G.R. No.

L-24742 October 26, 1973

ROSA CAYETANO CUENCO, petitioners,
vs.
THE HONORABLE COURT OF APPEALS, THIRD DIVISION, MANUEL CUENCO, LOURDES CUENCO,
CONCEPCION CUENCO MANGUERRA, CARMEN CUENCO, CONSUELO CUENCO REYES, and TERESITA
CUENCO GONZALEZ, respondents.
Ambrosio Padilla Law Office for petitioner.
Jalandoni and Jamir for respondents.
TEEHANKEE, J.:
Petition for certiorari to review the decision of respondent Court of Appeals in CA-G.R. No. 34104-R, promulgated 21
November 1964, and its subsequent Resolution promulgated 8 July 1964 denying petitioner's Motion for
Reconsideration.
The pertinent facts which gave rise to the herein petition follow:
On 25 February 1964 Senator Mariano Jesus Cuenco died at the Manila Doctors' Hospital, Manila. He was survived
by his widow, the herein petitioner, and their two (2) minor sons, Mariano Jesus, Jr. and Jesus Salvador, both
surnamed Cuenco, all residing at 69 Pi y Margal St., Sta. Mesa Heights, Quezon City, and by his children of the first
marriage, respondents herein, namely, Manuel Cuenco, Lourdes Cuenco, Concepcion Cuenco Manguera, Carmen
Cuenco, Consuelo Cuenco Reyes and Teresita Cuenco Gonzales, all of legal age and residing in Cebu.
1

On 5 March 1964, (the 9th day after the death of the late Senator) respondent Lourdes Cuenco filed a Petition for
Letters of Administration with the court of first instance of Cebu (Sp. Proc. No. 2433-R), alleging among other things,
that the late senator died intestate in Manila on 25 February 1964; that he was a resident of Cebu at the time of his
death; and that he left real and personal properties in Cebu and Quezon City. On the same date, the Cebu court
issued an order setting the petition for hearing on 10 April 1964, directing that due notice be given to all the heirs and
interested persons, and ordering the requisite publication thereof at LA PRENSA, a newspaper of general circulation
in the City and Province of Cebu.
The aforesaid order, however, was later suspended and cancelled and a new and modified one released on 13
March 1964, in view of the fact that the petition was to be heard at Branch II instead of Branch I of the said Cebu
court. On the same date, a third order was further issued stating that respondent Lourdes Cuenco's petition for the
appointment of a special administrator dated 4 March 1964 was not yet ready for the consideration of the said court,
giving as reasons the following:
It will be premature for this Court to act thereon, it not having yet regularly acquired jurisdiction to
try this proceeding, the requisite publication of the notice of hearing not yet having been complied
with. Moreover, copies of the petition have not been served on all of the heirs specified in the basic
2
petition for the issuance of letters of administration.
In the meantime, or specifically on 12 March 1964, (a week after the filing of the Cebu petition) herein petitioner Rosa
Cayetano Cuenco filed a petition with the court of first instance of Rizal (Quezon City) for the probate of the
deceased's last will and testament and for the issuance of letters testamentary in her favor, as the surviving widow
and executrix in the said last will and testament. The said proceeding was docketed as Special Proceeding No. Q7898.
Having learned of the intestate proceeding in the Cebu court, petitioner Rosa Cayetano Cuenco filed in said Cebu
court an Opposition and Motion to Dismiss, dated 30 March 1964, as well as an Opposition to Petition for
Appointment of Special Administrator, dated 8 April 1964. On 10 April 1964, the Cebu court issued an order holding
in abeyance its resolution on petitioner's motion to dismiss "until after the Court of First Instance of Quezon City shall
have acted on the petition for probate of that document purporting to be the last will and testament of the deceased
3
Don Mariano Jesus Cuenco." Such order of the Cebu court deferring to the probateproceedings in the Quezon City
court was neither excepted to nor sought by respondents to be reconsidered or set aside by the Cebu court nor did
they challenge the same by certiorari or prohibition proceedings in the appellate courts.
Instead, respondents filed in the Quezon City court an Opposition and Motion to Dismiss, dated 10 April
1964,opposing probate of the will and assailing the jurisdiction of the said Quezon City court to entertain petitioner's
petition for probate and for appointment as executrix in Sp. Proc. No. Q-7898 in view of the alleged exclusive
jurisdiction vested by her petition in the Cebu court in Sp. Proc. No. 2433-R. Said respondent prayed that Sp. Proc.
No. Q-7898 be dismissed for lack of jurisdiction and/or improper venue.
In its order of 11 April 1964, the Quezon City court denied the motion to dismiss, giving as a principal reason the
4
"precedence of probate proceeding over an intestate proceeding." The said court further found in said order that
theresidence of the late senator at the time of his death was at No. 69 Pi y Margal, Sta. Mesa Heights, Quezon City.
The pertinent portion of said order follows:
On the question of residence of the decedent, paragraph 5 of the opposition and motion to dismiss
reads as follows: "that since the decedent Don Mariano Jesus Cuenco was a resident of the City of
Cebu at the time of his death, the aforesaid petition filed by Rosa Cayetano Cuenco on 12 March

