this wise with regard to the issue involved in this case: Art. 189. Adoption shall have the following effects: (1) For civil purposes, the adopted shall be deemed to be the legitimate child of the adopters and both shall acquire the reciprocal rights and obligations arising from the relationship of parent and child, including the right of the adopted to use the surname of the adopters; (Emphasis supplied.) xxx xxx xxx The Solicitor General maintains the position that to sustain the change of name would run counter to the behest of Article 365 of the Civil Code and the ruling in Manuel vs. Republic 35 that "one should not be allowed to use a surname which otherwise he is not permitted to employ under the law," and would set a bad example to other persons who might also seek a change of their surnames on lame excuses. 36

While we appreciate the Solicitor General's apprehensions and concern, we find the same to be unfounded. We do not believe that by reverting to his old name, private respondent would then be using a name which he is prohibited by law from using. True, the law prescribes the surname that a person may employ; but the law does not go so far as to unqualifiedly prohibit the use of any other surname, and only subjects such recourse to the obtention of the requisite judicial sanction. What the law does not prohibit, it permits. If we were to follow the argument of the Solicitor General to its conclusion, then there will never be any possibility or occasion for any person, regardless of status, to change his name, in view of the supposed subsequent violation of the legal imperative on the use of surnames in the event that the petition is granted. Rule 103 of the Rules of Court would then be rendered inutile. This could hardly have been the intendment of the law. A petition for change of name is a remedy allowed under our law only by way of exception to the mandatory provisions of the Civil Code on the use of surnames. The law fixes the surname that may be used by a person, at least inceptively, and it may be changed only upon judicial permission granted in the exercise of sound discretion. Section 1 of Rule 103, in specifying the parties who may avail of said remedy, uses the generic term "persons" to signify all natural persons regardless of status. If a legitimate person may, under certain judicially accepted exceptional circumstances, petition the court for a change of name, we do not see any legal basis or logic in discriminating against the availment of such a remedy by an adopted child. In other words, Article 365 is not an exception, much less can it bar resort, to Rule 103. We are of the view that the circumstances herein obtaining are within the ambit of the established exceptions and find merit in private respondent's submission: Rule 103 of the Rules of Court has its primordial purpose which (State) is to give a person in opportunity to improve his personality and provide his best interest (Calderon vs. Republic, 19 SCRA 721). In the instant case, the court a quo found the petition of Maximo Wong for change of name justifiable after due hearing, thus its factual findings and appreciation of testimonies count heavily and need not be disturbed unless for strong and cogent reasons because the trial court is in a better position to examine real evidence as well as to observe the demeanor of the witnesses while testifying in the case (Baliwag Transit, Inc. vs. CA, 147 SCRA 82). Moreover, the trial court could take judicial notice of other existing factors in the community where herein respondent lives which it considers material in its judicious determination of the case. . . . Additionally, herein respondent is already of age and as such he can decide what is best for him. His experience with regards (sic) his social and business dealings is personal and it is only him ( sic) who can attest to the same. Finding his predicament's proper remedy is solely through legal process, herein respondent accordingly filed a petition pursuant to Rule 103 of the Rules of Court which was granted by the Court a quo. 37 Besides, we have faith in the circumspection of our lower courts and that, in the exercise of their discretion, said courts shall consider petitions for change of name only on cogent and meritorious grounds as would justify the granting of such applications. We do not expect our trial courts to cater or give in to the whim or caprice of an applicant, aside from the fact that there is always the safeguard and corrective interdiction of appellate review. It is not fair to construe the desired reversion of private respondent to the use of the name of his parents by nature as cross ingratitude. To go by the Solicitor General's suggestion that private respondent should have his adoption revoked if he wants to use the surname of his natural father would be to exact too clear a toll for making use of an appropriate and valid remedy available under the law. Herein private respondent, before he filed the petition for change of name, asked for his adoptive mother's permission to do so: Q Now, in filing this petition for change of surname, you had talked with your adopted mother? A Yes, sir. Q Did you ask permission from her whether she wants you to change the surname? A Yes, sir. 38 True enough, the above testimony of private respondent was confirmed by his adoptive mother in this manner: Q How are you related to Maximo Wong? A My adopted son. Q He is your adopted son, did your son talk to you when he filed this petition for change of his surname? A Yes, he even tried to ask me and I said, alright if you want to change. xxx xxx xxx Q Now, when you agreed to the filing of this petition for change of name, did you reduce your consent in writing? A Yes, sir, I agreed also so that his business will prosper because he is already Alcila and not Wong because Wong they said is Chinese. 39 As proof of her assent to the filing of said petition (her husband having already passed away), Concepcion Ty Vda. de Wong executed an affidavit in Cotabato City on May 27, 1985, with these textual declarations: That I am the same and identical person, who is the surviving adapted (sic) parent of Maximo Wong. That I personally discovered it myself from the time my adapted (sic) son Maximo used the surname of my late husband Wong, his relatives and childhood friends shy away from him because he is branded as a son of a chinese which is different from them whose parents are muslim Filipinos; That I pity my son who is often rediculed (sic) by his friends and relatives because of his family name Wong, hence, in order not to humper (sic) his social and business life in the future, I am voluntarily and of my own free will without being forced, coerced, or intimidated give (sic) my consent to his desire to change his desire to change his surname without affecting however the legal adoption granted by the Court on September 9, 1967, making him as one of my legal and compulsory heir (sic). That I am executing this affidavit to attest to the truth of all the above mentioned facts and for all legal intent (sic) and purposes. 40 There could be no other plausible reason for private respondent to first secure has adoptive mother's consent before resorting to the questioned legal recourse other than the parental respect and reverence which is owed by and to be expected of a dutiful child. If private respondent was such an ingrate, as the Solicitor General would have us believe, he would not have bothered to seek his adoptive mother's counsel. In the same breath, had his adoptive mother regarded him as an ungrateful adoptee, she would not have executed the affidavit above quoted, much less testify in his behalf at the hearing of his petition. Moreover, worthy of note is the fact that private respondent's adoptive mother emphasized that she executed the above affidavit "without affecting the legal adoption granted by the Court on September 9, 1967, making him as one of my legal and compulsory heir(s)." This is incontrovertible proof that she never entertained any misgivings or reservations with respect to her consent to his petition. This likewise dispels any possible confusion as to private respondent's legal status or adoptive paternity and his successional rights. Concordantly, we have heretofore held that a change of name does not define or effect a change in one's existing family relations or in the rights and duties flowing therefrom. It does not alter one's legal capacity, civil status or citizenship; what is altered is only the name. 41 WHEREFORE, the petition is DENIED and the decision of respondent Court of Appeals is hereby AFFIRMED in toto. SO ORDERED. Narvasa, C.J., Paras, Padilla and Nocon, JJ., concur.

Makalintal, J.: May 31, 1969 G.R. No. L-22761 ROSE BUSH MALIG and JOE, THOMAS, and JOHN all surnamed BUSH, represented in this suit by their attorney-in-fact, ROSE BUSH MALIG vs. MARIA SANTOS BUSH This is an appeal by the plaintiffs from two orders of the Court of First Instance of Manila in Civil Case No. 51639, the first dismissing the complaint and the second denying the motion to reconsider the order of dismissal. On September 19, 1962 the plaintiffs filed the complaint, alleging that they were the acknowledged natural children and the only heirs in the direct line of the deceased John T. Bush, having been born of the common-law relationship of their father with Apolonia Perez from 1923 up to August, 1941; that said John T. Bush and Apolonia Perez, during the conception of the plaintiffs, were not suffering from any disability to marry each other; that they lived with their alleged father during his lifetime and were considered and treated by. him as his acknowledge natural children; that said John T. Bush, at the time of his death, left several real and personal properties; that the defendant, by falsely alleging that she was the legal wife of the deceased was able to secure her appointment as administratrix of the estate of the deceased in Testate Proceedings No. 29932 of the Court of First Instance of Manila; that she submitted to the court for approval a project of partition, purporting to show that the deceased left a will whereby he bequeathed his estate to three persons, namely: Maria Santos Bush, Anita S. Bush and Anna Berger; that the defendant then knew that the plaintiffs were the acknowledged natural children of the deceased; and that they discovered the fraud and misrepresentation perpetrated by the defendant only in July, 1962. They prayed that the project of partition be annulled; that the defendant be ordered to submit a complete inventory and accounting of all the properties left by the deceased and another project of partition adjudicating to the plaintiffs their legal participation in the said estate and/or in the event that the defendant had disposed of all or part of the estate, that she be ordered to pay them the market value thereof; and that the defendant be ordered to pay for the value of the fruits received, damages and attorneys fees. The defendant moved to dismiss, alleging lack of cause of action, res judicata and statute of limitations. The plaintiffs opposed and the defendant filed a reply to the opposition. On January 10, 1963 the lower court denied the motion, it appearing that the grounds upon which said motion is based are not indubitable. In time, the defendant filed her answer specifically denying all the material averments of the complaint an d invoking laches, res judicata and statute of limitations as affirmative defenses. After the issues were joined the case was set for hearing, but on the date thereof the hearing was postponed upon the defenda nts manifestation that she would file a written motion to dismiss. The motion, when filed, challenged the jurisdiction of the court, stating that since the action was one to annul a project of partition duly approved by the probate court it was that court alone which could take cognizance of the case, citing Rule 75, Section 1, of the Rules of Court. On October 31, 1963 the lower court granted the motion and dismissed the complaint, not on the ground relied upon by the defendant but because the action had prescribed. The plaintiffs moved to reconsider but were turned down; hence, this appeal. The procedural question posed by appellants is: May the lower court dismiss an action on a ground not alleged in the motion to dismiss? It must be remembered that the first motion to dismiss, alleging lack of cause of action, res judicata and statute of limitations, was denied because those grounds did not appear to the court to be indubitable. The second motion reiterated none of those grounds and raised only the question of jurisdiction. In dismissing the complaint upon a ground not relied upon, the lower court in effect did so motu proprio, without offering the plaintiffs a chance to argue the point. In fact the court did not even state in its order why in its opinion the action had prescribed, and why in effect, without any evidence or new arguments on the question, it reversed its previous ruling that the ground of prescription was not indubitable. In Manila Herald Publishing Co., Inc. vs. Ramos, et al., 88 Phil. 94, it was held: Section 1 of Rule 8 enumerates the grounds upon which an action may be dismissed, and it specifically ordains that a motion to this end be filed. In the light of this express requirement we do not believe that the court had power to dismiss the case without the requisite motion duly presented. The fact that the parties filed memoranda upon the courts indication or order in which they discussed the proposition that the action was unnecessary and was improperly brought outside and independently of the case for libel did not supply the deficiency. Rule 30 of the Rules of Court provides for the cases in which an action may be dismissed, and the inclusion of those therein provided excludes any other, under the familiar maxims, inclusio unius est exclusivo ulterius. The only instance in which, according to said Rules, the court may dismiss upon the courts own motion an action is, when the plaintiff fails to appear at the time of the trial or to prosecute his action for an unreasonable len gth of time or to comply with the Rules or any order of the court. The foregoing ruling is applicable in this case, because although a motion to dismiss had been presented defendant the resolution of the court granting the same was based upon a ground not alleged in said motion. But assuming that the lower court could properly consider the question of prescription anew, the same still did not appear to be indubitable on the face of the allegations in the complaint. The defendant cites Article 137 of the Civil Code, which provides that an action for acknowledgment of natural children may be commenced only during the lifetime of the putative parents, except in two instances not obtaining in this case, and that the present action was commenced after the death of the putative father of the plaintiffs. The said provision is not of indubitable application, since the plaintiffs do not seek acknowledgment but allege as a matter of fact that they are the acknowledged natural children and the only heirs in the direct line of the late John T. Bush. Whether or not t his allegation is true will, of course, depend upon the evidence to be presented at the trial. The defendant insists in this instance on the jurisdictional ground posed in her motion to dismiss, citing Rule 75, Section 1, of the Rules of Court formerly in force (now Rule 73, Section 1), which says: SECTION 1. Where estate of deceased persons settled. If the decedent is an inhabitant of the Philippines at the time of his death, whether a citizen or an alien, his will shall be proved, or letters of administration granted, and his estate settled, in the Court of First Instance in the province in which he resides at the time of his death, and if he is an inhabitant of a foreign country, the Court of First Instance of any province in which he had estate. The court first taking cognizance of the settlement of the estate of a decedent, shall exercise jurisdiction to the exclusion of all other courts. The jurisdiction assumed by a court, so far as it depends on the place of residence of the decedent, or of the location of his estate, shall not be contested in a suit or proceeding, except in an appeal from that court, in the original case, or when the want of jurisdiction appears on the record. It will be noted that the foregoing rule fixes jurisdiction for purposes of the special proceeding for the settlement of the estate of a deceased person, so far as it depends on the place of residence of the decedent, or of the location of his estate. The matter really concern s venue, as the caption of Rule cited indicates, and in order to preclude different courts which may properly a ssume jurisdiction from doing so, the Rule specifies that the court first taking cognizance of the settlement of the estate of a decedent, shall exercise jurisdiction to the exclusion of all ot her courts. In the final analysis this action is not necessarily one to annul the partition already made and approved by the probate court, and to reopen the estate proceeding so that a new partition may be made, but for recovery by the plaintiffs of the portion of their alleged inheritance of which, through fraud, they have been deprived. Without prejudice to whatever defenses may be available to the defendant, this Court believes that t he plaintiffs cause should not be foreclosed without a hearing on the merits. WHEREFORE, the orders appealed from are set aside and the case remanded for further proceedings. Costs against the defendant-appellee in this instance.

