SPECIAL

PROCEEDINGS
STUDENTS:
Class here's the list of additional cases for your reading on settlement of estate:
11.
Hix
vs.
Fleumer,
(GR
No.
L-34259,
March
21,
1931)
12.
Fleumer
vs.
Hix,
(GR
No.
L-32636,
March
17,
1930)
13. Ancheta vs. Guersey-Dalaygon (GR No. 139868, June 8, 2006)
14.
Ventura
vs.
Ventura
(GR
No.
L-263306,
April
27,
1988)
15.
Villamor
vs.
CA
(GR.
No.
L-41508,
June
27,
1988)
16.
Pijuan
vs.
Gurrea
(GR
No.
L-21917,
Nov
29,
1966)
17. Luzon Surety vs. Quebrar (GR No. L-40517, January 31, 1984)
18. Estate of Hilario Ruiz vs. CA (GR No. 118671, Jan 29, 1996)
19.
Kalaw
vs.
IAC
(GR
No.
74618,
Sept
2,
1992)
20.
Pahamotang
vs.
OMG
(GR
No.
156403,
March
31,
2005)
21.
Rioferio
vs.
CA
(GR
No.
129008,
January
13,
2004)
22. Union Bank vs. Randhawa (GR No. 149926, Feb 23, 2005)
23.
PNB
vs.
CA
(GR
No.
121597,
June
29,
2001)
24. Aldamiz vs. CFI Judge of Mindoro (GR No. L-2360, Dec. 29, 1949)
25.
Quita
vs.
CA
(GR
No.
124862,
Dec.
22,
1998)
26.
Pacioles
vs.
Chutoco-Ching
(GR
No.
127920,
Aug.
9,
2005)
27.
Republic
vs.
CA
(GR
No.
143483,
Jan
31,
2002)
To serve as lifeline for your recitation grade, together with the first 10 cases
assigned before, am requiring you to submit on February 4, 2016 a case digest of all
these cases, in your own hand writing. Please use a notebook (as many as you may
need)
to
write
your
case
digests
on.
Please
number
the
cases
accordingly
from
number
1
to
27.
Thank you. Enjoy reading these real-life legal controversies and learn from them.

Republic
SUPREME
Manila

of

the

Philippines
COURT

THIRD DIVISION
G.R. No. 122880

April 12, 2006

FELIX
AZUELA, Petitioner,
vs.
COURT OF APPEALS, GERALDA AIDA CASTILLO substituted by ERNESTO G.
CASTILLO, Respondents.
DECISION
TINGA, J.:
The core of this petition is a highly defective notarial will, purportedly executed by
Eugenia E. Igsolo (decedent), who died on 16 December 1982 at the age of 80. In
refusing to give legal recognition to the due execution of this document, the Court is
provided the opportunity to assert a few important doctrinal rules in the execution
of notarial wills, all self-evident in view of Articles 805 and 806 of the Civil Code.

A will whose attestation clause does not contain the number of pages on
which the will is written is fatally defective. A will whose attestation
clause is not signed by the instrumental witnesses is fatally defective. And
perhaps most importantly, a will which does not contain an
acknowledgment, but a merejurat, is fatally defective. Any one of these
defects is sufficient to deny probate. A notarial will with all three defects
is just aching for judicial rejection.
There is a distinct and consequential reason the Civil Code provides a
comprehensive catalog of imperatives for the proper execution of a notarial will. Full
and faithful compliance with all the detailed requisites under Article 805 of the Code
leave little room for doubt as to the validity in the due execution of the notarial will.
Article 806 likewise imposes another safeguard to the validity of notarial wills
that they be acknowledged before a notary public by the testator and the witnesses.
A notarial will executed with indifference to these two codal provisions opens itself
to nagging questions as to its legitimacy.
The case stems from a petition for probate filed on 10 April 1984 with the Regional
Trial Court (RTC) of Manila. The petition filed by petitioner Felix Azuela sought to
admit to probate the notarial will of Eugenia E. Igsolo, which was notarized on 10
June 1981. Petitioner is the son of the cousin of the decedent.
The will, consisting of two (2) pages and written in the vernacular Pilipino, read in
full:
HULING HABILIN NI EUGENIA E. IGSOLO
SA NGALAN NG MAYKAPAL, AMEN:
AKO, si EUGENIA E. IGSOLO, nakatira sa 500 San Diego St., Sampaloc, Manila,
pitongput siyam (79) na gulang, nasa hustong pagi-isip, pag-unawa at memoria ay
nag-hahayag na ito na ang aking huling habilin at testamento, at binabali wala ko
lahat ang naunang ginawang habilin o testamento:
Una-Hinihiling ko na ako ay mailibing sa Sementerio del Norte, La Loma sang-ayong
sa kaugalian at patakaran ng simbahang katoliko at ang taga-pag-ingat (Executor)
ng habiling ito ay magtatayo ng bantayog upang silbing ala-ala sa akin ng aking
pamilya at kaibigan;
Pangalawa-Aking ipinagkakaloob at isinasalin ang lahat ng karapatan sa aking
pamangkin na si Felix Azuela, na siyang nag-alaga sa akin sa mahabang panahon,
yaong mga bahay na nakatirik sa lote numero 28, Block 24 at nakapangalan sa
Pechaten Korporasyon, ganoon din ibinibigay ko ang lahat ng karapatan sa bahay
na nakatirik sa inoopahan kong lote, numero 43, Block 24 na pag-aari ng Pechaten
Corporation. Ipinagkakaloob kong buong buo ang lahat ng karapatan sa bahay at
lupa na nasa 500 San Diego St., Lot 42, Block 24, Sampaloc, Manila kay Felix Azuela
at ang pagkakaloob kong ito ay walang pasubalit at kondiciones;
Pangatlo- Na ninunumbrahan ko si VART PAGUE na siyang nagpapatupad ng huling
habiling ito at kagustuhan ko rin na hindi na kailanman siyang mag-lagak ng
piyansiya.

Aking nilagdaan ang Huling Habilin na ito dito sa Maynila ika 10 ng Hunyo, 1981.
(Sgd.)
EUGENIA
(Tagapagmana)

E.

IGSOLO

PATUNAY NG MGA SAKSI

Ang kasulatang ito, na binubuo ng ____ dahon pati ang huling dahong ito, na
ipinahayag sa amin ni Eugenia E. Igsolo, tagapagmana na siya niyang Huling
Habilin, ngayon ika-10 ng Hunyo 1981, ay nilagdaan ng nasabing tagapagmana sa
ilalim ng kasulatang nabanggit at sa kaliwang panig ng lahat at bawat dahon, sa
harap ng lahat at bawat sa amin, at kami namang mga saksi ay lumagda sa harap
ng nasabing tagapagmana at sa harap ng lahat at bawat isa sa amin, sa ilalim ng
nasabing kasulatan at sa kaliwang panig ng lahat at bawat dahon ng kasulatan ito.
EUGENIA
address:
500
Sampaloc,
Manila
Res.
Issued at Manila on March 10, 1981.

E.
San

QUIRINO
address:
1228-Int.
Pandacan,
Manila
Res.
Issued at Manila on Jan. 21, 1981

Cert.

Diego
No.

IGSOLO
St.
A-7717-37

No.

AGRAVA
Kahilum
A-458365

3,
Cert.

LAMBERTO
C.
address:
Avenue
2,
Blcok
Lot
61,
San
Gabriel,
G.MA.,
Cavite
Cert. No. A-768277 issued at Carmona, Cavite on Feb. 7, 1981
JUANITO
address:
City
City
of
Manila
Issued at Manila on March 2, 1981.

Res.

Court
Cert.

No.

LEAO
7,
Res.
ESTRERA
Compound,
A574829

Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10, 1981 dito sa Lungsod ng

Maynila.
(Sgd.)
PETRONIO Y. BAUTISTA
Doc.
No. 1232 ;
Page
No. 86 ;
Until
Book
No. 43 ;
Series of 1981 TAN # 1437-977-81

NOTARIO
PUBLIKO
Dec.
31,
1981
PTR-152041-1/2/81-Manila

The three named witnesses to the will affixed their signatures on the left-hand
margin of both pages of the will, but not at the bottom of the attestation clause.
The probate petition adverted to only two (2) heirs, legatees and devisees of the
decedent, namely: petitioner himself, and one Irene Lynn Igsolo, who was alleged to

have resided abroad. Petitioner prayed that the will be allowed, and that letters
testamentary be issued to the designated executor, Vart Prague.
The petition was opposed by Geralda Aida Castillo (Geralda Castillo), who
represented herself as the attorney-in-fact of "the 12 legitimate heirs" of the
decedent.2 Geralda Castillo claimed that the will is a forgery, and that the true
purpose of its emergence was so it could be utilized as a defense in several court
cases filed by oppositor against petitioner, particularly for forcible entry and
usurpation of real property, all centering on petitioners right to occupy the
properties of the decedent.3 It also asserted that contrary to the representations of
petitioner, the decedent was actually survived by 12 legitimate heirs, namely her
grandchildren, who were then residing abroad. Per records, it was subsequently
alleged that decedent was the widow of Bonifacio Igsolo, who died in 1965, 4 and the
mother of a legitimate child, Asuncion E. Igsolo, who predeceased her mother by
three (3) months.5
Oppositor Geralda Castillo also argued that the will was not executed and attested
to in accordance with law. She pointed out that decedents signature did not appear
on the second page of the will, and the will was not properly acknowledged. These
twin arguments are among the central matters to this petition.
After due trial, the RTC admitted the will to probate, in an Order dated 10 August
1992.6 The RTC favorably took into account the testimony of the three (3) witnesses
to the will, Quirino Agrava, Lamberto Leano, and Juanito Estrada. The RTC also
called to fore "the modern tendency in respect to the formalities in the execution of
a will x x x with the end in view of giving the testator more freedom in expressing
his last wishes;"7 and from this perspective, rebutted oppositors arguments that the
will was not properly executed and attested to in accordance with law.
After a careful examination of the will and consideration of the testimonies of the
subscribing and attesting witnesses, and having in mind the modern tendency in
respect to the formalities in the execution of a will, i.e., the liberalization of the
interpretation of the law on the formal requirements of a will with the end in view of
giving the testator more freedom in expressing his last wishes, this Court is
persuaded to rule that the will in question is authentic and had been executed by
the testatrix in accordance with law.
On the issue of lack of acknowledgement, this Court has noted that at the end of
the will after the signature of the testatrix, the following statement is made under
the sub-title, "Patunay Ng Mga Saksi":
"Ang kasulatang ito, na binubuo ng _____ dahon pati ang huling dahong ito, na
ipinahayag sa amin ni Eugenia N. Igsolo, tagapagmana na siya niyang Huling
Habilin, ngayong ika-10 ng Hunyo 1981, ay nilagdaan ng nasabing tagapagmana sa
ilalim ng kasulatang nabanggit at sa kaliwang panig ng lahat at bawat dahon, sa
harap ng lahat at bawat sa amin, at kami namang mga saksi ay lumagda sa harap
ng nasabing tagapagmana at sa harap ng lahat at bawat isa sa amin, sa ilalim ng
nasabing kasulatan at sa kaliwang panig ng lahat at bawat dahon ng kasulatan ito."