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1964 was not filed with the proper Court (wrong venue) in view of the provisions of Section 1 of
Rule 73 of the New Rules of Court ...". From the aforequoted allegation, the Court is made to
understand that the oppositors do not mean to say that the decedent being a resident of Cebu City
when he died, the intestate proceedings in Cebu City should prevail over the probate proceedings
in Quezon City, because as stated above the probate of the will should take precedence, but that
the probate proceedings should be filed in the Cebu City Court of First Instance. If the last
proposition is the desire of the oppositors as understood by this Court, that could not also be
entertained as proper because paragraph 1 of the petition for the probate of the will indicates
that Don Mariano Jesus Cuenco at the time of his death was a resident of Quezon City at 69 Pi y
Margal. Annex A (Last Will and Testament of Mariano Jesus Cuenco) of the petition for probate of
the will shows that the decedent at the time when he executed his Last Will clearly stated that he is
a resident of 69 Pi y Margal, Sta. Mesa Heights, Quezon City, and also of the City of Cebu. He
made the former as his first choice and the latter as his second choice of residence." If a party has
two residences, the one will be deemed or presumed to his domicile which he himself selects or
considers to be his home or which appears to be the center of his affairs. The petitioner, in thus
filing the instant petition before this Court, follows the first choice of residence of the decedent and
once this court acquires jurisdiction of the probate proceeding it is to the exclusion of all others. 5
Respondent Lourdes Cuenco's motion for reconsideration of the Quezon City court's said order of 11 April 1964
asserting its exclusive jurisdiction over the probate proceeding as deferred to by the Cebu court was denied on 27
April 1964 and a second motion for reconsideration dated 20 May 1964 was likewise denied.
On 11 May 1964, pursuant to its earlier order of 11 April 1964, the hearing for probate of the last will of the decedent
was called three times at half-hour intervals, but notwithstanding due notification none of the oppositors appeared
and the Quezon City court proceeded at 9:00 a.m. with the hearing in their absence.
As per the order issued by it subsequently on 15 May 1964, the Quezon City court noted that respondents-oppositors
had opposed probate under their opposition and motion to dismiss on the following grounds:
(a) That the will was not executed and attested as required by law;
(b) That the will was procured by undue and improper pressure and influence on the part of the
beneficiary or some other persons for his benefit;
(c) That the testator's signature was procured by fraud and/or that the testator acted by mistake
and did not intend that the instrument he signed should be his will at the time he affixed his
signature thereto. 6
The Quezon City court further noted that the requisite publication of the notice of the hearing had been duly complied
with and that all the heirs had been duly notified of the hearing, and after receiving the testimony of the three
instrumental witnesses to the decedent's last will, namely Atty. Florencio Albino, Dr. Guillermo A. Picache and Dr.
Jose P. Ojeda, and of the notary public, Atty. Braulio A. Arriola, Jr., who ratified the said last will, and the
documentary evidence (such as the decedent's residence certificates, income tax return, diplomatic passport, deed of
donation) all indicating that the decedent was a resident of 69 Pi y Margal St., Quezon City, as also affirmed by him in
his last will, the Quezon City court in its said order of 15 May 1964 admitted to probate the late senator's last will and
testament as having been "freely and voluntarily executed by the testator" and "with all formalities of the law" and
appointed petitioner-widow as executrix of his estate without bond "following the desire of the testator" in his will as
probated.
Instead of appealing from the Quezon City court's said order admitting the will to probate and naming petitionerwidow as executrix thereof, respondents filed a special civil action of certiorari and prohibition with preliminary
injunction with respondent Court of Appeals (docketed as case CA-G.R. No. 34104-R) to bar the Rizal court from
proceeding with case No. Q-7898.
On 21 November 1964, the Court of Appeals rendered a decision in favor of respondents (petitioners therein) and
against the herein petitioner, holding that:
Section 1, Rule 73, which fixes the venue in proceedings for the settlement of the estate of a
deceased person, covers both testate and intestate proceedings. Sp. Proc. 2433-R of the Cebu CFI
having been filed ahead, it is that court whose jurisdiction was first invoked and which first
attached. It is that court which can properly and exclusively pass upon the factual issues of (1)
whether the decedent left or did not leave a valid will, and (2) whether or not the decedent was a
resident of Cebu at the time of his death.
Considering therefore that the first proceeding was instituted in the Cebu CFI (Special Proceeding
2433-R), it follows that the said court must exercise jurisdiction to the exclusion of the Rizal CFI, in
which the petition for probate was filed by the respondent Rosa Cayetano Cuenco (Special
Proceeding Q-7898). The said respondent should assert her rights within the framework of the
proceeding in the Cebu CFI, instead of invoking the jurisdiction of another court.
The respondents try to make capital of the fact that on March 13, 1964, Judge Amador Gomez of
the Cebu CFI, acting in Sp. Proc. 2433-R, stated that the petition for appointment of special
administrator was "not yet ready for the consideration of the Court today. It would be premature for
this Court to act thereon, it not having yet regularly acquired jurisdiction to try this proceeding ... . "
It is sufficient to state in this connection that the said judge was certainly not referring to the court's

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jurisdiction over the res, not to jurisdiction itself which is acquired from the moment a petition is
filed, but only to theexercise of jurisdiction in relation to the stage of the proceedings. At all events,
jurisdiction is conferred and determined by law and does not depend on the pronouncements of a
trial judge.
The dispositive part of respondent appellate court's judgment provided as follows:
ACCORDINGLY, the writ of prohibition will issue, commanding and directing the respondent Court
of First Instance of Rizal, Branch IX, Quezon City, and the respondent Judge Damaso B. Tengco to
refrain perpetually from proceeding and taking any action in Special Proceeding Q-7898 pending
before the said respondent court. All orders heretofore issued and actions heretofore taken by said
respondent court and respondent Judge, therein and connected therewith, are hereby annulled.
The writ of injunction heretofore issued is hereby made permanent. No pronouncement as to costs.
Petitioner's motion for reconsideration was denied in a resolution of respondent Court of Appeals, dated 8 July 1965;
hence the herein petition for review on certiorari.