G.R. No. L-24742, October 26, 1973

Rosa Cayerano Cuenco vs. CA, Manuel Cuenco, Lourdes Cunco, Concepcion Cuenco Manguerra, Carmen Cuenco, Consuelo Cuenco reyes, and Teresita cuenco Gonzalez The court first taking cognizance of the settlement of the estate of a decedent, shall exercise jurisdiction to the exclusion of all other courts FACTS: Senator Mariano Jesus Cuenco died in Manila. He was survived by his widow and two minor sons, residing in Quezon City, and children of the first marriage, residing in Cebu. Lourdes, one of the children from the first marriage, filed a Petition for Letters of Administration with the Court of First Instance (CFI) Cebu, alleging that the senator died intestate in Manila but a resident of Cebu with properties in Cebu and Quezon City. The petition still pending with CFI Cebu, Rosa Cayetano Cuenco, the second wife, filed a petition with CFI Rizal for the probate of the last will and testament, where she was named executrix. Rosa also filed an opposition and motion to dismiss in CFI Cebu but this court held in abeyance resolution over the opposition until CFI Quezon shall have acted on the probate proceedings. Lourdes filed an opposition and motion to dismiss in CFI Quezon, on ground of lack of jurisdiction and/or improper venue, considering that CFI Cebu already acquired exclusive jurisdiction over the case. The opposition and motion to dismiss were denied. Upon appeal CA ruled in favor of Lourdes and issued a writ of prohibition to CFI Quezon. ISSUEs: Whether or not CA erred in issuing the writ of prohibition Whether or not CFI Quezon acted without jurisdiction or grave abuse of discretion in taking cognizance and assuming exclusive jurisdiction over the probate proceedings in pursuance to CFI Cebu's order expressly consenting in deference to the precedence of probate over intestate proceedings HELD: The Supreme Court found that CA erred in law in issuing the writ of prohibition against the Quezon City court from proceeding with the testate proceedings and annulling and setting aside all its orders and actions, particularly its admission to probate of the last will and testament of the deceased and appointing petitioner-widow as executrix thereof without bond pursuant to the deceased testator's wish. On Venue and Jurisdiction Under Rule 73, the court first taking cognizance of the settlement of the estate of a decent, shall exercise jurisdiction to the exclusion of all other courts. The residence of the decent or the location of his estate is not an element of jurisdiction over the subject matter but merely of venue. If this were otherwise, it would affect the prompt administration of justice. The court with whom the petition is first filed must also first take cognizance of the settlement of the estate in order to exercise jurisdiction over it to the exclusion of all other courts. ~*~*~*~*~*~*~*~ Unlike a civil action which has definite adverse parties, a special proceeding has no definite adverse party. The definitions of a civil action and a special proceeding, respectively, in the Rules illustrate this difference. A civil action, in which "a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong"34 necessarily has definite adverse parties, who are either the plaintiff or defendant.35 On the other hand, a special proceeding, "by which a party seeks to establish a status, right, or a particular fact,"36 has one definite party, who petitions or applies for a declaration of a status, right, or particular fact, but no definite adverse party. In the case at bar, it bears emphasis that the estate of the decedent is not being sued for any cause of action. As a special proceeding, the purpose of the settlement of the estate of the decedent is to determine all the assets of the estate,37 pay its liabilities,38 and to distribute the residual to those entitled to the same.39 ~*~*~*~*~*~*~*~*~ A CIVIL ACTION is one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong. (See. 3[a], Rule 1, 1997 Rules of Civil Procedure), while a SPECIAL PROCEEDING is a remedy by which a party seeks to establish a status, a right or a particular fact. (Sec. 3[C]. Rule 1,1997 Rules of Civil Procedure.)

BAUTISTA ANGELO, J.:

G.R. No. L-7635

July 25, 1955

TASIANA ONGSINGCO, Guardian of Francisco de Borja vs. HON. BIENVENIDO A. TAN, as Judge of the CFI of Rizal and JOSE DE BORJA, administrator of the estate of the late Josefa Tangco,
Petitioner Tasiana Ongsingco is the wife and judicial guardian of one Francisco de Borja who was declared incompetent by the Court of First Instance of Rizal in Special Proceedings No. 1764. Francisco de Borja is the surviving spouse of Josefa Tangco whose estate is being settled in Special Proceedings No. 7866 of the same court. Respondent Jose de Borja is the son of Francisco de Borja, who, on June 29, 1953, was appointed administrator of the estate of Josefa Tangco. Francisco de Borja, according to petitioner, is the owner of two parcels of land situated in Santa Rosa, Nueva Ecija, which he acquired by inheritance from his late father Marcelo de Borja and as such form part of his separate properties. On October 27, 1953, Francisco de Borja was declared incompetent by the court as aforesaid, and petitioner, his second wife, was appointed his guardian. As such guardian, petitioner took over from her husband the possession of said two parcels of land and commenced the threshing of the palay crop standing thereon for the benefit of her ward. On January 16, 1954, respondent Jose de Borja, as administrator of the estate of Josefa Tangco, filed a motion in the estate proceedings of the latter praying that petitioner be restrained from threshing the palay on the lands until the ownership thereof has been definitely determined either by the court or by agreement of the parties. Petitioner opposed the motion challenging the jurisdiction of the court and contending that if its purpose is to pass on the question of ownership, such can only be threshed out elsewhere and not by the probate court. Because it became obvious to petitioner that respondent administrator would insist in his motion whose main aim is to prevent petitioner and her laborers from threshing the crop standing on the lands and, on the other hand, the several attempts made to agree on the identity of the lands had failed, petitioner filed an action on January 21, 1954 in the Court of First Instance of Nueva Ecija to restrain respondent administrator from interferring with the harvesting and threshing of the crop on the claim that the lands were the exclusive property of her ward Francisco de Borja (Civil Case No. 1350). On the same date, the court granted the preliminary injunction prayed for upon the filing by petitioner of a bond of P5,000. On January 25, 1954, respondent Jose de Borja filed an urgent petition in the same case asking the court to dismiss the action for lack of jurisdiction and to dissolve the preliminary injunction that was issued. This petition was denied. On January 29, 1954, respondent court issued an order the dispositive part of which reads: IN VIEW OF THE FOREGOING CONSIDERATIONS, the guardian Tasiana Ongsingco is hereby ordered not to meddle in the threshing of the palay harvested in the lands declared under Tax Declaration No. 540 (Annexes A and A-1). The administrator and the guardian are ordered to find from among the properties of the incapacitated Francisco de Borja in Tabuanting, Sta. Rosa, Nueva Ecija, the two parcels of land having an approximate area as those two lots adjudicated in his favor by the Commissioners on Partition, and once found, let the parties agree on the matter, so as to avoid any future controversy, and to notify this Court of their agreement. IT IS SO ORDERED. On February 10, 1954, petitioner filed a motion for reconsideration calling attention to the fact that both the guardian and the administrator had already attempted to arrive at an agreement as to the identity of the lots which are claimed to be the exclusive property of Francisco de Borja, but they failed to do so, and because of such inability and the immediate need of harvesting and threshing the crop standing thereon, petitioner filed an action in the Court of First Instance of Nueva Ecija precisely to determine once and for all the title to, and ownership of, said lands and to issue a preliminary injunction restraining respondent Jose de Borja from interferring with the work of petitioner; but, in view of respondent Borja's opposition, respondent court denied the motion for reconsideration. The present petition poses the following issues: (1) considering that the dispute between petitioner and respondent administrator involves the ownership of two parcels of land now the subject of an action in the Court of First Instance of Nueva Ecija, has respondent court jurisdiction to determine said dispute in the estate proceedings of the late Josefa Tangco?; and (2) having the Court of First Instance of Nueva Ecija issued a writ of preliminary injunction to restrain respondent administrator from interferring with the threshing of the crop standing on said lands, can respondent court, after having been apprised of said order, issue an order the effect of which is to nullify and render ineffective said writ of preliminary injunction?. There is no dispute that the two parcels of land in Santa Rosa, Nueva Ecija are claimed by petitioner as part of the separate property of Francisco de Borja so much so that she took possession thereof when she assumed her commission as guardian on October 27, 1953. That she succeeded in taking actual possession of said lands is shown by the fact that when she commenced the threshing of the crop standing thereon, respondent Jose de Borja filed a petition in the estate proceedings of Josefa Tangco to restrain her from threshing said crop. Then a dispute arose as to the ownership of said parcels of land. On one hand, petitioner claims that they belong exclusively to her ward having inherited them from his late father Marcelo de Borja, while, on the other, respondent administrator contends that they are not the land adjudicated to the incompetent by the commissioners on partition. The parties had made several attempts to arrive at an agreement as to the identity of the disputed lands, but they failed, and because there was a pressing need of immediately threshing the crop standing thereon, petitioner filed an action in the Court of First Instance of Nueva Ecija to determine once and for all the title and ownership of said lands. In the same case, the court issued a preliminary injunction restraining respondent administrator from interferring with the administration of said properties. But such action notwithstanding, respondent court issued the orders in question which not only go into the issue of ownership but render ineffective the writ of injunction issued by the Court of First Instance of Nueva Ecija. Can respondent court do so? It is a well-settled rule in this jurisdiction, sanctioned and reiterated in a long line of decisions that, "the question of ownership of property is one which should be determined in an ordinary action and not in probate proceedings, and this whether or not the property is alleged to belong to the estate" (Franco vs. O'Brien, 13 Phil., 359). In another case, it was held that "The general rule is that questions as to title to property cannot be passed upon in testate or intestate proceedings" (Pascual vs. Pascual, 73 Phil., 561, 562; See also Cordova Vda. de Maalac vs.Ocampo, 73 Phil., 661, 662), or stating the rule more elaborately, "When questions arise as to the ownership of property alleged to be a part of the estate of a deceased person, but claimed by some other person to be his property, not by virtue of any right of inheritance from the deceased, but by title adverse to that of the deceased and his estate, such questions cannot be determined in the courts of administrative proceedings. The Court of First Instance, acting as a probate court, has no jurisdiction to adjudicate such contentions, which must be submitted to the court in the exercise of its general jurisdiction as a court of first instance . . .." (Guzman vs. Anog, 37 Phil., 61.) The dispute between petitioner and respondent administrator involving, as it does, the ownership of two parcels of land situated in Santa Rosa, Nueva Ecija, and this question having been squarely raised in an action pending in the court of first instance of said province, which was instituted by petitioner against respondent administrator precisely because of the dispute that had arisen between them over said property, it is the sense of this Tribunal that respondent court exceeded its jurisdiction in acting upon the said question in its capacity as probate court. On the face of such issue which necessarily involves the ownership of the properties, we consider of no consequence the claim that what respondent court merely did was to look into the identity of said properties. This question is necessarily imbibed in the greater issue of ownership and being interwoven one can hardly draw the line of demarcation that would separate one from the other. As regards the question whether the order of respondent court restraining petitioner from threshing the palay crop standing on the lands has been properly issued on the face of the writ of preliminary injunction issued by the Court of First Instance of Nueva Ecija, the answer is not difficult to find: the court should not have issued the order, for "It is settled by an overwhelming weight of authority that no court has power to interfere by injunction with the judgments or decree of a court of concurrent or coordinate jurisdiction having equal power to grant the relief sought by injunction. . . . The various branches of the Court of First Instance of Manila are in a sense coordinate courts and to allow them to interfere with each other's judgments or decrees by injunctions would obviously lead to confusion and might seriously hinder the administration of justice." (Cabigao vs. Del Rosario, 44 Phil., 182; Seealso Philippine National Bank vs. Javellana, 92 Phil., 525; Montesa vs. Manila Cordage Company, 92 Phil., 25.) Wherefore, petition is granted without costs. The orders of respondent court dated January 29, 1954 and February 18, 1954 are hereby set aside.

GR No. L-21938-39,

May 29, 1970

VICENTE URIARTE vs. CFI of Negros Or., CFI of Manila, JUAN URIARTE ZAMACONA and HIGINIO URIARTE Short summary: alleged natural child of the deceased filed petition for settlement of INTESTATE estate of Don Juan Uriarte y Goite in Negros Occidental Court. PNB was even appointed as special administrator, but PNB failed to qualified. MTD filed by nephew of Don Juan, alleging that while he was in Spain, the deceased made a will AND that petitioner had doubtful interest (proceeding for his recognition as a natural child not yet done). Pending this, the nephews instituted a petition for probate of the will of Don Juan in Manila. Alleged natural son opposed, contending that Negros courts already had exclusive jurisdiction of the case.But Negros court dismissed the special proceeding, and the Manila court proceeded to probate the will. Petitioner contested it. Court held that since the decedent was a non-resident, both Manila and Negros courts may be proper venues for the proceedings. But since probate proceedings enjoy priority over intestate proceedings, action by Manila court proper. Even if the venue was improper, petitioner considered to have waived the defect by laches. Lastly, the court held that if ever recognized as the natural child of the decedent, he could opt to intervene in the probate proceedings, or to have it opened if already finished. Facts: -Don Juan Uriarte y Goite died in Spain, left properties both in Manila and Negros -The alleged natural son of Don Juan, VICENTE URIARTE, filed petition for settlement of INTESTATE ESTATE of Don Juan before the Negros Occidental court. Note that during that time, the proceedings for compulsory acknowledgment as the natural son of Don Juan was still pending -PNB also was appointed as special administrator of the estate, but PNB failed to qualify -OPPOSITION TO PETITION by HIGINIO URIARTE (nephew of Don Juan): Don Juan left a will, executed in Spain, duly authenticated - submitted before Negros court ViCENTE's capacity and interest are questionable -JUAN URIARTE ZAMACONA (di ko alam how related) commenced SPECPRO for PROBATE OF LAST WILL OF DON JUAN before Manila courts + MTD in Negros Courts Since there's a will, no need for intestate proceedings before Negros Courts Vicente had no legal personality to sue >>>OPPOSED by VICENTE: Negros Courts first took cognizance, it had acquired exclusive jurisdiction over the same NEGROS COURT: DISMISS proceedings before it -VICENTE filed OMNIBUS MOTION in Manila Court for leave to intervene + dismissal of petition for probate + annulment of proceedings - DENIED -Manila court admitted to probate the last will WON NEGROS COURT ERRED IN DISMISSING THE INTESTATE PROCEEDINGS BEFORE IT? NO. Decedent is an inhabitant of a foreign country (Spain) during the time of his death, so the courts in the province s where he left property may take cognizance of settlement of his estate -here, decedent left properties both in Manila and in Negros Even if Negros court first took cognizance of the case, still has to give way to Manila court special proceeding intended to effect the distribution of the estate of a deceased person, whether in accordance with the law on intestate succession or in accordance with his will, is a "probate matter" or a proceeding for the settlement of his estate. BUT testate proceedings, for the settlement of the estate of a deceased person take precedence over intestate proceedings for the same purpose. So even pending Intestate proceedings, if it is found it hat the decedent had left a last will, proceedings for the probate of the latter should replace the intestate proceedings even if at that stage an administrator had already been appointed, the latter being required to render final account and turn over the estate in his possession to the executor subsequently appointed. If will rejected or disproved, proceedings shall continue as intestacy VICENTE already waived procedural defect of VENUE IMPROPERLY LAID -He knew that there was a will when a MTD was filed in Negros court, so he should have filed a MTD in Manila court earlier: Manila court already *appointed an administrator *admitted the will to probate more than 5 months earlier -court would not annul proceedings regularly had in a lower court even if the latter was not the proper venue therefor, if the net result would be to have the same proceedings repeated in some other court of similar jurisdiction As to interest of Vicente in the case -two alternatives for an acknowledged natural child to prove his status and interest in the estate of the deceased parent: (1) to intervene in the probate proceeding if it is still open; and (2) to ask for its reopening if it has already been closed.