The aforequoted declaration comprises the attestation clause and the

acknowledgement and is considered by this Court as a substantial compliance with
the requirements of the law.
On the oppositors contention that the attestation clause was not signed by the
subscribing witnesses at the bottom thereof, this Court is of the view that the
signing by the subscribing witnesses on the left margin of the second page of the
will containing the attestation clause and acknowledgment, instead of at the bottom
thereof, substantially satisfies the purpose of identification and attestation of the
will.
With regard to the oppositors argument that the will was not numbered
correlatively in letters placed on upper part of each page and that the attestation
did not state the number of pages thereof, it is worthy to note that the will is
composed of only two pages. The first page contains the entire text of the
testamentary dispositions, and the second page contains the last portion of the
attestation clause and acknowledgement. Such being so, the defects are not of a
serious nature as to invalidate the will. For the same reason, the failure of the
testatrix to affix her signature on the left margin of the second page, which contains
only the last portion of the attestation clause and acknowledgment is not a fatal
defect.
As regards the oppositors assertion that the signature of the testatrix on the will is
a forgery, the testimonies of the three subscribing witnesses to the will are
convincing enough to establish the genuineness of the signature of the testatrix and
the due execution of the will.8
The Order was appealed to the Court of Appeals by Ernesto Castillo, who had
substituted his since deceased mother-in-law, Geralda Castillo. In a Decision dated
17 August 1995, the Court of Appeals reversed the trial court and ordered the
dismissal of the petition for probate. 9 The Court of Appeals noted that the
attestation clause failed to state the number of pages used in the will, thus
rendering the will void and undeserving of probate. 10
Hence, the present petition.
Petitioner argues that the requirement under Article 805 of the Civil Code that "the
number of pages used in a notarial will be stated in the attestation clause" is merely
directory, rather than mandatory, and thus susceptible to what he termed as "the
substantial compliance rule."11
The solution to this case calls for the application of Articles 805 and 806 of the Civil
Code, which we replicate in full.
Art. 805. Every will, other than a holographic will, must be subscribed at the end
thereof by the testator himself or by the testator's name written by some other
person in his presence, and by his express direction, and attested and subscribed by
three or more credible witnesses in the presence of the testator and of one another.
The testator or the person requested by him to write his name and the instrumental
witnesses of the will, shall also sign, as aforesaid, each and every page thereof,

except the last, on the left margin, and all the pages shall be numbered
correlatively in letters placed on the upper part of each page.
The attestation shall state the number of pages used upon which the will is written,
and the fact that the testator signed the will and every page thereof, or caused
some other person to write his name, under his express direction, in the presence of
the instrumental witnesses, and that the latter witnessed and signed the will and all
the pages thereof in the presence of the testator and of one another.
If the attestation clause is in a language not known to the witnesses, it shall be
interpreted to them.
Art. 806. Every will must be acknowledged before a notary public by the testator
and the witnesses. The notary public shall not be required to retain a copy of the
will, or file another with the office of the Clerk of Court.
The appellate court, in its Decision, considered only one defect, the failure of the
attestation clause to state the number of pages of the will. But an examination of
the will itself reveals several more deficiencies.
As admitted by petitioner himself, the attestation clause fails to state the number of
pages of the will.12 There was an incomplete attempt to comply with this requisite, a
space having been allotted for the insertion of the number of pages in the
attestation clause. Yet the blank was never filled in; hence, the requisite was left
uncomplied with.
The Court of Appeals pounced on this defect in reversing the trial court, citing in the
process Uy Coque v. Navas L. Sioca 13 and In re: Will of Andrada. 14 In Uy Coque, the
Court noted that among the defects of the will in question was the failure of the
attestation clause to state the number of pages contained in the will. 15 In ruling that
the will could not be admitted to probate, the Court made the following
consideration which remains highly relevant to this day: "The purpose of requiring
the number of sheets to be stated in the attestation clause is obvious; the
document might easily be so prepared that the removal of a sheet would
completely change the testamentary dispositions of the will and in the
absence of a statement of the total number of sheets such removal might
be effected by taking out the sheet and changing the numbers at the top
of the following sheets or pages. If, on the other hand, the total number of
sheets is stated in the attestation clause the falsification of the document will
involve the inserting of new pages and the forging of the signatures of the testator
and witnesses in the margin, a matter attended with much greater difficulty." 16
The case of In re Will of Andrada concerned a will the attestation clause of which
failed to state the number of sheets or pages used. This consideration alone was
sufficient for the Court to declare "unanim[ity] upon the point that the defect
pointed out in the attesting clause is fatal." 17 It was further observed that "it cannot
be denied that the x x x requirement affords additional security against the danger
that the will may be tampered with; and as the Legislature has seen fit to prescribe
this requirement, it must be considered material." 18

Against these cited cases, petitioner cites Singson v. Florentino19 and Taboada v.
Hon. Rosal,20 wherein the Court allowed probate to the wills concerned therein
despite the fact that the attestation clause did not state the number of pages of the
will. Yet the appellate court itself considered the import of these two cases, and
made the following distinction which petitioner is unable to rebut, and which we
adopt with approval:
Even a cursory examination of the Will (Exhibit "D"), will readily show that the
attestation does not state the number of pages used upon which the will is written.
Hence, the Will is void and undeserving of probate.
We are not impervious of the Decisions of the Supreme Court in "Manuel Singson
versus Emilia Florentino, et al., 92 Phil. 161 and Apolonio [Taboada] versus Hon.
Avelino Rosal, et al., 118 SCRA 195," to the effect that a will may still be valid even
if the attestation does not contain the number of pages used upon which the Will is
written. However, the Decisions of the Supreme Court are not applicable in the
aforementioned appeal at bench. This is so because, in the case of "Manuel Singson
versus Emilia Florentino, et al., supra," although the attestation in the subject Will
did not state the number of pages used in the will, however, the same was found in
the last part of the body of the Will:
"x x x
The law referred to is article 618 of the Code of Civil Procedure, as amended by Act
No. 2645, which requires that the attestation clause shall state the number of pages
or sheets upon which the will is written, which requirement has been held to be
mandatory as an effective safeguard against the possibility of interpolation or
omission of some of the pages of the will to the prejudice of the heirs to whom the
property is intended to be bequeathed (In re Will of Andrada, 42 Phil. 180; Uy Coque
vs. Navas L. Sioca, 43 Phil., 405; Gumban vs. Gorcho, 50 Phil. 30; Quinto vs. Morata,
54 Phil. 481; Echevarria vs. Sarmiento, 66 Phil. 611). The ratio decidendi of these
cases seems to be that the attestation clause must contain a statement of the
number of sheets or pages composing the will and that if this is missing or is
omitted, it will have the effect of invalidating the will if the deficiency cannot be
supplied, not by evidence aliunde, but by a consideration or examination of the will
itself. But here the situation is different. While the attestation clause does not state
the number of sheets or pages upon which the will is written, however, the last part
of the body of the will contains a statement that it is composed of eight pages,
which circumstance in our opinion takes this case out of the rigid rule of
construction and places it within the realm of similar cases where a broad and more
liberal view has been adopted to prevent the will of the testator from being
defeated by purely technical considerations." (page 165-165, supra) (Underscoring
supplied)
In "Apolonio Tabaoda versus Hon. Avelino Rosal, et al." supra, the notarial
acknowledgement in the Will states the number of pages used in the:
"x x x

We have examined the will in question and noticed that the attestation clause failed
to state the number of pages used in writing the will. This would have been a fatal
defect were it not for the fact that, in this case, it is discernible from the entire will
that it is really and actually composed of only two pages duly signed by the testatrix
and her instrumental witnesses. As earlier stated, the first page which contains the
entirety of the testamentary dispositions is signed by the testatrix at the end or at
the bottom while the instrumental witnesses signed at the left margin. The other
page which is marked as "Pagina dos" comprises the attestation clause and the
acknowledgment. The acknowledgment itself states that "this Last Will and
Testament consists of two pages including this page" (pages 200-201, supra)
(Underscoring supplied).
However, in the appeal at bench, the number of pages used in the will is not stated
in any part of the Will. The will does not even contain any notarial acknowledgment
wherein the number of pages of the will should be stated. 21
Both Uy Coque and Andrada were decided prior to the enactment of the Civil Code
in 1950, at a time when the statutory provision governing the formal requirement of
wills was Section
618 of the Code of Civil Procedure.22 Reliance on these cases remains apropos,
considering that the requirement that the attestation state the number of pages of
the will is extant from Section 618.23 However, the enactment of the Civil Code in
1950 did put in force a rule of interpretation of the requirements of wills, at least
insofar as the attestation clause is concerned, that may vary from the philosophy
that governed these two cases. Article 809 of the Civil Code states: "In the absence
of bad faith, forgery, or fraud, or undue and improper pressure and influence,
defects and imperfections in the form of attestation or in the language used therein
shall not render the will invalid if it is proved that the will was in fact executed and
attested in substantial compliance with all the requirements of article 805."
In the same vein, petitioner cites the report of the Civil Code Commission, which
stated that "the underlying and fundamental objective permeating the provisions on
the [law] on [wills] in this project consists in the [liberalization] of the manner of
their execution with the end in view of giving the testator more [freedom] in
[expressing] his last wishes. This objective is in accord with the [modern tendency]
in respect to the formalities in the execution of wills." 24 However, petitioner
conveniently omits the qualification offered by the Code Commission in the very
same paragraph he cites from their report, that such liberalization be "but with
sufficient safeguards and restrictions to prevent the commission of fraud and the
exercise of undue and improper pressure and influence upon the testator." 25
Caneda v. Court of Appeals26 features an extensive discussion made by Justice
Regalado, speaking for the Court on the conflicting views on the manner of
interpretation of the legal formalities required in the execution of the attestation
clause in wills.27 Uy Coque and Andrada are cited therein, along with several other
cases, as examples of the application of the rule of strict construction. 28 However,
the Code Commission opted to recommend a more liberal construction through the

"substantial compliance rule" under Article 809. A cautionary note was struck
though by Justice J.B.L. Reyes as to how Article 809 should be applied:
x x x The rule must be limited to disregarding those defects that can be supplied by
an examination of the will itself: whether all the pages are consecutively numbered;
whether the signatures appear in each and every page; whether the subscribing
witnesses are three or the will was notarized. All these are facts that the will itself
can reveal, and defects or even omissions concerning them in the attestation clause
can be safely disregarded. But the total number of pages, and whether all
persons required to sign did so in the presence of each other must
substantially appear in the attestation clause, being the only check
against perjury in the probate proceedings.29 (Emphasis supplied.)
The Court of Appeals did cite these comments by Justice J.B.L. Reyes in its assailed
decision, considering that the failure to state the number of pages of the will in the
attestation clause is one of the defects which cannot be simply disregarded.
In Caneda itself, the Court refused to allow the probate of a will whose attestation
clause failed to state that the witnesses subscribed their respective signatures to
the will in the presence of the testator and of each other, 30 the other omission cited
by Justice J.B.L. Reyes which to his estimation cannot be lightly disregarded.
Caneda suggested: "[I]t may thus be stated that the rule, as it now stands, is that
omission which can be supplied by an examination of the will itself, without the
need of resorting to extrinsic evidence, will not be fatal and, correspondingly, would
not obstruct the allowance to probate of the will being assailed. However, those
omissions which cannot be supplied except by evidence aliunde would result in the
invalidation of the attestation clause and ultimately, of the will itself." 31 Thus, a
failure by the attestation clause to state that the testator signed every page can be
liberally construed, since that fact can be checked by a visual examination; while a
failure by the attestation clause to state that the witnesses signed in one anothers
presence should be considered a fatal flaw since the attestation is the only textual
guarantee of compliance.32
The failure of the attestation clause to state the number of pages on which the will
was written remains a fatal flaw, despite Article 809. The purpose of the law in
requiring the clause to state the number of pages on which the will is written is to
safeguard against possible interpolation or omission of one or some of its pages and
to prevent any increase or decrease in the pages. 33 The failure to state the number
of pages equates with the absence of an averment on the part of the instrumental
witnesses as to how many pages consisted the will, the execution of which they had
ostensibly just witnessed and subscribed to. Following Caneda, there is substantial
compliance with this requirement if the will states elsewhere in it how many pages it
is comprised of, as was the situation inSingson and Taboada. However, in this case,
there could have been no substantial compliance with the requirements under
Article 805 since there is no statement in the attestation clause or anywhere in the
will itself as to the number of pages which comprise the will.
At the same time, Article 809 should not deviate from the need to comply with the
formal requirements as enumerated under Article 805. Whatever the inclinations of