ISSUE:

The principal and decisive issue at bar is, theretofore, whether the appellate court erred in law in issuing the writ of
prohibition against the Quezon City court ordering it to refrain perpetually from proceeding with
the testateproceedings and annulling and setting aside all its orders and actions, particularly its admission to probate
of the decedent's last will and testament and appointing petitioner-widow as executrix thereof without bond in
compliance with the testator's express wish in his testament. This issue is tied up with the issue submitted to the
appellate court, to wit, whether the Quezon City court acted without jurisdiction or with grave abuse of discretion in
taking cognizance and assuming exclusive jurisdiction over the probate proceedings filed with it, in pursuance of the
Cebu court's order of 10 April 1964 expressly consenting in deference to the precedence of probate over intestate
proceedings that it (the Quezon City court) should first act "on the petition for probate of the document purporting to
be the last will and testament of the deceased Don Mariano Jesus Cuenco" - which order of the Cebu court
respondents never questioned nor challenged by prohibition or certiorari proceedings and thus enabled the Quezon
City court to proceed without any impediment or obstruction, once it denied respondent Lourdes Cuenco's motion to
dismiss the probate proceeding for alleged lack of jurisdiction or improper venue, toproceed with the hearing of the
petition and to admit the will to probate upon having been satisfied as to its due execution and authenticity.
The Court finds under the above-cited facts that the appellate court erred in law in issuing the writ of prohibition
against the Quezon City court from proceeding with the testate proceedings and annulling and setting aside all its
orders and actions, particularly its admission to probate of the deceased's last will and testament and appointing
petitioner-widow as executrix thereof without bond pursuant to the deceased testator's express wish, for the following
considerations:
7

1. The Judiciary Act concededly confers original jurisdiction upon all Courts of First Instance over "all matter of
probate, both of testate and intestate estates." On the other hand, Rule 73, section of the Rules of Court lays down
the rule of venue, as the very caption of the Rule indicates, and in order to prevent conflict among the different courts
which otherwise may properly assume jurisdiction from doing so, the Rule specifies that "the court first taking
cognizance of the settlement of the estate of a decedent, shall exercise jurisdiction to the exclusion of all other
courts." The cited Rule provides:
Section 1. Where estate of deceased persons settled. If the decedent is an inhabitant of the
Philippines at the time of his death, whether a citizen or an alien, his will shall be proved, or letters
of administration granted, and his estate settled, in the Court of First Instance in the Province in
which he resides at the time of his death, and if he is an inhabitant of a foreign country, the Court of
First Instance of the province in which he had estate. The court first taking cognizance of
the settlement of the estate of a decedent, shall exercise jurisdiction to the exclusion of all other
courts. The jurisdiction assumed by a court, so far as it depends on the place of residence, of the
decedent, or of the location of his estate, shall not be contested in a suit or proceeding, except in
an appeal from that court, in the original case, or when the want of jurisdiction appears on
8
the record. (Rule 73)
It is equally conceded that the residence of the deceased or the location of his estate is not an element of jurisdiction
over the subject matter but merely of venue. This was lucidly stated by the late Chief Justice Moran inSy Oa vs. Co
Ho 9 as follows:
We are not unaware of existing decisions to the effect that in probate cases the place of residence
of the deceased is regarded as a question of jurisdiction over the subject-matter. But we decline to
follow this view because of its mischievous consequences. For instance, a probate case has been
submitted in good faith to the Court of First Instance of a province where the deceased had not
resided. All the parties, however, including all the creditors, have submitted themselves to the
jurisdiction of the court and the case is therein completely finished except for a claim of a creditor
who also voluntarily filed it with said court but on appeal from an adverse decision raises for the
first time in this Court the question of jurisdiction of the trial court for lack of residence of the
deceased in the province. If we consider such question of residence as one affecting the
jurisdiction of the trial court over the subject-matter, the effect shall be that the whole
proceedings including all decisions on the different incidents which have arisen in court will have to
be annulled and the same case will have to be commenced anew before another court of the same
rank in another province. That this is ofmischievous effect in the prompt administration of justice is
too obvious to require comment. (Cf. Tanunchuan vs. Dy Buncio & Co., G.R. No. 48206, December
31, 1942) Furthermore, section 600 of Act No. 190, 10 providing that the estate of a deceased
person shall be settled in the province where he had last resided, could not have been intended as