CELEDONIA SOLIVIO

vs.

MEDIALDEA, J.: GR No. 83484 February 12, 1990 THE HONORABLE COURT OF APPEALS and CONCORDIA JAVELLANA VILLANUEVA

This is a petition for review of the decision dated January 26, 1988 of the Court of Appeals in CA GR CV No. 09010 (Concordia Villanueva v. Celedonia Solivio) affirming the decision of the trial court in Civil Case No. 13207 for partition, reconveyance of ownership and possession and damages. This case involves the estate of the late novelist, Esteban Javellana, Jr., author of the first post-war Filipino novel "Without Seeing the Dawn," who died a bachelor, without descendants, ascendants, brothers, sisters, nephews or nieces. His only surviving relatives are: (1) his maternal aunt, petitioner Celedonia Solivio, the spinster half-sister of his mother, Salustia Solivio; and (2) the private respondent, Concordia Javellana-Villanueva, sister of his deceased father, Esteban Javellana, Sr. He was a posthumous child. His father died barely ten (10) months after his marriage in December, 1916 to Salustia Solivio and four months before Esteban, Jr. was born. Salustia and her sister, Celedonia (daughter of Engracio Solivio and his second wife Josefa Fernandez), a teacher in the Iloilo Provincial High School, brought up Esteban, Jr. Salustia brought to her marriage paraphernal properties (various parcels of land in Calinog, Iloilo covered by 24 titles) which she had inherited from her mother, Gregoria Celo, Engracio Solivio's first wife (p. 325, Record), but no conjugal property was acquir ed during her short-lived marriage to Esteban, Sr. On October 11, 1959, Salustia died, leaving all her properties to her only child, Esteban, Jr., including a house and lot in La Paz, Iloilo City, where she, her son, and her sister lived. In due time, the titles of all these properties were transferred in the name of Esteban, Jr. During his lifetime, Esteban, Jr. had, more than once, expressed to his aunt Celedonia and some close friends his plan to place his estate in a foundation to honor his mother and to help poor but deserving students obtain a college education. Unfortunately, he died of a heart attack on February 26,1977 without having set up the foundation. Two weeks after his funeral, Concordia and Celedonia talked about what to do with Esteban's properties. Celedonia told Concordia about Esteban's desire to place his estate in a foundation to be named after his mother, from whom his properties came, for the pur pose of helping indigent students in their schooling. Concordia agreed to carry out the plan of the deceased. This fact was admitted by her in her "Motion to Reopen and/or Reconsider the Order dated April 3, 1978" which she filed on July 27, 1978 in Special Proceeding No. 2540, where she stated: 4. That petitioner knew all along the narrated facts in the immediately preceding paragraph [that herein movant is also the relative of the deceased within the third degree, she being the younger sister of the late Esteban Javellana, father of the decedent herein], because prior to the filing of the petition they (petitioner Celedonia Solivio and movant Concordia Javellana) have agreed to make the estate of the decedent a foundation, besides they have closely known each other due to their filiation to the decedent and they have been visiting each other's house which are not far away for (sic) each other. (p. 234, Record; Emphasis supplied.) Pursuant to their agreement that Celedonia would take care of the proceedings leading to the formation of the foundation, Celedonia in good faith and upon the advice of her counsel, filed on March 8, 1977 Spl. Proceeding No. 2540 for her appointment as special administratrix of the estate of Esteban Javellana, Jr. (Exh. 2). Later, she filed an amended petition (Exh. 5) praying that letters of administration be issued to her; that she be declared sole heir of the deceased; and that after payment of all claims and rendition of inventory and accounting, the estate be adjudicated to her (p. 115, Rollo). After due publication and hearing of her petition, as well as her amended petition, she was declared sole heir of the estate of Esteban Javellana, Jr. She explained that this was done for three reasons: (1) because the properties of the estate had come from her sister, Salustia Solivio; (2) that she is the decedent's nearest relative on his mother's side; and (3) with her as sole heir, the disposition of the properties of the estate to fund the foundation would be facilitated. On April 3, 1978, the court (Branch II, CFI, now Branch 23, RTC) declared her the sole heir of Esteban, Jr. Thereafter, she sold properties of the estate to pay the taxes and other obligations of the deceased and proceeded to set up the "SALUSTIA SOLIVIO VDA. DE JAVELLANA FOUNDATION" which she caused to be registered in the Securities and Exchange Commission on July 17,1981 under Reg. No. 0100027 Four months later, or on August 7, 1978, Concordia Javellana Villanueva filed a motion for reconsideration of the court's order declaring Celedonia as "sole heir" of Esteban, Jr., because she too was an heir of the deceased. On October 27, 1978, her motion was denied by the court for tardiness (pp. 80-81, Record). Instead of appealing the denial, Concordia filed on January 7, 1980 (or one year and two months later), Civil Case No. 13207 in the Regional Trial Court of Iloilo, Branch 26, entitled "Concordia Javellana- Villanueva v. Celedonia Solivio" for partition, recovery of possession, ownership and damages. On September 3, 1984, the said trial court rendered judgment in Civil Case No. 13207, in favor of Concordia Javellana-Villanueva. On Concordia's motion, the trial court ordered the execution of its judgment pending appeal and required Celedonia to submit an inventory and accounting of the estate. In her motions for reconsideration of those orders, Celedonia averred that the properties of the deceased had already been transferred to, and were in the possession of, the 'Salustia Solivio Vda. de Javellana Foundation." The trial court denied her motions for reconsideration. In the meantime, Celedonia perfected an appeal to the Court of Appeals (CA GR CV No. 09010). On January 26, 1988, the Court of Appeals, Eleventh Division, rendered judgment affirming the decision of the trial court in toto.Hence, this petition for review wherein she raised the following legal issues: 1. whether Branch 26 of the RTC of Iloilo had jurisdiction to entertain Civil Case No. 13207 for partition and recovery of Concordia Villanueva's share of the estate of Esteban Javellana, Jr. even while the probate proceedings (Spl. Proc. No. 2540) were still pending in Branch 23 of the same court; 2. whether Concordia Villanueva was prevented from intervening in Spl. Proc. No. 2540 through extrinsic fraud; 3. whether the decedent's properties were subject to reserva troncal in favor of Celedonia, his relative within the third degree on his mother's side from whom he had inherited them; and 4. whether Concordia may recover her share of the estate after she had agreed to place the same in the Salustia Solivio Vda. de Javellana Foundation, and notwithstanding the fact that conformably with said agreement, the Foundation has been formed and properties of the estate have already been transferred to it. I. The question of jurisdiction After a careful review of the records, we find merit in the petitioner's contention that the Regional Trial Court, Branch 26, lacked jurisdiction to entertain Concordia Villanueva's action for partition and recovery of her share of the estate of Esteban Javellana, Jr. while the probate proceedings (Spl, Proc. No. 2540) for the settlement of said estate are still pending in Branch 23 of the same court, there being as yet no orders for the submission and approval of the administratix's inventory and accounting, distributing the residue of the estate to the heir, and terminating the proceedings (p. 31, Record). It is the order of distribution directing the delivery of the residue of the estate to the persons entitled thereto that brings to a close the intestate proceedings, puts an end to the administration and thus far relieves the administrator from his duties (Santiesteban v. Santiesteban, 68 Phil. 367, Philippine Commercial and Industrial Bank v. Escolin, et al., L-27860, March 29, 1974, 56 SCRA 266). The assailed order of Judge Adil in Spl. Proc. No. 2540 declaring Celedonia as the sole heir of the estate of Esteban Javellana, Jr. did not toll the end of the proceedings. As a matter of fact, the last paragraph of the order directed the administratrix to "hurry u p the settlement of the estate." The pertinent portions of the order are quoted below: 2. As regards the second incident [Motion for Declaration of Miss Celedonia Solivio as Sole Heir, dated March 7, 1978], it appears from the record that despite the notices posted and the publication of these proceedings as required by law, no other heirs c ame out

to interpose any opposition to the instant proceeding. It further appears that herein Administratrix is the only claimant-heir to the estate of the late Esteban Javellana who died on February 26, 1977. During the hearing of the motion for declaration as heir on March 17, 1978, it was established that the late Esteban Javellana died single, without any known issue, and without any surviving parents. His nearest relative is the herein Administratrix, an eld er [sic] sister of his late mother who reared him and with whom he had always been living with [sic] during his lifetime. xxxxxxxxx 2. Miss Celedonia Solivio, Administratrix of this estate, is hereby declared as the sole and legal heir of the late Esteban S. Javellana, who died intestate on February 26, 1977 at La Paz, Iloilo City. The Administratrix is hereby instructed to hurry up with the settlement of this estate so that it can be terminated. (pp, 14-16, Record) In view of the pendency of the probate proceedings in Branch 11 of the Court of First Instance (now RTC, Branch 23), Concordia's motion to set aside the order declaring Celedonia as sole heir of Esteban, and to have herself (Concordia) declared as co-heir and recover her share of the properties of the deceased, was properly filed by her in Spl. Proc. No. 2540. Her remedy when the court denied her motion, was to elevate the denial to the Court of Appeals for review on certiorari. However, instead of availing of that remedy, she filed more than one year later, a separate action for the same purpose in Branch 26 of the court. We hold that the separate action was improperly filed for it is the probate court that has exclusive jurisdiction to make a just and legal distribution of the estate. In the interest of orderly procedure and to avoid confusing and conflicting dispositions of a decedent's estate, a court should not interfere with probate proceedings pending in a co-equal court. Thus, did we rule in Guilas v. Judge of the Court of First Instance of Pampanga, L26695, January 31, 1972, 43 SCRA 111, 117, where a daughter filed a separate action to annul a project of partition executed between her and her father in the proceedings for the settlement of the estate of her mother: The probate court loses jurisdiction of an estate under administration only after the payment of all the debts and the remaining estate delivered to the heirs entitled to receive the same. The finality of the approval of the project of The probate court, in the exercise of its jurisdiction to make distribution, has power to determine the proportion or parts to which each distributed is entitled. ... The power to determine the legality or illegality of the testamentary provision is inherent in the jurisdiction of the court making a just and legal distribution of the inheritance. ... To hold that a separate and independent action is necessary to that effect, would be contrary to the general tendency of the jurisprudence of avoiding multiplicity of suits; and is further, expensive, dilatory, and impractical. (Marcelino v. Antonio, 70 Phil. 388) A judicial declaration that a certain person is the only heir of the decedent is exclusively within the range of the administ ratrix proceedings and can not properly be made an independent action. (Litam v. Espiritu, 100 Phil. 364) A separate action for the declaration of heirs is not proper. (Pimentel v. Palanca, 5 Phil. 436) partition by itself alone does not terminate the probate proceeding (Timbol v. Cano, 1 SCRA 1271, 1276, L-15445, April 29, 1961; Siguiong v. Tecson, 89 Phil. pp. 28, 30). As long as the order of the distribution of the estate has not been complied with, the probate proceedings cannot be deemed closed and terminated Siguiong v. Tecson, supra); because a judicial partition is not final and conclusive and does not prevent the heirs from bringing an action to obtain his share, provided the prescriptive period therefore has not elapsed (Mari v. Bonilia, 83 Phil. 137). The better practice, however, for the heir who has not received his share, is to demand his share through a proper motion in the same probate or administration proceedings, or for reopening of the probate or administrative proceedings if it had already been closed, and not through an independent action, which would be tried by another court or Judge which may thus reverse a decision or order of the probate or intestate court already final and executed and re-shuffle properties long ago distributed and disposed of. (Ramos v. Ortuzar, 89 Phil. 730,; Timbol v. Cano, supra; Jingco v. Daluz, L-5107, April 24, 1953, 92 Phil. 1082; Roman Catholic v. Agustines, L-14710, March 29, 1960, 107 Phil. 455 In Litam et al., v. Rivera, 100 Phil. 364, where despite the pendency of the special proceedings for the settlement of the intestate estate of the deceased Rafael Litam the plaintiffs-appellants filed a civil action in which they claimed that they were the children by a previous marriage of the deceased to a Chinese woman, hence, entitled to inherit his one-half share of the conjugal properties acquired during his marriage to Marcosa Rivera, the trial court in the civil case declared that the plaintiffs-appellants were not children of the deceased, that the properties in question were paraphernal properties of his wife, Marcosa Rivera, and that the latter was his only heir. On appeal to this Court, we ruled that "such declarations (that Marcosa Rivera was the only heir of the decedent) is improper, in Civil Case No . 2071, it being within the exclusive competence of the court in Special Proceedings No. 1537, in which it is not as yet, in issue, and, will not be, ordinarily, in issue until the presentation of the project of partition. However, in the Guilas case, supra, since the estate proceedings had been closed and terminated for over three years, the action for annulment of the project of partition was allowed to continue. Considering that in the instant case, the estate proceedings are still pending, but nonetheless, Concordia had lost her right to have herself declared as co-heir in said proceedings, We have opted likewise to proceed to discuss the merits of her claim in the interest of justice.The orders of the Regional Trial Court, Branch 26, in Civil Cas e No. 13207 setting aside the probate proceedings in Branch 23 (formerly Branch 11) on the ground of extrinsic fraud, and declaring Concordia Villanueva to be a co-heir of Celedonia to the estate of Esteban, Jr., ordering the partition of the estate, and requiring the administratrix, Celedonia, to submit an inventory and accounting of the estate, were improper and officious, to say the least, for these matters he within the exclusive competence of the probate court. II. The question of extrinsic fraud Was Concordia prevented from intervening in the intestate proceedings by extrinsic fraud employed by Celedonia? It is noteworthy that extrinsic fraud was not alleged in Concordia's original complaint in Civil Case No. 13207. It was only in her amended complaint of March 6, 1980, that extrinsic fraud was alleged for the first time. Extrinsic fraud, as a ground for annulment of judgment, is any act or conduct of the prevailing party which prevented a fair submission of the controversy (Francisco v. David, 38 O.G. 714). A fraud 'which prevents a party from having a trial or presenting all of his case to the court, or one which operates upon matters pertaining, not to the judgment itself, but to the manner by which such judgment was procured so much so that there was no fair submission of the controversy. For instance, if through fraudulent machination by one [his adversary], a litigant was induced to withdraw his defense or was prevented from presenting an available defense or cause of action in the case wherein the judgment was obtained, such that the aggrieved party was deprived of his day in court through no fault of his own, the equitable relief against such judgment may be availed of. (Yatco v. Sumagui, 44623-R, July 31, 1971). (cited in Philippine Law Dictionary, 1972 Ed. by Moreno; Varela v. Villanueva, et al., 96 Phil. 248) The charge of extrinsic fraud is, however, unwarranted for the following reasons: 1. Concordia was not unaware of the special proceeding intended to be filed by Celedonia. She admitted in her complaint that she and Celedonia had agreed that the latter would "initiate the necessary proceeding" and pay the taxes and obligations of the estate. Thus paragraph 6 of her complaint alleged: 6. ... for the purpose of facilitating the settlement of the estate of the late Esteban Javellana, Jr. at the lowest possible cost and the least effort, the plaintiff and the defendant agreed that the defendant shall initiate the necessary proceeding, cause the payment of taxes and other obligations, and to do everything else required by law, and thereafter, secure the partition of the estate between her and the plaintiff, [although Celedonia denied that they agreed to partition the estate, for their agreement was to place the estate in a foundation.] (p. 2, Record; emphasis supplied) Evidently, Concordia was not prevented from intervening in the proceedings. She stayed away by choice. Besides, she knew that the estate came exclusively from Esteban's mother, Salustia Solivio, and she had agreed with Celedonia to place it in a foundatio n as the deceased had planned to do. The court noted that Concordia's motion did not comply with the requisites of a petition for relief from judgment nor a motion for new trial. The rule is stated in 49 Corpus Juris Secundum 8030 as follows:

Where petition was sufficient to invoke statutory jurisdiction of probate court and proceeding was in rem no subsequent errors or irregularities are available on collateral attack. (Bedwell v. Dean 132 So. 20) Celedonia's allegation in her petition that she was the sole heir of Esteban within the third degree on his mother's side was not false. Moreover, it was made in good faith and in the honest belief that because the properties of Esteban had come from his mother, not his father, she, as Esteban's nearest surviving relative on his mother's side, is the rightful heir to them. It would have been self-defeating and inconsistent with her claim of sole heirship if she stated in her petition that Concordia was her co-heir. Her omission to so state did not constitute extrinsic fraud. Failure to disclose to the adversary, or to the court, matters which would defeat one's own claim or defense is not such extrinsic fraud as will justify or require vacation of the judgment. (49 C.J.S. 489, citing Young v. Young, 2 SE 2d 622; First National Bank & Trust Co. of King City v. Bowman, 15 SW 2d 842; Price v. Smith, 109 SW 2d 1144, 1149) It should be remembered that a petition for administration of a decedent's estate may be filed by any "interested person" (Sec. 2, Rule 79, Rules of Court). The filing of Celedonia's petition did not preclude Concordia from filing her own. III. On the question of reserva troncal We find no merit in the petitioner's argument that the estate of the deceased was subject to reserva troncal and that it pertains to her as his only relative within the third degree on his mother's side. The reserva troncal provision of the Civil Code is found in Article 891 which reads as follows: ART. 891. The ascendant who inherits from his descendant any property which the latter may have acquired by gratuitous title from another ascendant, or a brother or sister, is obliged to reserve such property as he may have acquired by operation of law for the benefit of relatives who are within the third degree and who belong to the line from which said property came. The persons involved in reserva troncal are: 1. The person obliged to reserve is the reservor (reservista)the ascendant who inherits by operation of law property from his descendants. 2. The persons for whom the property is reserved are the reservees (reservatarios)relatives within the third degree counted from the descendant (propositus), and belonging to the line from which the property came. 3. The propositusthe descendant who received by gratuitous title and died without issue, making his other ascendant inherit by operation of law. (p. 692, Civil Law by Padilla, Vol. II, 1956 Ed.) Clearly, the property of the deceased, Esteban Javellana, Jr., is not reservable property, for Esteban, Jr. was not an ascendant, but the descendant of his mother, Salustia Solivio, from whom he inherited the properties in question. Therefore, he did not hold his inheritance subject to a reservation in favor of his aunt, Celedonia Solivio, who is his relative within the third degree on his mother's side. The reserva troncal applies to properties inherited by an ascendant from a descendant who inherited it from another ascendant or 9 brother or sister. It does not apply to property inherited by a descendant from his ascendant, the reverse of the situation covered by Article 891. Since the deceased, Esteban Javellana, Jr., died without descendants, ascendants, illegitimate children, surviving spouse, brothers, sisters, nephews or nieces, what should apply in the distribution of his estate are Articles 1003 and 1009 of the Civil Code which provide: ART. 1003. If there are no descendants, ascendants, illegitimate children, or a surviving spouse, the collateral relatives shall succeed to the entire estate of the deceased in accordance with the following articles. ART. 1009. Should there be neither brothers nor sisters, nor children of brothers or sisters, the other collateral relatives shall succeed to the estate. The latter shall succeed without distinction of lines or preference among them by reason of relationship by the whole blood. Therefore, the Court of Appeals correctly held that: Both plaintiff-appellee and defendant-appellant being relatives of the decedent within the third degree in the collateral line, each, therefore, shall succeed to the subject estate 'without distinction of line or preference among them by reason of relationship by the whole blood,' and is entitled one-half (1/2) share and share alike of the estate. (p. 57, Rollo) IV. The question of Concordia's one-half share However, inasmuch as Concordia had agreed to deliver the estate of the deceased to the foundation in honor of his mother, Salustia Solivio Vda. de Javellana (from whom the estate came), an agreement which she ratified and confirmed in her "Motion to Reopen and/or Reconsider Order dated April 3, 1978" which she filed in Spl. Proceeding No. 2540: 4. That ... prior to the filing of the petition they (petitioner Celedonia Solivio and movant Concordia Javellana) have agreed to make the estate of the decedent a foundation, besides they have closely known each other due to their filiation to the decedent and they have been visiting each other's house which are not far away for (sic) each other. (p. 234, Record; Emphasis supplied) she is bound by that agreement. It is true that by that agreement, she did not waive her inheritance in favor of Celedonia, but she did agree to place all of Esteban's estate in the "Salustia Solivio Vda. de Javellana Foundation" which Esteban, Jr., during his lifeti me, planned to set up to honor his mother and to finance the education of indigent but deserving students as well. Having agreed to contribute her share of the decedent's estate to the Foundation, Concordia is obligated to honor her commitment as Celedonia has honored hers. WHEREFORE, the petition for review is granted. The decision of the trial court and the Court of Appeals are hereby SET ASIDE. Concordia J. Villanueva is declared an heir of the late Esteban Javellana, Jr. entitled to one-half of his estate. However, comformably with the agreement between her and her co-heir, Celedonia Solivio, the entire estate of the deceased should be conveyed to the "Salustia Solivio Vda. de Javallana Foundation," of which both the petitioner and the private respondent shall be trustees, and each shall be entitled to nominate an equal number of trustees to constitute the Board of Trustees of the Foundation which shall administer the same for the purposes set forth in its charter. The petitioner, as administratrix of the estate, shall submit to the probate court an inve ntory and accounting of the estate of the deceased preparatory to terminating the proceedings therein. SO ORDERED.

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Javier69 SCRA 524 (1989)

Beatriz de Zuzuarregui vda. De Reyes v. CA, Pilar Ibanez vda. De zuzuarregui, Administratriz, Antonio de Zuzuarregui, Jr., Enrique de Zuzuarregui and Pacita Short Facts: Beatriz, (not sure if illegit or legit child) opposes the correction of judgment and the re-opening of the probate proceedings to correct a alleged typographical error in the sqm of the Antipolo land in question, claiming that there was no typographical error and the parties intended to share only that area of land. Decedent: Antonio de Zuzuarregui, Sr. Pilar Ibanez de Susuarregui: surviving spouse of decedent -administratix of the estate Illegit children: Antonio de Zuzuarregui, Jr. Enrique de Zuzuarregui Jose de Zuzuarregui *Beatriz de Zuzuarregui vda. Re reyes: daughter of Antonio Sr. by another mother Pacita Javier: niece of administratix -mother of the three illegit children Project of partition: Pilar: 12/16, inclusive of 1/2 of the assets (share of conjugal partnership) Beatriz: 1/16 Antonio, Jr.: 1/16 Enrique: 1/16 Jose: 1/16 Antipolo, Rizal property: mentioned 4x in document -adjudicated to Pilar (12/15), Antonio Jr. (1/15), Enrique (1/15) and Jose (1/15) -Pacita relinquished her right "in lieu of her bigger share in Antipolo, Rizal, real estate property" -administratix and other three distributees filed a MOTION TO REOPEN SPECIAL PROCEEDIGNS for the purpose of correcting an alleged typographical error in the description of the parcel of land (correct land area: 803,781.51, not 83,781sqm) -opposition to motion TC: (1) opened for purpose of correcting clerical error in description of land (2) correct land area to conform with description of land area in TCT (3) correction be made in the project of partition -CA: Affirm Pacita's allegation: no clerical area. The area in the project of partition is correct. She would not have relinquished her share in the Antipolo land if she new nothing would remain from the land. It was even repeated 4x in the project of partition ISSUE: WON there was a clerical error, which is an exemption to correcting or supplying a final judgment already entered? NONE. On correction of clerical errors: It is well settled that even if a decision has become final, clerical errors or mistakes or omission plainly due to inadvertence or negligence may be corrected or supplied even after the judgment has been entered. The correction of a clerical error is an exception to the general rule that no amendment or correction may be made by the court in its judgment once the latter had become final. The court may make this amendment ex parte and, for this purpose, it may resort to the pleadings filed by the parties, the court's findings of facts and its conclusions of law as expressed in the body of the decision. -TC already found that a typographical or clerical error was clearly committed by inadvertence in the project of partition -probate proceeding, nature: That a special proceeding for the settlement of an estate is filed and intended to settle the ENTIRE estate of the deceased is obvious and elementary. It would be absurd for the heirs to intentionally excluded or leave a parcel of land or a portion thereof undistributed or undivided because the proceeding is precisely designed to end the community of interests in properties held by co-partners pro indiviso without designation or segregation of shares. -It is readily apparent from the project of partition that it was meant to be, as in fact it is, a full and complete adjudication and partition of all properties of the estate, necessarily including the entire area of the land covered by Transfer Certificate of Title No. 42643. Thus as perceptively posed by the queries of the respondents, if the intention of the heirs was to make only a partial adjudication and distribution of the subject parcel of land, why is it that they did not make any further disposition of the remaining balance of 720,000 square meters? What sound reason would the heirs have in holding in suspense the distribution of the difference of 720,000 square meters? -if they cannot see eye to eye, why share properties as co-owners? -weird that the parties came up with 83,781, just omitting the zeroes. So only logical reason is that they just forgot to put zero. -according to her own computation, she already received her 1/16 share in the estate. There would not be a substantial difference in value in their shares...

REGALADO, J.: G.R. No. L-47027 January 27, 1989 BEATRIZ DE ZUZUARREGUI VDA. DE REYES vs. HONORABLE COURT OF APPEALS, PILAR IBAEZ VDA. DE ZUZUARREGUI, Administratrix, ANTONIO DE ZUZUARREGUI, JR., ENRIQUE DE ZUZUARREGUI and PACITA JAVIER