the members of the Code Commission in incorporating Article 805, the fact remains
that they saw fit to prescribe substantially the same formal requisites as
enumerated in Section 618 of the Code of Civil Procedure, convinced that these
remained effective safeguards against the forgery or intercalation of notarial
wills.34 Compliance with these requirements, however picayune in impression,
affords the public a high degree of comfort that the testator himself or herself had
decided to convey property post mortem in the manner established in the
will.35 The transcendent legislative intent, even as expressed in the cited
comments of the Code Commission, is for the fruition of the testators
incontestable desires, and not for the indulgent admission of wills to
probate.
The Court could thus end here and affirm the Court of Appeals. However, an
examination of the will itself reveals a couple of even more critical defects that
should necessarily lead to its rejection.
For one, the attestation clause was not signed by the instrumental
witnesses. While the signatures of the instrumental witnesses appear on the lefthand margin of the will, they do not appear at the bottom of the attestation clause
which after all consists of their averments before the notary public.
Cagro v. Cagro36 is material on this point. As in this case, "the signatures of the
three witnesses to the will do not appear at the bottom of the attestation clause,
although the page containing the same is signed by the witnesses on the left-hand
margin."37 While three (3) Justices 38 considered the signature requirement had been
substantially complied with, a majority of six (6), speaking through Chief Justice
Paras, ruled that the attestation clause had not been duly signed, rendering the will
fatally defective.
There is no question that the signatures of the three witnesses to the will do not
appear at the bottom of the attestation clause, although the page containing the
same is signed by the witnesses on the left-hand margin.
We are of the opinion that the position taken by the appellant is correct. The
attestation clause is "a memorandum of the facts attending the execution of the
will" required by law to be made by the attesting witnesses, and it must necessarily
bear their signatures. An unsigned attestation clause cannot be considered as an
act of the witnesses, since the omission of their signatures at the bottom thereof
negatives their participation.
The petitioner and appellee contends that signatures of the three witnesses on the
left-hand margin conform substantially to the law and may be deemed as their
signatures to the attestation clause. This is untenable, because said signatures are
in compliance with the legal mandate that the will be signed on the left-hand
margin of all its pages. If an attestation clause not signed by the three witnesses at
the bottom thereof, be admitted as sufficient, it would be easy to add such clause to
a will on a subsequent occasion and in the absence of the testator and any or all of
the witnesses.39

The Court today reiterates the continued efficacy of Cagro. Article 805 particularly
segregates the requirement that the instrumental witnesses sign each page of the
will, from the requisite that the will be "attested and subscribed by [the
instrumental witnesses]." The respective intents behind these two classes of
signature are distinct from each other. The signatures on the left-hand corner of
every page signify, among others, that the witnesses are aware that the page they
are signing forms part of the will. On the other hand, the signatures to the
attestation clause establish that the witnesses are referring to the statements
contained in the attestation clause itself. Indeed, the attestation clause is separate
and apart from the disposition of the will. An unsigned attestation clause results in
an unattested will. Even if the instrumental witnesses signed the left-hand margin of
the page containing the unsigned attestation clause, such signatures cannot
demonstrate these witnesses undertakings in the clause, since the signatures that
do appear on the page were directed towards a wholly different avowal.
The Court may be more charitably disposed had the witnesses in this case signed
the attestation clause itself, but not the left-hand margin of the page containing
such clause. Without diminishing the value of the instrumental witnesses
signatures on each and every page, the fact must be noted that it is the attestation
clause which contains the utterances reduced into writing of the testamentary
witnesses themselves. It is the witnesses, and not the testator, who are required
under Article 805 to state the number of pages used upon which the will is written;
the fact that the testator had signed the will and every page thereof; and that they
witnessed and signed the will and all the pages thereof in the presence of the
testator and of one another. The only proof in the will that the witnesses have
stated these elemental facts would be their signatures on the attestation clause.
Thus, the subject will cannot be considered to have been validly attested to by the
instrumental witnesses, as they failed to sign the attestation clause.
Yet, there is another fatal defect to the will on which the denial of this petition
should also hinge. The requirement under Article 806 that "every will must be
acknowledged before a notary public by the testator and the witnesses" has also
not been complied with. The importance of this requirement is highlighted by the
fact that it had been segregated from the other requirements under Article 805 and
entrusted into a separate provision, Article 806. The non-observance of Article 806
in this case is equally as critical as the other cited flaws in compliance with Article
805, and should be treated as of equivalent import.
In lieu of an acknowledgment, the notary public, Petronio Y. Bautista, wrote
"Nilagdaan ko at ninotario ko ngayong10 ng Hunyo 10 (sic), 1981 dito sa Lungsod
ng Maynila."40 By no manner of contemplation can those words be construed as an
acknowledgment. An acknowledgment is the act of one who has executed a deed in
going before some competent officer or court and declaring it to be his act or
deed.41 It involves an extra step undertaken whereby the signor actually declares to
the notary that the executor of a document has attested to the notary that the
same is his/her own free act and deed.

It might be possible to construe the averment as a jurat, even though it does not
hew to the usual language thereof. A jurat is that part of an affidavit where the
notary certifies that before him/her, the document was subscribed and sworn to by
the executor.42 Ordinarily, the language of the jurat should avow that the document
was subscribed and sworn before the notary public, while in this case, the notary
public averred that he himself "signed and notarized" the document. Possibly
though, the word "ninotario" or "notarized" encompasses the signing of and
swearing in of the executors of the document, which in this case would involve the
decedent and the instrumental witnesses.
Yet even if we consider what was affixed by the notary public as a jurat, the will
would nonetheless remain invalid, as the express requirement of Article 806 is that
the will be "acknowledged", and not merely subscribed and sworn to. The will does
not present any textual proof, much less one under oath, that the decedent and the
instrumental witnesses executed or signed the will as their own free act or deed.
The acknowledgment made in a will provides for another all-important legal
safeguard against spurious wills or those made beyond the free consent of the
testator. An acknowledgement is not an empty meaningless act. 43 The
acknowledgment coerces the testator and the instrumental witnesses to declare
before an officer of the law that they had executed and subscribed to the will as
their own free act or deed. Such declaration is under oath and under pain of perjury,
thus allowing for the criminal prosecution of persons who participate in the
execution of spurious wills, or those executed without the free consent of the
testator. It also provides a further degree of assurance that the testator is of certain
mindset in making the testamentary dispositions to those persons he/she had
designated in the will.
It may not have been said before, but we can assert the rule, self-evident as it is
under Article 806. A notarial will that is not acknowledged before a notary
public by the testator and the witnesses is fatally defective, even if it is
subscribed and sworn to before a notary public.
There are two other requirements under Article 805 which were not fully satisfied by
the will in question. We need not discuss them at length, as they are no longer
material to the
disposition of this case. The provision requires that the testator and the
instrumental witnesses sign each and every page of the will on the left margin,
except the last; and that all the pages shall be numbered correlatively in letters
placed on the upper part of each page. In this case, the decedent, unlike the
witnesses, failed to sign both pages of the will on the left margin, her only signature
appearing at the so-called "logical end" 44 of the will on its first page. Also, the will
itself is not numbered correlatively in letters on each page, but instead numbered
with Arabic numerals. There is a line of thought that has disabused the notion that
these two requirements be construed as mandatory. 45 Taken in isolation, these
omissions, by themselves, may not be sufficient to deny probate to a will. Yet even
as these omissions are not decisive to the adjudication of this case, they need not
be dwelt on, though indicative as they may be of a general lack of due regard for
the requirements under Article 805 by whoever executed the will.

All told, the string of mortal defects which the will in question suffers from makes
the probate denial inexorable.
WHEREFORE, the petition is DENIED. Costs against petitioner.
SO ORDERED.
DANTE
Associate Justice

O.

SECOND DIVISION
CYNTHIA C. ALABAN, G.R. No. 156021
FRANCIS COLLADO, JOSE
P. COLLADO, JUDITH Present:
PROVIDO, CLARITA PROVIDO,
ALFREDO PROVIDO, MANUEL PUNO, J.,
PROVIDO, JR., LORNA DINA Chairman,
E. PROVIDO, SEVERO ARENGA, AUSTRIA-MARTINEZ,
JR., SERGIO ARENGA, EDUARDO CALLEJO, SR.,
ARENGA, CAROL ARENGA, RUTH TINGA, and
BABASA, NORMA HIJASTRO, CHICO-NAZARIO, JJ.
DOLORES M. FLORES, ANTONIO
MARIN, JR., JOSE MARIN, SR., and
MATHILDE MARIN, Promulgated:
Petitioners,
September 23, 2005

- versus -

COURT OF APPEALS and

FRANCISCO H. PROVIDO,
Respondents.
x-------------------------------------------------------------------x

TINGA

DECISION

TINGA, J.:

This is a petition for review of the Resolutions[1] of the Court of Appeals (CA) in CAG.R. SP No. 69221,[2] dismissing petitioners petition for annulment of judgment.

On 8 November 2000, respondent Francisco Provido (respondent) filed a petition,

docketed as SP Proc. No. 00-135, for the probate of theLast Will and Testament[3] of
the late Soledad Provido Elevencionado (decedent), who died on 26 October 2000 in
Janiuay, Iloilo.[4] Respondent alleged that he was the heir of the decedent and the
executor of her will. On 30 May 2001, the Regional Trial Court (RTC), Branch 68, in
P.D. Monfort North, Dumangas, Iloilo, rendered its Decision,[5] allowing the probate of
the will of the decedent and directing the issuance of letters testamentary to
respondent.[6]

More than four (4) months later, or on 4 October 2001, herein petitioners filed a
motion for the reopening of the probate proceedings. [7] Likewise, they filed an
opposition to the allowance of the will of the decedent, as well as the issuance of
letters testamentary to respondent, [8] claiming that they are the intestate heirs of
the decedent. Petitioners claimed that the RTC did not acquire jurisdiction over the
petition due to non-payment of the correct docket fees, defective publication, and
lack of notice to the other heirs. Moreover, they alleged that the will could not have
been probated because: (1) the signature of the decedent was forged; (2) the will
was not executed in accordance with law, that is, the witnesses failed to sign below
the attestation clause; (3) the decedent lacked testamentary capacity to execute
and publish a will; (4) the will was executed by force and under duress and improper
pressure; (5) the decedent had no intention to make a will at the time of affixing of
her signature; and (6) she did not know the properties to be disposed of, having
included in the will properties which no longer belonged to her. Petitioners prayed
that the letters testamentary issued to respondent be withdrawn and the estate of
the decedent disposed of under intestate succession. [9]

On 11 January 2002, the RTC issued an Order[10] denying petitioners motion for
being unmeritorious. Resolving the issue of jurisdiction, the RTC held that petitioners
were deemed notified of the hearing by publication and that the deficiency in the
payment of docket fees is not a ground for the outright dismissal of the petition. It
merely
required
respondent
to
pay
the
deficiency. [11] Moreover,
the
RTCs Decision was already final and executory even before petitioners filing of the
motion to reopen.[12]

Petitioners thereafter filed a petition [13] with an application for preliminary injunction
with the CA, seeking the annulment of the RTCs Decisiondated 30 May 2001
and Order dated 11 January 2002. They claimed that after the death of the
decedent, petitioners, together with respondent, held several conferences to
discuss the matter of dividing the estate of the decedent, with respondent agreeing

to a one-sixth (1/6) portion as his share. Petitioners allegedly drafted a compromise

agreement to implement the division of the estate. Despite receipt of the
agreement, respondent refused to sign and return the same. Petitioners opined that
respondent feigned interest in participating in the compromise agreement so that
they would not suspect his intention to secure the probate of the will. [14] They
claimed that they learnt of the probate proceedings only in July of 2001, as a result
of which they filed their motion to reopen the proceedings and admit their
opposition to the probate of the will only on 4 October 2001. They argued that the
RTC Decision should be annulled and set aside on the ground of extrinsic fraud and
lack of jurisdiction on the part of the RTC. [15]

In its Resolution[16] promulgated on 28 February 2002, the CA dismissed the petition.