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defining the jurisdiction of the probate court over the subject-matter, because such legal provision
is contained in a law of procedure dealing merely with procedural matters, and, as we have said
time and again, procedure is one thing and jurisdiction over the subject matter is another.
(Attorney-General vs. Manila Railroad Company, 20 Phil. 523.) The law of jurisdiction Act No.
11
136, Section 56, No. 5 confers upon Courts of First Instance jurisdiction over all probate cases
independently of the place of residence of the deceased. Since, however, there are many courts of
First Instance in the Philippines, the Law of Procedure, Act No. 190, section 600, fixes the venue or
the place where each case shall be brought. Thus, the place of residence of the deceased is not an
element of jurisdiction over the subject-matter but merely of venue. And it is upon this ground that
in the new Rules of Court the province where the estate of a deceased person shall be settled is
properly called "venue".
It should be noted that the Rule on venue does not state that the court with whom the estate or intestate petition
is first filed acquires exclusive jurisdiction.
The Rule precisely and deliberately provides that "the court first taking cognizance of the settlement of the estateof a
decedent, shall exercise jurisdiction to the exclusion of all other courts."
A fair reading of the Rule since it deals with venue and comity between courts of equal and co-ordinate jurisdiction
indicates that the court with whom the petition is first filed, must also first take cognizance of the settlement of the
estate in order to exercise jurisdiction over it to the exclusion of all other courts.
Conversely, such court, may upon learning that a petition for probate of the decedent's last will has been presented in
another court where the decedent obviously had his conjugal domicile and resided with his surviving widow and their
minor children, and that the allegation of the intestate petition before it stating that the decedent died intestate may be
actually false, may decline to take cognizance of the petition and hold the petition before it in abeyance, and instead
defer to the second court which has before it the petition for probate of the decedent's alleged last will.
2. This exactly what the Cebu court did. Upon petitioner-widow's filing with it a motion to dismiss Lourdes' intestate
petition, it issued its order holding in abeyance its action on the dismissal motion and deferred to the Quezon City
court, awaiting its action on the petition for probate before that court. Implicit in the Cebu court's order was that if the
will was duly admitted to probate, by the Quezon City court, then it would definitely decline to take cognizance of
Lourdes' intestate petition which would thereby be shown to be false and improper, and leave the exercise of
jurisdiction to the Quezon City court, to the exclusion of all other courts. Likewise by its act of deference, the Cebu
court left it to the Quezon City court to resolve the question between the parties whether the decedent's residence at
the time of his death was in Quezon City where he had his conjugal domicile rather than in Cebu City as claimed by
respondents. The Cebu court thus indicated that it would decline to take cognizance of the intestate petition before it
and instead defer to the Quezon City court, unless the latter would make a negative finding as to the probate petition
and the residence of the decedent within its territory and venue.
3. Under these facts, the Cebu court could not be held to have acted without jurisdiction or with grave abuse of
jurisdiction in declining to take cognizance of the intestate petition and deferring to the Quezon City court.
Necessarily, neither could the Quezon City court be deemed to have acted without jurisdiction in taking cognizance of
and acting on the probate petition since under Rule 73, section 1, the Cebu court must first take cognizance over the
estate of the decedent and must exercise jurisdiction to exclude all other courts, which the Cebu court declined to do.
Furthermore, as is undisputed, said rule only lays down a rule of venue and the Quezon City court indisputably had at
least equal and coordinate jurisdiction over the estate.
Since the Quezon City court took cognizance over the probate petition before it and assumed jurisdiction over the
estate, with the consent and deference of the Cebu court, the Quezon City court should be left now, by the same rule
of venue of said Rule 73, to exercise jurisdiction to the exclusion of all other courts.
Under the facts of the case and where respondents submitted to the Quezon City court their opposition to probate of
the will, but failed to appear at the scheduled hearing despite due notice, the Quezon City court cannot be declared,
as the appellate court did, to have acted without jurisdiction in admitting to probate the decedent's will and appointing
petitioner-widow as executrix thereof in accordance with the testator's testamentary disposition.
4. The relatively recent case of Uriarte vs. Court of First Instance of Negros Occidental 12 with facts analogous to the
13
present case is authority against respondent appellate court's questioned decision.
In said case, the Court upheld the doctrine of precedence of probate proceedings over intestate proceedings in this
wise:
It can not be denied that a special proceeding intended to effect the distribution of the estate of a
deceased person, whether in accordance with the law on intestate succession or in accordance
with his will, is a "probate matter" or a proceeding for the settlement of his estate. It is equally true,
however, that in accordance with settled jurisprudence in this jurisdiction, testate proceedings for
the settlement of the estate of a deceased person take precedence over intestate proceedings for
the same purpose. Thus it has been held repeatedly that, if in the course of intestate proceedings
pending before a court of first instance it is found that the decedent had left a last will, proceedings
for the probate of the latter should replace the intestate proceedings even if at that state an
administrator had already been appointed, the latter being required to render final account and turn
over the estate in his possession to the executor subsequently appointed. This however, is
understood to be without prejudice that should the alleged last will be rejected or is disapproved,