In this petition for review on certiorari, We are asked to set aside the decision of the Court of Appeals, promulgated on September 19, 1977 in CA-G.R. No. 53197-R 1 which affirmed the order of the Court of First Instance of Rizal, Branch IV, Quezon City dated March 26, 1973, issued in Special Proceedings Q-325, entitled "Intestate Estate of Don Antonio de Zuzuarregui, Sr.". 2 Respondent administratrix, Pilar Ibaez Vda. de Zuzuarregui, is the surviving spouse of Antonio de Zuzuarregui, Sr., while petitioner Beatriz de Zuzuarregui Vda. de Reyes and the other heirs of said estate, namely, Antonio de Zuzuarregui, Jr., Enrique de Zuzuarregui and Jose de Zuzuarregui, are the illegitimate children of the decedent. The parties herein are the only heirs of the deceased whose estate was the subject of said settlement proceedings. Petitioner was the daughter of the deceased by a mother different from that of his aforesaid three (3) sons, their mother being Pacita Javier who was the niece of the herein respondent administratrix. 3 According to the project of partition dated June 17, 1958 and approved by the probate court, the respective shares of said heirs in the real estate left by the deceased are as follows: Pilar Ibaez Vda. de Zuzuarregui, 12/16 thereof, inclusive of 1/2 of said assets which pertains to her share in the conjugal partnership; Beatriz, 1/16; Antonio, Jr., 1/16; Enrique, 1/16; and Jose, 1/16. 4 Among the real properties in the project of partition is a parcel of land covered by and described in Transfer Certificate of Title No. 42643 located in Antipolo, Rizal. In said project of partition, its area is stated as 83,781 square meters, with an assessed value of P6,430.00. This statement of said area was repeated in said document four time, 5 that is, in adjudicating the corresponding portions of said land to Pilar (12/15), Antonio, Jr. (1/15). Enrique (1/15) and Jose (1/15). 6 The petitioner did not have a share in the aforesaid parcel of land because she relinquished her right thereto "in lieu of her bigger share in Antipolo, Rizal, real estate property." 7 On January 29, 1973, the respondent administratrix and the other three distributees filed a motion to reopen Special Proceedings No. Q-325 for the purpose of correcting an alleged typographical error in the description of the parcel of land covered by Transfer Certificate of Title No. 42643 since, according to them, the correct land area is 803,781.51 square meters and not 83,781 square meters. 8 The heirs of Beatriz de Zuzuarregui Vda. de Reyes filed their opposition to said motion. 9 The court a quo issued the contested order, with the following dispositive portion: WHEREFORE, (1) Sp. Proceeding No. Q-325 entitled, The Intestate Estate of Don Antonio de Zuzuarregui, Sr. is ordered opened for the purpose of correcting a clerical error in the description of the parcel of land covered by T.C.T. No. 42643; (2) The area of land covered by T.C.T. No. 42643 be corrected by cancelling 83,781 sq. meters and changing it to 803,781.51 sq. meters to conform with the description of land area in T.C.T. No. 42643; (3) That said corrections be made as pages 3, 6, 9, 10, and 12 of the project of Partition. 10 As already stated, the affirmance of said order by the Court of Appeals eventuated in the elevation of the controversy to Us under the present recourse. It is well settled that even if a decision has become final, clerical errors or mistakes or omission plainly due to inadvertence or negligence may be corrected or supplied even after the judgment has been entered. The correction of a clerical error is an exception to the general rule that no amendment or correction may be made by the court in its judgment once the latter had become final. 11 The court may make this amendment ex parte and, for this purpose, it may resort to the pleadings filed by the parties, the court's findings of facts and its conclusions of law as expressed in the body of the decision. 12 However, according to the petitioner, there was no such clerical error. While it is not disputed that the area covered by Transfer Certificate of Title No. 42643 is 803,781.15 square meters, the petitioner insists that "the area intended by the heirs of Don Antonio de Zuzuarregui, Sr., in the Project of Partition as approved by the trial court is the area of 83,781 sq. m. and not 803,781,51 sq. m. 13 She claims that she would not have relinquished her share in said parcel of land if the true area was not fraudulently concealed from her at the time the project of partition was executed. 14 She further contends that the fact that the description of the area as 83,781 square meters was repeated several times is sufficient evidence to show that such was the area intended in the project of partition. 15 Such contentions are without merit. There is, therefore, no reason to disturb, much less to reverse, the factual finding of the lower court that a typographical or clerical error was clearly committed by inadvertence in the project of partition. That a special proceeding for the settlement of an estate is filed and intended to settle the entire estate of the deceased is obvious and elementary. It would be absurd for the heirs to intentionally excluded or leave a parcel of land or a portion thereof undistributed or undivided because the proceeding is precisely designed to end the community of interests in properties held by co-partners pro indiviso without designation or segregation of shares. It is readily apparent from the project of partition that it was meant to be, as in fact it is, a full and complete adjudication and partition of all properties of the estate, necessarily including the entire area of the land covered by Transfer Certificate of Title No. 42643. Thus as perceptively posed by the queries of the respondents, if the intention of the heirs was to make only a partial adjudication and distribution of the subject parcel of land, why is it that they did not make any further disposition of the remaining balance of 720,000 square meters? What sound reason would the heirs have in holding in suspense the distribution of the difference of 720,000 square meters? 16 Besides, petitioner suggests that she and the male heirs could not see eye to eye because they did not have a common mother. 17 If so, this supposed antagonism would even be a compelling reason for the parties to insist on the total partition of all the properties in the first instance, rather than for them to remain as co-owners for a long time. As hereinbefore indicated, the project of partition is dated June 17, 1958, 18 while the motion to re-open the proceedings was filed only on January 29, 1973. If We were to indulge petitioner in her stand that the area of 803,781 square meters was typewritten in the document as 83,781 square meters, not because of the typist's error in omitting the number "0" between the numbers "8" and "3" in the first three digits but because the latter area of only 83,781 square meters was the one intended for distribution, then the irresistible question would be how and why the parties arrived at that particular latter figure. It will be observed that such a portion would constitute only 10.42336% of the total land area covered by Transfer Certificate of Title No. 42643. On top of this, the assumed area of 83,781 square meters has still to be divided into fifteen (15) parts to arrive at the aliquot portions of 12/15 and 1/15 of the other heirs in this particular property. Why would the parties deliberately create such an unlikely mathematical situation which would complicate the actual physical segregation of the area supposed to be distributed? It is, therefore, a logical and credible explanation that the omission of the zero between the figures "8" and "3" converted "803,781" to "83,781", a product purely of clerical oversight. Petitioner has not offered any plausible contrary explanation. Parenthetically, she had the assistance of legal counsel in the intestate proceedings and in the preparation of the project of partition. 19 Petitioner's lamentations of injustice in the partition are demonstrably unfounded. It will be observed that according to her own computation, 20 she received her 1/16 share in the estate consisting of 279,803 square meters of land, while her half brothers received on the average 154,975.11 square meters each. Even if the supposed shares of the respondents in the remaining 720.000 square meters in the lot covered by Transfer Certificate of Title No. 42643 were to be added, the share of each brother would be only 202,975. 11 square meters. There would not be a substantial difference in value since the petitioner received 190,000 square meters of land located also in Antipolo, Rizal; while in Balara, Quezon City, she received more than her half brothers, that is, 75,803 square meters as against their individual 74,309.70 square meters. It was only in Pasong Tamo where she received slightly less, 14,000 square meters compared to Enrique's and Jose's 14,115 square meters each, but more than Antonio, Jr.'s 13,621 square meters. The ineluctable consequence of the foregoing considerations is that, both in law and equity, the court a quo and the respondent court committed no error prejudicial to petitioner. WHEREFORE, certiorari is DENIED and the decision of the respondent court is AFFIRMED. SO ORDERED.

RULE 74
CRESENCIA HERNANDEZ

TUASON, J.: G.R. No. L-273 March 29, 1947 vs. ZACARIAS ANDAL, QUIRINO DIMASACAT, MARIA HERNANDEZ and AQUILINA HERNANDEZ

The plaintiff, Cresencia Hernandez, the intervenors, Maria and Aquilina Hernandez, and Pedro and Basilia Hernandez who are not parties here, are brother and sisters. They acquired in common by descent from their father a parcel of land of which he died seized and known as lot No. 120073 of the Batangas cadastral survey. On January 23, 1944, the intervenors sold 1800 square meters of this parcel, a portion which is particularly described in the deed of conveyance Exhibit A, to Zacarias Andal, the defendant, and Andal's wife in consideration of P860. This portion purports to be the combined shares of the intervenors in the larger parcel, allotted to them in a verbal partition alleged to have been made (time not stated) among the five brother and sisters. After the sale, on a date as to which the evidence is in disagreement but which is not now important, the plaintiff attempted to repurchase the land sold to Andal. According to her original complaint, dated February 3, 1944, she offered the purchasers P150 as price of repurchase, this being, according to that complaint, the amount Andal had paid for Maria Hernandez's and Aquilina Hernandez's shares, but Andal, it is alleged, refused to part with the property. On April 8, the plaintiff filed a supplemental complaint. She alleged that when the cause was called for trial on March 8, she announced in open court that she was willing to repurchase her sister's share from Andal for P860 and reimburse Andal for his expense; that Andal asked for continuance until the 29th stating that he had made other expenses; that on 29th she brought P860 to repurchase the land in question but the case was again postponed because the plaintiff's sisters had intervened; and that meanwhile, on the 26th, Andal resold the land fictitiously to the vendors for P970. It results that on the date last mentioned Andal executed a deed of sale for P970 in favor of the intervenors, an amount which included Andal's expenses as well as the normal sale price. The document of repurchase gave as reason for the transaction the fact that it had been agreed that in the event trouble should arise the sellers should return to the buyer what they had received and pay the latter his expenses. On February 14, 1944, the defendant filed his answer alleging that Maria and Aquilina Hernandez had sold him their respective portions of the inherited land for P860 and that he had no objection to disposing of those portions in favor of the plaintiff for P860 plus the expenses he had incurred in the execution of the deed of sale amounting to P50, but that he was unwilling to accept P150, which was all the plaintiff offered him besides his expenses. On April 4, 1944, Maria and Aquilina Hernandez's answer in intervention was filed. The intervenors alleged that there had been a partition among them and their brother and sisters "with the share of each delineated and marked, and after partition and delineation everyone took exclusive, separate and independent possession of his portion in the partition." They charged the plaintiff with bad faith in that "it was upon her request for chance that the sale to the defendant, about to take place last November, was delayed till January of this year when she finally informed the intervenors that they could sell to the defendant, or she could pay only P150 and could not raise the amount of P860 offered by the defendant." Cresencia Hernandez, the plaintiff, was the only witness to testify on her own behalf. Substantially she reiterated the allegations in her two complaints. Zacarias Andal, the defendant, also testified. He said that he was in possession of the land in question until he returned it to the intervenors. He declared that the plaintiff offered to repurchase the land from him long after he had bought it, that is, when she was about to file her action. He stated that after he came from Candelaria, Tayabas, with the document of sale he showed it to the plaintiff: that was on the 23rd of January. He was able to do this because he lived near Cresencia and passed by her house on his way home from Candelaria. He said that Cresencia Hernandez upon being shown the document merely exclaimed, "Oh, so you already have a document." When asked whether the land "described in the complaint of the herein plaintiff has been the object of partition among the co-owners Pedro, Basilia, Cresencia, Maria and Aquilina surnamed Hernandez," counsel for the plaintiff objected on the ground that the best evidence was the document of partition, and the objection was sustained. The same objection and the same ruling were made on the same ground when the witness was queried how it was that the land he had bought from Maria and Aquilina Hernandez had been specified in the deed of sale, Exhibit A. In consequence of this ruling, counsel for the defendant and intervenors did not call any more witnesses but only announced that he had witnesses ready to prove that a parol partition among the five brother and sisters had been made, mentioning the names of six such witnesses. Counsel for the plaintiff again objected asserting that "under the Rules of Court agreement affecting real estate may not be proved except by means of writing subscribed by the person against whom the proof is offered. "Upon this objection, the court ruled that under Rules 74 and 123 of the Rules of Court (Statute of Frauds) as well as under article 1248 of the Civil Code, parol evidence of partition was inadmissible, adding that to decide the case it had enough with the testimony and evidence offered by the parties. Thereafter the court handed down its decision declaring that the resale of the land by Zacarias Andal in favor of Maria and Aquilina Hernandez was illegal and in bad faith. It, however, did not seem to have found as a fact the allegation that the resale was simulated. The court then made this judgment: The defendant and the intervenors are appealing from the foregoing decision and in their joint brief made one assignment of error: The lower court erred in refusing to admit oral evidence for proving a contract of partition among the heirs on the ground that it was not admissible. Before proceeding with a discussion of the questions raised we are tempted to point up some seeming incongruities in the above-quoted judgment. Although Zacarias Andal is no longer interested in the case, as far as the land is concerned, and even though the intervenors have become again the absolute owners and are now in full possession of the property, while Andal has already gotten his money back, the judgment would have Andal execute a deed of resale in favor of the plaintiff and received from her the price of repurchase. The judgment is silent as to the intervenors with reference to the execution of the deed of sale or the receipt of the sale price. And the lower court made no finding and expressed no opinion as to whether the offer of P150 instead of P860, not to mention Andal's expenses, by the plaintiff as price of repurchase was sufficient compliance with article 1067 of the Civil Code on which the court rested the plaintiff's cause of action. However, in this decision we are concerned mainly with the application of section 21 of Rule 123 and section 1 of Rule 74 both of the Rules of Court. Article 1248 of the Civil Code has no bearing on the case. There is a conflict of authority as to whether an agreement of partition is such a contract as is required to be in writing under the statute of frauds. One line of authorities holds the affirmative view; other authorities say no. The reason for the rule that excludes partition from the operation of the statute of frauds is that partition is not a conveyance but simply a separation and designation of that part of the land which belongs to each tenant in common. (27 C.J., 206.) The differences in the conclusions reached are "due perhaps to varied phraseology of the statutes" in the several states. (40 Amer. Jur., 15.) However the case may be, as enacted in the Philippines, first in section 335 of the former Code of Civil Procedure, and now in Rule 123, section 21, of the Rules of Court, the law has been uniformly interpreted in a long line of cases to be applicable to executory and not to completed or executed contracts. (27 C.J., 206.) In this jurisdiction performance of the contract takes it out of the operation of the statute. (Gomez vs. Salcedo, 26 Phil., 485; Almirol and Cario vs. Monserrat, 48 Phil., 67.) The statute of frauds does not declare the contracts therein enumerated void and of no legal effect, but only makes ineffective the action for specific performance. (Almirol and Cario vs. Monserrat, supra.) In the United States, even in those states where the affirmative view of the question has been followed, "the weight of authority upholds the rule that an oral partition is effective when several possession is taken under it by the respective parties to the agreement." (27 C.J., 206.) On general principle, independent and in spite of the statute of frauds, courts of equity have enforced oral partition when it has been completely or partly performed. Regardless of whether a parol partition or agreement to partition is valid and enforceable at law, equity will in proper cases, where the parol partition has actually been consummated by the taking of possession in severalty and the exercise of ownership by the parties of the respective portions set off to each, recognize and enforce such parol partition and the rights of the parties thereunder. Thus, it has been held or stated in a number of cases involving an oral partition under which the parties went into possession, exercised acts of ownership, or otherwise partly performed the partition agreement, that equity will confirm such partition and in a proper case decree title in accordance with the possession in severalty. In numerous cases it has been held or stated that parol partitions may be sustained on the ground of estoppel of the parties to assert the rights of a tenant in common as to parts of the land divided by parol partition as to which possession in severalty was taken and acts of individual ownership were exercised. And a court of equity will recognize the agreement and decree it to be valid and effectual for the purpose of concluding the right of the parties as between each other to hold their respective parts in severalty. A parol partition may also be sustained on the ground that the parties thereto have acquiesced in and ratified the partition by taking possession in severalty, exercising acts of ownership with respect thereto, or otherwise recognizing the existence of the partition. A number of cases have specifically applied the doctrine of part performance, or have stated that a part performance is necessary, to take a parol partition out of the operation of the statute of frauds. It has been held that where there was a partition in fact between tenants in common, and a part performance, a court of equity would have regard to and enforce such partition agreed to by the parties. (40 Amer. Jur., 15-18.) It is on the effects of Rule 74, section 1, of the Rules of Court on a parol partition that there are sharp divergences of opinion among the members of this Court. This section reads: If the decedent left no debts and the heirs and legatees are all of age, or the minors are represented by their judicial guardians, the parties may, without securing letters of administration, divide the estate among themselves as they see fit by means of a public instrument file in the office of the register of deeds, and should they disagree, they may do so in an ordinary action of partition. If there is only one heir or one legatee, he may adjudicate to himself the entire estate by means of an affidavit filed in the office of the register of deeds. It shall be presumed that the decedent left no debts if no creditor files a petition for letters of administration within two years after the death of the decedent.