It found that there was no showing that petitioners failed to avail of or resort to the
ordinary remedies of new trial, appeal, petition for relief from judgment, or other
appropriate remedies through no fault of their own. [17] Moreover, the CA declared as
baseless petitioners claim that the proceedings in the RTC was attended by extrinsic
fraud. Neither was there any showing that they availed of this ground in a motion
for new trial or petition for relief from judgment in the RTC, the CA added.
[18]
Petitioners sought reconsideration of the Resolution, but the same was denied by
the CA for lack of merit.[19]

Petitioners now come to this Court, asserting that the CA committed grave abuse of
discretion amounting to lack of jurisdiction when it dismissed their petition for the
alleged failure to show that they have not availed of or resorted to the remedies of
new trial, appeal, petition for relief from judgment or other remedies through no
fault of their own, and held that petitioners were not denied their day in court
during the proceedings before the RTC. [20] In addition, they assert that this Court has
yet to decide a case involving Rule 47 of the Rules of Court and, therefore, the
instant petition should be given due course for the guidance of the bench and bar. [21]

For his part, respondent claims that petitioners were in a position to avail of the
remedies provided in Rules 37 and 38, as they in fact did when they filed a motion
for new trial.[22] Moreover, they could have resorted to a petition for relief from
judgment since they learned of the RTCs judgment only three and a half months
after its promulgation.[23] Respondent likewise maintains that no extrinsic fraud
exists to warrant the annulment of the RTCs Decision, since there was no showing
that they were denied their day in court. Petitioners were not made parties to the
probate proceedings because the decedent did not institute them as her heirs.
[24]
Besides, assuming arguendo that petitioners are heirs of the decedent, lack of
notice to them is not a fatal defect since personal notice upon the heirs is a matter
of procedural convenience and not a jurisdictional requisite. [25] Finally, respondent
charges petitioners of forumshopping, since the latter have a pending suit involving
the same issues as those in SP No. 00-135, that is SP No. 1181 [26] filed before Branch

23, RTC of General Santos City and subsequently pending on appeal before the CA
in CA-G.R. No.74924.[27]

It appears that one of the petitioners herein, Dolores M. Flores (Flores), who is a
niece of the decedent, filed a petition for letters of administration with the RTC of
General Santos City, claiming that the decedent died intestate without any issue,
survived by five groups of collateral heirs. Flores, armed with a Special Power of
Attorney from most of the other petitioners, prayed for her appointment as
administratrix of the estate of the decedent. The RTC dismissed the petition on the
ground of lack of jurisdiction, stating that the probate court in Janiuay, Iloilo has
jurisdiction since the venue for a petition for the settlement of the estate of a
decedent is the place where the decedent died. This is also in accordance with the
rule that the first court acquiring jurisdiction shall continue hearing the case to the
exclusion of other courts, the RTC added. [28] On 9 January 2002, Flores filed a Notice
of Appeal [29] and on 28 January 2002, the case was ordered forwarded to the CA. [30]

Petitioners maintain that they were not made parties to the case in which the
decision sought to be annulled was rendered and, thus, they could not have availed
of the ordinary remedies of new trial, appeal, petition for relief from judgment and
other appropriate remedies, contrary to the ruling of the CA. They aver that
respondents offer of a false compromise and his failure to notify them of the probate
of the will constitute extrinsic fraud that necessitates the annulment of the RTCs
judgment.[31]

The petition is devoid of merit.

Section 37 of the Rules of Court allows an aggrieved party to file a motion for new
trial on the ground of fraud, accident, mistake, or excusable negligence. The same

Rule permits the filing of a motion for reconsideration on the grounds of excessive
award of damages, insufficiency of evidence to justify the decision or final order, or
that the decision or final order is contrary to law. [32] Both motions should be filed
within the period for taking an appeal, or fifteen (15) days from notice of the
judgment or final order.

Meanwhile, a petition for relief from judgment under Section 3 of Rule 38 is resorted
to when a judgment or final order is entered, or any other proceeding is thereafter
taken, against a party in any court through fraud, accident, mistake, or excusable
negligence. Said party may file a petition in the same court and in the same case to
set aside the judgment, order or proceeding. It must be filed within sixty (60) days
after the petitioner learns of the judgment and within six (6) months after entry
thereof.[33]

A motion for new trial or reconsideration and a petition for relief from judgment are
remedies available only to parties in the proceedings where the assailed

judgment is rendered.[34] In fact, it has been held that a person who was never a
party to the case, or even summoned to appear therein, cannot avail of a petition
for relief from judgment.[35]

However, petitioners in this case are mistaken in asserting that they are not or have
not become parties to the probate proceedings.

Under the Rules of Court, any executor, devisee, or legatee named in a will, or any
other person interested in the estate may, at any time after the death of the
testator, petition the court having jurisdiction to have the will allowed. [36] Notice of
the time and place for proving the will must be published for three (3) consecutive
weeks, in a newspaper of general circulation in the province, [37] as well as furnished
to the designated or other known heirs, legatees, and devisees of the testator.
[38]
Thus, it has been held that a proceeding for the probate of a will is one in rem,
such that with the corresponding publication of the petition the court's jurisdiction
extends to all persons interested in said will or in the settlement of the estate of the
decedent.[39]

Publication is notice to the whole world that the proceeding has for its object to bar
indefinitely all who might be minded to make an objection of any sort against the
right sought to be established. It is the publication of such notice that brings in the
whole world as a party in the case and vests the court with jurisdiction to hear and
decide it.[40] Thus, even though petitioners were not mentioned in the petition for
probate, they eventually became parties thereto as a consequence of the
publication of the notice of hearing.

As parties to the probate proceedings, petitioners could have validly availed of the
remedies of motion for new trial or reconsideration and petition for relief from
judgment. In fact, petitioners filed a motion to reopen, which is essentially a motion
for new trial, with petitioners praying for the reopening of the case and the setting
of further proceedings. However, the motion was denied for having been filed out of
time, long after theDecision became final and executory.
Conceding that petitioners became aware of the Decision after it had become final,
they could have still filed a petition for relief from judgment after the denial of their
motion to reopen. Petitioners claim that they learned of the Decision only on 4
October 2001, or almost four (4) months from the time the Decision had attained
finality. But they failed to avail of the remedy.

For failure to make use without sufficient justification of the said remedies available
to them, petitioners could no longer resort to a petition for annulment of judgment;
otherwise, they would benefit from their own inaction or negligence. [41]

Even casting aside the procedural requisite, the petition for annulment of judgment
must still fail for failure to comply with the substantive requisites, as the appellate
court ruled.

An action for annulment of judgment is a remedy in law independent of the case

where the judgment sought to be annulled was rendered. [42] The purpose of such
action is to have the final and executory judgment set aside so that there will be a
renewal of litigation. It is resorted to in cases where the ordinary remedies of new
trial, appeal, petition for relief from judgment, or other appropriate remedies are no
longer available through no fault of the petitioner, [43] and is based on only two
grounds: extrinsic fraud, and lack of jurisdiction or denial of due process. [44] A person
need not be a party to the judgment sought to be annulled, and it is only essential
that he can prove his allegation that the judgment was obtained by the use of fraud
and collusion and he would be adversely affected thereby. [45]

An action to annul a final judgment on the ground of fraud lies only if the fraud is
extrinsic or collateral in character.[46] Fraud is regarded as extrinsic where it prevents
a party from having a trial or from presenting his entire case to the court, or where
it operates upon matters pertaining not to the judgment itself but to the manner in
which it is procured. The overriding consideration when extrinsic fraud is alleged is
that the fraudulent scheme of the prevailing litigant prevented a party from having
his day in court.[47]

To sustain their allegation of extrinsic fraud, petitioners assert that as a result of

respondents deliberate omission or concealment of their names, ages and
residences as the other heirs of the decedent in his petition for allowance of the will,
they were not notified of the proceedings, and thus they were denied their day in
court. In addition, they claim that respondents offer of a false compromise even
before the filing of the petition prevented them from appearing and opposing the
petition for probate.

The Court is not convinced.

According to the Rules, notice is required to be personally given to known heirs,

legatees, and devisees of the testator. [48] A perusal of the will shows that respondent
was instituted as the sole heir of the decedent. Petitioners, as nephews and nieces
of the decedent, are neither compulsory nor testate heirs [49] who are entitled to be
notified of the probate proceedings under the Rules. Respondent had no legal
obligation to mention petitioners in the petition for probate, or to personally notify
them of the same.

Besides, assuming arguendo that petitioners are entitled to be so notified, the

purported infirmity is cured by the publication of the notice. After all, personal
notice upon the heirs is a matter of procedural convenience and not a jurisdictional
requisite.[50]

The non-inclusion of petitioners names in the petition and the alleged failure to
personally notify them of the proceedings do not constitute extrinsic fraud.
Petitioners were not denied their day in court, as they were not prevented from
participating in the proceedings and presenting their case before the probate court.

One other vital point is the issue of forum-shopping against petitioners. Forumshopping consists of filing multiple suits in different courts, either simultaneously or
successively, involving the same parties, to ask the courts to rule on the same or
related causes and/or to grant the same or substantially same reliefs, [51] on the
supposition that one or the other court would make a favorable disposition.
[52]
Obviously, the parties in the instant case, as well as in the appealed case before
the CA, are the same. Both cases deal with the existence and validity of the alleged
will of the decedent, with petitioners anchoring their cause on the state of intestacy.
In the probate proceedings, petitioners position has always been that the decedent
left no will and if she did, the will does not comply with the requisites of a valid will.
Indeed, that position is the bedrock of their present petition. Of course, respondent
maintains the contrary stance. On the other hand, in the petition for letters of
administration, petitioner Flores prayed for her appointment as administratrix of the

estate on the theory that the decedent died intestate. The petition was dismissed
on the ground of lack of jurisdiction, and it is this order of dismissal which is the
subject of review in CA-G.R. No. 74924. Clearly, therefore, there is forum-shopping.

Moreover, petitioners failed to inform the Court of the said pending case in their
certification against forum- shopping. Neither have they done so at any time
thereafter. The Court notes that even in the petition for annulment of judgment,
petitioners failed to inform the CA of the pendency of their appeal in CA-G.R. No.
74924, even though the notice of appeal was filed way before the petition for
annulment of judgment was instituted.

WHEREFORE, the petition is DENIED. Costs against petitioners.

SO ORDERED.

DANTE O. TINGA Associate Justice

WE CONCUR:

REYNATO S. PUNO
Associate Justice

Chairman

MA. ALICIA AUSTRIA-MARTINEZ ROMEO J. CALLEJO, SR.

Associate Justice Associate Justice

MINITA V. CHICO-NAZARIO
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision were reached in consultation
before the case was assigned to the writer of the opinion of the Courts Division.

REYNATO S. PUNO
Associate Justice
Chairman, Second Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairmans
Attestation, it is hereby certified that the conclusions in the above Decision were
reached in consultation before the case was assigned to the writer of the opinion of
the Courts Division.

Republic
SUPREME
Manila

of

the

Philippines
COURT

EN BANC
G.R. No. L-34259

March 21, 1931

Intestate
Estate
of
the
ANNIE
COUSINS
vs.
A. W. FLUEMER, opponent-appellee.

late

Harvey
and
O'Brien
C. A. Sobral for appellee.

and

and

Gibbs

E.