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the proceeding shall continue as an intestacy. As already adverted to, this is a clear indication that
proceedings for the probate of a will enjoy priority over intestate proceedings. 14
The Court likewise therein upheld the jurisdiction of the second court, (in this case, the Quezon City court) although
opining that certain considerations therein "would seem to support the view that [therein respondent] should have
submitted said will for probate to the Negros Court, [in this case, the Cebu court] either in a separate special
proceeding or in an appropriate motion for said purpose filed in the already pending Special Proceeding No.
6344," 15 thus:
But the fact is that instead of the aforesaid will being presented for probate to the Negros Court, Juan Uriarte
Zamacona filed the petition for the purpose with the Manila Court. We can not accept petitioner's contention in this
regard that the latter court had no jurisdiction to consider said petition, albeit we say that it was not the proper
venue therefor.
It is well settled in this jurisdiction that wrong venue is merely a waivable procedural defect, and, in
the light of the circumstances obtaining in the instant case, we are of the opinion, and so hold, that
petitioner has waived the right to raise such objection or is precluded from doing so by laches. It is
enough to consider in this connection that petitioner knew of the existence of a will executed by
Juan Uriarte y Goite since December 19, 1961 when Higinio Uriarte filed his opposition to the initial
petition filed in Special Proceeding No. 6344; that petitioner likewise was served with notice of the
existence (presence) of the alleged last will in the Philippines and of the filing of the petition for its
probate with the Manila Court since August 28, 1962 when Juan Uriarte Zamacona filed a motion
for the dismissal of Special Proceeding No. 6344. All these notwithstanding, it was only on April 15,
1963 that he filed with the Manila Court in Special Proceeding No. 51396 an Omnibus motion
asking for leave to intervene and for the dismissal and annulment of all the proceedings had therein
up to that date; thus enabling the Manila Court not only to appoint an administrator with the will
annexed but also to admit said will to probate more than five months earlier, or more specifically,
on October 31, 1962. To allow him now to assail the exercise of jurisdiction over the probate of the
will by the Manila Court and the validity of all the proceedings had in Special Proceeding No. 51396
would put a premium on his negligence. Moreover, it must be remembered that this Court is not
inclined to annul proceedings regularly had in a lower court even if the latter was not the proper
venue therefor, if the net result would be to have the same proceedings repeated in some other
court of similar jurisdiction; more so in a case like the present where the objection against said
proceedings is raised too late. 16
5. Under Rule 73, section 1 itself, the Quezon City court's assumption of jurisdiction over the decedent's estate on the
basis of the will duly presented for probate by petitioner-widow and finding that Quezon City was the
firstchoice of residence of the decedent, who had his conjugal home and domicile therein with the deference in
comity duly given by the Cebu court could not be contested except by appeal from said court in the original case.
The last paragraph of said Rule expressly provides:
... 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. (Rule 73)
The exception therein given, viz, "when the want of jurisdiction appears on the record" could probably be properly
invoked, had such deference in comity of the Cebu court to the Quezon City court not appeared in the record, or had
the record otherwise shown that the Cebu court had taken cognizance of the petition before it and assumed
jurisdiction.
6. On the question that Quezon City established to be the residence of the late senator, the appellate court while
recognizing that "the issue is a legitimate one" held in reliance on Borja vs. Tan 17 that.
... The issue of residence comes within the competence of whichever court is considered to prevail
in the exercise jurisdiction - in this case, the Court of First Instance of Cebu as held by this Court.
Parenthetically, we note that the question of the residence of the deceased is a serious one,
requiring both factual and legal resolution on the basis of ample evidence to be submitted in the
ordinary course of procedure in the first instance, particularly in view of the fact that the deceased
was better known as the Senator from Cebu and the will purporting to be his also gives Cebu,
besides Quezon City, as his residence. We reiterate that this matter requires airing in the proper
court, as so indicated in the leading and controlling case of Borja vs. Hon. Bienvenido Tan, et al.,
G.R. L-7792, July 27, 1955.
In the case at bar, however, the Cebu court declined to take cognizance of the intestate petition first filed with it and
deferred to the testate proceedings filed with the Quezon City court and in effect asked the Quezon City court to
determine the residence of the decedent and whether he did leave a last will and testament upon which would
depend the proper venue of the estate proceedings, Cebu or Quezon City. The Quezon City court having thus
determined in effect for both courts at the behest and with the deference and consent of the Cebu court
thatQuezon City was the actual residence of the decedent who died testate and therefore the proper venue, the Borja
ruling would seem to have no applicability. It would not serve the practical ends of justice to still require the Cebu
court, if the Borja ruling is to be held applicable and as indicated in the decision under review, to determine for itself
the actual residence of the decedent (when the Quezon City court had already so determined Quezon City as the
actual residence at the Cebu court's behest and respondents have not seriously questioned this factual finding based
on documentary evidence) and if the Cebu court should likewise determine Quezon City as the actual residence, or

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its contrary finding reversed on appeal, only then to allow petitioner-widow after years of waiting and inaction to
institute the corresponding proceedings in Quezon City.
7. With more reason should the Quezon City proceedings be upheld when it is taken into consideration that Rule 76,
section 2 requires that the petition for allowance of a will must show: "(a) the jurisdictional facts." Such "jurisdictional
facts" in probate proceedings, as held by the Court in Fernando vs. Crisostomo 18 " are the death of the decedent, his
residence at the time of his death in the province where the probate court is sitting, or if he is an inhabitant of a
foreign country, his having left his estate in such province."
This tallies with the established legal concept as restated by Moran that "(T)he probate of a will is a proceeding in
rem. The notice by publication as a pre-requisite to the allowance of a will, is a constructive notice to the whole world,
and when probate is granted, the judgment of the court is binding upon everybody, even against the State.The
probate of a will by a court having jurisdiction thereof is conclusive as to its due execution and validity." 19 The
Quezon City court acted regularly within its jurisdiction (even if it were to be conceded that Quezon City was not the
proper venue notwithstanding the Cebu court's giving way and deferring to it,) in admitting the decedent's last will to
probate and naming petitioner-widow as executrix thereof. Hence, the Quezon city court's action should not be set
aside by a writ of prohibition for supposed lack of jurisdiction as per the appellate court's appealed decision, and
should instead be sustained in line with Uriarte, supra, where the Court, in dismissing the certiorari petition
challenging the Manila court's action admitting the decedent's will to probate and distributing the estate in accordance
therewith in the second proceeding, held that "it must be remembered that this Court is not inclined to annul
proceedings regularly had in a lower court even if the latter was not the proper venue therefor, if the net result would
be to have the same proceedings repeated in some other court of similar jurisdiction." As stressed by Chief Justice
Moran in Sy Oa, supra, "the mischievous effect in the administration of justice" of considering the question
of residence as affecting the jurisdiction of the trial court and annulling the whole proceedings only to start all over
again the same proceedings before another court of the same rank in another province "is too obvious to require
comment."
8. If the question of jurisdiction were to be made to depend only on who of the decedent's relatives gets first to file a
petition for settlement of the decedent's estate, then the established jurisprudence of the Court that Rule 73, section 1
provides only a rule of venue in order to preclude different courts which may properly assumejurisdiction from doing
so and creating conflicts between them to the detriment of the administration of justice, and that venue is waivable,
would be set at naught. As between relatives who unfortunately do not see eye to eye, it would be converted into a
race as to who can file the petition faster in the court of his/her choice regardless of whether the decedent is still
in cuerpo presente and in disregard of the decedent's actual last domicile, the fact that he left a last will and
testament and the right of his surviving widow named as executrix thereof. Such dire consequences were certainly
not intended by the Rule nor would they be in consonance with public policy and the orderly administration of justice.
9. It would finally be unjust and inequitable that petitioner-widow, who under all the applicable rules of venue, and
despite the fact that the Cebu court (where respondent Lourdes Cuenco had filed an intestate petition in the Cebu
court earlier by a week's time on 5 March 1964) deferred to the Quezon City court where petitioner had within fifteen
days (on March 12, 1964) after the decedent's death (on February 25, 1964) timely filed the decedent's last will and
petitioned for letters testamentary and is admittedly entitled to preference in the administration of her husband's
estate, 20 would be compelled under the appealed decision to have to go all the way to Cebu and submit anew the
decedent's will there for probate either in a new proceeding or by asking that the intestate proceedings
be converted into a testate proceeding when under the Rules, the proper venue for the testate proceedings, as per
the facts of record and as already affirmed by the Quezon City court is Quezon City, where the decedent and
petitioner-widow had their conjugal domicile.
It would be an unfair imposition upon petitioner as the one named and entitled to be executrix of the decedent's last
will and settle his estate in accordance therewith, and a disregard of her rights under the rule on venue and the law
on jurisdiction to require her to spend much more time, money and effort to have to go from Quezon City to the Cebu
court everytime she has an important matter of the estate to take up with the probate court.
It would doubly be an unfair imposition when it is considered that under Rule 73, section 2, 21 since petitioner's
marriage has been dissolved with the death of her husband, their community property and conjugal estate have to
beadministered and liquidated in the estate proceedings of the deceased spouse. Under the appealed decision,
notwithstanding that petitioner resides in Quezon City, and the proper venue of the testate proceeding was in Quezon
City and the Quezon City court properly took cognizance and exercised exclusive jurisdiction with the deference in
comity and consent of the Cebu court, such proper exercise of jurisdiction would be nullified and petitioner would
have to continually leave her residence in Quezon City and go to Cebu to settle and liquidate
even her own community property and conjugal estate with the decedent.
10. The Court therefore holds under the facts of record that the Cebu court did not act without jurisdiction nor with
grave abuse of discretion in declining to take cognizance of the intestate petition and instead deferring to
thetestate proceedings filed just a week later by petitioner as surviving widow and designated executrix of the
decedent's last will, since the record before it (the petitioner's opposition and motion to dismiss) showed the falsityof
the allegation in the intestate petition that the decedent had died without a will. It is noteworthy that respondents
never challenged by certiorari or prohibition proceedings the Cebu court's order of 10 April 1964 deferring to the
probate proceedings before the Quezon City court, thus leaving the latter free (pursuant to the Cebu court's order of
deference) to exercise jurisdiction and admit the decedent's will to probate.
For the same reasons, neither could the Quezon City court be held to have acted without jurisdiction nor with grave
abuse of discretion in admitting the decedent's will to probate and appointing petitioner as executrix in accordance
with its testamentary disposition, in the light of the settled doctrine that the provisions of Rule 73, section 1 lay down
only a rule of venue, not of jurisdiction.