It is contended that under this rule a verbal partition is entirely void and cannot be validated by any acts of the parties short of the execution of a public document and its registration. As a general proposition, transactions, so far as they affect the parties, are required to be reduced to writing either as a condition of jural validity or as a means of providing evidence to prove the transactions. Written form exacted by the statute of frauds, for example, "is for evidential purposes only." (Domalagan vs. Bolifer, 33 Phil., 471.) The decisions of this Court which we have noticed were predicated on this assumption. The Civil Code, too, requires the accomplishment of acts or contracts in a public instrument, not in order to validate the act or contract but only to insure its efficacy so that after the existence of the acts or contracts has been admitted, the party bound may be compelled to execute the document. (Hawaiian Philippine Co. vs .Hernaez, 45 Phil., 746.) Is section 1 of Rule 74 constitutive and not merely evidential of partition? In other words, is writing the act that confers legal validity upon the agreement? There are no indications in the phraseology of this rule which justify an affirmative answer to these questions. It must be noted that where the law intends a writing or other formality to be the essential requisite to the validity of the transactions it says so in clear and unequivocal terms. Thus, the statute of frauds as originally enacted in England and as enacted in some of the states, uses the words "utterly void" with statute transactions required to be in writing are absolutely void and not merely voidable if not made in the manner indicated. Again article 633 of the Civil Code says that donation may be valid only when made in a public document. Article 146 of the Mortgage Law makes known its intention to have the execution of a public instrument and its registration in the registry indispensable to the validity of the contract by using this phrase: "in order that voluntary mortgages may be legally created in a valid manner." Article 1765 of the Civil Code also employs for the same purpose similar expression with reference to the execution of a public document: "in order that mortgage may be validly constituted." And with respect to the formalities of last wills and testaments, section 618 of Act No. 190 makes this emphatic statement: "No will shall be valid to pass upon any estate real or personal nor change or affect the same, unless it be written etc." Other examples might be mentioned. Section 1 of Rule 74 contains no such express or clear declaration that the required public instruments is to be constitutive of a contract of partition or an inherent element of its effectiveness as between the parties. And this Court had no apparent reason, in adopting this rule, to make the efficacy of a partition as between the parties dependent on the execution of a public instrument and its registration. On the other hand, the opposite theory is not without reasonable support. We can think of possible factors against the proposition that a public document and its registration were contemplated as necessary ingredients to give life to a contract of partition so that without them no oral partition can bind the parties. 1. In the first place, the Rules of Court of which the rule under consideration forms a part were promulgated by the Judicial Department under authority to deal with matters of procedure exclusively. For this court to prescribe what is to be a binding agreement between co-heirs in the settlement of their private affairs which in no way affect the rights of third parties would be to transcends its rule-making power. We bring out this limitation upon the authority of this court to make rules, as an aid to interpretation, as a method of arriving at the conclusion that section 1 of Rule 74 was meant to be remedial and not a rule of substantive law of far-reaching importance and serious juridical and practical implications. It is to be presumed that the framers of the Rules of Court realized the bounds of this court's functions and did not intend to trespass on purely substantive rights of the parties to the partition. To the extent the execution and registration of a notarized instrument are made essential elements to validity to protect innocent third parties, the rule is legitimate and necessary; legitimate because decedent's estate are placed under the jurisdiction of the courts to administer and distribute. The interests of third parties eliminated, the rule loses its character as one of procedure and practice and invades the realm of substantive law. Section 596 of Act No. 190, which is the precursor of section 1 Rule 74, is enlightening and instructive. The former after stating that heirs may apportion and divide the estate among themselves as they may see fit by agreement duly executed in writing by all of them, adds the words "and not otherwise." These words, in our opinion, were expressive of an intention to make the written formality inherent element of the validity of a parol partition. But what is far more to the point is that by logical process of deduction the elimination from the new rule of the words "and not otherwise" imports the casting away from the prescribed public document of its jural character which the document enjoyed in the former code. At the same time, the inclusion of the aforesaid words in the old provision serves to emphasize the necessity of a positive and clear language if a given contractual formality is to be the exclusive basis of the contract's binding effect on the parties. It is of course unnecessary to say that the attaching of jural character to the prescribed public instrument in section 596 of Act No. 190 is no argument for contending that such document must be clothed with the same raiment in the new Rules. Act No. 190 was a mixture of procedural and substantive provisions, having been enacted by the legislative body itself which, unlike this court, was unhampered and untrammelled, except by the fundamental law, in the choice of its subjects of legislation. 2. The civil law looks upon the role of public instruments in acts and contracts with greater liberality with a view to better adaptation to human frailties and idiosyncracies. In their blind faith in friends and relatives, in their lack of experience and foresight, and their ignorance, men, in spite of laws, will make and continue to make verbal contracts. The advantages of an air-tight policy concerning such contracts fall far short of compensating for the resulting damage, injustice, inconveniences and confusion. So even though articles 1278, 1279 and 1280 of the Civil Code have made provisions for public instrument for all transactions and contracts whose object is the creation, modification or extinction of real rights in immovables, it has been recognized and held that verbal contracts may be effective between the parties. A leading case on this subject is Thunga Chui vs. Que Bentec (2 Phil., 561), Mr. Justice Williard writing the decision. It was said in that case that when the essential requisites for the existence of a contract are present, the contract is binding upon the parties, and, although required to be in writing by article 1280 of the Civil Code, the plaintiff can maintain an action under article 1279 to compel the execution of a written instrument. It says that "article 1279 does not impose an obligation, but confers a privilege upon both contracting parties, and the fact that the plaintiff has not made use of same does not bar his action." It further says that article 1279, far from making the enforceability of the contract dependent upon any special intrinsic form, recognizes its enforceability by the mere act of granting the contracting parties an adequate remedy whereby to compel the execution of public writing or any other special form whenever such form is necessary in order that contract may produce the effect which is desired according to whatever its object. This doctrine was iterated and reiterated in a series of decisions perhaps longer than that on any other legal topic. And it has been extended even to verbal contracts involving land registered under the Torrens Act. Do the Rules of Court adhere to this salutary principle? We can perceive no sufficient ground for the new Rules to depart from it. No considerations of public policy enter into a partition of hereditary estate among co-heirs greater than those involved in a contract between strangers which operates to create, transmit, modify or extinguish property rights in land. If as between strangers the creation, transmission, modification or extinction of real rights may be lawfully effected by parol agreement notwithstanding the requirement that it be put in writing, the new rule could not be more intransigent when the transaction is between co-heirs and there is no change of ownership but simply designation and segregation of that part which belongs to each heir. The requirement that a partition be put in a public document and registered has, in our opinion, for its purpose the protection of creditors and at the same time the protection of the heirs themselves against tardy claims. Note that the last sentence of the section speaks of debts and creditors. The object of registration is to serve as constructive notice, and this means notice to others. It must follow that the intrinsic validity of partition not executed with the prescribed formalities does not come into play when, as in this case, there are no creditors or the rights of creditors are not affected. No rights of creditors being involved, it is competent for the heirs of an estate to enter into an agreement for distribution in a manner and upon a plan different from those provided by law. It is said that the findings, conclusions and judgment in the appealed decision are not assigned as errors and that for this reason the appeal should be dismissed. We do not think that the premise of this objection is exactly correct. The evidence on parol partition tendered by the defendant and intervenors was ruled out and they specifically complain of this exclusion as error. In this manner the assignment of error squarely meets and attacks the opinion and judgment of the trial court. A superficial analysis of the case will show that on the validity of the alleged partition hangs the result of the entire litigation, and on that validity depends in turn the competence of the excluded evidence. These two interrelated points are the core of the whole case. All other points are incidental to and revolve around them. If a completed oral partition may be enforced, as the defendant and the intervenors contend and as we opine, their evidence should be allowed, and if allowed and it establishes their allegation, the plaintiff's cause of action vanishes. If the appellant's assignment of error be not considered a direct challenge to the decision of the court below, we still believe that the objection takes a narrow view of practice and procedure contrary to the liberal spirit which pervades the Rules of Court. The first injunction of the new Rules (Rule 1, section 2) is that they "shall be liberally construed in order to promote their object and to assist the parties in obtaining just, speedy, and inexpensive determination of every action and proceeding." In line with the modern trends of procedure, we are told that, "while an assignment of error which is required by law or rule of court has been held essential to appellate review, and only those assigned will be considered, there are a number of cases which appear to accord to the appellate court a broad discretionary power to waive the lack of proper assignment of errors and consider errors not assigned. And an unassigned error closely related to an error properly assigned, or upon which the determination of the question raised by the error properly assigned is dependent, will be considered by the appellate court notwithstanding the failure to assign it as error." (4 C.J.S., 1734; 3 C.J., 1341, footnote 77.) At the least, the assignment of error, viewed in this light, authorizes us to examine and pass upon the decision of the court below. The judgment is reversed and the case is remanded to the court of origin for further proceeding and a new decision not incompatible with this decision, with costs of this appeal against the appellee. Moran, C.J., Pablo, Hilado, Bengzon, Briones, Hontiveros, and Padilla, JJ., concur.

MAXIMINA OYOD DE GARCES, ET AL.,

vs.

REYES, J.B.L., J.: G.R. No. L-23758 ESMERALDA BROCE, ET AL.

May 20, 1968

Appeal instituted by both parties in Civil Case No. 137 (6780) of the Court of First Instance of Negros Occidental, from the decision rendered therein, dismissing the complaint in said case; declaring as valid the sale to defendant Esmeralda Broce, by the heirs of Fortunata Oyod, of a portion of Lot No. 228 of the San Carlos Cadastre and referred to as Lot No. 228-D; and ordering therein defendant Esmeralda Broce to pay to plaintiffs the sum of P780.00 with legal interest thereon, from the date of the promulgation of the decision until its full payment. In a complaint filed on September 19, 1962 in the Court of First Instance of Negros Occidental (which was later amended), Maximina Oyod de Garces, Gregorio Oyod and Pio V. Garces sought the termination of a lease and annulment of sale, in favor of defendants Tranquilino Broce and Esmeralda Broce, and the return by the latter, of a parcel of land described as Lot No. 228-D of the subdivision of Lot No. 228 of the Cadastral Survey of San Carlos, Negros Occidental, with an area of 354,250 square meters more or less, that plaintiffs claimed to be their property proindiviso. At the pre-trial hearing of the case, the parties stipulated on the following: 1. That the original owners of Lot No. 228 were Severo Oyod and Bonifacia Mahinay and their ownership is evidenced by Original Certificate of Title No. 23777 of the Registry of Deeds of Negros Occidental. 2. That the said registered owners had four children namely Fortunata, Eugenia, Gregorio and Maxima Oyod. 3. That Eugenia died sometime in 1950 after the death of Severo Oyod; that Maxima Oyod is married to Pio V. Garces; and that Fortunate Oyod, married Pedro Barbon and their children are Melecia, Narciso, Leopoldo, Carlos, Margarita, Leonardo, Lilia and Ildefonso Barbon. 4. That in 1930 the heirs of Severo Oyod executed a Deed of Extra-Judicial partition which is document 888, page 12, book 7, series of 1930 of Notary Public Victorino G. Apuhin (pp. 101 to 105 of record). 5. That on September 5, 1951 the heirs of Severo Oyod executed a Deed of Extra-judicial Settlement which is document 457, page 93, book 2, series of 1951 of Notary Public Filomeno T. Enriquez (pp. 77 to 78 of the record). 6. That Fortunata Oyod executed a lease agreement in favor of Tranquilino Broce on October 28, 1957 (Document 284, page 39, book 9, series of 1957 of Notary Public Apuhin, pp. 77 to 78 of the Record). 7. That on September 25, 1962, the heirs of Fortunata Oyod Barbon executed an Extra-Judicial Settlement and Sale in favor of Esmeralda P. Broce which is document 188, page 92, book 1, series of 1962 of Notary Public Roque Agravante (pp. 109 to 111 of the record). 8. That the questions before this Court are as follows: (a) Which should prevail, the Extra-Judicial Settlement of 1930 or that of 1951? (b) If the 1930 Extra-Judicial Settlement is upheld, then the buyer Esmeralda Broce bought on September 25, 1962, Lot No. 228-D, is described in the 1930 document. (c) If the 1951 Extra-Judicial Settlement is upheld, then Fortunata Oyod owned an undivided share in Lot No. 288; and what Esmeralda Broce acquired in 1962 is not Lot No. 228-D specifically, but an undivided share of in Lot 228. After due hearing, the court rendered judgment on July 11, 1964, upholding the due execution and validity of the 1930 extrajudicial partition by the heirs of Severo Oyod and Bonifacia Mahinay of Lot No. 228, and of the sale in 1962 to Esmeralda Broce of Lot No. 228-D by the heirs of Fortunata Oyod. And, finding that the heirs of the deceased Severo Oyod contracted an obligation with the Philippine National Bank prior to the sale of Lot No. 228-D, to pay the outstanding taxes on the entire Lot 228, the court ruled that lien was thus created and attached to the land. Esmeralda Broce was then ordered to pay to plaintiffs the sum of P780.00 or 1/5 of the said obligation, as share of Lot 228-D. Both parties appealed; plaintiffs excepting from the ruling that sustains the validity of the extrajudicial partition of 1930 and the order to Esmeralda Broce to pay only the sum of P780.00 instead of P2,392.00; whereas, defendant Esmeralda Broce prays for her total exculpation from any liability. It is evident from the issues formulated and litigated in the court below, which are again being raised in this appeal by the plaintiffs-appellants, that the controversy lies on the effect of the execution of the extrajudicial partition in 1951, which was duly recorded in the Registry of Deeds, upon the 1930 agreement which, although embodied in a public instrument, was admittedly not registered. 1 For, if there was a valid partition of Lot No. 228 (one of the properties included in the 1930 agreement) and ownership of the portions respectively assigned to the heirs thereunder had indeed passed to the latter, then the sale of Lot No. 228-D to Esmeralda Broce in 1962 would also be valid. Upon the other hand, if there was proper cancellation and substitution of that 1930 settlement, by the extrajudicial partition of 1951, wherein the heirs agreed to form a co-ownership of the whole Lot 228, then what could be acquired by defendant-appellee Esmeralda Broce would only be an undetermined share of the same lot. The issue of the effect of an unregistered extrajudicial settlement2 among the heirs of the estate of a deceased person is not new. It was previously resolved by this Court in favor of the validity of the partition in the case of Hernandez vs. Andal, 78 Phil. 196, in this wise: Is section 1 of Rule 74 constitutive and not merely evidential of partition? In other words, is writing the act that confers legal validity upon the agreement? There are no indications in the phraseology of this rule which justify an affirmative answer to these questions. It must be noted that where the law intends a writing or other formality to be the essential requisite to the validity of the transaction, it says so in clear and unequivocal terms. Thus, the statute of frauds as originally enacted in England and as enacted in some of the states, uses the words "utterly void" with reference to certain transactions. Under the terms of such statute transactions required to be in writing are absolutely void and not merely voidable if not made in the manner indicated. Again article 633 of the Civil Code says that donation may be valid only when made in a public document. Article 146 of the Mortgage Law makes known its intention to have the execution of a public instrument and its registration in the registry indispensable to the validity of the contract by using this phrase: "in order that voluntary mortgages may be legally created in a valid manner." Article 1765 of the Civil Code also employs for the same purpose similar expression with reference to the execution of a public document: "in order that mortgage may be validly constituted." And with respect to the formalities of last wills and testaments, section 618 of Act No. 190 makes this emphatic statement: "No will shall be valid to pass upon any estate real or personal nor charge or affect the same, unless it be written etc." Other examples might be mentioned. Section 1 of Rule 74 contains no such express or clear declaration that the required public instrument is to be constitutive of a contract of partition or an inherent element of its effectiveness as between the parties. And this Court had no apparent reason, in adopting this rule, to make the efficacy of a partition as between the parties dependent on the execution of a public instrument and its registration.... (78 Phil. 204-205). Touching on the purpose of the registration-requirement in the said provision, this Court ruled in the same case: The requirement that a partition be put in a public document and registered has, in our opinion, for its purpose the protection of creditors and at the same time the protection of the heirs themselves against tardy claims. Note that the last sentence of the section speaks of debts and creditors. The object of registration is to serve as constructive notice, and this means notice to others. It must follow that the intrinsic validity of a partition not executed with the prescribed formalities does not come into play when, as in this case, there are no creditors or the rights of the creditors are not affected. No rights of creditors being involved, it is competent for the heirs of an estate to enter into an agreement for distrubution in a manner and upon a plan different from those provided by law. (Cas. cit., pp. 208-209). There is nothing here on record to indicate that when the first partition agreement was entered into, there existed any claim against the estate of the deceased or that prejudice was thereby caused to any third party. Considering that a voluntary division of the estate of the deceased, by the heirs among themselves, is conclusive3 and confers upon said heirs exclusive ownership of the respective portions assigned to them, 4 the extrajudicial partition made by the heirs of Severo Oyod in 1930 could not have been cancelled or subtituted by the execution, by some of these heirs, of another extrajudicial settlement of the same estate in 1951 even if the latter document be registered, particularly since one of the co-signers of the 1930 agreement, Eugenia Oyod, had died on January 8, 1950, (Exh. D) before the second extrajudicial settlement was made. The lower court, therefore, committed no error in holding that the sale to defendant-appellee Esmeralda Broce of Lot 228-D in 1962 did not suffer from any infirmity. A second reason is that it is not shown that appellee Broce had notice or knowledge of the second partition of 1951. As the 1930 partition was operative to vest title in Fortunata Oyod to the lot allotted to her, even if the agreement was unrecorded, Broce had reason to rely thereon. However, there is no basis to the lower court's order to defendant-appellant, Esmeralda Broce, to assume a proportionate share of the indebtedness contracted by the surviving heirs of the deceased Severo Oyod with the Philippine National Bank. The fact alone that the property in dispute originally formed part of the estate of said deceased person and that the obligation was contracted prior to its purchase by herein defendant-appellant, to pay the taxes due on the estate of the deceased, does not render the vendee answerable therefor. As pronounced by this Court in the case of Habaa vs. Imbo, supra, if there is really need to sell properties belonging to an heir to pay the debts of the estate, there should first be exhaustion of other properties still owned by the said heir. In the present case, there is no proof that the heirs of Fortunata Oyod received from the estate of Severo Oyod no property other than Lot 228-D. Furthermore, it does not even appear that this obligation to the Philippine National Bank was duly constituted as an encumbrance on the whole Lot 228. As mere vendee of Lot 228-D, defendant-appellant cannot be required to share in the payment of an obligation contracted by the heirs of the estate, of which she is not one. WHEREFORE, as above modified, the decision appealed from is hereby affirmed. Costs against plaintiffs-appellants.