Randolph
Hix.
HIX, petitioner-appellant,

McDonough

for

appellant.

VILLA-REAL, J.:
The petitioner, Annie Cousins Hix, appeals from the order issued by the Court of
First Instance of Manila in the course of the intestate proceedings of E. Randolf Hix,
the dispositive part of which reads as follows:
In view of the foregoing considerations, the court holds: (1) That the divorce decree
granted by the Circuit Court of Randolph County of the State of West Virginia
awarding the deceased Hix a divorce from his wife, Annie Cousins Hix, is valid in this
jurisdiction; (2) that since the latter is legally divorced from her late husband, she is
not entitled to the pension she asks as his widow; and (3) that the motion for
reconsideration filed by her counsel on September 24, 1929 asking for an allowance
for support must be denied.
The appellant assigns the following alleged errors as committed by the court below
in said order, to wit:
1. The trial court erred in assuming that E. Randolph Hix was a bona fide resident of
the State of West Virginia at the time he instituted an action for divorce against his
wife in the Circuit Court of Randolf County, West Virginia, in the year 1925.
2. The trial court erred in not finding that E. Randolph Hix was domiciled in, and
resident of, the City of Manila, Philippine Islands, he having arrived here in 1910 and

died here in 1929, during which period of time he had established his home and had
engaged in business here.
3. The trial court erred in recognizing the decree of divorce secured by E. Randolph
Hix from the Circuit Court of Randolph County, West Virginia.
4. The trial court erred in refusing to apply to this case the jurisprudence laid down
by this Honorable Court in the cases of Ramirez vs. Gmur (42 Phil., 855) and
Gorayeb vs. Hashim (50 Phil., 22).
5. The trial court erred in misapplying section 306 of the Code of Civil Procedure and
in not construing the same in relation with sections 309 and 312 of the same Code.
The relevant facts necessary to decide the questions raised in this appeal are the
following:
E. Randolph Hix was born in the year 1866 in Union, South Carolina, where he lived
with his parents until the age of 15. They then removed to Rye, Westchester County,
New York. A few years later, he was sent to the University of Lehigh, and to the
Massachusetts Institute of Technology, leaving the latter before graduating, to
accept employment with the Edison Company where he worked for about three
years. After resigning from his position he opened an office and engaged in private
work as consulting engineer and contractor until the year 1895, when he removed
to Wheeling, West Virginia, to engage in the general engineering business as a
member of the firm of Hogg & Hix, surveyors.
After fifteen years of residence in Wheeling, he took an examination and received
an appointment as coal expert for the Philippine Government, arriving at Manila
some time during the year 1910. While E. Randolph Hix was living in Manila in 1912,
he met the appellant and married her in Shanghai, China, on or about June 24,
1913, returning to Manila where they established their domicile. A son was born of
this union in Boston, Massachusetts, on July 1, 1915, named Preston Randolph Hix,
while she was in the United States where she had gone on the month of May of the
same year to visit her family and the mother and sister of her husband. The
appellant returned to Manila in November, 1916, and continued to live with the
deceased as husband and wife.
On March 16, 1919, the appellant left for Canada, where she remained with their
child until February, 1921, when she returned to Manila in a very precarious
condition of health and was given medical treatment in the St. Paul's Hospital at the
expense of her husband. After she regained her health, she lived apart from her
husband by mutual consent.
On December 7, 1922, the appellant instituted an action in the Court of First
Instance of Manila against her husband, E. Randolph Hix, for the purpose of
compelling him to provide adequate support for herself and her son, Preston Randolf
Hix. In that case and in open court the following stipulation was entered into
between the parties:
It is stipulated and agreed that the defendant and plaintiff are both residents of the
City of Manila; that they were married on the 24th day of June, 1913, in Shanghai,

China; the plaintiff is the lawful wife of defendant; that one son named Preston R.
Hix was born on July 1, 1915, of the said marriage, who is still living; the plaintiff
and defendant are now and have been, since about the middle of December, 1921,
living separate and apart from each other by mutual consent, though the greater
part of the time since December, 1921, up to November, 1922, they took their
meals together; that by mutual consent they will continue to live apart from each
other; that as long as the child will remain in the Philippine Islands, the father will
have the opportunity to see him twice a week, this without prejudice of Mrs. Hix
taking the child to the States. In this case, she will keep the father informed as to
the condition of the child by writing him once a month.
The trial court adjudicated the case in her favor and ordered the defendant E.
Randolph Hix to pay her the sum of P500 in advance on or before the 5th day of
each month for the maintenance of herself and her son. The case was appealed to
this court, and on February 27, 1924, the judgment of the court below was
affirmed.1 During the month of December, 1922, while the proceedings in said case
were pending, the office held by E. Randolph Hix in the Government was abolished,
and he went into private practice, acting as coal expert for the Manila Electric
Company and other private concerns until March, 1924, when he left for West
Virginia, leaving his wife and child in Manila, and his business in the hands of his
employee, A. W. Fluemer, the opponent and appellee, for the purpose of residing
there and suing for a divorce.
In the month of May, 1925, that is, one year after his arrival at Elkins, West Virginia,
the deceased filed a complaint for a divorce with the Circuit Court of Randolph
County, West Virginia, alleging, among other things, that he was a citizen of the
United States of America, and of the State of West Virginia, and had been for more
than one year prior to the date of the institution of the suit, an actual bona
fide citizen and resident of Randolph County, West Virginia; that Annie cousins Hix
was a resident of the City of Peking, China; that on December 1, 1921, his wife had
abandoned and deserted him, taking up a separate residence and declining to live
or have anything to do with him; that he, Hix, freely, voluntarily, and adequately
supported his wife and child, paying her the sum of $175 per month; that he
intended to reside permanently in the United States, and that it was with such
intention that he had returned to West Virginia; that he and his wife had been living
apart for three years, and that she had rejected his offer of reconciliation. As the
appellant was not a resident of the State of West Virginia, she was summoned upon
the complaint for divorce by publication, and not having entered an appearance in
the case, either personally or by counsel within the term fixed, the Circuit Court of
Randolph County, West Virginia, rendered judgment against her in 1925 declaring
her marriage with the plaintiff dissolved. Having procured the divorce, E. Randolph
Hix returned to Manila in 1927, where he continued to live and engaged in business
up to the time of his death in the year 1929.
The first question to decide in this appeal, raised by the first two assignments of
error is, whether the Circuit Court of Randolph County in West Virginia acquired
jurisdiction to take cognizance of the complaint for divorce filed by E .Randolph Hix

and to render a valid and binding judgment against the petitioner and appellant,
Annie Cousins Hix.
The pertinent part of section 306 of the Code of Civil Procedure provides as follows:
SEC. 306. Effect of Judgment. The effect of a judgment or final order in an action
or special proceeding before a court or judge of the Philippine Islands or of the
United States, or of any State or Territory of the United States, having jurisdiction to
pronounce the judgment or order, may be as follows:
1. In case of a judgment or order against a specific thing, or in respect to the
probate of a will, or the administration of the estate of a deceased person, or in
respect to the personal, political, or legal condition or relation of a particular person,
the judgment or order in conclusive upon the title of the thing, the will or
administration, or the condition or relation of the person: . . . .
Section 334, No. 15, of said Code states:
SEC. 334. Disputable Presumptions. The following presumptions are satisfactory,
if uncontradicted, but they are disputable, and may be contradicted by other
evidence:
xxx

xxx

xxx

15. That a court, or judge acting as such, whether in the Philippine Islands or
elsewhere, was acting in the lawful exercise of his jurisdiction.
These provisions show that in order that a judgment of a court or judge of any state
of the American Union with respect to the personal or legal condition of a particular
person may be conclusive and constitute res judicata, it is essential that the court
have jurisdiction, and such jurisdiction is presumed in the absence of evidence to
the contrary.
Section 312 of the Code of Civil Procedure provides:
SEC. 312. How Judicial Record May be Impeached. Any judicial record may be
impeached by evidence of a want of jurisdiction in the court or judicial officer, of
collusion between the parties, or of fraud in the party offering the record, in respect
to the proceedings.
One of the conditions for the validity of a decree of absolute divorce is that the
court granting it has acquired jurisdiction over the subject matter, and to this end
the plaintiff must be domiciled in good faith, and for the length of time fixed by the
law, in the state in which it was granted. E. Randolph Hix was domiciled in the City
of Manila where he lived apart from his wife and child, by mutual consent, and here
he had his business. He removed to the State of West Virginia leaving his aforesaid
wife and child and his business behind, for the purpose of obtaining an absolute
divorce, which he did in 1925, returning in the year 1927 to reside in the City of
Manila, and continuing his business.
Although the opponent and appellee attempted to show that E. Randolph Hix went
to West Virginia with the intention of residing there permanently, as allege in the

complaint for divorce, such an intention was contradicted by the fact that before
leaving the City of Manila, he did not liquidate his business but placed it under the
management of said opponent, and once having obtained his divorce, he returned
to the City of Manila to take up his residence and to continue his aforesaid business,
and that his purpose in going to West Virginia was to obtain a divorce.
In Gorayeb vs. Hashim (50 Phil., 22) this court laid down the following doctrine:
3. ID.; ID.; ID.; ID.; NULLITY OF DIVORCE. Doctrine of Ramirez vs. Gmur (42 Phil.,
855) followed, to the effect that the court of a country in which neither of the
spouses is domiciled and to which one or both of them may resort merely for the
purpose of obtaining a divorce has not jurisdiction to determine their matrimonial
status, and the divorce granted by such a court is not entitled to recognition here.
4. ID.; ID.; ID.; ID.; ID.; PHILIPPINE RESIDENTS WHO HAVE BEEN MARRIED ABROAD.
the foregoing rule is applicable to married people who are domiciled in the
Philippine Islands although they may have contracted marriage elsewhere.
This ruling has not been weakened in the present case by the fact that E. Randolph
Hix was a citizen of the United States and of the State of West Virginia, since it is
not the citizenship of the plaintiff for divorce which confers jurisdiction upon a court,
but his legal residence within the State where he applies for a divorce. That E.
Randolph Hix himself believed he had relinquished his former legal residence in
West Virginia, of which he was a citizen, upon establishing his marriage domicile in
the City of Manila, Philippine Islands, is shown by the fact that he had to reestablish
his residence in said State for the length of time fixed by the law in order to be able
to file his complaint for a divorce.
Since E. Randolph Hix was not a bona fide resident of the State of West Virginia, the
divorce decree he obtained from the Circuit Court of Randolph County, is null and
void, said court having failed to acquire jurisdiction over the subject matter.
But even if his residence had been taken up in good faith, and the court had
acquired jurisdiction to take cognizance of the divorce suit, the decree issued in his
favor is not binding upon the appellant; for the matrimonial domicile of the spouses
being the City of Manila, and no new domicile having been acquired in West Virginia,
the summons made by publication, she not having entered an appearance in the
case, either personally or by counsel, did not confer jurisdiction upon said court
over her person.
In Haddock vs. Haddock (201 U. S., 562), the United States Supreme Court laid
down the following doctrine:
The husband and wife being domiciled in New York, the husband left the wife,
acquired, in good faith, after a lapse of years, a domicile in Connecticut, and
obtained in that State, and in accordance with its laws, a judgment of divorce based
on constructive, and not actual, service of process, on the wife, who meanwhile
remained domiciled in New York and never appeared in the action. The wife
subsequently sued for divorce in New York and obtained personal service in that
State on the husband who pleaded the Connecticut judgment. Held,