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Since respondents undisputedly failed to appeal from the Quezon City court's order of May 15, 1964 admitting the will
to probate and appointing petitioner as executrix thereof, and said court concededly has jurisdiction to issue said
order, the said order of probate has long since become final and can not be overturned in a special civic action of
prohibition.
11. Finally, it should be noted that in the Supreme Court's exercise of its supervisory authority over all inferior
22
courts, it may properly determine, as it has done in the case at bar, that venue was properly assumed by
and transferredto the Quezon City court and that it is the interest of justice and in avoidance of needless delay that
the Quezon City court's exercise of jurisdiction over the testate estate of the decedent (with the due deference and
consent of the Cebu court) and its admission to probate of his last will and testament and appointment of petitionerwidow as administratrix without bond in pursuance of the decedent's express will and all its orders and actions taken
in the testate proceedings before it be approved and authorized rather than to annul all such proceedings regularly
had and to repeat and duplicate the same proceedings before the Cebu court only to revert once more to the Quezon
City court should the Cebu court find that indeed and in fact, as already determined by the Quezon City court on the
strength of incontrovertible documentary evidence of record, Quezon City was the conjugal residence of the
decedent.
ACCORDINGLY, judgment is hereby rendered reversing the appealed decision and resolution of the Court of
Appeals and the petition for certiorari and prohibition with preliminary injunction originally filed by respondents with
the Court of Appeals (CA-G.R. No. 34104-R) is ordered dismissed. No costs.
Makalintal, C.J., Zaldivar, Makasiar, Antonio and Esguerra, JJ., concur.
Fernando and Castro, JJ., took no part.
Separate Opinions
BARREDO, J., concurring:
I concur in the main opinion of Mr. Justice Teehankee.
I only want to stress that in my view, the failure of respondents to question within a reasonable time the laying of the
venue in the Quezon City Court of First Instance and the assumption of jurisdiction by that court, after the Court of
First Instance of Cebu deferred in its favor, in order to prevent the holding therein of any proceeding and trial, and
their having filed therein a formal opposition to the probate of the will, makes them guilty of laches, for which reason
they are not entitled to the equitable relief prayed for in the present petition.
Separate Opinions
BARREDO, J., concurring:
I concur in the main opinion of Mr. Justice Teehankee.
I only want to stress that in my view, the failure of respondents to question within a reasonable time the laying of the
venue in the Quezon City Court of First Instance and the assumption of jurisdiction by that court, after the Court of
First Instance of Cebu deferred in its favor, in order to prevent the holding therein of any proceeding and trial, and
their having filed therein a formal opposition to the probate of the will, makes them guilty of laches, for which reason
they are not entitled to the equitable relief prayed for in the present petition.