MAKALINTAL, J.: G.R. No. L-21725

November 29, 1968

AURELIO ARCILLAS vs. HON. GREGORIO D. MONTEJO, Judge of the Court of First Instance of Zamboanga, MODESTA ALFARO, GERONIMO ARCILLAS and VICENTE ARCILLAS Filed before the Court of First Instance of Zamboanga on November 12 and 16, 1962, respectively, are two separate petitions having direct and special reference to Lot No. 276. This lot, covered by Transfer Certificate of Title No. RT-244 (2155 (0-656), forms a major part of the estate of the late Eustaquio Arcillas who died intestate on March 8, 1958 in the City of Zamboanga. In the petition dated November 12 Geronimo Arcillas, one of the heirs of the deceased, sought the cancellation of TCT No. RT-244 in the name of the deceased and prayed for the issuance of a new certificate of title in the names of the heirs in the enumerated proportions alleged in the petition. It was claimed that at various dates after the death of the deceased, several transactions affecting Lot No. 276 transpired, prominent among which were the separate sales of their respective shares and participation in Lot No. 276 executed by four (4) other children of the deceased in favor of co-heir Vicente Arcillas. Invoking section 112 of Act No. 496 (Land Registration Act), Geronimo Arcillas argued that the proportion of each heir's participation in said lot should be accurately reflected in a new certificate of title. But before any other material pleading could be filed with respect to this petition, five (5) other children of the deceased filed the November 16 petition aforementioned. This later petition, docketed as Special Proceeding No. 632, prayed for the issuance of letters of administration in favor of herein petitioner preparatory to the final settlement of the deceased's estate. Paragraphs 3 and 4 of this later petition, insofar as pertinent to this case, read: 3. That the deceased left an estate consisting of real property in Zamboanga City with a probable value of not less than SIX THOUSAND PESOS (P6,000.00), Philippine Currency; 4. That as far as petitioners know, the deceased left no debts remaining unpaid; In the meantime, on November 23, 1962 herein petitioner filed his opposition to the November 12 petition on the ground that inasmuch as Lot No. 276 the subject matter thereof was included in the estate of the deceased for which a petition for administration had actually been filed and was awaiting resolution, that petition (the one dated November 12) should be held in abeyance until after Special Proceeding No. 632 was closed and terminated. Recognizing then the merit of petitioner's ground, respondent Judge issued an order on December 1, 1963 temporarily holding in abeyance resolution of the November 12 petition until the termination of the intestate proceedings. Meanwhile, in his answer to the November 16 petition (Sp. Proc. No. 632) Geronimo Arcillas, this time joined by Vicente Arcillas and the widow Modesta Alfaro, opposed the issuance of letters of administration to herein petitioner, arguing that inasmuch as Lot No. 276 was the only property left by the deceased and the deceased left no debts, the petition for administration was improper. However petitioner, in his reply on January 18, 1963, insisted that there were still other properties of the estate of the deceased besides Lot No. 276; he likewise took issue with respondents' view that administration proceedings could be dispensed with asserting, firstly, that there was no unanimity among the heirs for extrajudicial partition and, secondly, that some of the heirs had been unduly deprived of their participation in the estate. On March 8, 1963 respondent court denied the November 16 petition for the issuance of letters of administration and at the same time gave due course to the November 12 petition. Reasoned the court: "... to obviate the necessity of spending uselessly which would only deplete the funds of the estate; to avoid unnecessary delay in the partition of the property involved herein, and following the doctrines established by the Honorable Supreme Court in several cases of the same nature, which is in consonance with the provisions of Section 1, Rule 74 of the Rules of Court, the court is of the opinion that the herein petition (should) be denied and (holds that) the cadastral motion of the oppositor Geronimo Arcillas covering the same property is the most expedient and proper action." Unable to have this order reconsidered petitioner filed the instant petition for certiorari with mandamus and preliminary injunction. On December 2, 1963, upon filing by petitioner of the required bond, we issued a writ of preliminary injunction enjoining respondent Judge from proceeding with the hearing of the "cadastral motion" dated November 12, 1962. The issues to be determined are whether respondent Judge acted properly (1) in dismissing the administration proceedings under the authority of section 1, rule 74 of the New Rules of Court upon averments that the estate left no debts and all the heirs entitled to share in its distribution are all of age and (2) in maintaining that the "cadastral motion" brought under the provision of section 112 of the Land Registration Act was the more proper proceeding under the circumstances. Under section 1, Rule 74 of the New Rules of Court, if the decedent left no will and no debts and the heirs and legatees are all of age, or the minors are represented by their judicial guardians, the parties may, without securing letters of administration, divide the estate among themselves as they see fit by means of a public instrument filed in the office of the Register of Deeds and should they disagree, they may do so in an ordinary action of partition. And primarily anchored on the proposition that inasmuch as in the present case the minimum requirements of the aforementioned section obtain, i.e. the decedent left no will and no debts and the heirs are all of age, respondents claim that there is no necessity for the institution of special proceedings and the appointment of an administrator for the settlement of the estate for the reason that it is superfluous and unnecessary. In other words, respondents apparently view section 1 of Rule 74 as mandatory upon the heirs so long as the deceased left no will nor any pending obligations to be paid and his heirs are all of age. We cannot entirely agree with the respondents. On a similar contention in the past, we had occasion to explain in Rodriguez, et al. v. Tan, et al., 92 Phil. 273: ... section I does not preclude the heirs from instituting administration proceedings, even if the estate has no debts or obligation, if they do not desire to resort for good reasons to an ordinary action of partition. While section 1 allows the heirs to divide the estate among themselves as they may see fit, or to resort to an ordinary action of partition, it does not compel them to do so if they have good reasons to take a different course of action. Said section is not mandatory or compulsory as may be gleaned from the use made therein of the word may. If the intention were otherwise the framer of the rule would have employed the word shall as was done in other provisions that are mandatory in character. Note that the word may its used not only once but in the whole section which indicates an intention to leave the matter entirely to the discretion of the heirs. Having decided to institute administration proceedings instead of resorting to the less expensive modes of settlement of the estate, i.e. extrajudicial settlement or ordinary action for partition, the heirs may not then be rebuffed in the exercise of their discretion granted under section 1 of Rule 74 of the Rules of Court merely on the ground that the expenses usually common in administration proceedings may deplete the funds of the estate. The resultant delay and necessary expenses incurred thereafter are consequences which must be deemed to have been voluntarily assumed by the heirs themselves so that they may not in the future be heard to complain of these matters. Besides, the truth or veracity of petitioner's claim as to the alleged existence of other properties of the deceased aside from the lot in question can be more adequately ascertained in administration proceedings rather than in any other action. Understandably the allowance of the hearing of the "cadastral" motion, supposedly brought under the authority of section 112 of Act 496, cannot be sustained. While this section authorizes, among others, a person in interest to ask the court for any erasure, alteration, or amendment of a certificate of title "upon the ground that registered interests of any description, whether vested, contingent, expectant, or inchoate have terminated and ceased," and apparently the November 12 petition comes within its scope, such relief can only be granted if there is unanimity among the parties, or there is no adverse claim or serious objection on the part of any party in interest; otherwise the case becomes controversial and should be threshed out in an ordinary case or in the case where the incident properly belongs (see Puguid v. Reyes, L-21311, August 10, 1967 and the cases cited therein). In the instant case the obvious lack of unanimity among the parties in interest, manifestly demonstrated by petitioners' express objection to the cancellation of TCT No. RT-244, sufficiently removes the November 12 petition from the scope of section 112 of Act 496. Besides, the proceedings provided in the Land Registration Act are summary in nature and hence inadequate for the litigation of issues which properly pertain to the case where the incident belongs. IN VIEW OF THE FOREGOING, judgment is hereby rendered setting aside the appealed orders and directing respondent Judge or whoever is presiding the court below to reinstate Special Proceedings No. 632; the writ of preliminary injunction previously issued enjoining respondent Judge from proceeding with the hearing of the "cadastral" motion dated November 12, 1962 is hereby made permanent. Costs against respondents, except respondent Judge.

NOCON, J.: CONCEPCION MUOZ DIVINA as represented by her daughter Amelia Tinoco

G.R. No. 100993

March 30, 1993

vs. THE CA and JUANITA N. MUOZ

The petition before us is an action for recovery of sum of money based on an extra-judicial agreement. The counsel for the private respondent informed this court that respondent, Juanita Muoz has succumbed to old age during the pendency of this appeal, and that despite efforts exerted, none of her relatives has come forward to substitute the deceased in this proceeding. The contending parties are in-laws, who are contesting the inheritance of the deceased spouse of the now deceased respondent. Eleuterio M. Muoz was the brother of Trinidad Muoz-Marticio, Maximo M. Muoz and Concepcion Muoz-Divina (herein petitioner, represented by her daughter Amelia Tinoco). Eleuterio was married to Juanita, although their union was not blessed with a child. Upon Eleuterio's demise, Juanita invited her three in-laws to participate in the extra-judicial settlement of the estate of her husband, they being the only heirs. Eleuterio's properties, both personal and real, were assessed in the amount of P709,403.00, less the expenses for the burial, wake and other incidental costs, the remaining balance left for partition amounted to P669,458.50. Based on the "Extra-Judicial Settlement of Estate of Eleuterio M. Muoz, with Deed of Sale" 1 the heirs agreed that three-fourths (3/4) of the total net value of the property or P502,093.87 shall be adjudicated to respondent, Juanita, while the remaining one-fourth (1/4) or the amount of P167,364.00 shall be divided equally among Eleuterio's brother and sisters, each to receive more or less P55,788.00. In the same instrument, the heirs agreed that Maximo, Trinidad and Concepcion were to sell to Juanita all their rights and participation to the estate and in consideration thereof, Juanita is to pay each of the heirs P55,788.00 or a total of P167,364.00 to expedite the settlement of the estate. The document was prepared and notarized by Atty. Teodulo C. Gabor, and signed by all the parties on December 18, 1980. On the same day, Juanita executed an affidavit promising to pay the other heirs their share in Eleuterio's inheritance within six (6) months from January 18, 1980. 2 On January 24, 1984, Concepcion signed a "Statement of Partition, Assets of the Late Eleuterio M. Muoz". 3 This document itemized the amount due to Concepcion, the agreed deductions and advances made by her and her daughter, Amelia, from Juanita. Two days thereafter, Concepcion caused Juanita to sign a certification which states that the residential house located at 4548 Quintos Street, Makati, (where Amelia with her family used to reside) was part of the inheritance received by Concepcion from the estate of Eleuterio. 4 Sometime on September 1986, Juanita filed an accion publiciana against Ernesto Tinoco, husband of Amelia and two other tenants occupying the apartments on Quintos Street. The case, docketed as Civil Case No. 15030, 5was decided in favor of Juanita and became final on March 1988, there being no appeal instituted by the defendants. Defendant, Ernesto, was ordered to immediately vacate the property and allow plaintiff, Juanita to recover possession thereof. On February 1988, or almost eight years after the signing of the extra-judicial settlement, Juanita's in-laws filed a complaint for revocation and annulment of the extra-judicial settlement of estate of Eleuterio, naming Juanita as defendant. In due time, however, Maximo and Trinidad withdrew as plaintiffs, leaving Concepcion, represented by her daughter, Amelia Tinoco, to pursue the case. The complaint alleges that Juanita, by means of strategy and stealth and through fraud and illegal means, convinced and lured the plaintiffs therein in executing the Extra-Judicial Settlement of the Estate of Eleuterio M. Muoz; that defendant Juanita has not paid each of the plaintiffs the amount of P55,788.00 or a total of P167,364.00 contrary to the stipulation in the said document; and that a certain property (apartment units) designated as 4544, 4546 and 4548 located at Quintos St., Makati together with the parcel of land on which the units were constructed were not turned over by defendant to Concepcion as promised by her in the certification 6she signed on January 26, 1984. The trial court, while upholding the validity of the Extra-Judicial Settlement, is of the belief that petitioner Concepcion was not paid the balance of her share giving credence to the affidavit of respondent Juanita signed in 1980 acknowledging such fact. The affidavit, however, was executed on the same day that the extra-judicial partition was signed. On that very day, it is understandable that respondent did not have the cash to pay her co-heirs and as she testified, she had to sell some properties in order to give her in-laws their agreed share. 7 On the other hand, the appellate court, while also finding the Extra-Judicial Settlement valid, found that all the heirs, namely Concepcion, Trinidad and Maximo were indeed paid their share. Moreover, defendant-appellant's evidence reveal that the three (Maximo Muoz, Trinidad Marticio and Concepcion Divina) were paid their respective shares on different dates. On December 1, 1981, Maximo Muoz executed a sworn statement wherein he acknowledged receipt of P30.000.00 "as evidence and partial payment of my share to the estate (Exh. 13, p. 136, Rec.) Subsequently, on August 11, 1984, he acknowledged receipt of the amount of P9,762.00 in full payment of (his) share in the estate (p. 131, Rec.). Likewise, Trinidad Marticio signed a list which showed cash advances in the amount of P23,200.00 taken from defendant-appellant Juanita Muoz and her share of the estate tax in the amount of P16,056.00 or a total of P39,256.00. Thus, the total amount due her was only P16,532.00 of her share of P55,788.00 in the estate of Eleuterio Muoz. She affixed her signature at the bottom of the statement of partition on January 23, 1984. On January 24, 1984, plaintiff-appellee Concepcion Divina likewise acknowledge receipt of a statement of partition (Exh. 2) similar to those given to Maximo Muoz and Trinidad Marticio. It itemizes the cash advances taken either by appellee Concepcion Divina or her daughter Amelia Tinoco which totaled P15,415.00. Her share in the estate tax amounted to P16,056.00. Thus, the total amount due her was P24,317.00. While appellee's signature appears at the bottom of the statement of partition (Exh. 2), she, however, denies having signed it. To affirm the fact that the signature appearing on the statement of partition (Exh. 2 and Exh. E) is not hers, appellee wrote her name on a piece of paper in open court (Exh. F). The trial court, however, did not find any need to make a comparison . . . 8 The appellate court, however, found the signature of Concepcion in the statement of partition (Exhibit "2") evidencing proof of payment of her share by respondent, genuine. Said the court: We, however, must disagree with the opinion of the trial court that "it cannot lend credence to the statement of partition (Exh. 2) as proof of payment of Concepcion's share by defendant." First of all, We are of the view that the signature of appellee Concepcion Divina on the statement of partition (Exh. 2) is in her genuine signature. We have compared it with her signatures on the Special Power of Attorney (p. 6, Rec.) and the extra-judicial settlement agreement (Exh. 8) and We find that it is strikingly similar to the questioned signature. By the naked eye, and by cursory examination of the three signatures, We are convinced that they were written by the same person, i.e., appellee Concepcion Divina. Additionally, since appellee disclaims her signature in Exhibit 2, she should have utilized a handwriting expert to prove it is a forgery. Moreover, if it is true that she was not paid her share, Concepcion Divina should have brought this to the attention of appellant Juanita Muoz within two (2) years from the time she signed the extra-judicial settlement agreement. There is nothing in the record that she ever made any written demand for payment of her share. On the contrary, the statement of partition (Exh. 2) indicates that she was fully paid her share in the estate of her brother. Surely, when she acknowledged receipt of the statement of partition (Exh. 2), she should have questioned the amount which reflected the cash advances taken by her or daughter Amelia. She did not do so at the time of receipt or immediately thereafter. In effect, she confirmed the contents of the partition settlement. 9 The extra-judicial settlement agreement is a contract, wherein the parties may establish such stipulations, clauses and conditions as they may deem convenient, provided that the legitime of the compulsory heirs are preserved. In the absence of fraud and provided all requisites are met, the same should be upheld as valid and binding between parties. Extra-judicial partition, being a speedy and less expensive method of distribution of the estate, is specifically provided for in Section 1, Rule 74 of the Rules of Court, that in the absence of a will and where the decedent left no debts and the heirs are all of age, the heirs may divide the estate among themselves as they see fit by means of a public instrument, and should they disagree, they may do so in an ordinary action of partition. In proceeding with the actual partition of the properties mentioned in the deed, the parties, of course, are duty bound to abide by the mutual waiver of rights agreed upon in the document. 10 A party can not, in law and in good conscience, be allowed to reap the fruits of a partition, agreement or judgment and repudiate what does not suit him. 11 WHEREFORE, this petition is DISMISSED. The ruling of the appellate court is hereby AFFIRMED in toto. SO ORDERED.

JUGO, J.: G.R. Nos. L-2963-4 December 27, 1951 GUARDIANSHIP OF RUFINO CRISOSTOMO and his minor children RUFINO CRISOSTOMO, JR., JUAN CRISOSTOMO, ROBERTO CRISOSTOMO, and GABRIEL CRISOSTOMO. HERMOGENES C. FERNANDO, as Guardian of the minors vs. GERMAN CRISOSTOMO and PACITA FERNANDO --------------------------INTESTATE ESTATE OF THE DECEASED SPOUSES RUFINO CRISOSTOMO and PETRA FERNANDO. GERMAN CRISOSTOMO and PACITA FERNANDO vs. HERMOGENES C. FERNANDO, as Guardian of the minors RUFINO CRISOSTOMO, JR., JUAN CRISOSTOMO, ROBERTO CRISOSTOMO, and GABRIEL CRISOSTOMO This is an appeal from several orders of the Court of First Instance of Bulacan in case No. 38 of said court, entitled "Guardianship of Rufino Crisostomo, Sr. and his minor children Rufino, Jr., Roberto, Juan, and Gabriel, all surnamed Crisostomo," which has been numbered by this Court G.R. No. L-2693, and case No. 318 of the same court, entitled "Inestate Estate of the spouses Rufino Crisostomo and Petra Fernando," which has been numbered by this Court G.R. No. L-2694. These two cases have been combined in view of the intimate and necessary relations between them. In case G.R. No. L-2963, Hermogenes C. Fernando was appointed on August 14, 1945, guardian of Rufino Crisostomo and his minor children Rufino, Jr., Juan, Roberto, and Gabriel as to their persons and properties. Later Rufino Crisostomo Sr., died, leaving his said four minor children under the guardianship of said Hermogenes C. Fernando. The value of the properties involved in the two proceedings exceeds P50,000 and the pertinent questions raised are only of law. On June 12, 1948, the guardian filed a motion with the Court of First Instance of Bulacan praying for the approval of an extra-judicial settlement of the estate of the deceased parents of the minors, the spouses Rufino Crisostomo, Sr. and Petra Fernando, who died intestate on August 15, 1945 and January 16, 1945, respectively. The guardianad litem filed an opposition to said motion. The regular guardian filed an answer to the opposition. The court entered the following:
ORDER This is motion for the approval of an extra-judicial settlement marked Exhibit "A". The Supreme Court in the certiorari case, G.R. No. L-2172, has ruled: The guardian of the minor children of the deceased is not, as such, administrator of the estate of the deceased until and after said estate has been acquired by or adjudicated to the minors by proper proceedings. In view hereof, the said motion is hereby denied and the deed of extra-judicial settlement executed by the legal guardian Hermogenes C. Fernando on May 23, 1948, a duplicate copy of which is marked A is declared null and void. Hermogenes C. Fernando is order deliver to the Clerk of Court the original copy of Exhibit "A" within 5 days from the receipt of a copy of this order. Let a copy of this order be attached to the Special Proceedings No. 316. IT IS SO ORDERED. (Sgd.) POTENCIANO PECSON Judge

The guardian appealed from the above order. On July 23, 1948, the guardian filed in the guardianship proceedings a petition praying the court to punish for contempt German Crisostomo (one of the administrators of the estate of the deceased spouses appointed in the intestate proceedings above mentioned) and one Victor Dimagiba, alleging that they had illegally taken possession of certain properties belonging to the minor wards, inherited by them from their parents. The Court denied the petition on the ground that German Crisostomo had the right to possess those properties in his capacity as co-administrator of the estate of the deceased spouses and that Victor Dimagiba was only his overseer. The guardian filed a motion for reconsideration which the court denied on September 16, 1948. He appealed from said order. In case G.R. No. L-2694, entitled "Inestate Estate of the Spouses Rufino Crisostomo and Petra Fernando," German Crisostomo filed a petition, as next of kin, for the opening of the inestate proceedings of the himself and Pacita Fernando, another next appointment of himself and Pacita Fernando, another next of kin, as co-administrator of said estate. The guardian in case G.R. No. L-2693 filed on February 28, 1948, an opposition to the appointment of the administrators and moved for the dismissal of the inestate proceedings on the ground that the properties left by said spouses were already in his possession as such guardian. On April 1, 1948, the court issued an order denying the motion to dismiss the inestate proceedings. On April 2, 1948, the guardian filed another petition reiterating the motion of dismissal. On April 7, 1948, the court appointed German Crisostomo and Pacita Fernando co-administrators of the estate of the above-mentioned spouses with the appropriate bonds, impliedly denying the reiteration of the motion for dismissal. On June 21, 198, the guardian filed a motion for the closing, termination and filing in the archives of the record of the inestate proceedings on the ground that the properties involved therein had already been extrajudicially declaring null and void the extrajudicial partition made by the guardian and denying said motion for closing the inestate proceedings. The guardian appellee form the above order as well as from the one dismissing the petition for contempt. It may be gathered from the above statement of the pleadings, motions, petitions, and orders of the court below that the principal issue in this case is whether the court should have denied the petition for the opening of inestate proceedings, or should have dismissed it, upon motion of the appellant, after they had commenced, and whether the project of partition submitted by the guardian in the guardianship proceedings should have been approved. The other questions as to the contempt of court allegedly committed by the co-administrator German Crisostomo together with his overseer Victor Dimagiba, may be disposed of as a mere corollary of the principal issues as to the dismissal of the inestate proceedings. On April 27, 1948, the guardian filed with this Court a petition. In the petition, substantially the same questions are raised as those discussed in the brief of the appellant herein. This Court, in a resolution dated May 5, 1948, which became final on July 2, 1948, passed the following resolutions: Considering the petition for certiorari with preliminary injunction filed by the petitioner in case No. L-2172 (Hermogenes Fernando, etc., vs. Court of First Instance of Bulacan et al.), the same is DEFINED, inasmuch as the brothers of the deceased have interest, as next of kin, to petition for letters of administrators, the heirs of the deceased being minors, and the respondent judge acted within his jurisdiction in appointing the petitioners as administrators under section 6, Rule 79. The guardian of the minor children of the deceased is not, as such, administrator of the estate of the deceased until and after said estate has been acquired by or adjudicated to the minors by proper proceedings. The guardian filed an extensive motion for reconsideration of said resolution of the court, discussing with further details the matter involved in the present case, and setting forth further arguments in support of his contention. This Court, after giving due consideration to all the facts and arguments appearing in the original petition and in the motion for reconsideration, passed the resolution of June 11, 1948, which reads as follows:
In G.R. No. L-2172, Fernando vs. Judge of First Instance of Bulacan, et al., the motion for reconsideration is denied. Respondent judge had jurisdiction and did not exceed it in appointing the other respondent, who are the brother and sister or nearest of kin of the decedent, as administrators of the latter's estate. The jurisdictional facts referred to in section 2 (a) Rule 80, are the death of the decedent, his having left his estate in such province were probate court is sitting, or life he is an inhabitant of a foreign country, his having left his estate in such province. The name or competency of the person or persons for whim letters of administration are prayed is not a jurisdictional fact, it is another additional fact to be alleged in the petition (d); but "no defect in the petition shall render void the issue of letters of administration" that is, shall divest the court of its jurisdiction to appoint the administrator. A petition for certiorari does not lie to correct errors; if the lower court has committed any error, the proper remedy would be appeal. The guardian of the minors father who died after the guardian had been appointed, until said properties have been adjudicated or awarded to them either by extrajudicial or judicial partition. No partition either judicial or extra judicial having as yet been made adjudicating the said properties to the minors, the properties of the deceased have never been placed under the administration of the guardian of his minor children.

Mr. Justice Perfecto dissented. It will be seen from the above that the principal issue in this case as to whether the intestate proceedings should be dismissed has already been decided by this Court in the certiorari proceedings as far back as July 2, 1948, with the exception that if there had been errors committed in the appointment of the guardian (not in the institution of the intestate proceedings, which had been declared within the jurisdiction of the court) those errors in the appointment may be corrected in an appeal. After examining the record, we do not see any error in the appointment of German Crisostomo and Pacita Fernando as co-administrators as they were the brother and sister, respectively, of the deceased, no evidence having been presented by the appellant why those persons should not be appointed, either on account of their incompetency or lack of moral qualifications. We, therefore, affirm the order of the court appointing them. It should be borne in mind that the above resolutions of this Court constitute res judicata and "the law of the case" with regard to this appeal and they can no longer be questioned or put in issue in the present case. It results then, that the claim of the appellant that the intestate proceedings should be dismissed has to be denied and, as all the other questions are dependent on said issue, they should also be decided adversely to the appellant. In view of the foregoing, the orders appealed from are hereby affirmed, with costs against the appellant. it is so ordered.