Without questioning the power of the State of Connecticut to enforce the decree
within its own borders, and without intimating any doubt that the State of New York
might give it such a degree of efficacy that it might be entitled to in view of the
public policy of the State, that the Connecticut decree, rendered as it was without
being based on personal service of the process on, and therefore without personal
jurisdiction of the court over, the wife, was not entitled to obligatory enforcement in
the State of New York by virtue of the full faith and credit clause of the Federal
Constitution.
A suit for divorce brought in a State other than that of domicile or matrimony
against a wife who is still domiciled therein is not a proceeding in rem justifying the
court to enter a decree as to the res; or marriage relation entitled to be enforced
outside of the territorial jurisdiction of the court.
Without deciding whether or not clause IV of the Constitution of the United States,
with reference to the full faith and credit to be given to judgments of the courts of
the States of the American Union is applicable to the Philippine Islands, we may say
that the ruling has the same force and scope as that of international comity, which
must in any case be taken into account in considering the recognition to be given in
the Philippine Islands to judgments of foreign courts. (Section 311, Act No. 190.)
The divorce decree issued by the Circuit Court of Randolph County, West Virginia,
may also be impeached by evidence of fraud, according to section 312 of the Code
of Civil Procedure, quoted above.
E. Randolph Hix alleged in his complaint for a divorce filed with the aforementioned
court, that on December 1, 1921 his wife had abandoned and deserted him, living
separately and declining to live or have anything to do with him; that she was a
resident of the City of Peking, China; and that he freely and voluntarily provided
adequately for her and their son, paying her $175 per month. These allegations,
being false, tended to deceive and did in fact deceive the aforesaid Circuit Court of
Randolph County in West Virginia into granting the decree of divorce applied for,
because, had he alleged in his complaint that his wife lived apart from him by
mutual consent, as was a fact, said court would not have granted the divorce, since
in the case of Bacon vs. Bacon (68 W. Va., 747; 70 S. E., 762), the Supreme Court of
West Virginia laid down the doctrine that separation by mutual consent does not
constitute desertion or abandonment before the law. (See also Corpus Juris, vol. 19,
page 64.)
For the foregoing considerations, we are of opinion and so hold: (1) That the
residence acquired in a state of the American Union by a husband, who, for the
purpose of obtaining a divorce, abandons the country wherein are his matrimonial
domicile and his wife, who is living apart from him by mutual consent, and then
returns to said matrimonial domicile after obtaining a divorce, continues residing,
therein and engaging in business, is not bona fide residence, and does not confer
jurisdiction upon the court even if he alleges in the complaint for divorce that he
intends to reside permanently in said state; (2) that the summons by publication in
a complaint for divorce, filed in a state by the husband who has gone to said state,
abandoning his matrimonial domicile where his wife continues to reside, does not

confer jurisdiction upon the court over the person of said wife when she has not
entered an appearance in the case, and the decree issued by said court dissolving
the marriage is not binding upon her; and (3) that a decree of divorce issued by a
court of any state or territory of the American Union, or of a foreign country, may be
impeached in another case for lack of jurisdiction in said court over the subject
matter, or over the person of the defendant, or for fraud in obtaining it on the part
of the person procuring it.
Wherefore, the judgment appealed from is reversed, and it is held that the decree of
divorce issued by the Circuit Court of Randolph County, West Virginia, is null and
void in this jurisdiction, with costs against the appellee. So ordered.
Avancea,
C.J.,
Street,
Villamor
and
Malcolm and Ostrand, JJ., concur in the result.
Republic
SUPREME
Manila

of

Romualdez,
the

JJ.,

concur.
Philippines
COURT

EN BANC
G.R. No. L-32636

March 17, 1930

In
the
matter
Estate
of
Edward
A.W.
vs.
ANNIE COUSHING HIX, oppositor-appellee.

Randolph
Hix,
deceased.
FLUEMER, petitioner-appellant,

C.A.
Sobral
for
Harvey & O' Brien and Gibbs & McDonough for appellee.

appellant.

MALCOLM, J.:
The special administrator of the estate of Edward Randolph Hix appeals from a
decision of Judge of First Instance Tuason denying the probate of the document
alleged to by the last will and testament of the deceased. Appellee is not authorized
to carry on this appeal. We think, however, that the appellant, who appears to have
been the moving party in these proceedings, was a "person interested in the
allowance or disallowance of a will by a Court of First Instance," and so should be
permitted to appeal to the Supreme Court from the disallowance of the will (Code of
Civil Procedure, sec. 781, as amended; Villanueva vs. De Leon [1925], 42 Phil., 780).
It is theory of the petitioner that the alleged will was executed in Elkins, West
Virginia, on November 3, 1925, by Hix who had his residence in that jurisdiction, and
that the laws of West Verginia Code, Annotated, by Hogg, Charles E., vol. 2, 1914, p.
1690, and as certified to by the Director of the National Library. But this was far
from a compliance with the law. The laws of a foreign jurisdiction do not prove
themselves in our courts. the courts of the Philippine Islands are not authorized to
take American Union. Such laws must be proved as facts. (In re Estate of Johnson
[1918], 39 Phil., 156.) Here the requirements of the law were not met. There was no
was printed or published under the authority of the State of West Virginia, as

provided in section 300 of the Code of Civil Procedure. Nor was the extract from the
law attested by the certificate of the officer having charge of the original, under the
sale of the State of West Virginia, as provided in section 301 of the Code of Civil
Procedure. No evidence was introduced to show that the extract from the laws of
West Virginia was in force at the time the alleged will was executed.
In addition, the due execution of the will was not established. The only evidence on
this point is to be found in the testimony of the petitioner. Aside from this, there was
nothing to indicate that the will was acknowledged by the testator in the presence
of two competent witnesses, of that these witnesses subscribed the will in the
presence of the testator and of each other as the law of West Virginia seems to
require. On the supposition that the witnesses to the will reside without the
Philippine Islands, it would then the duty of the petitioner to prove execution by
some other means (Code of Civil Procedure, sec. 633.)
It was also necessary for the petitioner to prove that the testator had his domicile in
West Virginia and not establish this fact consisted of the recitals in the CATHY will
and the testimony of the petitioner. Also in beginning administration proceedings
orginally in the Philippine Islands, the petitioner violated his own theory by
attempting to have the principal administration in the Philippine Islands.
While the appeal pending submission in this court, the attorney for the appellant
presented an unverified petition asking the court to accept as part of the evidence
the documents attached to the petition. One of these documents discloses that a
paper writing purporting to be the was presented for probate on June 8, 1929, to the
clerk of Randolph Country, State of West Virginia, in vacation, and was duly proven
by the oaths of Dana Wamsley and Joseph L. MAdden, the subscribing witnesses
thereto , and ordered to be recorded and filed. It was shown by another document
that, in vacation, on June 8, 1929, the clerk of court of Randolph Country, West
Virginia, appointed Claude W. Maxwell as administrator, cum testamento annexo, of
the estate of Edward Randolph Hix, deceased. In this connection, it is to be noted
that the application for the probate of the will in the Philippines was filed on
February 20, 1929, while the proceedings in West Virginia appear to have been
initiated on June 8, 1929. These facts are strongly indicative of an intention to make
the Philippines the principal administration and West Virginia the ancillary
administration. However this may be, no attempt has been made to comply with
Civil Procedure, for no hearing on the question of the allowance of a will said to
have been proved and allowed in West Virginia has been requested. There is no
showing that the deceased left any property at any place other than the Philippine
Islands and no contention that he left any in West Virginia.
Reference has been made by the parties to a divorce purported to have been
awarded Edward Randolph Hix from Annie Cousins Hix on October 8, 1925, in the
State of West specific pronouncements on the validity or validity of this alleged
divorce.
For all of the foregoing, the judgment appealed from will be affirmed, with the costs
of this instance against the appellant.
FIRST DIVISION

ALONZO Q. ANCHETA, G.R. No. 139868

Petitioner,
Present:

PANGANIBAN, C.J. (Chairperson)

- versus - *YNARES-SANTIAGO,
AUSTRIA-MARTINEZ,
CALLEJO, SR., and
CHICO-NAZARIO, JJ.
CANDELARIA GUERSEYDALAYGON, Promulgated:
Respondent. June 8, 2006
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

AUSTRIA-MARTINEZ, J.:

Spouses Audrey ONeill (Audrey) and W. Richard Guersey (Richard) were American
citizens who have resided in the Philippines for 30 years. They have an adopted
daughter, Kyle Guersey Hill (Kyle). On July 29, 1979, Audrey died, leaving a will. In it,
she bequeathed her entire estate to Richard, who was also designated as executor.
[1]
The will was admitted to probate before the Orphans Court of
Baltimore, Maryland, U.S.A, which named James N. Phillips as executor due to
Richards renunciation of his appointment. [2]The court also named Atty. Alonzo
Q. Ancheta (petitioner) of the Quasha Asperilla Ancheta Pena & Nolasco Law Offices
as ancillary administrator.[3]

In 1981, Richard married Candelaria Guersey-Dalaygon (respondent) with whom he

has two children, namely, Kimberly and Kevin.

On October 12, 1982, Audreys will was also admitted to probate by the then Court
of First Instance of Rizal, Branch 25, Seventh Judicial District, Pasig, in Special
Proceeding No. 9625.[4] As administrator of Audreys estate in the Philippines,
petitioner filed an inventory and appraisal of the following properties: (1) Audreys
conjugal share in real estate with improvements located at 28 Pili Avenue, Forbes
Park, Makati, Metro Manila, valued at P764,865.00 (Makati property); (2) a current
account in Audreys name with a cash balance of P12,417.97; and (3) 64,444 shares
of stock in A/G Interiors, Inc. worth P64,444.00.[5]

On July 20, 1984, Richard died, leaving a will, wherein he bequeathed his entire
estate to respondent, save for his rights and interests over the A/G Interiors, Inc.
shares, which he left to Kyle. [6] The will was also admitted to probate by the
Orphans Court of Ann Arundel, Maryland, U.S.A, and James N. Phillips was likewise
appointed as executor, who in turn, designated Atty. William Quasha or any member
of the Quasha Asperilla Ancheta Pena & Nolasco Law Offices, as ancillary
administrator.

Richards will was then submitted for probate before the Regional Trial Court of
Makati, Branch 138, docketed as Special Proceeding No. M-888. [7] Atty. Quasha was
appointed as ancillary administrator on July 24, 1986.[8]

On October 19, 1987, petitioner filed in Special Proceeding No. 9625, a motion to
declare Richard and Kyle as heirs of Audrey. [9] Petitioner also filed on October 23,
1987, a project of partition of Audreys estate, with Richard being apportioned the
undivided interest in the Makati property, 48.333 shares in A/G Interiors, Inc.,
and P9,313.48 from the Citibank current account; and Kyle, the undivided interest in
the Makati property, 16,111 shares in A/G Interiors, Inc., and P3,104.49 in cash.[10]

The motion and project of partition was granted and approved by the trial court in
its Order dated February 12, 1988.[11] The trial court also issued an Order on April 7,
1988, directing the Register of Deeds of Makati to cancel TCT No. 69792 in the name
of Richard and to issue a new title in the joint names of the Estate of W. Richard
Guersey ( undivided interest) and Kyle ( undivided interest); directing the Secretary
of A/G Interiors, Inc. to transfer 48.333 shares to the Estate of W.
Richard Guersey and 16.111 shares to Kyle; and directing the Citibank to release the
amount of P12,417.97 to the ancillary administrator for distribution to the heirs. [12]

Consequently, the Register of Deeds of Makati issued on June 23, 1988, TCT No.
155823 in the names of the Estate of W. Richard Guersey and Kyle. [13]

Meanwhile, the ancillary administrator in Special Proceeding No. M-888 also filed a
project of partition wherein 2/5 of Richards undivided interest in the Makati property
was allocated to respondent, while 3/5 thereof were allocated to Richards three
children. This was opposed by respondent on the ground that under the law of the
State ofMaryland, a legacy passes to the legatee the entire interest of the
testator in the property subject of the legacy.[14] Since Richard left his entire
estate to respondent, except for his rights and interests over the A/G Interiors, Inc,
shares, then his entire undivided interest in the Makati property should be given to
respondent.