Page 7 of 13

HERNANDEZ v. ANDAL
G.R. No. L-273

March 29, 1947

CRESENCIA HERNANDEZ, plaintiff-appellee,

vs.
ZACARIAS ANDAL, defendant-appellant.
QUIRINO DIMASACAT, MARIA HERNANDEZ and AQUILINA HERNANDEZ, intervenors-appellants.
Pedro Paganiban y Tolentino for appellants.
Vicente Reyes Villavicencio for appellee.
TUASON, J.:
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.

Page 8 of 13

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:
(a) declarando y sin valor alguno el documento de reventaotorgado por el demandado Zacarias Andal en 26
de marzo de 1944, a favor de Maria y Aquilina Hernandez sobre el terrenocuestionado que se presento
como Exhibito 2 de dichodemandado, y consiguientemente se anulan tambien todas lastransacciones
posteriores que las mencionadas Maria y Aquilina Hernandez hayan hecho sobre el terreno cuestionado
despuesdel 26 de marzo de 1944, asi como tambien cualquiera anotacionen la Oficiana del Registrador de
Titulos de Batangas que hayaanotado dicha reventa por el demandado Zacarias Andal a favorde las
terceristas Maria y Aquilina Hernandez en el citado dia 26 de marzo de 1944; y
(b) se ordena al aqui demandado Zacarias Andal, que otorgue unaescritura de reventa a favor de la aqui
demandante Cresencia Hernandez, de las participaciones de las terceristas en el terrenodescrito en la
demanda suplementaria previo pago de P860 mas lacantidad de P50 como gastos de documentacion. Se
absuelve al demandado de los daos y perjuicios que reclama la demandante. Se absuelve tambien a la
demandante de la contra-demanda de lasterceristas.
Sin especial pronunciamento en cuanto a las costas.
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.

Page 9 of 13

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.

Page 10 of 13

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.
FERIA, J.:
I reserve the right to express my view and write a dissenting opinion later.
Separate Opinions
PARAS, J., with whom concurs PERFECTO, J., dissenting:
Is oral evidence admissible to prove partition of land? The answer of the appellants is in the affirmative. Thus their
only assignment of error is as follows: "The lower court erred in refusing to admit oral evidence for proving a contract
of partition of the land among the heirs on the ground that it was not admissible." Since no other question, either of
fact or of law, is raised by the appellants, I deem it unnecessary, under the circumstances of this case, to pass upon
said assignment.

Page 11 of 13

A small parcel of land containing some 5,568 square meters was inherited by four sisters and a brother. It was
surveyed and is still assessed as a single lot, not in the name of the co-owners, but in that of an uncle. It appears that
on January 23, 1944, two of the sisters sold a portion of the lot to defendant Andal who was neither a relative nor an
adjoining owner. The vendors stated:
Este terreno es parte del terreno referido en la declaracion Tax No. 53379 en nombre de nuestro tio Juan
Dimasacat y estaamillarado todo el terreno en P290. El referido terreno yase vio en el Juzgado de Primera
Instancia de Batangas en 29 de Septiembre de 1941, at nagcaro-on ng decreto noong ika-6 ng Noviembre,
1941, na doon ay ipinasiya ang pagbibigay ng Titulo sa aming magcacapatid. (Exhibit A.)
Upon learning of the sale one week thereafter, a third sister expressed her desire to repurchase said portion of land
and, upon refusal of the buyer, she filed a complaint for the purpose of being subrogated to the rights acquired by
Andal. The latter, in his answer, is agreeable to the prayer provided that he be reimbursed in the total sum of P910
which he had actually paid. In the meantime, the other two sisters (vendors) intervened in the case, alleging that,
before the sale was made to Andal, the plaintiff had been given the option to acquire the lot in question. By way of
counterclaim, it was alleged that they had repurchased the lot from Andal at a higher price.
After hearing, the lower court held that inasmuch as the plaintiff is willing to buy, and Andal to sell, the lot at the price
fixed by the latter, there is no reason why the former's complaint should not prosper, and Andal was accordingly
ordered to convey the property to the plaintiff upon payment by the latter of the total sum of P910. As regards the
contention of the intervenors, the court held that their alleged repurchase was fraudulent and, therefore, null and void.
As these pronouncements, necessarily based on findings of fact, have not been assailed, they should be considered
final. Hence, it is absolutely futile to decide the question of law raised in appellant's assignment of error, the same
having become academic.
Even so, the point whether the sale to Andal took place after a partition is immaterial, in view of his willingness to
resell to the plaintiff, not to mention the fact that the latter's right to redeem, as an adjoining owner, maybe based on
article 1523 of the Civil Code which provides: "The owners of the adjacent lands shall also have the right of
redemption in case of the sale of a rural estate whose area does not exceed one hectare."
The judgment appealed from should be affirmed.
RESOLUTION ON MOTION FOR RECONSIDERATION
July 30, 1947

TUASON, J.:
Plaintiff and appellee has filed a motion for reconsideration. She maintains that she is entitled to judgment because
the defendant has no objection to reselling her the land and she is, on the other hand, ready to reimburse him the
purchase price. She argues that the buyer having led her to believe that he would make the resale in her favor is
estopped from going against his own acts.
Superficially, the decision is obscure as to the relation which Andal's signification in his answer, that he was willing to
sell the land to the plaintiff, bears to the dispositive part or judgment. But read in its entirety, analyzed closely, the
decision reveals in no uncertain manner that it is anchored on articles 1067 and 1522 of the Civil Code and that all
other matters discussed therein revolve around this basic conclusion. With particular reference to Andal's signification
abovementioned, the court does not appear to have made or intended to make it an affirmative, separate basis of the
judgment. Roughly, the judgment was evolved along this process of reasoning: the plaintiff's right to repurchase the
land under the above-cited provisions of the Civil Code was evident, in the court's opinion. But, the court said in the
same breath, a complication emerged. The confusion was brought about by the resale of the property by Andal to the
original owners. The court seemed puzzled. Then it saw a way out of the perplexity; the resale was illegal and mala
fide and hence ineffective. It was illegal, mala fide and ineffective because the defendant had stated in his answer
that he had no objection in allowing the plaintiff to buy the land, and because the resale to the intervenors had been
consummated during the pendency of the action. Andal's signification in his answer estopped him from alienating the
land in favor of others.
It was estoppel that the court invoked Andal's expression of his willingness to sell the land, citing section 68 (a), Rule
123, Rules of Court. The court looked upon this expression not as a cause of action standing on its own feet but
merely as an equitable aid to keep the defendant and intervenors from making a mockery of the plaintiff's right under
the aforecited articles of the Civil Code. The Court found that the transaction between the defendant and the
intervenors had been entered into "con el proposito de desorientar al Juzgado y frustrar en cierto modo la
administracion de justicia." The appellee both in her brief and motion for reconsideration treats Andal's willingness to
sell in the same light.
To put it differently, the central principle of the case, as the court saw it, was that the evidence on the oral partition
was inadmissible and so the plaintiff's right to repurchase the land under articles 1067 and 1522 of the Civil Code was
in order. Andal's expression of willingness to sell the land to the plaintiff came into play not as a generator of a new
obligation in favor of the plaintiff, separate and distinct from the right of co-heirs to repurchase shares in property
inherited in common and sold to strangers by other heirs, but simply as a factor to prevent the defendant's and
intervenor's attempt to nullify that right.

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Estoppel, in the sense in which the court regarded Andal's manifestation that he was willing to sell the land to the
plaintiff, partakes of the nature of the rule of evidence. Certainly, it belongs to the adjective branch of the law, and the
court regarded it under this criterion. The court's reference in its decision to Andal's signification cannot have a
meaning other than that the court assigned thereto a subordinate role, subordinate to the asserted right of the plaintiff
under the provisions of the Civil Code referred to.
The sole assignment of error in appellant's brief thus inevitably comprehends that part of the appealed decision and
judgment which relates to the defendant's expression of willingness to sell land to the plaintiff. A review of the error
specifically assigned necessarily carries with it the consideration of all matters related to and dependent upon that
error. Specifically, if there was a lawful partition and the partition bars the plaintiff's right to repurchase the land under
the articles relied upon, the proposition formulated in the assignment of error then Andal's previous willingness
to sell loses its raison d'etre as estoppel; it disappears with the right which it was intended to uphold and with which it
was inextricably bound up.
It should be made clear that we are only construing the decision of the lower court. We have explained the ratio
decidendi as it appeared to the court, not the theory of the parties in their pleadings. If the supplemental complaint
was intended to present Andal's offer to sell the land to the plaintiff as constituting a new and separate cause of
action a point which cannot be determined with a fair degree of certainty from a reading of that complaint the
court did not see or consider it in that light. And, it should be remembered, it is what the court decided or how the
court decided a case that we have to look as a test for judging whether the questions for review have been
formulated in the right manner.
If Andal's statement in his answer was alleged by the plaintiff to serve as an independent cause of action, that is all
the more reason, for his own benefit, why the cases should be remanded for further proceeding. The new trial as
ordered in our decision leaves the door open for the admission of evidence on the allegations in the supplementary
complaint as well as on the alleged parol partition. As matters now stand, the plaintiff could ask for judgment on the
supplementary complaint only on the untenable hypothesis that no assignment of error has been made relative to this
feature of the case. Without the benefit of this technicality, the plaintiff has not made out a case on the supplementary
complaint. The evidence is very meager to the point of nullity; many of the allegations have been left untouched, and
there are essential points that badly need amplication or clarification. It would be extremely improper, for obvious
reasons, to go into these defects and deficiencies in detail in this resolution in anticipation of the new trial.
The motion is denied.
Moran,
C.J.,
Pablo,
Feria, J., reserves his vote.

Hilado,

Bengzon,

Briones,

Hontiveros,

and

Padilla,

JJ., concur.

PERFECTO, J., dissenting:

We are of opinion that, as suggested by plaintiff-appellee in her motion for reconsideration, dated April 5, 1947, there
is no need for ordering a new trial of the case, and that rather the appealed decision should be affirmed.
This litigation is about a parcel of land very much less than two hectares in area located in a barrio, and assessed for
taxation purposes at P290 only, and the amount for redemption of said land is much less than P1,000 of worthless
Japanese paper money. The litigation started on February 3, 1944, more than three years ago. It is high time that we
put an end to such a litigation, to fight which the parties might have spent more money than the value of the thing in
litigation.
Plaintiff and appellee Cresencia Hernandez filed the complaint to compel defendant Zacarias Andal to sell the
property to her. In his answer of February 14, 1944, Zacarias Andal stated that he was willing to sell the property to
plaintiff, provided the latter would pay him P800 plus expenses amounting to P50. The appealed decision ordered
Zacarias Andal to sell the property to plaintiff who was ordered to pay P860, plus P50 for expenses, which is P60
more than the amount demanded by Andal in his answer of February 14, 1944. Plaintiff did not appeal, thus showing
her willingness to pay the amount.
Under the circumstances, we do not see any reason why ununderstandable legal technicalities should block the
ending of a litigation which, in substance ceased to exist since plaintiff and appellee manifested her willingness to pay
to defendant Andal even more than the amount he demanded.
The legal discussion entered into the majority opinion to support the further delay in finishing the suit might be highly
interesting in a law academy, but it will never satisfy the simple sense of justice of the common man.
We vote to grant the motion for reconsideration.

PARAS, J.:
I concur in the foregoing dissenting opinion.

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