The trial court found merit in respondents opposition, and in its Order
dated December 6, 1991, disapproved the project of partition insofar as it affects
the Makati property.The trial court also adjudicated Richards entire undivided
interest in the Makati property to respondent.[15]

On October 20, 1993, respondent filed with the Court of Appeals (CA) an amended
complaint for the annulment of the trial courts Orders dated February 12,
1988 andApril 7, 1988, issued in Special Proceeding No. 9625. [16] Respondent
contended that petitioner willfully breached his fiduciary duty when he disregarded
the laws of the State ofMaryland on the distribution of Audreys estate in accordance
with her will. Respondent argued that since Audrey devised her entire estate to
Richard, then the Makati property should be wholly adjudicated to him, and not
merely thereof, and since Richard left his entire estate, except for his rights and
interests over the A/G Interiors, Inc., to respondent, then the entire Makati property
should now pertain to respondent.

Petitioner filed his Answer denying respondents allegations. Petitioner contended

that he acted in good faith in submitting the project of partition before the trial
court in Special Proceeding No. 9625, as he had no knowledge of the State
of Marylands laws on testate and intestate succession. Petitioner alleged that he
believed that it is to the best interests of the surviving children that Philippine law
be applied as they would receive their just shares. Petitioner also alleged that the
orders sought to be annulled are already final and executory, and cannot be set
aside.

On March 18, 1999, the CA rendered the assailed Decision annulling the trial courts
Orders dated February 12, 1988 and April 7, 1988, in Special Proceeding No. 9625.
[17]
The dispositive portion of the assailed Decision provides:

WHEREFORE, the assailed Orders of February 12, 1998 and April 7, 1988 are
hereby ANNULLED and, in lieu thereof, a new one is entered ordering:

(a) The adjudication of the entire estate of Audrey ONeill Guersey in favor of the
estate of W. Richard Guersey; and

(b) The cancellation of Transfer Certificate of Title No. 15583 of the Makati City
Registry and the issuance of a new title in the name of the estate of W. Richard
Guersey.

SO ORDERED.[18]

Petitioner filed a motion for reconsideration, but this was denied by the CA per
Resolution dated August 27, 1999.[19]

Hence, the herein petition for review on certiorari under Rule 45 of the Rules of
Court alleging that the CA gravely erred in not holding that:

A) THE ORDERS OF 12 FEBRUARY 1988 AND 07 APRIL 1988 IN SPECIAL

PROCEEDINGS NO. 9625 IN THE MATTER OF THE PETITION FOR PROBATE OF THE
WILL OF THE DECEASED AUDREY GUERSEY, ALONZO Q. ANCHETA, ANCILLARY
ADMINISTRATOR, ARE VALID AND BINDING AND HAVE LONG BECOME FINAL AND
HAVE BEEN FULLY IMPLEMENTED AND EXECUTED AND CAN NO LONGER BE
ANNULLED.

B) THE ANCILLARY ADMINISTRATOR HAVING ACTED IN GOOD FAITH, DID NOT

COMMIT FRAUD, EITHER EXTRINSIC OR INTRINSIC, IN THE PERFORMANCE OF HIS
DUTIES AS ANCILLARY ADMINISTRATOR OF AUDREY ONEIL GUERSEYS ESTATE IN THE
PHILIPPINES, AND THAT NO FRAUD, EITHER EXTRINSIC OR INTRINSIC, WAS
EMPLOYED BY [HIM] IN PROCURING SAID ORDERS.[20]

Petitioner reiterates his arguments before the CA that the Orders dated February 12,
1988 and April 7, 1988 can no longer be annulled because it is a final judgment,
which is conclusive upon the administration as to all matters involved in such
judgment or order, and will determine for all time and in all courts, as far as the
parties to the proceedings are concerned, all matters therein determined, and the
same has already been executed.[21]

Petitioner also contends that that he acted in good faith in performing his duties as
an ancillary administrator. He maintains that at the time of the filing of the project
of partition, he was not aware of the relevant laws of the State of Maryland, such
that the partition was made in accordance with Philippine laws. Petitioner also
imputes knowledge on the part of respondent with regard to the terms of Aubreys
will, stating that as early as 1984, he already apprised respondent of the contents of
the will and how the estate will be divided. [22]

Respondent argues that petitioners breach of his fiduciary duty as ancillary

administrator of Aubreys estate amounted to extrinsic fraud. According to
respondent, petitioner was duty-bound to follow the express terms of Aubreys will,
and his denial of knowledge of the laws of Maryland cannot stand because
petitioner is a senior partner in a prestigious law firm and it was his duty to know
the relevant laws.

Respondent also states that she was not able to file any opposition to the project of
partition because she was not a party thereto and she learned of the provision of
Aubreys will bequeathing entirely her estate to Richard only after Atty. Ancheta filed
a project of partition in Special Proceeding No. M-888 for the settlement of Richards
estate.

A decree of distribution of the estate of a deceased person vests the title to the land
of the estate in the distributees, which, if erroneous may be corrected by a timely
appeal.Once it becomes final, its binding effect is like any other judgment in rem.
[23]
However, in exceptional cases, a final decree of distribution of the estate may be
set aside for lack of jurisdiction or fraud. [24] Further, in Ramon v. Ortuzar,[25] the
Court ruled that a party interested in a probate proceeding may have a final
liquidation set aside when he is left out by reason of circumstances beyond his
control or through mistake or inadvertence not imputable to negligence. [26]

The petition for annulment was filed before the CA on October 20, 1993, before the
issuance of the 1997 Rules of Civil Procedure; hence, the applicable law
is BatasPambansa Blg. 129 (B.P. 129) or the Judiciary Reorganization Act of 1980. An
annulment of judgment filed under B.P. 129 may be based on the ground that a

judgment is void for want of jurisdiction or that the judgment was obtained by
extrinsic fraud.[27] For fraud to become a basis for annulment of judgment, it has to
be extrinsic or actual,[28] and must be brought within four years from the discovery
of the fraud.[29]

In the present case, respondent alleged extrinsic fraud as basis for the annulment of
the RTC Orders dated February 12, 1988 and April 7, 1988. The CA found merit in
respondents cause and found that petitioners failure to follow the terms of Audreys
will, despite the latters declaration of good faith, amounted to extrinsic fraud. The
CA ruled that under Article 16 of the Civil Code, it is the national law of the
decedent that is applicable, hence, petitioner should have distributed Aubreys
estate in accordance with the terms of her will. The CA also found that petitioner
was prompted to distribute Audreys estate in accordance with Philippine laws in
order to equally benefit Audrey and Richard Guerseys adopted daughter, Kyle
Guersey Hill.

Petitioner contends that respondents cause of action had already prescribed

because as early as 1984, respondent was already well aware of the terms of
Audreys will,[30]and the complaint was filed only in 1993. Respondent, on the other
hand, justified her lack of immediate action by saying that she had no opportunity
to question petitioners acts since she was not a party to Special Proceeding No.
9625, and it was only after Atty. Ancheta filed the project of partition in Special
Proceeding No. M-888, reducing her inheritance in the estate of Richard that she
was prompted to seek another counsel to protect her interest. [31]

It should be pointed out that the prescriptive period for annulment of judgment
based on extrinsic fraud commences to run from the discovery of the fraud or
fraudulent act/s. Respondents knowledge of the terms of Audreys will is
immaterial in this case since it is not the fraud complained of. Rather, it is
petitioners failure to introduce in evidence the pertinent law of the State
of Maryland that is the fraudulent act, or in this case, omission, alleged to have
been committed against respondent, and therefore, the four-year period should be
counted from the time of respondents discovery thereof.

Records bear the fact that the filing of the project of partition of Richards estate, the
opposition thereto, and the order of the trial court disallowing the project of
partition in Special Proceeding No. M-888 were all done in 1991. [32] Respondent
cannot be faulted for letting the assailed orders to lapse into finality since it was
only through Special Proceeding No. M-888 that she came to comprehend the
ramifications of petitioners acts. Obviously, respondent had no other recourse under
the circumstances but to file the annulment case. Since the action for annulment
was filed in 1993, clearly, the same has not yet prescribed.

Fraud takes on different shapes and faces. In Cosmic Lumber Corporation v. Court of
Appeals,[33] the Court stated that man in his ingenuity and fertile imagination will
always contrive new schemes to fool the unwary.

There is extrinsic fraud within the meaning of Sec. 9 par. (2), of B.P. Blg. 129, where
it is one the effect of which prevents a party from hearing a trial, or real contest, or
from presenting all of his case to the court, or where it operates upon matters, not
pertaining to the judgment itself, but to the manner in which it was procured so that
there is not a fair submission of the controversy. In other words, extrinsic fraud
refers to any fraudulent act of the prevailing party in the litigation which is
committed outside of the trial of the case, whereby the defeated party has been
prevented from exhibiting fully his side of the case by fraud or deception practiced
on him by his opponent. Fraud is extrinsic where the unsuccessful party has been
prevented from exhibiting fully his case, by fraud or deception practiced on him by
his opponent, as by keeping him away from court, a false promise of a compromise;
or where the defendant never had any knowledge of the suit, being kept in
ignorance by the acts of the plaintiff; or where an attorney fraudulently or without
authority connives at his defeat; these and similar cases which show that there has
never been a real contest in the trial or hearing of the case are reasons for which a
new suit may be sustained to set aside and annul the former judgment and open
the case for a new and fair hearing.[34]

The overriding consideration when extrinsic fraud is alleged is that the fraudulent
scheme of the prevailing litigant prevented a party from having his day in court. [35]

Petitioner is the ancillary administrator of Audreys estate. As such, he occupies a

position of the highest trust and confidence, and he is required to exercise
reasonable diligence and act in entire good faith in the performance of that trust.
Although he is not a guarantor or insurer of the safety of the estate nor is he
expected to be infallible, yet the same degree of prudence, care and judgment
which a person of a fair average capacity and ability exercises in similar
transactions of his own, serves as the standard by which his conduct is to be
judged.[36]

Petitioners failure to proficiently manage the distribution of Audreys estate

according to the terms of her will and as dictated by the applicable law amounted to
extrinsic fraud. Hence the CA Decision annulling the RTC Orders dated February 12,
1988 and April 7, 1988, must be upheld.

It is undisputed that Audrey Guersey was an American citizen domiciled

in Maryland, U.S.A. During the reprobate of her will in Special Proceeding No. 9625,
it was shown, among others, that at the time of Audreys death, she was residing in
the Philippines but is domiciled in Maryland, U.S.A.; her Last Will and Testament
dated August 18, 1972 was executed and probated before the Orphans Court in
Baltimore, Maryland, U.S.A., which was duly authenticated and certified by the
Register of Wills of Baltimore City and attested by the Chief Judge of said court; the
will was admitted by the Orphans Court of Baltimore City on September 7, 1979;
and the will was authenticated by the Secretary of State of Maryland and the Vice
Consul of the Philippine Embassy.

Being a foreign national, the intrinsic validity of Audreys will, especially with regard
as to who are her heirs, is governed by her national law, i.e., the law of the State of
Maryland, as provided in Article 16 of the Civil Code, to wit:

Art. 16. Real property as well as personal property is subject to the law of the
country where it is situated.

However, intestate and testamentary succession, both with respect to the order of
succession and to the amount of successional rights and to the intrinsic
validity of testamentary provisions, shall be regulated by the national law
of the person whose succession is under consideration, whatever may be
the nature of the property and regardless of the country wherein said
property may be found. (Emphasis supplied)

Article 1039 of the Civil Code further provides that capacity to succeed is governed
by the law of the nation of the decedent.

As a corollary rule, Section 4, Rule 77 of the Rules of Court on Allowance of Will

Proved Outside the Philippines and Administration of Estate Thereunder, states:

SEC. 4. Estate, how administered.When a will is thus allowed, the court shall grant
letters testamentary, or letters of administration with the will annexed, and such
letters testamentary or of administration, shall extend to all the estate of the
testator in the Philippines. Such estate, after the payment of just debts and
expenses of administration, shall be disposed of according to such will, so
far as such will may operate upon it; and the residue, if any, shall be disposed
of as is provided by law in cases of estates in the Philippines belonging to persons
who are inhabitants of another state or country. (Emphasis supplied)

While foreign laws do not prove themselves in our jurisdiction and our courts are not
authorized to take judicial notice of them; [37] however, petitioner, as ancillary
administrator of Audreys estate, was duty-bound to introduce in evidence the
pertinent law of the State of Maryland.[38]

Petitioner admitted that he failed to introduce in evidence the law of the State
of Maryland on Estates and Trusts, and merely relied on the presumption that such
law is the same as the Philippine law on wills and succession. Thus, the trial court
peremptorily applied Philippine laws and totally disregarded the terms of Audreys
will. The obvious result was that there was no fair submission of the case before the
trial court or a judicious appreciation of the evidence presented.

Petitioner insists that his application of Philippine laws was made in good faith. The
Court cannot accept petitioners protestation. How can petitioner honestly presume
that Philippine laws apply when as early as the reprobate of Audreys will before the
trial court in 1982, it was already brought to fore that Audrey was a U.S. citizen,
domiciled in the State of Maryland. As asserted by respondent, petitioner is a senior
partner in a prestigious law firm, with a big legal staff and a large library. [39] He had
all the legal resources to determine the applicable law. It was incumbent upon him
to exercise his functions as ancillary administrator with reasonable diligence, and to
discharge the trust reposed on him faithfully. Unfortunately, petitioner failed to
perform his fiduciary duties.

Moreover, whether his omission was intentional or not, the fact remains that the
trial court failed to consider said law when it issued the assailed RTC Orders
datedFebruary 12, 1988 and April 7, 1988, declaring Richard and Kyle as Audreys
heirs, and distributing Audreys estate according to the project of partition submitted
by petitioner.This eventually prejudiced respondent and deprived her of her
full successional right to the Makati property.

In GSIS v. Bengson Commercial Bldgs., Inc.,[40] the Court held that when the rule
that the negligence or mistake of counsel binds the client deserts its proper office
as an aid to justice and becomes a great hindrance and chief enemy, its rigors must
be relaxed to admit exceptions thereto and to prevent a miscarriage of justice, and
the court has the power to except a particular case from the operation of the rule
whenever the purposes of justice require it.

The CA aptly noted that petitioner was remiss in his responsibilities as ancillary
administrator of Audreys estate. The CA likewise observed that the distribution
made by petitioner was prompted by his concern over Kyle, whom petitioner

believed should equally benefit from the Makati property. The CA correctly stated,
which the Court adopts, thus:

In claiming good faith in the performance of his duties and responsibilities,

defendant Alonzo H. Ancheta invokes the principle which presumes the law of the
forum to be the same as the foreign law (Beam vs. Yatco, 82 Phil. 30, 38) in the
absence of evidence adduced to prove the latter law (Slade Perkins vs. Perkins, 57
Phil. 205, 210). In defending his actions in the light of the foregoing principle,
however, it appears that the defendant lost sight of the fact that his primary
responsibility as ancillary administrator was to distribute the subject estate in
accordance with the will of Audrey ONeill Guersey. Considering the principle
established under Article 16 of the Civil Code of the Philippines, as well as the
citizenship and the avowed domicile of the decedent, it goes without saying that the
defendant was also duty-bound to prove the pertinent laws of Maryland on the
matter.
The record reveals, however, that no clear effort was made to prove the national
law of Audrey ONeill Guersey during the proceedings before the court a quo. While
there is claim of good faith in distributing the subject estate in accordance with the
Philippine laws, the defendant appears to put his actuations in a different light as
indicated in a portion of his direct examination, to wit:

xxx

It would seem, therefore, that the eventual distribution of the estate of Audrey
ONeill Guersey was prompted by defendant Alonzo H. Anchetas concern that the
subject realty equally benefit the plaintiffs adopted daughter Kyle Guersey.

Well-intentioned though it may be, defendant Alonzo H. Anchetas action appears to

have breached his duties and responsibilities as ancillary administrator of the
subject estate. While such breach of duty admittedly cannot be considered
extrinsic fraud under ordinary circumstances, the fiduciary nature of the
said defendants position, as well as the resultant frustration of the
decedents last will, combine to create a circumstance that is tantamount
to extrinsic fraud. Defendant Alonzo H. Anchetas omission to prove the national
laws of the decedent and to follow the latters last will, in sum, resulted in the
procurement of the subject orders without a fair submission of the real issues
involved in the case.[41] (Emphasis supplied)

This is not a simple case of error of judgment or grave abuse of discretion, but a
total disregard of the law as a result of petitioners abject failure to discharge his
fiduciary duties. It does not rest upon petitioners pleasure as to which law should be

made applicable under the circumstances. His onus is clear. Respondent was thus
excluded from enjoying full rights to the Makati property through no fault or
negligence of her own, as petitioners omission was beyond her control. She was in
no position to analyze the legal implications of petitioners omission and it was
belatedly that she realized the adverse consequence of the same. The end result
was a miscarriage of justice. In cases like this, the courts have the legal and moral
duty to provide judicial aid to parties who are deprived of their rights. [42]

The trial court in its Order dated December 6, 1991 in Special Proceeding No. M-888
noted the law of the State of Maryland on Estates and Trusts, as follows:

Under Section 1-301, Title 3, Sub-Title 3 of the Annotated Code of the Public General
Laws of Maryland on Estates and Trusts, all property of a decedent shall be subject
to the estate of decedents law, and upon his death shall pass directly to the
personal representative, who shall hold the legal title for administration and
distribution, while Section 4-408 expressly provides that unless a contrary intent is
expressly indicated in the will, a legacy passes to the legatee the entire interest of
the testator in the property which is the subject of the legacy. Section 7-101, Title 7,
Sub-Title 1, on the other hand, declares that a personal representative is a fiduciary
and as such he is under the general duty to settle and distribute the estate of the
decedent in accordance with the terms of the will and the estate of decedents law
as expeditiously and with as little sacrifice of value as is reasonable under the
circumstances.[43]

In her will, Audrey devised to Richard her entire estate, consisting of the
following: (1) Audreys conjugal share in the Makati property; (2) the cash amount
of P12,417.97; and (3) 64,444 shares of stock in A/G Interiors, Inc.
worth P64,444.00. All these properties passed on to Richard upon Audreys
death. Meanwhile, Richard, in his will, bequeathed his entire estate to respondent,
except for his rights and interests over the A/G Interiors, Inc. shares, which he left to
Kyle. When Richard subsequently died, the entireMakati property should have then
passed on to respondent. This, of course, assumes the proposition that the law of
the State of Maryland which allows a legacy to pass to the legatee the entire estate
of the testator in the property which is the subject of the legacy, was sufficiently
proven in Special Proceeding No. 9625. Nevertheless, the Court may take judicial
notice thereof in view of the ruling in Bohanan v. Bohanan.[44] Therein, the Court
took judicial notice of the law of Nevada despite failure to prove the same. The
Court held, viz.:

We have, however, consulted the records of the case in the court below and we
have found that during the hearing on October 4, 1954 of the motion of Magdalena
C. Bohanan for withdrawal of P20,000 as her share, the foreign law, especially

Section 9905, Compiled Nevada Laws, was introduced in evidence by appellants'

(herein) counsel as Exhibit "2" (See pp. 77-79, Vol. II, and t.s.n. pp. 24-44, Records,
Court of First Instance). Again said law was presented by the counsel for the
executor and admitted by the Court as Exhibit "B" during the hearing of the case on
January 23, 1950 before Judge Rafael Amparo (see Records, Court of First Instance,
Vol. 1).

In addition, the other appellants, children of the testator, do not dispute the abovequoted provision of the laws of the State of Nevada. Under all the above
circumstances, we are constrained to hold that the pertinent law of Nevada,
especially Section 9905 of the Compiled Nevada Laws of 1925, can be taken judicial
notice of by us, without proof of such law having been offered at the hearing of the
project of partition.

In this case, given that the pertinent law of the State of Maryland has been brought
to record before the CA, and the trial court in Special Proceeding No. M-888
appropriately took note of the same in disapproving the proposed project of
partition of Richards estate, not to mention that petitioner or any other interested
person for that matter, does not dispute the existence or validity of said law, then
Audreys and Richards estate should be distributed according to their respective
wills, and not according to the project of partition submitted by
petitioner. Consequently, the entire Makati property belongs to respondent.

Decades ago, Justice Moreland, in his dissenting opinion in Santos v. Manarang,

[45]
wrote:

A will is the testator speaking after death. Its provisions have substantially the same
force and effect in the probate court as if the testator stood before the court in full
life making the declarations by word of mouth as they appear in the will. That was
the special purpose of the law in the creation of the instrument known as the last
will and testament. Men wished to speak after they were dead and the law, by the
creation of that instrument, permitted them to do so x x x All doubts must be
resolved in favor of the testator's having meant just what he said.

Honorable as it seems, petitioners motive in equitably distributing Audreys estate

cannot prevail over Audreys and Richards wishes. As stated in Bellis v. Bellis:[46]

x x x whatever public policy or good customs may be involved in our system of

legitimes, Congress has not intended to extend the same to the succession of
foreign nationals. For it has specifically chosen to leave, inter alia, the amount of

successional rights, to the decedent's national Law. Specific provisions must prevail
over general ones.[47]

Before concluding, the Court notes the fact that Audrey and Richard Guersey were
American citizens who owned real property in the Philippines, although records do
not show when and how the Guerseys acquired the Makati property.

Under Article XIII, Sections 1 and 4 of the 1935 Constitution, the privilege to acquire
and exploit lands of the public domain, and other natural resources of
the Philippines, and to operate public utilities, were reserved to Filipinos and entities
owned or controlled by them. In Republic v. Quasha,[48] the Court clarified that the
Parity Rights Amendment of 1946, which re-opened to American citizens and
business enterprises the right in the acquisition of lands of the public domain, the
disposition, exploitation, development and utilization of natural resources of the
Philippines, does not include the acquisition or exploitation of private agricultural
lands. The prohibition against acquisition of private lands by aliens was carried on to
the 1973 Constitution under Article XIV, Section 14, with the exception of private
lands acquired by hereditary succession and when the transfer was made to a
former natural-born citizen, as provided in Section 15, Article XIV. As it now stands,
Article XII, Sections 7 and 8 of the 1986 Constitution explicitly prohibits non-Filipinos
from acquiring or holding title to private lands or to lands of the public domain,
except only by way of legal succession or if the acquisition was made by a former
natural-born citizen.

In any case, the Court has also ruled that if land is invalidly transferred to an alien
who subsequently becomes a citizen or transfers it to a citizen, the flaw in the
original transaction is considered cured and the title of the transferee is rendered
valid.[49] In this case, since the Makati property had already passed on to respondent
who is a Filipino, then whatever flaw, if any, that attended the acquisition by
the Guerseys of the Makati property is now inconsequential, as the objective of the
constitutional provision to keep our lands in Filipino hands has been achieved.

WHEREFORE, the petition is denied. The Decision dated March 18, 1999 and the
Resolution dated August 27, 1999 of the Court of Appeals are AFFIRMED.

Petitioner is ADMONISHED to be more circumspect in the performance of his duties

as an official of the court.

No pronouncement as to costs.

SO ORDERED.

MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice