LOURDES L. DOROTHEO, petitioner, vs.

COURT OF
APPEALS, NILDA D. QUINTANA, for Herself and as
Attorney-in-Fact of VICENTE DOROTHEO and JOSE
DOROTHEO, respondents.
DECISION
YNARES-SANTIAGO, J.:
May a last will and testament admitted to probate but declared
intrinsically void in an order that has become final and
executory still be given effect? This is the issue that arose from
the following antecedents:
Private respondents were the legitimate children of Alejandro
Dorotheo and Aniceta Reyes. The latter died in 1969 without
her estate being settled. Alejandro died thereafter. Sometime in
1977, after Alejandros death, petitioner, who claims to have
taken care of Alejandro before he died, filed a special
proceeding for the probate of the latters last will and testament.
In 1981, the court issued an order admitting Alejandros will to
probate. Private respondents did not appeal from said order. In
1983, they filed a Motion To Declare The Will Intrinsically Void.
The trial court granted the motion and issued an order, the
dispositive portion of which reads:
WHEREFORE, in view of the foregoing, Order is hereby issued
declaring Lourdes Legaspi not the wife of the late Alejandro
Dorotheo, the provisions of the last will and testament of
Alejandro Dorotheo as intrinsically void, and declaring the
oppositors Vicente Dorotheo, Jose Dorotheo and Nilda
Dorotheo Quintana as the only heirs of the late spouses
Alejandro Dorotheo and Aniceta Reyes, whose respective
estates shall be liquidated and distributed according to the laws
on intestacy upon payment of estate and other taxes due to the
government.i
Petitioner moved for reconsideration arguing that she is entitled
to some compensation since she took care of Alejandro prior to
his death although she admitted that they were not married to
each other. Upon denial of her motion for reconsideration,
petitioner appealed to the Court of Appeals, but the same was
dismissed for failure to file appellants brief within the extended
period granted.ii This dismissal became final and executory on
February 3, 1989 and a corresponding entry of judgment was
forthwith issued by the Court of Appeals on May 16, 1989. A
writ of execution was issued by the lower court to implement
the final and executory Order. Consequently, private
respondents filed several motions including a motion to compel
petitioner to surrender to them the Transfer Certificates of Titles
(TCT) covering the properties of the late Alejandro. When
petitioner refused to surrender the TCTs, private respondents
filed a motion for cancellation of said titles and for issuance of
new titles in their names. Petitioner opposed the motion.
An Order was issued on November 29, 1990 by Judge Zain B.
Angas setting aside the final and executory Order dated
January 30, 1986, as well as the Order directing the issuance
of the writ of execution, on the ground that the order was
merely interlocutory, hence not final in character. The court
added that the dispositive portion of the said Order even

directs the distribution of the estate of the deceased spouses.

Private respondents filed a motion for reconsideration which
was denied in an Order dated February 1, 1991. Thus, private
respondents filed a petition before the Court of Appeals, which
nullified the two assailed Orders dated November 29, 1990 and
February 1, 1991.
Aggrieved, petitioner instituted a petition for review arguing that
the case filed by private respondents before the Court of
Appeals was a petition under Rule 65 on the ground of grave
abuse of discretion or lack of jurisdiction. Petitioner contends
that in issuing the two assailed orders, Judge Angas cannot be
said to have no jurisdiction because he was particularly
designated to hear the case. Petitioner likewise assails the
Order of the Court of Appeals upholding the validity of the
January 30, 1986 Order which declared the intrinsic invalidity
of Alejandros will that was earlier admitted to probate.
Petitioner also filed a motion to reinstate her as executrix of the
estate of the late Alejandro and to maintain the status quo or
lease of the premises thereon to third parties.iii Private
respondents opposed the motion on the ground that petitioner
has no interest in the estate since she is not the lawful wife of
the late Alejandro.
The petition is without merit. A final and executory decision or
order can no longer be disturbed or reopened no matter how
erroneous it may be. In setting aside the January 30, 1986
Order that has attained finality, the trial court in effect nullified
the entry of judgment made by the Court of Appeals. It is well
settled that a lower court cannot reverse or set aside decisions
or orders of a superior court, for to do so would be to negate
the hierarchy of courts and nullify the essence of review. It has
been ruled that a final judgment on probated will, albeit
erroneous, is binding on the whole world.iv
It has been consistently held that if no appeal is taken in due
time from a judgment or order of the trial court, the same
attains finality by mere lapse of time. Thus, the order allowing
the will became final and the question determined by the court
in such order can no longer be raised anew, either in the same
proceedings or in a different motion. The matters of due
execution of the will and the capacity of the testator acquired
the character of res judicata and cannot again be brought into
question, all juridical questions in connection therewith being
for once and forever closed.v Such final order makes the will
conclusive against the whole world as to its extrinsic validity
and due execution.vi
It should be noted that probate proceedings deals generally
with the extrinsic validity of the will sought to be probated, vii
particularly on three aspects:
whether the will submitted is indeed, the decedents last will
and testament;
compliance with the prescribed formalities for the execution of
wills;
the testamentary capacity of the testator;viii
and the due execution of the last will and testament.ix

Under the Civil Code, due execution includes a determination

of whether the testator was of sound and disposing mind at the
time of its execution, that he had freely executed the will and
was not acting under duress, fraud, menace or undue influence
and that the will is genuine and not a forgery, x that he was of
the proper testamentary age and that he is a person not
expressly prohibited by law from making a will. xi
The intrinsic validity is another matter and questions regarding
the same may still be raised even after the will has been
authenticated.xii Thus, it does not necessarily follow that an
extrinsically valid last will and testament is always intrinsically
valid. Even if the will was validly executed, if the testator
provides for dispositions that deprives or impairs the lawful
heirs of their legitime or rightful inheritance according to the
laws on succession,xiii the unlawful provisions/dispositions
thereof cannot be given effect. This is specially so when the
courts had already determined in a final and executory decision
that the will is intrinsically void. Such determination having
attained that character of finality is binding on this Court which
will no longer be disturbed. Not that this Court finds the will to
be intrinsically valid, but that a final and executory decision of
which the party had the opportunity to challenge before the
higher tribunals must stand and should no longer be
reevaluated. Failure to avail of the remedies provided by law
constitutes waiver. And if the party does not avail of other
remedies despite its belief that it was aggrieved by a decision
or court action, then it is deemed to have fully agreed and is
satisfied with the decision or order. As early as 1918, it has
been declared that public policy and sound practice demand
that, at the risk of occasional errors, judgments of courts must
at some point of time fixed by lawxiv become final otherwise
there will be no end to litigation. Interes rei publicae ut finis sit
litium - the very object of which the courts were constituted was
to put an end to controversies.xv To fulfill this purpose and to do
so speedily, certain time limits, more or less arbitrary, have to
be set up to spur on the slothful.xvi The only instance where a
party interested in a probate proceeding may have a final
liquidation set aside is when he is left out by reason of
circumstances beyond his control or through mistake or
inadvertence not imputable to negligence,xvii which
circumstances do not concur herein.
Petitioner was privy to the suit calling for the declaration of the
intrinsic invalidity of the will, as she precisely appealed from an
unfavorable order therefrom. Although the final and executory
Order of January 30, 1986 wherein private respondents were
declared as the only heirs do not bind those who are not
parties thereto such as the alleged illegitimate son of the
testator, the same constitutes res judicata with respect to those
who were parties to the probate proceedings. Petitioner cannot
again raise those matters anew for relitigation otherwise that
would amount to forum-shopping. It should be remembered
that forum shopping also occurs when the same issue had
already been resolved adversely by some other court. xviii It is
clear from the executory order that the estates of Alejandro and
his spouse should be distributed according to the laws of
intestate succession.
Petitioner posits that the January 30, 1986 Order is merely
interlocutory, hence it can still be set aside by the trial court. In

support thereof, petitioner argues that an order merely

declaring who are heirs and the shares to which set of heirs is
entitled cannot be the basis of execution to require delivery of
shares from one person to another particularly when no project
of partition has been filed.xix The trial court declared in the
January 30, 1986 Order that petitioner is not the legal wife of
Alejandro, whose only heirs are his three legitimate children
(petitioners herein), and at the same time it nullified the will.
But it should be noted that in the same Order, the trial court
also said that the estate of the late spouses be distributed
according to the laws of intestacy. Accordingly, it has no option
but to implement that order of intestate distribution and not to
reopen and again re-examine the intrinsic provisions of the
same will.
It can be clearly inferred from Article 960 of the Civil Code, on
the law of successional rights that testacy is preferred to
intestacy.xx But before there could be testate distribution, the
will must pass the scrutinizing test and safeguards provided by
law considering that the deceased testator is no longer
available to prove the voluntariness of his actions, aside from
the fact that the transfer of the estate is usually onerous in
nature and that no one is presumed to give - Nemo
praesumitur donare.xxi No intestate distribution of the estate
can be done until and unless the will had failed to pass both its
extrinsic and intrinsic validity. If the will is extrinsically void, the
rules of intestacy apply regardless of the intrinsic validity
thereof. If it is extrinsically valid, the next test is to determine its
intrinsic validity that is whether the provisions of the will are
valid according to the laws of succession. In this case, the
court had ruled that the will of Alejandro was extrinsically valid
but the intrinsic provisions thereof were void. Thus, the rules of
intestacy apply as correctly held by the trial court.
Furthermore, Alejandros disposition in his will of the alleged
share in the conjugal properties of his late spouse, whom he
described as his only beloved wife, is not a valid reason to
reverse a final and executory order. Testamentary dispositions
of properties not belonging exclusively to the testator or
properties which are part of the conjugal regime cannot be
given effect. Matters with respect to who owns the properties
that were disposed of by Alejandro in the void will may still be
properly ventilated and determined in the intestate proceedings
for the settlement of his and that of his late spouses estate.
Petitioners motion for appointment as administratrix is
rendered moot considering that she was not married to the late
Alejandro and, therefore, is not an heir.
WHEREFORE, the petition is DENIED and the decision
appealed from is AFFIRMED.
SO ORDERED.

HEIRS OF PASCASIO URIARTE, namely, ROSELYN

URIARTE, MADRILYN and LOURDES URIARTE, and

FELOMINA BUNIEL URIARTE, and HEIRS OF PRIMITIVA

ARNALDO and HEIRS OF GREGORIO ARNALDO,
represented herein by FELISA ARNALDO SULLANO and
LUPECINO ARNALDO, petitioners, vs. COURT OF
APPEALS and BENEDICTO ESTRADA, respondents.
DECISION
MENDOZA, J.:
This is a petition for review on certiorari of the decisionxxii of the
Court of Appeals, reversing the decision of the Regional Trial
Court, Branch 27, of Tandag, Surigao del Sur, as well as the
appellate courts resolution denying petitioners motion for
reconsideration. At issue is the right of the parties to a 2.7
hectare piece of land in Sungkit, Madrid, Surigao del Sur,
which Justa Arnaldo-Sering left upon her death on March 31,
1989.
The parties and their relationship to Justa Arnaldo-Sering are
as follows:
Private respondent Benedicto Estrada is the son of Agatonica
Arreza, whose parents were Pedro Arreza and Ursula Tubil.
Upon the death of Pedro Arreza, Ursula married Juan Arnaldo
by whom she had another daughter, the decedent Justa.xxiii
Private respondent Benedicto Estrada is thus the nephew of
Justa by her half sister Agatonica.
Petitioners, referred to in this case as the heirs of Pascasio
Uriarte, are the widow and daughters of Pascasio Uriarte.
Pascasio was one of the sons of Primitiva Arnaldo and
Conrado Uriarte. His mother, Primitiva Uriarte, was the
daughter of Domingo Arnaldo and Catalina Azarcon. Domingo
Arnaldo and Justas father, Juan Arnaldo, were brothers. xxiv
Petitioners are thus grandchildren, the relatives within the fifth
degree of consanguinity, of Justa by her cousin Primitiva
Arnaldo Uriarte.
The other petitioners are the children of Primitiva and those of
her brother Gregorio.xxv The children of Primitiva by Conrado
Uriarte, aside from Pascasio, are Josefina, Gaudencio,
Simplicio, Domingo and Virgilio, all surnamed Uriarte. The
children of Gregorio Arnaldo, Primitivas brother, by Julieta
Ilogon, are Jorencio, Enecia, Nicolas, Lupecino and Felisa.
These other petitioners are thus grandchildren and relatives
within the fifth degree of consanguinity of Justa by her cousins
Gregorio Arnaldo and Primitiva Arnaldo.
Private respondent Benedicto Estrada brought this case in the
Regional Trial Court for the partition of the land left by Justa
Arnaldo-Sering. The land, consisting of 2.7 hectares, had been
acquired by Justa as follows: 0.5 hectare by inheritance from
her parents Juan Arnaldo and Ursula Tubil, and 2.2 hectares by
purchase.xxvi Private respondent claimed to be the sole
surviving heir of Justa, on the ground that the latter died
without issue. He complained that Pascasio Uriarte who, he
claimed, worked the land as Justas tenant, refused to give him
(private respondent) his share of the harvest.xxvii He contended
that Pascasio had no right to the entire land of Justa but could

claim only one-half of the 0.5 hectare land which Justa had
inherited from her parents Juan Arnaldo and Ursula Tubil.xxviii
Pascasio died during the pendency of the case and was
substituted by his heirs.xxix In their answer, the heirs denied
they were mere tenants of Justa xxx but the latters heirs entitled
to her entire land.
They claimed that the entire land, subject of the case, was
originally owned by Ambrocio Arnaldo, xxxi their great
granduncle. It was allegedly bequeathed to Domingo and Juan
Arnaldo, Ambrocios nephews, in a holographic will executed by
Ambrocio in 1908.xxxii Domingo was to receive two-thirds of the
land and Juan, one-third.xxxiii The heirs claimed that the land
had always been in their possession and that in her lifetime
Justa never asserted exclusive right over the property but only
received her share of the harvest from it. xxxiv They alleged that
private respondent did not have any right to the property
because he was not an heir of Ambrocio Arnaldo, xxxv the
original owner of the property.
The trial court sustained petitioners contention. In its decision
rendered on November 8, 1991 it ruled:
As earlier stated, the land of Ambrosio Arnaldo which he left to
his two nephews, Domingo and Juan Arnaldo, was only .5481
hectares, divided as follows: two-thirds or 3,654 square meters
to Domingo, and one-third or 1,827 square meters to Juan. The
area increased to 2.7588 hectares from .5481 hectares
because the adjacent lot of about two hectares was acquired
by Justa Arnaldo Sering, daughter of Juan Arnaldo, after the
latters death. The entire 2.7588 hectares was covered by tax
declaration in the name of Justa Arnaldo Sering. The latter
however died intestate and without issue. Her nearest surviving
relatives are the children of her uncle Domingo Arnaldo, to
whom her entire estate passed on after her death by operation
of law, to the exclusion of all other relatives. Thus, the rights to
the succession are transmitted from the moment of the death
of the decedent (Art. 277, Civil Code).xxxvi
Accordingly, the court ordered:
WHEREFORE, judgment is hereby rendered in favor of the
defendants and the intervenors [herein petitioners] and against
the plaintiff [private respondent], declaring the defendants and
the intervenors, together with the other heirs of the late
Domingo Arnaldo, as entitled to the entire parcel of land
described in Tax Declaration No. 124 and subsequent revising
tax declarations in the name of Justa Arnaldo Sering. No cost.
SO ORDERED.xxxvii
On appeal, the Court of Appeals reversed. Contrary to the trial
courts finding, the appellate court found that the 0.5 hectares
had been acquired by Justas parents, Juan Arnaldo and Ursula
Tubil, during their marriage. As the nephew of Justa by her
half-sister Agatonica, private respondent was held to be
entitled to share in the estate of Justa. In the dispositive portion
of its decision the appellate court ordered:
WHEREFORE, the judgment appealed from is hereby
REVERSED and another is hereby entered -

Ordering the partition of the property described in the second

amended complaint in the following manner:
(1)
and

.2500 hectare as the share of defendants-intervenors,

(2)

2.58 hectare as the share of the plaintiff.

For this purpose, the court a quo is hereby directed to proceed

with the partition in accordance with the procedure laid down in
Rule 69 of the Rules of Court.
SO ORDERED.xxxviii
Hence, this petition by the heirs of Pascasio Uriarte, the heirs
of Primitiva Uriarte, and the heirs of Gregorio Arnaldo.
Petitioners allege:
I THE RESPONDENT COURT OF APPEALS GRAVELY
ABUSED ITS DISCRETION TANTAMOUNT TO LACK
AND/OR IN EXCESS OF JURISDICTION IN HOLDING THAT
THE PLAINTIFF IS THE SON OF AGATONA ARREZA, THE
HALF SISTER OF JUSTA ARNALDO SERING;
II THE RESPONDENT COURT OF APPEALS PREFERRED
TECHNICALITY OVER SUBSTANTIALITY WHEN IT
GRAVELY ABUSED ITS DISCRETION IN HOLDING THAT
THE HOLOGRAPHIC WILL LEFT BY THE DECEASED
AMBROCIO ARNALDO CANNOT PASS REAL OR
PERSONAL PROPERTY;
III THE PRAYERS FOR RESTRAINING ORDER AND/OR
WRIT OF PRELIMINARY INJUNCTION AND DAMAGES IS
MERITORIOUS;
IV AND THE INSTANT PETITION IS IMPRESSED WITH
MERIT AND SHOULD HAVE BEEN GRANTED. xxxix
After due consideration of the petition, we find it to be without
merit. As already stated, Justa left a piece of land consisting
2.7 hectares. Half of this land (0.5 hectares), as the Court of
Appeals found, formerly was conjugal property of her parents,
Juan Arnaldo and Ursula Tubil. The rest, consisting of 2.2
hectares, was acquired by Justa after the death of her parents.
Accordingly, the division of Justas property should be as
follows as private respondent contends:
A - The first 1/2 hectare should be divided into two parts, the
share of Juan Arnaldo which will accrue to petitioners and the
second half which pertains to Ursula Tubil, which will accrue to
private respondent.
B - As to the second portion of the area of the land in question
which as already stated was consolidated with the 1/2 hectare
originally belonging to the conjugal partnership of Juan Arnaldo
and Ursula Tubil, the same shall accrue to private respondent,
who is the son of Agatonica Arreza, and who is only three
degrees from Justa Arnaldo, whereas petitioners who are the
children of Primitiva Arnaldo and Gregorio Arnaldo, are five
degrees removed from Justa Arnaldo.xl

The issue in this case is who among the petitioners and the
private respondent is entitled to Justas estate as her nearest
relatives within the meaning of Art. 962 of the Civil Code.
As a preliminary matter, petitioners contend that the Court of
Appeals gravely abused its discretion in holding that private
respondent is the son of Agatonica Arreza, who was the halfsister of Justa Arnaldo. Petitioners are raising this issue only
now. It is well-settled, however, that questions not taken up
during the trial of a case cannot be raised for the first time on
appeal. With more reason, therefore, should such a question
be disallowed when raised for the first time on appeal to this
Court.xli
It is noteworthy that, in their brief before the Court of Appeals, xlii
petitioners admitted that private respondent is Justas nephew,
his mother, Agatonica, being Justas half-sister. Apparently they
are now questioning private respondents filiation because, as
explained by the Court of Appeals, private respondent is the
nearest relative of Justa and, therefore, the only one entitled to
her estate.
Indeed, given the fact that 0.5 hectares of the land in question
belonged to the conjugal partnership of Justas parents, Justa
was entitled to 0.125 hectares of the half hectare land as her
fathers (Juan Arnaldos) share in the conjugal property, while
petitioners are entitled to the other 0.125 hectares. In addition,
Justa inherited her mothers (Ursula Tubils) share consisting of
0.25 hectares. Plus the 2.2 hectares which belonged to her in
her own right, Justa owned a total of 2.575 or 2.58 hectares of
the 2.7-hectare land. This 2.58-hectare land was inherited by
private respondent Benedicto Estrada as Justas nearest
surviving relative. As the Court of Appeals held:
According to Article 962 of the Civil Code, In every inheritance,
the relative nearest in degree excludes the more distant ones,
saving the right of representation when it properly takes place.
Relatives in the same degree shall inherit in equal shares,
subject to the provisions of Article 1006 with respect to
relatives of the full and half blood, and of Article 987, paragraph
2, concerning division between paternal and maternal lines.
The manner of determining the proximity of relationship are
provided by Articles 963 - 966 of the Civil Code. They provide:
ART. 963.
Proximity of relationship is determined by the
number of generations. Each generation forms a degree.
ART. 964.
A series of degrees forms a line, which may
be either direct or collateral.
A direct line is that constituted by the series of degrees among
ascendants and descendants.
A collateral line is that constituted by the series of degrees
among persons who are not ascendants and descendants, but
who come from a common ancestor.
ART. 965.
ascending.

The direct line is either descending or

The former unites the head of the family with those who
descend from him.
The latter binds a person with those from whom he descends.
ART. 966. In the line, as many degrees are counted as there
are generations or persons, excluding the progenitor.
In the direct line, ascent is made to the common ancestor.
Thus the child is one degree removed from the parent, two
from the grandfather, and three from the great-grandparent.
In the collateral line, ascent is made to the common ancestor
and then descent is made to the person with whom the
computation is to be made. Thus, a person is two degrees
removed from his brother, three from his uncle, who is the
brother of his father, four from his first cousin, and so forth.
In this case, plaintiff is the son of Agatonica, the half-sister of
Justa. He is thus a third degree relative of Justa.
On the other hand, defendants and intervenors are the sons
and daughters of Justas cousin. They are thus fifth degree
relatives of Justa.
Applying the principle that the nearest excludes the farthest,
then plaintiff is the lawful heir of Justa. The fact that his mother
is only a half-sister of Justa is of no moment.xliii
Nevertheless, petitioners make much of the fact that private
respondent is not an Arnaldo, his mother being Ursulas
daughter not by Juan Arnaldo but by Pedro Arreza. They claim
that this being the case, private respondent is not an heir of
Justa and thus not qualified to share in her estate.
Petitioners misappreciate the relationship between Justa and
private respondent. As already stated, private respondent is the
son of Justas half-sister Agatonica. He is therefore Justas
nephew. A nephew is considered a collateral relative who may
inherit if no descendant, ascendant, or spouse survive the
decedent.xliv That private respondent is only a half-blood
relative is immaterial. This alone does not disqualify him from
being his aunts heir. As the Court of Appeals correctly pointed
out, The determination of whether the relationship is of the full
or half blood is important only to determine the extent of the
share of the survivors.xlv
Because of the conclusion we have thus reached, the third and
fourth grounds of the petition for review must fail.
WHEREFORE, the petition is DENIED. The temporary
restraining order issued by this Court is LIFTED, and the
decision of the Court of Appeals is AFFIRMED.
SO ORDERED.

G.R. Nos. 89224-25 January 23, 1992

MAURICIO SAYSON, ROSARIO SAYSON-MALONDA,

BASILISA SAYSON-LIRIO, REMEDIOS SAYSON-REYES
and
JUANA
C.
BAUTISTA,
petitioners,
vs.
THE HONORABLE COURT OF APPEALS, DELIA SAYSON,
assisted by her husband, CIRILO CEDO, JR., EDMUNDO
SAYSON AND DORIBEL SAYSON, respondents.
At issue in this case is the status of the private respondents
and their capacity to inherit from their alleged parents and
grandparents. The petitioners deny them that right, asserting if
for themselves to the exclusion of all others.
The relevant genealogical facts are as follows.
Eleno and Rafaela Sayson begot five children, namely,
Mauricio, Rosario, Basilisa, Remedios and Teodoro. Eleno died
on November 10, 1952, and Rafaela on May 15, 1976.
Teodoro, who had married Isabel Bautista, died on March 23,
1972. His wife died nine years later, on March 26, 1981. Their
properties were left in the possession of Delia, Edmundo, and
Doribel, all surnamed Sayson, who claim to be their children.
On April 25, 1983, Mauricio, Rosario, Basilisa, and Remedios,
together with Juana C. Bautista, Isabel's mother, filed a
complaint for partition and accounting of the intestate estate of
Teodoro and Isabel Sayson. It was docketed as Civil Case No.
1030 in Branch 13 of the Regional Trial Court of Albay. The
action was resisted by Delia, Edmundo and Doribel Sayson,
who alleged successional rights to the disputed estate as the
decedents' lawful descendants.
On July 11, 1983, Delia, Edmundo and Doribel filed their own
complaint, this time for the accounting and partition of the
intestate estate of Eleno and Rafaela Sayson, against the
couple's four surviving children. This was docketed as Civil
Case No. 1042 in the Regional Trial Court of Albay, Branch 12.
The complainants asserted the defense they raised in Civil
Case No. 1030, to wit, that Delia and Edmundo were the
adopted children and Doribel was the legitimate daughter of
Teodoro and Isabel. As such, they were entitled to inherit
Teodoro's share in his parents' estate by right of
representation.
Both cases were decided in favor of the herein private
respondents on the basis of practically the same evidence.
Judge Rafael P. Santelices declared in his decision dated May
26,
1986, 1 that Delia and Edmundo were the legally adopted
children of Teodoro and Isabel Sayson by virtue of the decree
of adoption dated March 9, 1967. 2 Doribel was their legitimate
daughter as evidenced by her birth certificate dated February
27, 1967. 3 Consequently, the three children were entitled to
inherit from Eleno and Rafaela by right of representation.
In his decision dated September 30, 1986, 4 Judge Jose S.
Saez dismissed Civil Case No. 1030, holding that the
defendants, being the legitimate heirs of Teodoro and Isabel as
established by the aforementioned evidence, excluded the
plaintiffs from sharing in their estate.

Both cases were appealed to the Court of Appeals, where they

were consolidated. In its own decision dated February 28,
1989, 5 the respondent court disposed as follows:
WHEREFORE, in Civil Case No. 1030 (CA-G.R. No. 11541),
the appealed decision is hereby AFFIRMED. In Civil case No.
1042 (CA-G.R. No. 12364), the appealed decision is
MODIFIED in that Delia and Edmundo Sayson are disqualified
from inheriting from the estate of the deceased spouses Eleno
and Rafaela Sayson, but is affirmed in all other respects.
SO ORDERED.
That judgment is now before us in this petition for review by
certiorari. Reversal of the respondent court is sought on the
ground that it disregarded the evidence of the petitioners and
misapplied the pertinent law and jurisprudence when it
declared the private respondents as the exclusive heirs of
Teodoro and Isabel Sayson.
The contention of the petitioners is that Delia and Edmundo
were not legally adopted because Doribel had already been
born on February 27, 1967, when the decree of adoption was
issued on March 9, 1967. The birth of Doribel disqualified her
parents from adopting. The pertinent provision is Article 335 of
the Civil Code, naming among those who cannot adopt "(1)
Those who have legitimate, legitimated, acknowledged natural
children, or natural children by legal fiction."
Curiously enough, the petitioners also argue that Doribel
herself is not the legitimate daughter of Teodoro and Isabel but
was in fact born to one Edita Abila, who manifested in a petition
for guardianship of the child that she was her natural mother. 6
The inconsistency of this position is immediately apparent. The
petitioners seek to annul the adoption of Delia and Edmundo
on the ground that Teodoro and Isabel already had a legitimate
daughter at the time but in the same breath try to demolish this
argument by denying that Doribel was born to the couple.
On top of this, there is the vital question of timeliness. It is too
late now to challenge the decree of adoption, years after it
became final and executory. That was way back in 1967. 7
Assuming the the petitioners were proper parties, what they
should have done was seasonably appeal the decree of
adoption, pointing to the birth of Doribel that disqualified
Teodoro and Isabel from adopting Delia and Edmundo. They
did not. In fact, they should have done this earlier, before the
decree of adoption was issued. They did not, although Mauricio
claimed he had personal knowledge of such birth.
As the respondent court correctly observed:
When Doribel was born on February 27, 1967, or about TEN
(10) days before the issuance of the Order of Adoption, the
petitioners could have notified the court about the fact of birth
of DORIBEL and perhaps withdrew the petition or perhaps
petitioners could have filed a petition for the revocation or
rescission of the adoption (although the birth of a child is not
one of those provided by law for the revocation or rescission of
an adoption). The court is of the considered opinion that the
adoption of the plaintiffs DELIA and EDMUNDO SAYSON is

valid, outstanding and binding to the present, the same not

having been revoked or rescinded.
Not having any information of Doribel's birth to Teodoro and
Isabel Sayson, the trial judge cannot be faulted for granting the
petition for adoption on the finding inter alia that the adopting
parents were not disqualified.
A no less important argument against the petitioners is that
their challenge to the validity of the adoption cannot be made
collaterally, as in their action for partition, but in a direct
proceeding frontally addressing the issue.
The settled rule is that a finding that the requisite jurisdictional
facts exists, whether erroneous or not, cannot be questioned in
a collateral proceeding, for a presumption arises in such cases
where the validity of the judgment is thus attacked that the
necessary jurisdictional facts were proven [Freeman on
Judgments, Vol. I, Sec. 350, pp. 719-720]. (Emphasis
supplied.)
In the case of Santos v. Aranzanso, 8 this Court declared:
Anent this point, the rulings are summed up in 2 American
Jurisprudence, 2nd Series, Adoption, Sec. 75, p. 922, thus:
An adoption order implies the finding of the necessary facts
and the burden of proof is on the party attacking it; it cannot be
considered void merely because the fact needed to show
statutory compliance is obscure. While a judicial determination
of some particular fact, such as the abandonment of his next of
kin to the adoption, may be essential to the exercise of
jurisdiction to enter the order of adoption, this does not make it
essential to the jurisdictional validity of the decree that the fact
be determined upon proper evidence, or necessarily in
accordance with the truth; a mere error cannot affect the
jurisdiction, and the determination must stand until reversed on
appeal, and hence cannot be collaterally attacked. If this were
not the rule, the status of adopted children would always be
uncertain, since the evidence might not be the same at all
investigations, and might be regarded with different effect by
different tribunals, and the adoption might be held by one court
to have been valid, while another court would hold it to have
been of no avail. (Emphasis supplied.)
On the question of Doribel's legitimacy, we hold that the
findings of the trial courts as affirmed by the respondent court
must be sustained. Doribel's birth certificate is a formidable
piece of evidence. It is one of the prescribed means of
recognition under Article 265 of the Civil Code and Article 172
of the Family Code. It is true, as the petitioners stress, that the
birth certificate offers only prima facie evidence 9 of filiation and
may be refuted by contrary evidence. However, such evidence
is lacking in the case at bar.
Mauricio's testimony that he was present when Doribel was
born to Edita Abila was understandbly suspect, coming as it did
from an interested party. The affidavit of Abila 10 denying her
earlier statement in the petition for the guardianship of Doribel
is of course hearsay, let alone the fact that it was never offered
in evidence in the lower courts. Even without it, however, the

birth certificate must be upheld in line with Legaspi v. Court of

Appeals, 11 where we ruled that "the evidentiary nature of
public documents must be sustained in the absence of strong,
complete and conclusive proof of its falsity or nullity."
Another reason why the petitioners' challenge must fail is the
impropriety of the present proceedings for that purpose.
Doribel's legitimacy cannot be questioned in a complaint for
partition and accounting but in a direct action seasonably filed
by the proper party.
The presumption of legitimacy in the Civil Code . . . does not
have this purely evidential character. It serves a more
fundamental purpose. It actually fixes a civil status for the child
born in wedlock, and that civil status cannot be attacked
collaterally. The legitimacy of the child can be impugned only
in a direct action brought for that purpose, by the proper
parties, and within the period limited by law.
The legitimacy of the child cannot be contested by way of
defense or as a collateral issue in another action for a different
purpose. . . . 12 (Emphasis supplied.)
In consequence of the above observations, we hold that
Doribel, as the legitimate daughter of Teodoro and Isabel
Sayson, and Delia and Edmundo, as their adopted children,
are the exclusive heirs to the intestate estate of the deceased
couple, conformably to the following Article 979 of the Civil
Code:
Art. 979. Legitimate children and their descendants succeed
the parents and other ascendants, without distinction as to sex
or age, and even if they should come from different marriages.
An adopted child succeeds to the property of the adopting
parents in the same manner as a legitimate child.
The philosophy underlying this article is that a person's love
descends first to his children and grandchildren before it
ascends to his parents and thereafter spreads among his
collateral relatives. It is also supposed that one of his purposes
in acquiring properties is to leave them eventually to his
children as a token of his love for them and as a provision for
their continued care even after he is gone from this earth.
Coming now to the right of representation, we stress first the
following pertinent provisions of the Civil Code:
Art. 970. Representation is a right created by fiction of law, by
virtue of which the representative is raised to the place and the
degree of the person represented, and acquires the rights
which the latter would have if he were living or if he could have
inherited.
Art. 971. The representative is called to the succession by the
law and not by the person represented. The representative
does not succeed the person represented but the one who the
person represented would have succeeded.
Art. 981. Should children of the deceased and descendants of
other children who are dead, survive, the former shall inherit in
their own right, and the latter by right of representation.

There is no question that as the legitimate daughter of Teodoro

and thus the granddaughter of Eleno and Rafaela, Doribel has
a right to represent her deceased father in the distribution of
the intestate estate of her grandparents. Under Article 981,
quoted above, she is entitled to the share her father would
have directly inherited had he survived, which shall be equal to
the shares of her grandparents' other children. 13
But a different conclusion must be reached in the case of Delia
and Edmundo, to whom the grandparents were total strangers.
While it is true that the adopted child shall be deemed to be a
legitimate child and have the same right as the latter, these
rights do not include the right of representation. The
relationship created by the adoption is between only the
adopting parents and the adopted child and does not extend to
the blood relatives of either party. 14
In sum, we agree with the lower courts that Delia and
Edmundo as the adopted children and Doribel as the legitimate
daughter of Teodoro Sayson and Isabel Bautista, are their
exclusive heirs and are under no obligation to share the estate
of their parents with the petitioners. The Court of Appeals was
correct, however, in holding that only Doribel has the right of
representation in the inheritance of her grandparents' intestate
estate, the other private respondents being only the adoptive
children of the deceased Teodoro.
WHEREFORE, the petition is DENIED, and the challenged
decision of the Court of Appeals is AFFIRMED in toto, with
costs against the petitioners.

OFELIA HERNANDO BAGUNU, petitioner, vs. PASTORA

PIEDAD, respondent.
DECISION
VITUG, J.:
On 28 August 1995, herein petitioner Ofelia Hernando Bagunu
moved to intervene in Special Proceedings No. 3652, entitled
"In the Matter of the Intestate Proceedings of the Estate of
Augusto H. Piedad," pending before the Regional Trial Court
("RTC"), Branch 117, of Pasay City. Asserting entitlement to a
share of the estate of the late Augusto H. Piedad, petitioner
assailed the finality of the order of the trial court awarding the
entire estate to respondent Pastora Piedad contending that the
proceedings were tainted with procedural infirmities, including
an incomplete publication of the notice of hearing, lack of
personal notice to the heirs and creditors, and irregularity in the
disbursements of allowances and withdrawals by the
administrator of the estate. The trial court denied the motion,
prompting petitioner to raise her case to the Court of Appeals.
Respondent sought the dismissal of the appeal on the thesis
that the issues brought up on appeal only involved pure
questions of law. Finding merit in that argument, the appellate
court dismissed the appeal, citing Section 2(c) of Rule 41 of the
1997 Revised Rules on Civil Procedure which would require all
appeals involving nothing else but questions of law to be raised
before the Supreme Court by petition for review on certiorari in

accordance with Rule 45 thereof and consistently with Circular

2-90 of the Court.

circumstances. Resolution on the issues may be had even

without going to examination of facts on record."xlvii

In a well-written resolution, the Court of Appeals belabored the

distinctions between questions of law and questions of fact,
thus:

Still unsatisfied, petitioner contested the resolution of the

appellate court in the instant petition for review on certiorari.

"There is a question of law in a given case when the doubt or

difference arises as to what the law is on a certain state of
facts, and there is a question of fact when the doubt or
difference arises as to the truth or the falsehood of alleged
facts. There is question of fact when the query necessarily
invites calibration of the whole evidence considering mainly the
credibility of witnesses, existence and relevance of specific
surrounding circumstances, and their relation to each other and
to the whole and the probabilities of the situation."xlvi
Justice Eugenio S. Labitoria, speaking for the appellate court,
ratiocinated that whether or not the RTC erred in denying the
intervention considering (1) that the intervenor-appellant had a
prima facie interest over the case, (2) that the jurisdiction over
the person of the proper parties was not acquired in view of the
deficient publication or notice of hearing, and (3) that the
proceedings had yet to be closed and terminated, were issues
which did not qualify as "questions of fact" as to place the
appeal within the jurisdiction of the appellate court; thus:
"The issues are evidently pure questions of law because their
resolution are based on facts not in dispute. Admitted are the
facts that intervenor-appellant is a collateral relative within the
fifth degree of Augusto H. Piedad; that she is the daughter of
the first cousin of Augusto H. Piedad; that as such, intervenorappellant seek to inherit from the estate of Augusto H. Piedad;
that the notice of hearing was published for three consecutive
weeks in a newspaper of general circulation; that there was no
order of closure of proceedings that has been issued by the
intestate court; and that the intestate court has already issued
an order for the transfer of the remaining estate of Augusto H.
Piedad to petitioner-appellee.
"These facts are undisputed.
"In this case, there is no doubt nor difference that arise as to
the truth or falsehood on alleged facts. The question as to
whether intervenor-appellant as a collateral relative within the
fifth civil degree, has legal interest in the intestate proceeding
which would justify her intervention; the question as to whether
the publication of notice of hearing made in this case is
defective which would amount to lack of jurisdiction over the
persons of the parties and the question as to whether the
proceedings has already been terminated when the intestate
court issued the order of transfer of the estate of Augusto H.
Piedad to petitioner-appellee, in spite the absence of an order
of closure of the intestate court, all call for the application and
interpretation of the proper law. There is doubt as to what law
is applicable on a certain undisputed state of facts.
"The resolution of the issues raised does not require the review
of the evidence, nor the credibility of witnesses presented, nor
the existence and relevance of specific surrounding

The Court finds no reversible error in the ruling of the appellate

court. But let us set aside the alleged procedural decrepitude
and take on the basic substantive issue. Specifically, can
petitioner, a collateral relative of the fifth civil degree, inherit
alongside respondent, a collateral relative of the third civil
degree? Elsewise stated, does the rule of proximity in intestate
succession find application among collateral relatives?
Augusto H. Piedad died without any direct descendants or
ascendants. Respondent is the maternal aunt of the decedent,
a third-degree relative of the decedent, while petitioner is the
daughter of a first cousin of the deceased, or a fifth-degree
relative of the decedent.
The various provisions of the Civil Code on succession
embody an almost complete set of law to govern, either by will
or by operation of law, the transmission of property, rights and
obligations of a person upon his death. Each article is
construed in congruity with, rather than in isolation of, the
system set out by the Code.
The rule on proximity is a concept that favors the relatives
nearest in degree to the decedent and excludes the more
distant ones except when and to the extent that the right of
representation can apply. Thus, Article 962 of the Civil Code
provides:
"ART. 962. In every inheritance, the relative nearest in
degree excludes the more distant ones, saving the right of
representation when it properly takes place.
"Relatives in the same degree shall inherit in equal shares,
subject to the provisions of article 1006 with respect to relatives
of the full and half blood, and of article 987, paragraph 2,
concerning division between the paternal and maternal lines."
By right of representation, a more distant blood relative of a
decedent is, by operation of law, "raised to the same place and
degree" of relationship as that of a closer blood relative of the
same decedent. The representative thereby steps into the
shoes of the person he represents and succeeds, not from the
latter, but from the person to whose estate the person
represented would have succeeded.
"ART. 970.
Representation is a right created by
fiction of law, by virtue of which the representative is
raised to the place and the degree of the person
represented, and acquires the rights which the latter
would have if he were living or if he could have inherited."
"ART. 971.
The representative is called to the
succession by the law and not by the person represented. The
representative does not succeed the person represented but
the one whom the person represented would have succeeded."

In the direct line, right of representation is proper only in the

descending, never in the ascending, line. In the collateral line,
the right of representation may only take place in favor of the
children of brothers or sisters of the decedent when such
children survive with their uncles or aunts.
"ART. 972.
The right of representation takes place in
the direct descending line, but never in the ascending.
"In the collateral line, it takes place only in favor of the
children of brothers or sisters, whether they be of the full
or half blood."
"ART. 974.
Whenever there is succession by
representation, the division of the estate shall be made per
stirpes, in such manner that the representative or
representatives shall not inherit more than what the person
they represent would inherit, if he were living or could inherit."
"ART. 975.
When children of one or more brothers or
sisters of the deceased survive, they shall inherit from the
latter by representation, if they survive with their uncles or
aunts. But if they alone survive, they shall inherit in equal
portions."
The right of representation does not apply to "other collateral
relatives within the fifth civil degree" (to which group both
petitioner and respondent belong) who are sixth in the order of
preference following, firstly, the legitimate children and
descendants, secondly, the legitimate parents and ascendants,
thirdly, the illegitimate children and descendants, fourthly, the
surviving spouse, and fifthly, the brothers and sisters/nephews
and nieces, of the decedent. Among collateral relatives, except
only in the case of nephews and nieces of the decedent
concurring with their uncles or aunts, the rule of proximity,
expressed in Article 962, aforequoted, of the Code, is an
absolute rule. In determining the degree of relationship of the
collateral relatives to the decedent, Article 966 of the Civil Code
gives direction.
"Article 966. x x x
"In the collateral line, ascent is made to the common ancestor
and then descent is made to the person with whom the
computation is to be made. Thus, a person is two degrees
removed from his brother, three from his uncle, who is the
brother of his father, four from his first cousin and so forth."
Accordingly Respondent, being a relative within the third civil
degree, of the late Augusto H. Piedad excludes petitioner, a
relative of the fifth degree, from succeeding ab intestato to the
estate of the decedent.
The provisions of Article 1009 and Article 1010 of the Civil
Code
"Article 1009. Should there be neither brothers nor sisters nor
children of brothers or sisters, the other collateral relatives shall
succeed to the estate.

"The latter shall succeed without distinction of lines or

preference among them by reason of relationship by the whole
blood."
"Article 1010. The right to inherit ab intestato shall not extend
beyond the fifth degree of relationship in the collateral line." invoked by petitioner do not at all support her cause. The law
means only that among the other collateral relatives (the
sixth in the line of succession), no preference or distinction
shall be observed "by reason of relationship by the whole
blood." In fine, a maternal aunt can inherit alongside a
paternal uncle, and a first cousin of the full blood can inherit
equally with a first cousin of the half blood, but an uncle or an
aunt, being a third-degree relative, excludes the cousins of the
decedent, being in the fourth-degree of relationship; the latter,
in turn, would have priority in succession to a fifth-degree
relative.
WHEREFORE, the instant Petition is DENIED. No costs.
SO ORDERED.
Melo, (Chairman), Panganiban, and Gonzaga-Reyes, JJ.,
concur.
G.R. No. L-66574 February 21, 1990
ANSELMA DIAZ, guardian of VICTOR, RODRIGO,
ANSELMINA and MIGUEL, all surnamed SANTERO, and
FELIXBERTA
PACURSA,
guardian
of
FEDERICO
SANTERO,
et
al.,
petitioners,
vs.
INTERMEDIATE APPELLATE COURT and FELISA PAMUTI
JARDIN, respondents.
RESOLUTION

PARAS, J.:
The decision of the Second Division of this Court in the case of
Anselma Diaz, et al. vs. Intermediate Appellate Court, et al.,
G.R. No. 6574, promulgated June 17, 1987 declaring Felisa
Pamuti-Jardin to be the sole legitimate heir to the intestate
estate of the late Simona Pamuti Vda. de Santero, and its
Resolution of February 24, 1988 denying the Motion for
Reconsideration dated July 2, 1987, are being challenged in
this Second Motion for Reconsideration dated July 5, 1988.
After the parties had filed their respective pleadings, the Court,
in a resolution dated October 27, 1988, resolved to grant the
request of the petitioners for oral argument before the court en
banc, and the case was set for hearing on November 17, 1988
to resolve the question: Does the term "relatives" in Article 992
of the New Civil Code which reads:
An illegitimate child has no right to inherit ab intestato from the
legitimate children or relatives of his father or mother; nor shall
such children or relatives inherit in the same manner from the
illegitimate child.

include the legitimate parents of the father or mother of the

illegitimate children? Invited to discuss as amici curiae during
the hearing were the following: Justice Jose B.L. Reyes, former
Justice Minister Ricardo C. Puno, Dr. Arturo Tolentino, former
Justice Eduardo Caguioa, and Professor Ruben Balane.
The facts of the case, as synthesized in the assailed decision,
are as follows:
It is undisputed: 1) that Felisa Pamuti Jardin is a niece of
Simona Pamuti Vda. de Santero who together with Felisa's
mother Juliana were the only legitimate children of the spouses
Felipe Pamuti and Petronila Asuncion; 2) that Juliana married
Simon Jardin and out of their union were born Felisa Pamuti
and another child who died during infancy; 3) that Simona
Pamuti Vda. de Santero is the widow of Pascual Santero and
the mother of Pablo Santero; 4) that Pablo Santero was the
only legitimate son of his parents Pascual Santero and Simona
Pamuti Vda. de Santero; 5) that Pascual Santero died in 1970;
Pablo Santero in 1973 and Simona Santero in 1976; 6) that
Pablo Santero, at the time of his death was survived by his
mother Simona Santero and his six minor natural children to
wit: four minor children with Anselma Diaz and two minor
children
with
Felixberta
Pacursa.
(pp. 1-2, Decision; pp. 190-191, Rollo)
Briefly stated, the real issue in the instant case is this who
are the legal heirs of Simona Pamuti Vda. de Santero her
niece Felisa Pamuti-Jardin or her grandchildren (the natural
children of Pablo Santero)?
The present controversy is confined solely to the intestate
estate of Simona Pamuti Vda. de Santero. In connection
therewith, We are tasked with determining anew whether
petitioners as illegitimate children of Pablo Santero could
inherit from Simona Pamuti Vda. de Santero, by right of
representation of their father Pablo Santero who is a legitimate
child of Simona Pamuti Vda. de Santero.
Petitioners claim that the amendment of Articles 941 and 943
of the old Civil Code (Civil Code of Spain) by Articles 990 and
992 of the new Civil Code (Civil Code of the Philippines)
constitute a substantial and not merely a formal change, which
grants illegitimate children certain successional rights. We do
not dispute the fact that the New Civil Code has given
illegitimate children successional rights, which rights were
never before enjoyed by them under the Old Civil Code. They
were during that time merely entitled to support. In fact, they
are now considered as compulsory primary heirs under Article
887 of the new Civil Code (No. 5 in the order of intestate
succession). Again, We do not deny that fact. These are only
some of the many rights granted by the new Code to
illegitimate children. But that is all. A careful evaluation of the
New Civil Code provisions, especially Articles 902, 982, 989,
and 990, claimed by petitioners to have conferred illegitimate
children the right to represent their parents in the inheritance of
their legitimate grandparents, would in point of fact reveal that
such right to this time does not exist.
Let Us take a closer look at the above-cited provisions.

Art.902. The rights of illegitimate children set forth in the

preceding articles are transmitted upon their death to their
descendants, whether legitimate or illegitimate.
Art. 982. The grandchildren and other descendants shall inherit
by right of representation and if any one of them should have
died, leaving several heirs, the portion pertaining to him shall
be divided among the latter in equal portions. (933)
Art. 989. If, together with illegitimate children, there should
survive descendants of another illegitimate child who is dead,
the former shall succeed in their own right and the latter by
right of representation. (940a)
Art. 990. The hereditary rights granted by the two preceding
articles to illegitimate children shall be transmitted upon their
death to their descendants, who shall inherit by right of
representation from their deceased grandparent. (941a)
Emphasis supplied).
Articles 902, 989, and 990 clearly speak of successional rights
of illegitimate children, which rights are transmitted to their
descendants upon their death. The descendants (of these
illegitimate children) who may inherit by virtue of the right of
representation may be legitimate or illegitimate. In whatever
manner, one should not overlook the fact that the persons to be
represented are themselves illegitimate. The three named
provisions are very clear on this matter. The right of
representation is not available to illegitimate descendants of
legitimate children in the inheritance of a legitimate
grandparent. It may be argued, as done by petitioners, that the
illegitimate descendant of a legitimate child is entitled to
represent by virtue of the provisions of Article 982, which
provides that "the grandchildren and other descendants shall
inherit by right of representation." Such a conclusion is
erroneous. It would allow intestate succession by an
illegitimate child to the legitimate parent of his father or mother,
a situation which would set at naught the provisions of Article
992. Article 982 is inapplicable to instant case because Article
992 prohibits absolutely a succession ab intestato between the
illegitimate child and the legitimate children and relatives of the
father or mother. It may not be amiss to state that Article 982 is
the general rule and Article 992 the exception.
"The rules laid down in Article 982 that 'grandchildren and other
descendants shall inherit by right of representation and in
Article 902 that the rights of illegitimate children ... are
transmitted upon their death to their descendants, whether
legitimate or illegitimate are subject to the limitation prescribed
by Article 992 to the end that an illegitimate child has no right to
inherit ab intestato from the legitimate children and relatives of
his father or mother."' (Amicus Curiae's Opinion by former
Justice Minister Ricardo C. Puno, p. 12)
"Article 992 of the New Civil Code provides a barrier or iron
curtain in that it prohibits absolutely a succession ab intestato
between the illegitimate child and the legitimate children and
relatives of the father or mother of said illegitimate child. They
may have a natural tie of blood, but this is not recognized by
law for the purpose of Article 992. Between the legitimate
family and the illegitimate family there is presumed to be an

intervening antagonism and incompatibility. The illegitimate

child is disgracefully looked down upon by the legitimate family;
and the family is in turn, hated by the illegitimate child; the
latter considers the privileged condition of the former, and the
resources of which it is thereby deprived; the former, in turn,
sees in the illegitimate child nothing but the product of sin,
palpable evidence of a blemish broken in life; the law does no
more than recognize this truth, by avoiding further ground of
resentment." (7 Manresa 110 cited in Grey v. Fable 40 OG
(First S) No. 3, p. 196).
According to petitioners, the commentaries of Manresa as
above- quoted are based on Articles 939 to 944 of the old Civil
Code and are therefore inapplicable to the New Civil Code and
to the case at bar. Petitioners further argue that the consistent
doctrine adopted by this Court in the cases of Llorente vs.
Rodriguez, et al., 10 Phil., 585; Centeno vs. Centeno, 52 Phil.
322, and Oyao vs. Oyao, 94 Phil. 204, cited by former Justice
Minister Justice Puno, Justice Caguioa, and Prof. Balane,
which identically held that an illegitimate child has no right to
succeed ab intestato the legitimate father or mother of his
natural parent (also a legitimate child himself is already
abrogated by the amendments made by the Now Civil Code
and thus cannot be made to apply to the instant case.
Once more, We decline to agree with petitioner. We are fully
aware of certain substantial changes in our law of succcession,
but there is no change whatsoever with respect to the provision
of Article 992 of the Civil Code. Otherwise, by the said
substantial change, Article 992, which was a reproduction f
Article 943 of the Civil Code of Spain, should have been
suppressed or at least modified to clarify the matters which are
now the subject of the present controversy. While the New Civil
Code may have granted successional rights to illegitimate
children, those articles, however, in conjunction with Article
992, prohibit the right of representation from being exercised
where the person to be represented is a legitimate child.
Needless to say, the determining factor is the legitimacy or
illegitimacy of the person to be represented. If the person to be
represented is an illegitimate child, then his descendants,
whether legitimate or illegitimate, may represent him; however,
if the person to be represented is legitimate, his illegitimate
descendants cannot represent him because the law provides
that only his legitimate descendants may exercise the right of
representation by reason of the barrier imposed Article 992. In
this wise, the commentaries of Manresa on the matter in issue,
even though based on the old Civil Code, are still very much
applicable to the New Civil Code because the amendment,
although substantial, did not consist of giving illegitimate
children the right to represent their natural parents (legitimate)
in the intestate succession of their grandparents (legitimate). It
is with the same line of reasoning that the three aforecited
cases may be said to be still applicable to the instant case.
Equally important are the reflections of the Illustrious Hon.
Justice Jose B.L. Reyes which also find support from other
civilists. We quote:
In the Spanish Civil Code of 1889 the right of representation
was admitted only within the legitimate family; so much so that
Article 943 of that Code prescribed that an illegitimate child can

not inherit ab intestato from the legitimate children and

relatives of his father and mother. The Civil Code of the
Philippines apparently adhered to this principle since it
reproduced Article 943 of the Spanish Code in its own Art. 992,
but with fine inconsistency, in subsequent articles (990, 995
and 998) our Code allows the hereditary portion of the
illegitimate child to pass to his own descendants, whether
legitimate or illegitimate. So that while Art. 992 prevents the
illegitimate issue of a legitimate child from representing him in
the intestate succession of the grandparent, the illegitimates of
an illegitimate child can now do so. This difference being
indefensible and unwarranted, in the future revision of the Civil
Code we shall have to make a choice and decide either that
the illegitimate issue enjoys in all cases the right of
representation, in which case Art. 992 must be suppressed; or
contrariwise maintain said article and modify Articles 992 and
998. The first solution would be more in accord with an
enlightened attitude vis-a-vis illegitimate children. (Reflections
on the Reform of hereditary Succession, JOURNAL of the
Integrated Bar of the Philippines, First Quartet 1976, Volume 4,
Number 1, pp. 40-41). (p. 7, Decision; p. 196, Rollo)
It is therefore clear from Article 992 of the New Civil Code that
the phrase "legitimate children and relatives of his father or
mother" includes Simona Pamuti Vda. de Santero as the word
"relative" is broad enough to comprehend all the kindred of the
person spoken of. (Comment, p. 139 Rollo citing p. 2862
Bouvier's Law Dictionary vol. 11, Third Revision, Eight Edition)
The record reveals that from the commencement of this case
the only parties who claimed to be the legitimate heirs of the
late Simona Pamuti Vda. de Santero are Felisa Pamuti Jardin
and the six minor natural or illegitimate children of Pablo
Santero. Since petitioners herein are barred by the provisions
of Article 992, the respondent Intermediate Appellate Court did
not commit any error in holding Felisa Pamuti Jardin to be the
sole legitimate heir to the intestate estate of the late Simona
Pamuti Vda. de Santero.
It is Our shared view that the word "relatives" should be
construed in its general acceptation. Amicus curiae Prof.
Ruben Balane has this to say:
The term relatives, although used many times in the Code, is
not defined by it. In accordance therefore with the canons of
statutory interpretation, it should be understood to have a
general and inclusive scope, inasmuch as the term is a general
one. Generalia verba sunt generaliter intelligenda. That the law
does not make a distinction prevents us from making one: Ubi
lex non distinguit, nec nos distinguera debemus. Esrinche, in
his Diccionario de Legislacion y Jurisprudencia defines
parientes as "los que estan relacionados por los vinculos de la
sangre, ya sea por proceder unos de otros, como los
descendientes y ascendientes, ya sea por proceder de una
misma raiz o tronco, como los colaterales. (cited in Scaevola,
op. cit., p. 457). (p. 377, Rollo)
According to Prof. Balane, to interpret the term relatives in
Article 992 in a more restrictive sense than it is used and
intended is not warranted by any rule of interpretation. Besides,
he further states that when the law intends to use the term in a

more restrictive sense, it qualifies the term with the word

collateral, as in Articles 1003 and 1009 of the New Civil Code.
Thus, the word "relatives" is a general term and when used in a
statute it embraces not only collateral relatives but also all the
kindred of the person spoken of, unless the context indicates
that it was used in a more restrictive or limited sense which
as already discussed earlier, is not so in the case at bar.
To recapitulate, We quote this:
The lines of this distinction between legitimates and
illegitimates. which goes back very far in legal history, have
been softened but not erased by present law. Our legislation
has not gone so far as to place legitimate and illegitimate
children on exactly the same footing. Even the Family Code of
1987 (EO 209) has not abolished the gradation between
legitimate and illegitimate children (although it has done away
with the sub-classification of illegitimates into natural and
'spurious'). It would thus be correct to say that illegitimate
children have only those rights which are expressly or clearly
granted to them by law (vide Tolentino, Civil Code of the
Philippines, 1973 ed., vol. III, p. 291). (Amicus Curiae's Opinion
by Prof. Ruben Balane, p. 12).
In the light of the foregoing, We conclude that until Article 992
is suppressed or at least amended to clarify the term "relatives"
there is no other alternative but to apply the law literally. Thus,
We hereby reiterate the decision of June 17, 1987 and declare
Felisa Pamuti-Jardin to be the sole heir to the intestate estate
of Simona Pamuti Vda. de Santero, to the exclusion of
petitioners.
WHEREFORE, the second Motion for Reconsideration is
DENIED, and the assailed decision is hereby AFFIRMED.
SO ORDERED.

G.R. No. 77867 February 6, 1990

ISABEL
DE
LA
PUERTA,
petitioner,
vs.
THE HONORABLE COURT OF APPEALS and CARMELITA
DE LA PUERTA, respondents.
CRUZ, J.:
The basic issue involved in this case is the filiation of private
respondent Carmelita de la Puerta, who claims successional
lights to the estate of her alleged grandmother.
Dominga Revuelta died on July 3, 1966, at the age of 92, with
a will leaving her properties to her three surviving children,
namely, Alfredo, Vicente and Isabel, all surnamed de la Puerta.
Isabel was given the free portion in addition to her legitime and
was appointed executrix of the will. 1
The petition for the probate of the will filed by Isabel was
opposed by her brothers, who averred that their mother was
already senile at the time of the execution of the will and did

not fully comprehend its meaning. Moreover, some of the

properties listed in the inventory of her estate belonged to them
exclusively. 2
Meantime, Isabel was appointed special administratrix by the
probate court. 3 Alfredo subsequently died, leaving Vicente the
lone oppositor. 4
On August 1, 1974, Vicente de la Puerta filed with the Court of
First Instance of Quezon a petition to adopt Carmelita de la
Puerta. After hearing, the petition was granted. 5 However, the
decision was appealed by Isabel to the Court of Appeals.
During the pendency of the appeal, Vicente died, prompting
her to move for the dismissal of the case 6
On November 20, 1981, Carmelita, having been allowed to
intervene in the probate proceedings, filed a motion for the
payment to her of a monthly allowance as the acknowledged
natural child of Vicente de la Puerta. 7 At the hearing on her
motion, Carmelita presented evidence to prove her claimed
status to which Isabel was allowed to submit counter-evidence.
On November 12,1982, the probate court granted the motion,
declaring that it was satisfied from the evidence at hand that
Carmelita was a natural child of Vicente de la Puerta and was
entitled to the amounts claimed for her support. The court
added that "the evidence presented by the petitioner against it
(was) too weak to discredit the same. 8
On appeal, the order of the lower court was affirmed by the
respondent court, 9 which is now in turn being challenged in this
petition before us.
The petitioner's main argument is that Carmelita was not the
natural child of Vicente de la Puerta, who was married to
Genoveva de la Puerta in 1938 and remained his wife until his
death in 1978. Carmelita's real parents are Juanita Austrial and
Gloria Jordan.
Invoking the presumption of legitimacy, she argues that
Carmelita was the legitimate child of Juanita Austrial and Gloria
Jordan, who were legally or presumably married. Moreover,
Carmelita could not have been a natural child of Vicente de la
Puerta because he was already married at the time of her birth
in 1962.
To prove her point, Isabel presented Amado Magpantay, who
testified that he was a neighbor of Austrial and Jordan.
According to him, the two were living as husband and wife and
had three children, including a girl named "Puti," presumably
Carmelita. He said though that he was not sure if the couple
was legally married. 10
Another witness, Genoveva de la Puerta, Identified herself as
Vicente de la Puerta's wife but said they separated two years
after their marriage in 1938 and were never reconciled. In
1962, Gloria Jordan started living with Vicente de la Puerta in
his house, which was only five or six houses away from where
she herself was staying. Genoveva said that the relationship
between her husband and Gloria was well known in the
community. 11

In finding for Carmelita, the lower court declared that:

(1) By the impotence of the husband;

. . . By her evidence, it was shown to the satisfaction of the

Court that she was born on December 18, 1962 per her birth
certificate (Exh. A); that her father was Vicente de la Puerta
and her mother is Gloria Jordan who were living as common
law husband and wife until his death on June 14, 1978; that
Vicente de la Puerta was married to, but was separated from,
his legal wife Genoveva de la Puerta; that upon the death of
Vicente de la Puerta on June 14, 1978 without leaving a last
will and testament, she was the only child who survived him
together with his spouse Genoveva de la Puerta with whom he
did not beget any child; that she was treated by Vicente de la
Puerta as a true child from the time of her birth until his father
died; that the fact that she was treated as a child of Vicente de
la Puerta is shown by the family pictures showing movant with
Vicente de la Puerta (Exhs. D, D-1 and D-2) and school
records wherein he signed the report cards as her parent (Exh.
E and E-1); that during the hearing of her adoption case in
Special Proceeding No. 0041 in Branch V of this Court at
Mauban, Quezon, Vicente de la Puerta categorically stated in
court that Carmelita de la Puerta is his daughter with Gloria
Jordan (Exhs. B and B-1); that it was Vicente de la Puerta
during his lifetime who spent for her subsistence, support and
education; . . . 12

(2) By the fact that the husband and wife were living separately
in such a way that access was not possible;

This is a factual finding that we do not see fit to disturb, absent

any of those circumstances we have laid down in a long line of
decisions that will justify reversal. 13 Among these
circumstances are: (1) the conclusion is a finding grounded
entirely on speculation, surmise and conjecture; (2) the
inference made is manifestly mistaken; (3) there is grave
abuse of discretion; (4) the judgment is based on a
misapprehension of facts; (5) the findings of fact are conflicting;
(6) the Court of Appeals went beyond the issues of the case
and its findings are contrary to the admissions of both appellant
and appellees; (7) the findings of fact of the Court of Appeals
are contrary to those of the trial court; (8) said findings of facts
are conclusions without citation of specific evidence on which
they are based; (9) the facts set forth in the petition as well as
in the petitioner's main and reply briefs are not disputed by the
respondents; and (10) the findings of fact of the Court of
Appeals are premised on the supposed absence of evidence
and contradicted by the evidence on record.
The petitioner insists on the application of the following
provisions of the Civil Code to support her thesis that Carmelita
is not the natural child of Vicente de la Puerta but the legitimate
child of Juanito Austrial and Gloria Jordan:
Art. 255. Children born after one hundred and eighty days
following the celebration of the marriage, and before three
hundred days following its dissolution or the separation of the
spouses shall be presumed to be legitimate.
Against this presumption no evidence shall be admitted other
than that of the physical impossibility of the husband's having
access to his wife within the first one hundred and twenty days
of the three hundred which preceded the birth of the child.
This physical impossibility may be caused:

(3) By the serious illness of the husband.

Art. 256. The child shall be presumed legitimate, although the
mother may have declared against its legitimacy or may have
been sentenced as an adulteress.
These rules are in turn based on the presumption that Juanito
and Gloria were married at the time of Carmelita's birth in
1962, pursuant to Rule 131, Sec. 5(bb) of the Rules of Court,
providing that:
Sec. 5. Disputable presumptions.The following presumptions
are satisfactory if uncontradicted, but may be contradicted and
overcome by other evidence:
xxx xxx xxx
(bb) That a man and woman deporting themselves as husband
and wife have entered into a lawful contract of marriage;
But this last-quoted presumption is merely disputable and may
be refuted with evidence to the contrary. As the Court sees it,
such evidence has been sufficiently established in the case at
bar.
The cases 14 cited by the petitioner are not exactly in point
because they involve situations where the couples lived
continuously as husband and wife and so could be reasonably
presumed to be married. In the case before us, there was
testimony from Vicente's own wife that her husband and Gloria
lived together as a married couple, thereby rebutting the
presumption that Gloria was herself the lawful wife of Juanita
Austrial.
Such testimony would for one thing show that Juanito and
Gloria did not continuously live together as a married couple.
Moreover, it is not explained why, if he was really married to
her, Juanito did not object when Gloria left the conjugal home
and started openly consorting with Vicente, and in the same
neighborhood at that. That was unnatural, to say the least. It
was different with Genoveva for she herself swore that she had
separated from Vicente two years after their marriage and had
long lost interest in her husband. In fact, she even renounced
in open court any claim to Vicente's estate. 15
The presumption of marriage between Juanito and Gloria
having been destroyed, it became necessary for the petitioner
to submit additional proof to show that the two were legally
married. She did not.
Turning now to the evidence required to prove the private
respondent's filiation, we reject the petitioner's contention that
Article 278 of the Civil Code is not available to Carmelita. It is
error to contend that as she is not a natural child but a spurious
child (if at all) she cannot prove her status by the record of
birth, a will, a statement before a court of record, or any
authentic writing. On the contrary, it has long been settled that:

The so-called spurious children or illegitimate children other

than natural children, commonly known as bastards, include
adulterous children or those born out of wedlock to a married
woman cohabiting with a man other than her husband or to a
married man cohabiting with a woman other than his wife. They
are entitled to support and successional rights (Art. 287, CC).
But their filiation must be duly proven.(Ibid, Art. 887)
How should their filiation be proven? Article 289 of the Civil
Code allows the investigation of the paternity or maternity of
spurious children under the circumstances specified in Articles
283 and 284 of the Civil Code. The implication is that the rules
on compulsory recognition of natural children are applicable to
spurious children.
Spurious children should not be in a better position than natural
children. The rules on proof of filiation of natural children or the
rule on voluntary and compulsory acknowledgment for natural
children may be applied to spurious children. 16
This being so, we need not rule now on the admissibility of the
private respondent's certificate of birth as proof of her filiation.
That status was sufficiently established by the sworn testimony
of Vicente de la Puerta at the hearing of the petition for
adoption on September 6, 1976, where he categorically
declared as follows:
Q What relation if any do you have with Carmelita de la
Puerta?
A She is my daughter. 17
Finally, we move to the most crucial question, to wit: May
Carmelita de la Puerta claim support and successional rights to
the estate of Dominga Revuelta?
According to Article 970 of the Civil Code:
Art. 970. Representation is a right created by fiction of law, by
virtue of which the representative is raised to the place and the
degree of the person represented, and acquires the rights
which the latter would have if he were living or if he could have
inherited.
The answer to the question posed must be in the negative. The
first reason is that Vicente de la Puerta did not predecease his
mother; and the second is that Carmelita is a spurious child.
It is settled that
In testamentary succession, the right of representation can
take place only in the following cases: first, when the person
represented dies before the testator; second, when the person
represented is incapable of succeeding the testator; and third,
when the person represented is disinherited by the testator. In
all of these cases, since there is a vacancy in the inheritance,
the law calls the children or descendants of the person
represented to succeed by right of representation. 18
xxx xxx xxx

The law is clear that there is representation only when relatives

of a deceased person try to succeed him in his rights which he
would have had if still living. In the present case, however, said
deceased had already succeeded his aunt, the testatrix herein.
. . . It is a fact that at the time of the death of the testatrix,
Reynaldo Cuison was still alive. He died two months after her
(testatrix's) death. And upon his death, he transmitted to his
heirs, the petitioners herein Elisa Cuison et al., the legacy or
the right to succeed to the legacy. . . . In other words, the
herein petitioners-appellants are not trying to succeed to the
right to the property of the testatrix, but rather to the right of the
legatee Reynaldo Cuison in said property. 19
Not having predeceased Dominga Revuelta, her son Vicente
had the right to inherit from her directly or in his own right. No
right of representation was involved, nor could it be invoked by
Carmelita upon her father's death, which came after his own
mother's death. It would have been different if Vicente was
already dead when Dominga Revuelta died. Carmelita could
then have inherited from her in representation of her father
Vicente, assuming the private respondent was a lawful heir.
But herein lies the crux, for she is not. As a spurious child of
Vicente, Carmelita is barred from inheriting from Dominga
because of Article 992 of the Civil Code, which lays down the
barrier between the legitimate and illegitimate families. This
article provides quite clearly:
Art. 992. An illegitimate child has no right to inherit ab intestato
from the legitimate children and relatives of his father or
mother; nor shall such children or relatives inherit in the same
manner from the illegitimate child.
Applying this rule in Leonardo v. Court of Appeals,
declared:

20

this Court

. . . even if it is true that petitioner is the child of Sotero

Leonardo, still he cannot, by right of representation, claim a
share of the estate left by the deceased Francisca Reyes
considering that, as found again by the Court of Appeals, he
was born outside wedlock as shown by the fact that when he
was born, his alleged putative father and mother were not yet
married, and what is more, his alleged father's first marriage
was still subsisting. At most, petitioner would be an illegitimate
child who has no right to inherit ab intestato from the legitimate
children and relatives of his father, like the deceased Francisca
Reyes.
The reason for this rule was explained in the recent case of
Diaz v. Intermediate Appellate Court, 21 thus:
Article 992 of the New Civil Code provides a barrier or iron
curtain in that it prohibits absolutely a succession ab intestato
between the illegitimate child and the legitimate children and
relatives of the father or mother of said legitimate child. They
may have a natural tie of blood, but this is not recognized by
law for the purpose of Article 992. Between the legitimate
family and the illegitimate family there is presumed to be an
intervening antagonism and incompatibility. The illegitimate
child is disgracefully looked down upon by the legitimate family;
the family is in turn, hated by the illegitimate child the latter

considers the privileged condition of the former, and the

resources of which it is thereby deprived; the former in turn
sees in the illegitimate child nothing but the product of sin,
palpable evidence of a blemish broken in life; the law does no
more than recognize this truth, by avoiding further ground of
resentment. 22
Indeed, even as an adopted child, Carmelita would still be
barred from inheriting from Dominga Revuelta for there would
be no natural kindred ties between them and consequently, no
legal ties to bind them either. As aptly pointed out by Dr. Arturo
M. Tolentino:
If the adopting parent should die before the adopted child, the
latter cannot represent the former in the inheritance from the
parents or ascendants of the adopter. The adopted child is not
related to the deceased in that case, because the filiation
created by fiction of law is exclusively between the adopter and
the adopted. "By adoption, the adopters can make for
themselves an heir, but they cannot thus make one for their
kindred. 23
The result is that Carmelita, as the spurious daughter of
Vicente de la Puerta, has successional rights to the intestate
estate of her father but not to the estate of Dominga Revuelta.
Her claims for support and inheritance should therefore be filed
in the proceedings for the settlement of her own father's
estate 24 and cannot be considered in the probate of Dominga
Revuelta's Will.
WHEREFORE, the petition is GRANTED and the appealed
decision is hereby REVERSED and SET ASIDE, with costs
against the private respondent. It is so ordered.
G.R. No. 84240 March 25, 1992
OLIVIA S. PASCUAL and HERMES S. PASCUAL, petitioners,
vs.
ESPERANZA C. PASCUAL-BAUTISTA, MANUEL C.
PASCUAL, JOSE C. PASCUAL, SUSANA C. PASCUALBAUTISTA, ERLINDA C. PASCUAL, WENCESLAO C.
PASCUAL, JR., INTESTATE ESTATE OF ELEUTERIO T.
PASCUAL, AVELINO PASCUAL, ISOCELES PASCUAL,
LEIDA PASCUAL-MARTINES, VIRGINIA PASCUAL-NER,
NONA PASCUAL-FERNANDO,
OCTAVIO
PASCUAL,
GERANAIA PASCUAL-DUBERT, and THE HONORABLE
PRESIDING JUDGE MANUEL S. PADOLINA of Br. 162,
RTC, Pasig, Metro Manila, respondents.

PARAS, J.:
This is a petition for review on certiorari which seeks to reverse
and set aside: (a) the decision of the Court of Appeals 1 dated
April 29, 1988 in CA-G.R. SP. No. 14010 entitled "Olivia S.
Pascual and Hermes S. Pascual v. Esperanza C. PascualBautista, Manuel C. Pascual, Jose Pascual, Susana C.
Pascual-Bautista, Erlinda C. Pascual, Wenceslao C. Pascual,
Jr., et al." which dismissed the petition and in effect affirmed

the decision of the trial court and (b) the resolution dated July
14, 1988 denying petitioners' motion for reconsideration.
The undisputed facts of the case are as follows:
Petitioners Olivia and Hermes both surnamed Pascual are the
acknowledged natural children of the late Eligio Pascual, the
latter being the full blood brother of the decedent Don Andres
Pascual (Rollo, petition, p. 17).
Don Andres Pascual died intestate on October 12, 1973
without any issue, legitimate, acknowledged natural, adopted
or spurious children and was survived by the following:
(a) Adela Soldevilla de Pascual, surviving spouses;
(b) Children of Wenceslao Pascual, Sr., a brother of the full
blood of the deceased, to wit:
Esperanza C. Pascual-Bautista
Manuel C. Pascual
Jose C. Pascual
Susana C. Pascual-Bautista
Erlinda C. Pascual
Wenceslao C. Pascual, Jr.
(c) Children of Pedro-Bautista, brother of the half blood of the
deceased, to wit:
Avelino Pascual
Isoceles Pascual
Loida Pascual-Martinez
Virginia Pascual-Ner
Nona Pascual-Fernando
Octavio Pascual
Geranaia Pascual-Dubert;
(d) Acknowledged natural children of Eligio Pascual, brother of
the full blood of the deceased, to wit:
Olivia
Hermes S. Pascual

S.

Pascual

(e) Intestate of Eleuterio T. Pascual, a brother of the half blood

of the deceased and represented by the following:
Dominga M. Pascual
Mamerta P. Fugoso
Abraham S. Sarmiento, III
Regina Sarmiento-Macaibay
Eleuterio P. Sarmiento
Domiga P. San Diego
Nelia P. Marquez
Silvestre M. Pascual
Eleuterio M. Pascual
(Rollo, pp. 46-47)
Adela Soldevilla de Pascual, the surviving spouse of the late
Don Andres Pascual, filed with the Regional Trial Court (RTC),
Branch 162 (CFI of Rizal, Br. XXIII), a Special Proceeding,
Case No. 7554, for administration of the intestate estate of her
late husband (Rollo, p. 47).

On December 18, 1973, Adela soldevilla de Pascual filed a

Supplemental Petition to the Petition for letters of
Administration, where she expressly stated that Olivia Pascual
and Hermes Pascual, are among the heirs of Don Andres
Pascual (Rollo, pp. 99-101).

Petitioners filed their motion for reconsideration of said

decision and on July 14, 1988, the Court of Appeals issued its
resolution denying the motion for reconsideration (Rollo, p. 42).

On February 27, 1974, again Adela Soldevilla de Pascual

executed an affidavit, to the effect that of her own knowledge,
Eligio Pascual is the younger full blood brother of her late
husband Don Andres Pascual, to belie the statement made by
the oppositors, that they were are not among the known heirs
of the deceased Don Andres Pascual (Rollo, p. 102).

After all the requirements had been filed, the case was given
due course.

On October 16, 1985, all the above-mentioned heirs entered

into a COMPROMISE AGREEMENT, over the vehement
objections of the herein petitioners Olivia S. Pascual and
Hermes S. Pascual, although paragraph V of such compromise
agreement provides, to wit:
This Compromise Agreement shall be without prejudice to the
continuation of the above-entitled proceedings until the final
determination thereof by the court, or by another compromise
agreement, as regards the claims of Olivia Pascual and
Hermes Pascual as legal heirs of the deceased, Don Andres
Pascual. (Rollo, p. 108)
The said Compromise Agreement had been entered into
despite the Manifestation/Motion of the petitioners Olivia
Pascual and Hermes Pascual, manifesting their hereditary
rights in the intestate estate of Don Andres Pascual, their uncle
(Rollo, pp. 111-112).
On September 30, 1987, petitioners filed their Motion to
Reiterate Hereditary Rights (Rollo, pp. 113-114) and the
Memorandum in Support of Motion to reiterate Hereditary
Rights (Rollo, pp. 116-130).
On December 18, 1987, the Regional Trial Court, presided
over by Judge Manuel S. Padolina issued an order, the
dispositive portion of which reads:
WHEREFORE, premises considered, this Court resolves as it
is hereby resolved to Deny this motion reiterating the
hereditary rights of Olivia and Hermes Pascual (Rollo, p. 136).
On January 13, 1988, petitioners filed their motion for
reconsideration (Rollo, pp. 515-526). and such motion was
denied.
Petitioner appealed their case to the Court of Appeals docketed
as CA-G.R. No. 14010 (Rollo, p. 15.).
On Aril 29, 1988, the respondent Court of Appeals rendered its
decision the decision the dispositive part of which reads:
WHEREFORE, the petition is DISMISSED. Costs against the
petitioners.
SO ORDERED. (Rollo, p. 38)

Hence, this petition for review on certiorari.

The main issue to be resolved in the case at bar is whether or

not Article 992 of the Civil Code of the Philippines, can be
interpreted to exclude recognized natural children from the
inheritance of the deceased.
Petitioners contend that they do not fall squarely within the
purview of Article 992 of the Civil Code of the Philippines, can
be interpreted to exclude recognized and of the doctrine laid
down in Diaz v. IAC (150 SCRA 645 [1987]) because being
acknowledged natural children, their illegitimacy is not due to
the subsistence of a prior marriage when such children were
under conception (Rollo, p. 418).
Otherwise stated they say the term "illegitimate" children as
provided in Article 992 must be strictly construed to refer only
to spurious children (Rollo, p. 419).
On the other hand, private respondents maintain that herein
petitioners are within the prohibition of Article 992 of the Civil
Code and the doctrine laid down in Diaz v. IAC is applicable to
them.
The petition is devoid of merit.
Pertinent thereto, Article 992 of the civil Code, provides:
An illegitimate child has no right to inherit ab intestato from the
legitimate children and relatives of his father or mother; nor
shall such children or relatives inherit in the same manner from
the illegitimate child.
The issue in the case at bar, had already been laid to rest in
Diaz v. IAC, supra, where this Court ruled that:
Article 992 of the Civil Code provides a barrier or iron curtain in
that it prohibits absolutely a succession ab intestato between
the illegitimate child and the legitimate children and relatives of
the father or mother of said legitimate child. They may have a
natural tie of blood, but this is not recognized by law for the
purposes of Article 992. Between the legitimate family and
illegitimate family there is presumed to be an intervening
antagonism and incompatibility. The illegitimate child is
disgracefully looked down upon by the legitimate family; the
family is in turn hated by the illegitimate child; the latter
considers the privileged condition of the former, and the
resources of which it is thereby deprived; the former, in turn,
sees in the illegitimate child nothing but the product of sin,
palpable evidence of a blemish broken in life; the law does no
more than recognize this truth, by avoiding further grounds of
resentment.
Eligio Pascual is a legitimate child but petitioners are his
illegitimate children.

Applying the above doctrine to the case at bar, respondent IAC

did not err in holding that petitioners herein cannot represent
their father Eligio Pascual in the succession of the latter to the
intestate estate of the decedent Andres Pascual, full blood
brother of their father.
In their memorandum, petitioners insisted that Article 992 in the
light of Articles 902 and 989 of the Civil Code allows them
(Olivia and Hermes) to represent Eligio Pascual in the intestate
estate of Don Andres Pascual.
On motion for reconsideration of the decision in Diaz v. IAC,
this Court further elucidated the successional rights of
illegitimate children, which squarely answers the questions
raised by the petitioner on this point.
The Court held:
Article 902, 989, and 990 clearly speaks of successional rights
of illegitimate children, which rights are transmitted to their
descendants upon their death. The descendants (of these
illegitimate children) who may inherit by virtue of the right of
representation may be legitimate or illegitimate. In whatever
manner, one should not overlook the fact that the persons to be
represented are themselves illegitimate. The three named
provisions are very clear on this matter. The right of
representation is not available to illegitimate descendants of
legitimate children in the inheritance of a legitimate
grandparent. It may be argued, as done by petitioners, that the
illegitimate descendant of a legitimate child is entitled to
represent by virtue of the provisions of Article 982, which
provides that "the grandchildren and other descendants shall
inherit by right of representation." Such a conclusion is
erroneous. It would allow intestate succession by an
illegitimate child to the legitimate parent of his father or mother,
a situation which would set at naught the provisions of Article
992. Article 982 is inapplicable to the instant case because
Article 992 prohibits absolutely a succession ab intestato
between the illegitimate child and the legitimate children and
relatives of the father or mother. It may not be amiss to state
Article 982 is the general rule and Article 992 the exception.
The rules laid down in Article 982 that "grandchildren and other
descendants shall inherit by right of representation" and in
Article 902 that the rights of illegitimate children . . . are
transmitted upon their death to their descendants, whether
legitimate or illegitimate are subject to the limitation prescribed
by Article 992 to the end that an illegitimate child has no right to
inherit ab intestato from the legitimate children and relatives of
his father or mother. (Amicus Curiae's Opinion by former
Justice Minister Ricardo C. Puno, p. 12). Diaz v. Intermediate
Appellate Court, 182 SCRA 427; pp. 431-432; [1990]).
Verily, the interpretation of the law desired by the petitioner
may be more humane but it is also an elementary rule in
statutory construction that when the words and phrases of the
statute are clear and unequivocal, their meaning must be
determined from the language employed and the statute must
be taken to mean exactly what is says. (Baranda v. Gustilo,
165 SCRA 758-759 [1988]). The courts may not speculate as
to the probable intent of the legislature apart from the words

(Aparri v. CA, 127 SCRA 233 [1984]). When the law is clear, it
is not susceptible of interpretation. It must be applied
regardless of who may be affected, even if the law may be
harsh or onerous. (Nepomuceno, et al. v. FC, 110 Phil. 42).
And even granting that exceptions may be conceded, the same
as a general rule, should be strictly but reasonably construed;
they extend only so far as their language fairly warrants, and all
doubts should be resolved in favor of the general provisions
rather than the exception. Thus, where a general rule is
established by statute, the court will not curtail the former nor
add to the latter by implication (Samson v. C.A., 145 SCRA 654
[1986]).
Clearly the term "illegitimate" refers to both natural and
spurious.
Finally under Article 176 of the Family Code, all illegitimate
children are generally placed under one category, which
undoubtedly settles the issue as to whether or not
acknowledged natural children should be treated differently, in
the negative.
It may be said that the law may be harsh but that is the law
(DURA LEX SED LEX).
PREMISES CONSIDERED, the petition is DISMISSED for lack
of merit and the assailed decision of the respondent Court of
Appeals dated April 29, 1988 is AFFIRMED.
SO ORDERED.
G.R. No. 117246 August 21, 1995
BENIGNO MANUEL, LIBERATO MANUEL, LORENZO
MANUEL, PLACIDA MANUEL, MADRONA MANUEL,
ESPERANZA MANUEL, AGAPITA MANUEL, BASILISA
MANUEL, EMILIA MANUEL and NUMERIANA MANUEL,
petitioners,
vs.
HON. NICODEMO T. FERRER, Presiding Judge, Regional
Trial Court, Branch 37, Lingayen, Pangasinan, MODESTA
BALTAZAR and ESTANISLAOA MANUEL, respondents.

VITUG, J.:
The property involved in this petition for review on certiorari is
the inheritance left by an illegitimate child who died intestate
without any surviving descendant or ascendant.
Petitioners, the legitimate children of spouses Antonio Manuel
and Beatriz Guiling, initiated this suit. During his marriage with
Beatriz, Antonio had an extra-marital affair with one Ursula
Bautista. From this relationship, Juan Manuel was born.
Several years passed before Antonio Manuel, his wife Beatriz,
and his mistress Ursula finally crossed the bar on, respectively,
06 August 1960, 05 February 1981 and 04 November 1976.
Juan Manuel, the illegitimate son of Antonio, married
Esperanza Gamba. In consideration of the marriage, a
donation propter nuptias over a parcel of land, with an area of

2,700 square meters, covered by Original Certificate of Title

("OCT") No. P-20594 was executed in favor of Juan Manuel by
Laurenciana Manuel. Two other parcels of land, covered by
OCT P-19902 and Transfer Certificate of Title ("TCT") No.
41134, were later bought by Juan and registered in his name.
The couple were not blessed with a child of their own. Their
desire to have one impelled the spouses to take private
respondent Modesta Manuel-Baltazar into their fold and so
raised her as their own "daughter".
On 03 June 1980, Juan Manuel executed in favor of
Estanislaoa Manuel a Deed of Sale Con Pacto de Retro (with a
10-year period of redemption) over a one-half (1/2) portion of
his land covered by TCT No. 41134. Juan Manuel died
intestate on 21 February 1990. Two years later, or on 04
February 1992, Esperanza Gamba also passed away.
On 05 March 1992, a month after the death of Esperanza,
Modesta executed an Affidavit of Self-Adjudication claiming for
herself the three parcels of land covered by OCT P-20594,
OCT P-19902 and TCT No. 41134 (all still in the name of Juan
Manuel). Following the registration of the document of
adjudication with the Office of the Register of Deeds, the three
titles
(OCT P-20594, OCT P-19902 and TCT No. 41134) in the name
of Juan Manuel were canceled and new titles, TCT No.
184223, TCT No. 184224 and TCT No. 184225, were issued in
the name of Modesta Manuel-Baltazar. On 19 October 1992,
Modesta executed in favor of her co-respondent Estanislaoa
Manuel a Deed of Renunciation and Quitclaim over the
unredeemed one-half (1/2) portion of the land (now covered by
TCT No. 184225) that was sold to the latter by Juan Manuel
under the 1980 Deed of Sale Con Pacto de Retro. These acts
of Modesta apparently did not sit well with petitioners. In a
complaint filed before the Regional Trial Court of Lingayen,
Pangasinan, the petitioners sought the declaration of nullity of
the aforesaid instruments.
The case, there being no material dispute on the facts, was
submitted to the court a quo for summary judgment.
The trial court, in its now assailed 15th August 1994 decision,
dismissed the complaint holding that petitioners, not being
heirs ab intestato of their illegitimate brother Juan Manuel,
were not the real parties-in-interest to institute the suit.
Petitioners were also ordered to jointly and severally (solidarily)
pay
(a) respondent Modesta Manuel-Baltazar the sum of P5,000.00
for moral damages, P5,000.00 for exemplary damages,
P5,000.00 for attorney's fees and P500.00 for litigation
expenses and (b) Estanislaoa Manuel the sum of P5,000.00 for
moral damages, P5,000.00 for exemplary damages and
P500.00 for attorney's fees.
Petitioners' motion for reconsideration was denied by the trial
court.
The petition before us raises the following contentions: That
1. THE LOWER COURT (HAS) FAILED TO CONSIDER THE
LAST PARAGRAPH OF ARTICLE 994 OF THE NEW CIVIL

CODE, AS THE CONTROLLING LAW APPLICABLE BY

VIRTUE OF THE ADMITTED FACTS, AND NOT ARTICLE 992
OF THE SAME CODE.
2. THE LOWER COURT, IN NOT ANNULLING ALL THE ACTS
OF, AND VOIDING ALL DOCUMENTS EXECUTED BY,
RESPONDENT MODESTA BALTAZAR, WHO ARROGATED
UNTO HERSELF THE RIGHTS OF AN HEIR TO THE ESTATE
OF DECEDENT JUAN MANUEL, (HAS) VIRTUALLY
GRANTED SAID RESPONDENT THE STATUS OF AN HEIR
MANIFESTLY CONTRARY TO LAW, MORALS AND PUBLIC
POLICY.
3. TO ENFORCE ONE'S RIGHT WHEN THEY ARE VIOLATED
IS NEVER A LEGAL WRONG. 1
Petitioners argue that they are the legal heirs over one-half of
Juan's intestate estate (while the other half would pertain to
Juan's surviving spouse) under the provision of the last
paragraph of Article 994 of the Civil Code, providing thusly:
Art. 994. In default of the father or mother, an illegitimate child
shall be succeeded by his or her surviving spouse, who shall
be entitled to the entire estate.
If the widow or widower should survive with brothers and
sisters, nephews and nieces, she or he shall inherit one-half of
the estate, and the latter the other half. (Emphasis supplied)
Respondents, in turn, submit that Article 994 should be read in
conjunction with Article 992 of the Civil Code, which reads:
Art. 992. An illegitimate child has no right to inherit ab intestato
from the legitimate children and relatives of his father or
mother; nor shall such children or relative inherit in the same
manner from the illegitimate child. (Emphasis supplied)
Article 992, a basic postulate, enunciates what is so commonly
referred to in the rules on succession as the "principle of
absolute separation between the legitimate family and the
illegitimate family." The doctrine rejects succession ab intestato
in the collateral line between legitimate relatives, on the one
hand, and illegitimate relatives, on other hand, although it does
not totally disavow such succession in the direct line. Since the
rule is predicated on the presumed will of the decedent, it has
no application, however, on testamentary dispositions.
This "barrier" between the members of the legitimate and
illegitimate family in intestacy is explained by a noted civilist. 2
His thesis:
What is meant by the law when it speaks of brothers and
sisters, nephews and nieces, as legal or intestate heirs of an
illegitimate child? It must be noted that under Art. 992 of the
Code, there is a barrier dividing members of the illegitimate
family from members of the legitimate family. It is clear that by
virtue of this barrier, the legitimate brothers and sisters as well
as the children, whether legitimate or illegitimate, of such
brothers and sisters, cannot inherit from the illegitimate child.
Consequently, when the law speaks of "brothers and sisters,
nephews and nieces" as legal heirs of an illegitimate child, it
refers to illegitimate brothers and sisters as well as to the

children, whether legitimate or illegitimate, of such brothers

and sisters. (Emphasis supplied)

Children and Descendants,

The Court, too, has had occasions to explain this "iron curtain",
firstly, in the early case of Grey v. Fabie 3 and, then, in theIllegitimate Children and
relatively recent cases of Diaz v. Intermediate Appellate Court 4
and De la Puerta v. Court of Appeals. 5 In Diaz, we have said: Descendants (in the absence
Article 992 of the New Civil Code . . . prohibits absolutely aof ICDs and LPAs, the
succession ab intestato between the illegitimate child and the
legitimate children and relatives of the father or mother of saidIllegitimate Parents)
legitimate child. They may have a natural tie of blood, but this
is not recognized by law for the purposes of Article 992.Surviving Spouse
Between the legitimate family and the illegitimate family there
is presumed to be an intervening antagonism and
incompatibility. The illegitimate child is disgracefully looked
down upon by the legitimate family; the legitimate family is, inBrothers and Sisters/
turn, hated by the illegitimate child; the latter considers the
privileged condition of the former, and the resources of which itNephews and
is thereby deprived; the former, in turn, sees in the illegitimate
child nothing but the product of sin, palpable evidence of aNieces
blemish broken in life; the law does no more than recognize
this truth, by avoiding further grounds of resentment.
Other Collateral Relatives

and Surviving Spouse

(c) Illegitimate Children and
Descendants and Surviving
Spouse

(d) Surviving Spouse and

Illegitimate Parents
(e) Brothers and Sisters/
Nephews and Nieces
and Surviving Spouse
(f)

Alone

The rule in Article 992 has consistently been applied by the(within the fifth civil degree)
Court in several other cases. Thus, it has ruled that where the
illegitimate
child
had
State
(g) Alone
half-brothers who were legitimate, the latter had no right to the
In her answer to the complaint, Modesta candidly admitted that
former's inheritance; 6 that the legitimate collateral relatives of
she herself is not an intestate heir of Juan Manuel. She is right.
the mother cannot succeed from her illegitimate child; 7 that a
A ward (ampon), without the benefit of formal (judicial)
natural child cannot represent his natural father in the
adoption, is neither a compulsory nor a legal heir. 13
succession to the estate of the legitimate grandparent; 8 that
the natural daughter cannot succeed to the estate of her
We must hold, nevertheless, that the complaint of petitioners
deceased uncle who is a legitimate brother of her natural
seeking the nullity of the Affidavit of Self-Adjudication executed
father; 9 and that an illegitimate child has no right to inherit ab
by Modesta, the three (3) TCT's issued to her favor, as well as
intestato from the legitimate children and relatives of his father.
10
the Deed of Renunciation and Quitclaim in favor of Estanislaoa
Indeed, the law on succession is animated by a uniform
Manuel, was properly dismissed by the trial court. Petitioners,
general intent, and thus no part should be rendered inoperative
11
not being the real "parties-in-interest" 14 in the case, had neither
by, but must always be construed in relation to, any other
12
the standing nor the cause of action to initiate the complaint.
part as to produce a harmonious whole.
In passing, we might, in easy graphic presentation, collate the
order of preference and concurrence in intestacy expressed in
Article
978
through
Article 1014, inclusive, of the Civil Code; viz.:

Order of Preference

Legitimate Children and

Descendants

Legitimate Parents and

Ascendants

Order of Concurrence

The Court, however, sees no sufficient reason to sustain the

award of amounts for moral and exemplary damages,
attorney's fees and litigation expenses. An adverse result of a
suit in law does not mean that its advocacy is necessarily so
wrongful as to justify an assessment of damages against the
actor. 15

Children and Descendants,

WHEREFORE, the appealed decision of the Regional Trial

Court of Pangasinan (Branch 37) is AFFIRMED, except insofar
as it has awarded moral and exemplary damages, as well as
attorney's fees and litigation expenses, in favor of private
respondents, which portion is hereby DELETED. No special
pronouncement on costs.

and Surviving Spouse

SO ORDERED.

(a) Legitimate Children and

Descendants, Illegitimate

(b) Legitimate Parents and

Ascendants Illegitimate

ZOSIMA VERDAD, petitioner, vs. THE HON. COURT OF

APPEALS, SOCORRO C. ROSALES, AURORA ROSALES,
NAPOLEON ROSALES, ANTONIO ROSALES, FLORENDA

ROSALES, ELENA ROSALES AND VIRGINIA ROSALES,

respondents.

late Macaria Atega, her mother-in-law, who died intestate on 08

March 1956.

SYLLABUS

During her lifetime, Macaria contracted two marriages: the first

with Angel Burdeos and the second, following the latters death,
with Canuto Rosales. At the time of her own death, Macaria
was survived by her son Ramon A. Burdeos and her grandchild
(by her daughter Felicidad A. Burdeos) Estela Lozada of the
first marriage and her children of the second marriage, namely,
David Rosales, Justo Rosales, Romulo Rosales, and Aurora
Rosales.

1. CIVIL LAW; SUCCESSION; RIGHT TO REDEEM

PROPERTY AS LEGAL HEIR OF HUSBAND, PART OF
WHOSE ESTATE IS A SHARE IN HIS MOTHERS
INHERITANCE. - The thrust of the petition before us is the
alleged incapacity of private respondent Socorro C. Rosales to
redeem the property, she being merely the spouse of David
Rosales, a son of Macaria, and not being a co-heir herself in
the intestate estate of Macaria. Socorros right to the property is
not because she rightfully can claim heirship in Macarias estate
but that she is a legal heir of her husband, David Rosales, part
of whose estate is a share in his mothers inheritance. David
Rosales, incontrovertibly, survived his mothers death. When
Macaria died her estate passed on to her surviving children,
among them David Rosales, who thereupon became coowners of the property. When David Rosales himself later died,
his own estate, which included his undivided interest over the
property inherited from Macaria, passed on to his widow
Socorro and her co-heirs pursuant to the law on succession.
Socorro and herein private respondents, along with the coheirs of David Rosales, thereupon became co-owners of the
property that originally descended from Macaria.
2. ID.; ID.; RIGHT OF REDEMPTION; WRITTEN NOTICE OF
SALE, MANDATORY. - When their interest in the property was
sold by the Burdeos heirs to petitioner, a right of redemption
arose in favor of private respondents. This right of redemption
was timely exercised by private respondents. Concededly, no
written notice of the sale was given by the Burdeos heirs
(vendors) to the co-owners required under Article 1623 of the
Civil Code. The thirty-day period of redemption had yet to
commence when private respondent Rosales sought to
exercise the right of redemption on 31 March 1987, a day after
she discovered the sale from the Office of the City Treasurer of
Butuan City, or when the case was initiated, on 16 October
1987, before the trial court. The written notice of sale is
mandatory. This Court has long established the rule that
notwithstanding actual knowledge of a co-owner, the latter is
still entitled to a written notice from the selling co-owner in
order to remove all uncertainties about the sale, its terms and
conditions, as well as its efficacy and status.
APPEARANCES OF COUNSEL
Jessie C. Ligan for petitioner.
Federico A. Calo for private respondents.
DECISION
VITUG, J.:
The petitioner, Zosima Verdad, is the purchaser of a 248square meter residential lot (identified to be Lot No. 529, Ts-65
of the Butuan Cadastre, located along Magallanes Street, now
Marcos M. Calo St., Butuan City). Private respondent, Socorro
Cordero Vda. de Rosales, seeks to exercise a right of legal
redemption over the subject property and traces her title to the

Socorro Rosales is the widow of David Rosales who himself,

some time after Macarias death, died intestate without an
issue.
In an instrument, dated 14 June 1982, the heirs of Ramon
Burdeos, namely, his widow Manuela Legaspi Burdeos and
children Felicidad and Ramon, Jr., sold to petitioner Zosima
Verdad (their interest on) the disputed lot supposedly for the
price of P55,460.00. In a duly notarized deed of sale, dated 14
November 1982, it would appear, however, that the lot was
sold for only P23,000.00. Petitioner explained that the second
deed was intended merely to save on the tax on capital gains.
Socorro discovered the sale on 30 March 1987 while she was
at the City Treasurers Office. On 31 March 1987, she sought
the intervention of the Lupong Tagapayapa of Barangay 9,
Princess Urduja, for the redemption of the property. She
tendered the sum of P23,000.00 to Zosima. The latter refused
to accept the amount for being much less than the lots current
value of P80,000.00. No settlement having been reached
before the Lupong Tagapayapa, private respondents, on 16
October 1987, initiated against petitioner an action for Legal
Redemption with Preliminary Injunction before the Regional
Trial Court of Butuan City.
On 29 June 1990, following the reception of evidence, the trial
court handed down its decision holding, in fine, that private
respondents right to redeem the property had already lapsed.
An appeal to the Court of Appeals was interposed by private
respondents. the appellate court, in its decision of 22 April
1993, reversed the court a quo; thus:
WHEREFORE, premises considered, the judgment appealed
from is hereby REVERSED, and a new one is accordingly
entered declaring plaintiff-appellant, Socorro C. Rosales,
entitled to redeem the inheritance rights (Art. 1088, NCC) or
pro indiviso share (Art. 1620, NCC) of the Heirs of Ramon
Burdeos, Sr. in Lot 529, Ts-65 of the Butuan Cadastre, within
the remaining ELEVEN (11) DAYS from finality hereon, unless
written notice of the sale and its terms are received in the
interim, under the same terms and conditions appearing under
Exhibit J and after returning the purchase price of P23,000.00
within the foregoing period. No cost.xlviii
In her recourse to this Court, petitioner assigned the following
errors: That
The Honorable Court of Appeals erred in declaring Socorro C.
Rosales is entitled to redeem the inheritance rights (Article

1088, NCC) or pro-indiviso share (Article 1620, NCC) of the

heirs of Ramon Burdeos, Sr. in Lot 529, Ts-65 of the Butuan
Cadastre, for being contrary to law and evidence.
The Honorable Court of Appeals erred in ignoring the peculiar
circumstance, in that, the respondents actual knowledge, as a
factor in the delay constitutes laches.
The Honorable Court of Appeals erred in concluding that
Socorro C. Rosales, in effect, timely exercised the right of legal
redemption when referral to Barangay by respondent signifies
bonafide intention to redeem and; that, redemption is properly
made even if there is no offer of redemption in legal tender.
The Honorable Court of Appeals erred in ruling that the running
of the statutory redemption period is stayed upon
commencement of Barangay proceedings.xlix
Still, the thrust of the petition before us is the alleged incapacity
of private respondent Socorro C. Rosales to redeem the
property, she being merely the spouse of David Rosales, a son
of Macaria, and not being a co-heir herself in the intestate
estate of Macaria.
We rule that Socorro can. It is true that Socorro, a daughter-inlaw (or, for that matter, a mere relative by affinity), is not an
intestate heir of her parents-in-law; l however, Socorro s right to
the property is not because she rightfully can claim heirship in
Macarias estate but that she is a legal heir of her husband,
David Rosales, part of whose estate is a share in his mothers
inheritance.
David Rosales, incontrovertibly, survived his mothers death.
When Macaria died on 08 March 1956 her estate passed on to
her surviving children, among them David Rosales, who
thereupon became co-owners of the property. When David
Rosales himself later died, his own estate, which included his
undivided interest over the property inherited from Macaria,
passed on to his widow Socorro and her co-heirs pursuant to
the law on succession.
ART. 995. In the absence of legitimate descendants and
ascendants, and illegitimate children and their descendants,
whether legitimate or illegitimate, the surviving spouse shall
inherit the entire estate, without prejudice to the rights of
brothers and sisters, nephews and nieces, should there be any,
under Article 1001.
xxx

xxx

xxx

ART. 1001. Should brothers and sisters or their children survive

with the widow or widower, the latter shall be entitled to onehalf of the inheritance and the brothers and sisters or their
children to the other half.li
Socorro and herein private respondents, along with the coheirs of David Rosales, thereupon became co-owners of the
property that originally descended from Macaria.
When their interest in the property was sold by the Burdeos
heirs to petitioner, a right of redemption arose in favor of
private respondents; thus:

ART. 1619. Legal redemption is the right to be subrogated,

upon the same terms and conditions stipulated in the contract,
in the place of one who acquires a thing by purchase or dation
in payment, or by any other transaction whereby ownership is
transmitted by onerous title.
ART. 1620. A co-owner of a thing may exercise the right of
redemption in case the shares of all the other co-owners or of
any of them, are sold to a third person. If the price of the
alienation is grossly excessive, the redemptioner shall pay only
a reasonable one.
We hold that the right of redemption was timely exercised by
private respondents. Concededly, no written notice of the sale
was given by the Burdeos heirs (vendors) to the co-owners lii
required under Article 1623 of the Civil Code
ART. 1623. The right of legal pre-emption or redemption shall
not be exercised except within thirty days from the notice in
writing by the prospective vendor, or by the vendor, as the case
may be. The deed of sale shall not be recorded in the Registry
of Property, unless accompanied by an affidavit of the vendor
that he has given written notice thereof to all possible
redemptioners.
Hence, the thirty-day period of redemption had yet to
commence when private respondent Rosales sought to
exercise the right of redemption on 31 March 1987, a day after
she discovered the sale from the Office of the City Treasurer of
Butuan City, or when the case was initiated, on 16 October
1987, before the trial court.
The written notice of sale is mandatory. This Court has long
established the rule that notwithstanding actual knowledge of a
co-owner, the latter is still entitled to a written notice from the
selling co-owner in order to remove all uncertainties about the
sale, its terms and conditions, as well as its efficacy and
status.liii
Even in Alonzo vs. Intermediate Appellate Court,liv relied upon
by petitioner in contending that actual knowledge should be an
equivalent to a written notice of sale, the Court made it clear
that it was not reversing the prevailing jurisprudence; said the
Court:
We realize that in arriving at our conclusion today, we are
deviating from the strict letter of the law, which the respondent
court
understandably
applied
pursuant
to
existing
jurisprudence. The said court acted properly as it had no
competence to reverse the doctrines laid down by this Court in
the above-cited cases. In fact, and this should be clearly
stressed, we ourselves are not abandoning the De Conejero
and Buttle doctrines. What we are doing simply is adopting an
exception to the general rule, in view of the peculiar
circumstances of this case.lv
In Alonzo, the right of legal redemption was invoked several
years, notjust days or months, after the consummation of the
contracts of sale. The complaint for legal redemption itself was
there filed more than thirteen years after the sales were
concluded.

Relative to the question posed by petitioner on private

respondents tender of payment, it is enough that we quote,
with approval, the appellate court; viz:
In contrast, records clearly show that an amount was offered,
as required in Sempio vs. Del Rosario, 44 Phil. 1 and Daza vs.
Tomacruz, 58 Phil. 414, by the redemptioner-appellant during
the barangay conciliation proceedings (Answer, par. 8) but was
flatly rejected by the appellee, not on the ground that it was not
the purchase price (though it appeared on the face of the deed
of sale, Exh. J-1), nor that it was offered as partial payment
thereof, but rather that it was unconscionable based upon its
present value. (Answer, par. 8).lvi
All given, we find no error in the appellate courts finding that
private respondents are entitled to the redemption of the
subject property.
WHEREFORE, the petition is DENIED and the assailed
decision of the Court of Appeals is AFFIRMED. Costs against
petitioner.
SO ORDERED.
G.R. No. L-19996

April 30, 1965

WENCESLA
CACHO,
petitioner-appellee,
vs.
JOHN G. UDAN, and RUSTICO G. UDAN, oppositorsappellants.
Gregorio
Dolojan
for
petitioner-appellee.
Benjamin A. G. Vega and Abad Santos and Pablo for
oppositors-appellants.

pp. 55-56). After one witness, the Notary Public who made and
notarize the will, had testified in court, oppositor Francisco G.
Udan died on June 1961 in San Marcelino, Zambales,
Philippines (RA. pp. 63-66).
After the death of Francisco G. Udan, John G. Udan and
Rustico G. Udan, both legitimate brothers of the testatrix
Silvina G. Udan, filed their respective oppositions on the
ground that the will was not attested and executed as required
by law, that the testatrix was incapacitated to execute it; and
that it was procured by fraud or undue influence (RA. pp. 6366; 67-71). On 20 January 1962 proponent-appellee, through
counsel, filed a Motion to Dismiss Oppositions filed by the
Oppositors (RA. pp. 73-80), and on 20 February 1962 the
Honorable Court of First Instance of Zambales issued an Order
disallowing these two oppositions for lack of interest in the
estate and directing the Fiscal to study the advisability of filing
escheat proceedings (RA. pp. 97-99). On 26 and 30 March
1962 both oppositors filed their Motions for Reconsideration,
through their respective counsels, and these motions were
both denied by the lower court on 25 April 1962 (RA. pp. 99122; pp. 131-132). On 7 May 1962 oppositors filed their joint
Notice of Appeal (RA. pp. 132-135).
The first issue tendered by appellants is whether the oppositor
brothers, John and Rustico Udan, may claim to be heirs
intestate of their legitimate sister, the late Silvina Udan. We find
that the court below correctly held that they were not, for at the
time of her death Silvina's illegitimate son, Francisco Udan,
was her heir intestate, to the exclusion of her brothers. This is
clear from Articles 988 and 1003 of the governing Civil Code of
the Philippines, in force at the time of the death of the testatrix:

REYES, J.B.L., J.:

ART. 988. In the absence of legitimate descendants or

ascendants, the illegitimate children shall succeed to the entire
estate of the deceased.

Direct appeal, on questions of law, from an order of the Court

of First Instance of Zambales (Hon. Lucas Lacson presiding),
issued on 20 February 1962, in its Special Proceeding No.
2230, wherein the court disallowed the opposition of John G.
Udan and Rustico G. Udan to the probate of the alleged will of
their sister Silvina Udan.

ART. 1003. If there are no descendants, ascendants,

illegitimate children, or a surviving spouse, the collateral
relatives shall succeed to the entire estate of the deceased in
accordance with the following articles.

From the records it can be gleaned that on 13 December 1959

one Silvina G. Udan, single, and a resident of San Marcelino,
Zambales, died leaving a purported will naming her son,
Francisco G. Udan, and one Wencesla Cacho, as her sole
heirs, share and share alike. Wencesla Cacho, filed a petition
to probate said Will in the Court of First Instance of Zambales
on 14 January 1960 (RA. pp. 1-16). On 15 February 1960
Rustico G. Udan, legitimate brother of the testatrix, filed an
opposition to the probate (RA. pp. 16-18). On 16 February
1960 Atty. Guillermo Pablo, Jr., filed his Appearance and
Urgent Motion for Postponement for and in behalf of his client
Francisco G. Udan, the appointed heir in the Will (RA. pp. 1822). On 9 June 1960 Francisco G. Udan, through counsel, filed
his opposition to the probate of this will (RA. pp. 33-35). On 15
September 1960 oppositor Rustico G. Udan, through counsel,
verbally moved to withdraw his opposition, dated 13 February
1960, due to the appearance of Francisco G. Udan, the named
heir in the will and said opposition was ordered withdrawn (RA.

That Francisco Udan was the illegitimate son of the late Silvina
is not denied by the oppositor; and he is so acknowledged to
be in the testament, where said Francisco is termed "son" by
the testatrix. As the latter was admittedly single, the son must
be necessarily illegitimate (presumptively natural under Article
277).

These legal provisions decree that collateral relatives of one

who died intestate inherit only in the absence of descendants,
ascendants, and illegitimate children. Albeit the brothers and
sisters can concur with the widow or widower under Article
1101, they do, not concur, but are excluded by the surviving
children, legitimate or illegitimate (Art. 1003).

The trial court, therefore, committed no error in holding that

John and Rustico Udan had no standing to oppose the probate
of the will. For if the will is ultimately probated John and
Rustico are excluded by its terms from participation in the
estate; and if probate be denied, both oppositors-appellants will

be excluded by the illegitimate son, Francisco Udan, as sole

intestate heir, by operation of law.
The death of Francisco two years after his mother's demise
does not improve the situation of appellants. The rights
acquired by the former are only transmitted by his death to his
own heirs at law not to the appellants, who are legitimate
brothers of his mother, for the reason that, as correctly decided
by the court below, the legitimate relatives of the mother cannot
succeed her illegitimate child. This is clear from Article 992 of
the Civil Code.
ART. 992. An illegitimate child has no right to inherit ab
intestato from the legitimate children and relatives of his father
or mother; nor shall such children or relatives inherit in the
same manner from the illegitimate child.
For the oppositors-appellants it is argued that while Francisco
Udan did survive his mother, and acquired the rights to the
succession from the moment of her death (Art. 777, Civ. Code),
still he did not acquire the inheritance until he accepted it. This
argument fails to take into account that the Code presumes
acceptance of an inheritance if the latter is not repudiated in
due time (Civ. Code, Art. 1057, par. 2), and that repudiation, to
be valid, must appear in a public or authentic instrument, or
petition to the court. There is no document or pleading in the
records showing repudiation of the inheritance by Francisco
Udan. The latter's own opposition (RA. p. 61) to the probate of
the alleged will is perfectly compatible with the intention to
exclude the proponent Cacho as testamentary coheir, and to
claim the entire inheritance as heir ab intestato.
Finally, it is urged that as probate is only concerned with the
due execution of a testament, any ruling on the successional
rights of oppositors-appellants is at present premature. Inquiry
into the hereditary rights of the appellants is not premature, if
the purpose is to determine whether their opposition should be
excluded in order to simplify and accelerate the proceedings. If,
as already shown, appellants cannot gain any hereditary
interest in the estate whether the will is probated or not, their
intervention would merely result in unnecessary complication.
It may not be amiss to note, however, that the hearing on the
probate must still proceed to ascertain the rights of the
proponent Cacho as testamentary heir.
It is urged for the applicant that no opposition has been
registered against his petition on the issues above-discussed.
Absence of opposition, however, does not preclude the
scanning of the whole record by the appellate court, with a
view to preventing the conferment of citizenship to persons not
fully qualified therefor (Lee Ng Len vs. Republic, G.R. No. L20151, March 31, 1965). The applicant's complaint of
unfairness could have some weight if the objections on appeal
had been on points not previously passed upon. But the
deficiencies here in question are not new but well-known,
having been ruled upon repeatedly by this Court, and we see
no excuse for failing to take them into account.1wph1.t
WHEREFORE, the order under appeal is affirmed, without
prejudice to further proceedings in the case, conformably to

this opinion. Costs against appellants John G. Udan and

Rustico G. Udan.

G.R. No. L-7768

November 14, 1912

MANUEL
SARITA,
ET
AL.,
plaintiffs-appellants,
vs.
ANDRES CANDIA, defendant-appellee.
Felix
Sevilla
y
Macam,
Vicente Urgello, for appellee.

for

appellants.

ARELLANO, C.J.:
The spouses Apolinario Cedeo and Roberto Montesa
acquired during their marriage a piece of land, apparently of an
area of 2 cavanes of corn upon which they had planted fruit
trees. Apolinario Cedeo died in 1895 and Roberta Montesa in
1909. It is alleged that during the lifetime of these spouses,
from 1886 to April, 1909, on which latter date Roberta Montesa
died, Andres Candia was holding and cultivating the said land,
but that as stated in the complainant, he did so merely under a
lease and paid the said spouses one hundred pesos
semiannually; that, from May, 1909, he refused to pay the
emphyteutic rent for the cultivation of the land, appropriated the
land and claimed ownership thereof; and that he also took
possession of four mares, twelve carabaos, and several pieces
of furniture which were in the house erected on the said land
a house worth 50 pesos which he also seized and claimed
as his property. Apolinario Cedeo had three brothers and one
sister, Macario, Domingo, Leon, and Cristeta, of whom only the
last mentioned is living. Macario left of five children, among
them Tomas Cedeo; Domingo, the same number, among
them a daughter named Sofia, who died leaving a son, Manuel
Sarita; and Leon, four, among them, Gregorio Cedeo. All of
these except Gregorio Cedeo and his brothers sue for the
ownership of the land and the other personal property of
Andres Candia which, together with the fruits thereof, they
requested the Court of First Instance of Cebu to sentence the
latter to return to them and, further, that he indemnify them in
the amount of P800, and pay the costs.
Andres Candia, a nephew of Roberta Montesa as the son of
her sister, testified that he had been brought up, from the time
he was very young, in the house of the spouses Cedeo and
Montesa; that he worked on the house which those spouses
left at their death when it was under construction, and, from his
boyhood, assisted in the cultivation of the land; that said
Apolonio Cedeo, otherwise known as Isidario Cedeo, was a
cabeza de barangay of the pueblo of Sibonga, who, in order to
pay certain shortages of the cabeceria under his charge, on the
24th of June, 1881, sold the said land to Juan Basa Villarosa,
who held it in quiet and peaceable possession for twenty-four
years and at his death such possession was continued by his
sons, Sinforoso and Vicente Villarosa, from whom witness,
Andres Candia, acquired the property by purchase; that at no
time did he hold the same as a lessee nor pay for it any

emphyteutic rent whatever; and that he never had in his

possession the animals mentioned in the complaint.
The court absolved the defendant from the complainant, on the
grounds that, with regard to the animals and real property sued
for, there was no proof whatever that they were in possession
of the spouses at the time of their death, and, with respect to
the land: (1) That the defendant was the possessor in good
faith continuously and was presumed to hold under just title so
long as the contrary should not be proved; and (2) that neither
the plaintiffs nor their alleged predecessors in interest made
demand for it during the period of twenty-six years, since the
ownership thereof was conveyed by Isidario or Apolinario
Cedeo to Juan Basa Villarosa, on the 24th of June, 1881, it
being that during this very long period of time they did not
obtain possession of the property.
The judgment having been appealed through a bill exceptions
and the appeal having been heard, we determine: With respect
to the property, that the opinion of the trial court is
unchangeable, as, in this regard, it has not been impugned as
erroneous on appeal, and is certainly in accord with the merits
of the case; and, as concerns the land, (1) that this action is
one for the recovery of possession from the present possessor,
and, in order to bring it, the plaintiffs make use of hereditary
right, by styling themselves the heirs of Apolinario Cedeo; (2)
that the plaintiffs are, on the one side, Cristeta Cedeo, on
another, some nephews and nieces of the latter, his brother
Macario's children; and on the other, some children of Domingo
Cedeo, among them Manuel Sarita, the principal plaintiff, in
representation of his deceased mother, Sofia, also a daughter
of Domingo Cedeo; (3) that they assert their hereditary right in
an intestate succession, and that the land in question was the
community property of the deceased spouses, Cedeo and
Montesa, as established hypothetically, especially by the
plaintiffs' witnesses, Estanislao Solano and Irineo Tormis; (4)
that, such being the case, they could demand, as the legitimate
heirs of Apolonio Cedeo, only one-half of the land, but not the
other half which belonged to Roberta Montesa, of whom they
are not heirs ab intestato, from the fact that they are collateral
relatives of this woman's husband: so that claim to all the land
is manifestly unfounded; (5) that, moreover, it is manifestly
unfounded in so much as Sofia's son, Manuel Sarita, in
representation of his mother, could not act as a plaintiff, nor
could she, Sofia do so by representing her father, Domingo; on
the hypothesis that the right of representation in the collateral
line can only take place in favor of the children of brothers or
sisters (Civil Code, art. 925, par. 2), and the said Manuel Sarita
is not a child of a brother, as are the children of Macario and
Domingo Cedeo; and, finally, that it was manifestly imprudent
also to include as plaintiffs Gregorio, Lorenzo, Abundio and
Jose, the children of Leon Cedeo, a brother of the deceased
Apolinario Cedeo, when, as the first of them testified, they did
not attempt to take part in this litigation:lawph!l.net
JUDGE. Is Mr. Sevilla your attorney?
WITNESS. No, sir.
Q. Have you employed him?A. No.

Q. Have you spoken to him about this case?A. No, sir.

Q. So then, you were never in Mr. Sevilla's office?A. I do not
know where it is.
Q. Have you authorized this action against Andres Candia?
A. No, sir.
Q. Have your brothers, Lorenzo, Juan, and the others, done
so?A. They have not.
Q. So that in this suit neither you nor your brothers now have
any claim against Andres Candia?A. No.
Elsewhere this same witness said:
My uncles and cousins spoke to me about the institution of this
suit; I told them that it could not be, because the land was
purchased by Juan Villarosa at the time that our deceased
uncle found himself obliged to cover certain shortages against
him in the cabeceria; it was then that he sold the land.
In view of the foregoing considerations, we decide, with respect
to the exercise of the hereditary right derived from the intestate
succession of Apolinario Cedeo:
First. That Manuel Sarita, the principal plaintiff, in whose
house, according to Exhibit D, there was drawn up at his
request the engagement of all the plaintiffs to confide the suit
to the attorney who has conducted it, has absolutely no such
right, because he cannot represent his grandfather Domingo,
since, as aforesaid, in the collateral line the right of
representation can only take place in favor of the children of
brothers or sisters, but not in favor of the grandson of a brother,
such as is the said Manuel Sarita, the son of Sofia Cedeo
who, in turn, was the daughter of Domingo Cedeo.
Second. That, on the hypothesis that such hereditary right
derived from the intestate succession of Apolinario Cedeo,
does exist, it could only be exercised by Cristeta Cedeo, the
children of Macario Cedeo, and those of Domingo Cedeo,
but not by Manuel Sarita, because in inheritances the nearer
relative excludes the more remote, excepting the right of
representation in proper cases (Civil Code, art 921); from
which it is inferred that, in pushing forward Cristeta Cedeo,
the children of Macario Cedeo and those of Domingo Cedeo,
to exercise such a hereditary right, it should have been noticed
that the personality of these parties as the nearest relatives
excluded that of Manuel Sarita, the son of Sofia Cedeo, of a
more remote degree.
Third. That, on the same hypothesis, in the eyes of the law no
meaning whatever could be given to the document, Exhibit H of
the plaintiffs, wherein it is made to appear that the widow of
Apolinario Cedeo, Roberta Montesa implored of the heirs of
her deceased husband that she be allowed to continue in her
possession of the land and the house of the family; inasmuch
as, as coowner of such property, she was entitled to one-half of
it and, besides, had a right of usufruct to one-half of the other
half of the same, pursuant to the provisions of articles 837 and
953 of the Civil Code, and until she was satisfied for her part of

usufruct, this half of the other half remained liable for the
payment of such part of usufruct. (Civil Code, art. 838.)
Fourth. The hypothesis disappears from the moment that it is
proved that at the death of such alleged predecessor in interest
in the inheritance, the land in question was not owned by him,
it having been transferred in 1881, according to a conclusion
established by the trial judge. Therefore, the action for the
recovery of possession, derived from such alleged inheritance,
cannot exist.
This transfer of the and affected by Isidario or Apolinario
Cedeo was originally the title alleged by the defendant a
title which must not be presumed in the present case, but
proved. It is true that the possessor, in the capacity of owner
has in his favor the legal presumption that he holds under the
lawful title and cannot be compelled to exhibit it (Civil Code,
art. 446); but it is also true that when the defendant agrees with
the plaintiffs that the thing demanded belonged to a
determinate person during his lifetime from whom these latter
claim to derive their right, the existence is thereby admitted of a
right of ownership opposed to that of the present possessor,
and hence logically the necessity for the latter to prove his title
and exhibit it, in order to destroy the contrary presumption in
favor of that prior ownership.
The defendant, according to the finding of the trial judge, has
proved that he has such a title, by the exhibition of three
documents: one, of the sale by Isidario or Apolinario Cedeo to
Juan Basa Villarosa (Exhibit 2); another, of the sale with pacto
de retro by the latter's son, Sinforoso Villarosa, to the
defendant (Exhibit 3); and the other, of a final sale by the other
son, Vicente Villarosa, to the same party, Andres Candia
(Exhibit 4).
Against this finding of the lower court, the appellants allege: 1.
That Isidario Cedeo, the vendor, has nothing to do with
Apolinario Cedeo, his predecessor in interest; and, 2. That the
land in Talamban known as that of Juan Basa Villarosa is about
15 or 20 brazas distant from the land in Talamban which is
concerned in this litigation.
But the finding impugned is in no wise erroneous. Tomas
Cedeo, one of the plaintiffs, testified that his uncle Apolinario
had the baptismal or Christian name of Isidario, was better
known by the nickname of Adiot, and was the only cabeza de
barangay in Sibonga with the surname of Cedeo. Domingo
Cedeo, who was erroneously made to appear as a plaintiff,
said that the original owner of the land in question was "his
deceased uncle, Isidario Cedeo," and that Isidario was the
true name. The averment of the appellants that "the finding of
the court is precisely contrary to the agreement made by both
parties" (brief, 8)is in all respects incorrect. "In the said
agreement, they say, no other name than that of Apolinario was
recorded and admitted to be the name of the plaintiff's
predecessor in interest. By that same agreement the defendant
could not be heard to prove another so different name as that
of Isidario for the purpose of confusing it with that of
Apolinario . . . (brief, 8). The agreement only says: "By
agreement between the attorneys for both parties, the
complaint in this case is understood to be amended in the

sense that the name of Apolonio Cedeo, which occurs in the

first line of the first paragraph of the complaint, is substituted
for the name of Apolinario Cedeo; it is being agreed that the
amended answer which the court has just admitted refers to
the complaint so amended." The only point that appears to be
agreed upon is that where the plaintiffs say in their complaint
Apolonio, the same shall be read Apolinario; but it was not
agreed that the party Apolinario might not be known by any
other name than that Apolinario, nor that the defendant should
not try to prove another name as that of Isidario.
It is also in all respects inexact that the land in Talamban, the
subject matter of the complaint, which formerly belonged to
Apolinario Cedeo, is different from the land in Talamban which
the defendant claim was sold by Isidario Cedeo to Juan Basa
Villarosa. The complaint says: "Boundaries: On the north, by
Calixto Nejarda; on the south, by the river called Grande and
Alejandro Mirafuentes; on the east, by the same river, Grande;
on the west, by a large rock." Defendant's Exhibit 2 says:
"Bounded on the north by Calixto Nejarda; on the east by
Calixto Nejarda; on the south by Alejandro Mirafuentes; and on
the west by Miguel and a large rock." The plaintiffs' witnesses,
Solano and Cuestas, and the plaintiffs themselves, Sarita and
Tomas Cedeo, designate the same boundaries as does the
defendant, giving also as the eastern boundary, besides the
river, Calixto Nejarda . . . The interposition of "Miguel" as being
on the west, written in other documents as on the south, is
perfectly explained by the defendant: It refers to Miguel Calixtio
who broke up the ground between the large rock and the land
in dispute; and so it is that in subsequent documents it also
appears as the western boundary.
For the proceeding reasons, the judgment appealed from is
affirmed, with the costs of this instance against the appellants.

G.R. No. L-19382

August 31, 1965

IN RE SUMMARY SETTLEMENT OF THE ESTATE OF

MELODIA FERRARIS.
FILOMENA ABELLANA DE BACAYO, petitioner-appellant,
vs.
GAUDENCIA FERRARIS DE BORROMEO, CATALINA
FERARIS DE VILLEGAS,
JUANITO FERRARIS and CONCHITA FERRARIS,
oppositors-appellees.
Mateo C. Bacalso and C. Kintanar for petitioner-appellant.
Gaudioso Sosmea and C. Tomakin for oppositors-appellees.
REYES, J.B.L., J.:
This is a pauper's appeal, directly brought to this Court on
points of law, from a resolution, dated September 20, 1961,
excluding petitioner-appellant herein, Filomena Abellana de
Bacayo, as heir in the summary settlement of the estate of
Melodia Ferraris, Special Proceeding No. 2177-R of the Court
of First Instance of Cebu, Third Branch, as well as from the
order, dated October 16, 1961, denying a motion to reconsider
said resolution.

The facts of this case are not disputed by the parties.

Melodia Ferraris was a resident of Cebu City until 1937 when
she transferred to Intramuros, Manila. She was known to have
resided there continuously until 1944. Thereafter, up to the
filing on December 22, 1960 of the petition for the summary
settlement of her estate, she has not been heard of and her
whereabouts are still unknown. More than ten (10) years
having elapsed since the last time she was known to be alive,
she was declared presumptively dead for purposes of opening
her succession and distributing her estate among her heirs.
Melodia Ferraris left properties in Cebu City, consisting of onethird (1/3) share in the estate of her aunt, Rosa Ferraris, valued
at P6,000.00, more or less, and which was adjudicated to her
in Special Proceeding No. 13-V of the same court.
The deceased Melodia Ferraris left no surviving direct
descendant, ascendant, or spouse, but was survived only by
collateral relatives, namely, Filomena Abellana de Bacayo, an
aunt and half-sister of decedent's father, Anacleto Ferraris; and
by Gaudencia, Catalina, Conchita, and Juanito, all surnamed
Ferraris, her nieces and nephew, who were the children of
Melodia's only brother of full blood, Arturo Ferraris, who predeceased her (the decedent). These two classes of heirs claim
to be the nearest intestate heirs and seek to participate in the
estate of said Melodia Ferraris.

We agree with appellants that as an aunt of the deceased she

is as far distant as the nephews from the decedent (three
degrees) since in the collateral line to which both kinds of
relatives belong degrees are counted by first ascending to the
common ancestor and then descending to the heir (Civil Code,
Art. 966). Appellant is likewise right in her contention that
nephews and nieces alone do not inherit by right of
representation (i.e., per stripes) unless concurring with brothers
or sisters of the deceased, as provided expressly by Article
975:
ART. 975. When children of one or more brothers or sisters of
the deceased survive, they shall inherit from the latter by
representation, if they survive with their uncles or aunts. But if
they alone survive, they shall inherit in equal portions.
Nevertheless, the trial court was correct when it held that, in
case of intestacy, nephews and nieces of the de cujus exclude
all other collaterals (aunts and uncles, first cousins, etc.) from
the succession. This is readily apparent from articles 1001,
1004, 1005, and 1009 of the Civil Code of the Philippines, that
provided as follows:
ART. 1001. Should brothers and sisters or their children survive
with the widow or widower, the latter shall be entitled to onehalf of the inheritance and the brothers and sisters or their
children to the other half.

The following diagram will help illustrate the degree of

relationship of the contending parties to said Melodia Ferraris:

ART. 1004. Should the only survivors be brothers and sisters of

the full blood, they shall inherit in equal shares.

Note: Picture

ART. 1005. Should brothers and sisters survive together with

nephews and nieces, who are the children of the decedent's
brothers and sisters of the full blood, the former shall inherit
per capita, and the latter per stripes.

The sole issue to be resolved in this case is: Who should

inherit the intestate estate of a deceased person when he or
she is survived only by collateral relatives, to wit an aunt and
the children of a brother who predeceased him or her?
Otherwise, will the aunt concur with the children of the
decedent's brother in the inheritance or will the former be
excluded by the latter?
The trial court ruled that the oppositors-appellees, as children
of the only predeceased brother of the decedent, exclude the
aunt (petitioner-appellant) of the same decedent reasoning out
that the former are nearer in degree (two degrees) than the
latter since nieces and nephews succeed by right of
representation, while petitioner-appellant is three degrees
distant from the decedent, and that other collateral relatives are
excluded by brothers or sisters or children of brothers or sisters
of the decedent in accordance with article 1009 of the New
Civil Code.
Against the above ruling, petitioner-appellant contends in the
present appeal that she is of the same or equal degree of
relationship as the oppositors appellees, three degrees
removed from the decedent; and that under article 975 of the
New Civil Code no right of representation could take place
when the nieces and nephew of the decedent do not concur
with an uncle or aunt, as in the case at bar, but rather the
former succeed in their own right.

ART. 1009. Should there be neither brothers nor sister nor

children of brothers or sisters, the other collateral relatives shall
succeed to the estate.
The latter shall succeed without distinction of lines or
preference among them by reason of relationship by the whole
blood.
Under the last article (1009), the absence of brothers, sisters,
nephews and nieces of the decedent is a precondition to the
other collaterals (uncles, cousins, etc.) being called to the
succession. This was also and more clearly the case under the
Spanish Civil Code of 1889, that immediately preceded the
Civil Code now in force (R.A. 386). Thus, Articles 952 and 954
of the Code of 1889 prescribed as follows:
ART. 952. In the absence of brother, or sisters and of nephews
or nieces, children of the former, whether of the whole blood or
not, the surviving spouse, if not separated by a final decree of
divorce, shall succeed to the entire estate of the deceased.
ART. 954. Should there be neither brothers or sisters, nor
children of brothers or sisters, nor a surviving spouse, the other
collateral relatives shall succeed to the estate of deceased.

The latter shall succeed without distinction of lines or

preference among them by reason of the whole blood.

GERONIMO ALMANZA, et al., defendant. FLORENTINO

CARTENA, defendant-appellant.

It will be seen that under the preceding articles, brothers and

sisters and nephews and nieces inherited ab intestato ahead of
the surviving spouse, while other collaterals succeeded only
after the widower or widow. The present Civil Code of the
Philippines merely placed the spouse on a par with the
nephews and nieces and brothers and sisters of the deceased,
but without altering the preferred position of the latter vis-a-vis
the other collaterals.

Antonio E. Lacsam & Cesar A. Azucena, Jr. for appellant.

Appellants quote paragraph 2 of Tolentino's commentaries to

Article 1009 of the present Civil Code as declaring that Article
1009 does not establish a rule of preference. Which is true as
to "other collaterals," since preference among them is
according to their proximity to the decedent, as established by
Article 962, paragraph 1.
ART. 962. In every inheritance, the relative nearest in degree
excludes the more distant ones, saving the right of
representation when it properly takes place.
But Tolentino does not state that nephews and nieces concur
with other collaterals of equal degree. On the contrary, in the
first paragraph of his commentaries to Article 1009 (Vol II, p.
439) (which counsel for appellants had unethically omitted to
quote), Tolentino expressly states:
Other collaterals. The last of the relatives of the decedent to
succeed in intestate succession are the collaterals other than
brothers or sisters or children of brothers or sisters. They are,
however, limited to relatives within the fifth degree. Beyond
this, we can safely say there is hardly any affection to merit the
succession of collaterals. Under the law, therefore, relatives
beyond the fifth degree are no longer considered as relatives,
for successional purposes.
Article 1009 does not state any order of preference. However,
this article should be understood in connection with the general
rule that the nearest relatives exclude the farther. Collaterals of
the same degree inherit in equal parts, there being no right of
representation. They succeed without distinction of lines or
preference among them on account of the whole blood
relationship. (Emphasis supplied)
We, therefore, hold, and so rule, that under our laws of
succession, a decedent's uncles and aunts may not succeed
ab intestato so long as nephews and nieces of the decedent
survive and are willing and qualified to succeed.
The decision appealed from, in so far as it conforms to this
rule, is hereby affirmed. No costs.
Bengzon, C.J., Concepcion, Dizon, Regala, Makalintal,
Bengzon,
J.P.,
and
Zaldivar,
JJ.,
concur.
Bautista Angelo, J., took no part.
G.R. No. L-37365 November 29, 1977
GAUDENCIO
vs.

BICOMONG,

et

al.,

plaintiffs-appellees,

Ricardo A. Fabros, Jr. for appellees.

GUERRERO, J.:
This is an appeal certified to this Court by the Court of Appeals
1
in accordance with the provisions of Sec. 17, paragraph (4) of
the Judiciary Act of 1948, as amended, since the only issue
raised is the correct application of the law and jurisprudence on
the matter which is purely a legal question.
The following findings of fact by the Court of First Instance of
Laguna and San Pablo City in Civil Case No. SP-265, and
adopted by the Court of Appeals, show that:
Simeon Bagsic was married to Sisenanda Barcenas on June 8,
1859 (Exh. "D") Of this marriage there were born three children
namely: Perpetua Bagsic (Exhibit G), Igmedia Bagsic (Exhibit
F), and Ignacio Bagsic (Exhibit H). Sisenanda Barcenas died
ahead of her husband Simeon Bagsic.
On June 3, 1885, Simeon Bagsic remarried Silvestra Glorioso
(Exhibit "E"). Of this second marriage were born two children,
Felipa Bagsic (Exhibit J) and Maura Bagsic (Exhibit I). Simeon
Bagsic died sometime in 1901. Silvestra Glorioso also died.
Ignacio Bagsic died on April 18, 1939 (Exhibit C) leaving the
plaintiff Francisca Bagsic as his only heir. Igmedia Bagsic also
died on August 19, 1944 (Exhibit B) survived by the plaintiffs
Dionisio Tolentino, Maria Tolentino and Petra Tolentino.
Perpetua Bagsic died on July 1, 1945 (Exhibit A). Surviving her
are her heirs, the plaintiffs Gaudencio Bicomong, Felicidad
Bicomong, Salome Bicomong, and Gervacio Bicomong.
Of the children of the second marriage, Maura Bagsic died also
on April 14, 1952 leaving no heir as her husband died ahead of
her. Felipa Bagsic, the other daughter of the second Geronimo
Almanza and her daughter Cristeta Almanza. But five (5)
months before the present suit was filed or on July 23, 1959,
Cristeta Almanza died leaving behind her husband, the
defendant herein Engracio Manese (Exhibit 1-Manese) and her
father Geronimo Almanza.
(Rollo, pp. 2-3)
The subject matter of the complaint in Civil Case No. SP-265
concerns the one-half undivided share of Maura Bagsic in the
following described five (5) parcels of land which she inherited
from her deceased mother, Silvestra Glorioso, to wit:
A. A parcel of land in Bo. San Ignacio, City of San Pablo,
planted with 38 fruit bearing coconut trees, with an area of
1,077, sq. m. Bounded on the N. by German Garingan; on the
E. by Juan Aliagas; on the S. by Bernardino Alina; and on the
W. by Feliciana Glorioso Covered by Tax No. 12713 for the

year 1948 in the name of Silvestra Glorioso, now Tax No.

31232, assessed at P170.00 in the name of defendant
Geronimo Almanza;
B. A parcel of land, also situated in Bo. San Ignacio, City of
San Pablo, planted with fruit bearing coconut trees, with an
area of 9,455 sq. m. Bounded on the N. by Paulino Gajuco; on
the E. by Felisa Gavino and German Garigan; on the S. by
Esteban Calayag; and on the W. by Laureano Ambion,
Covered by Tax No. 12714 for the year 1948 in the name of
defendant Geronimo Almanza;
C. A parcel of land situated in same Bo. San Ignacio, City of
San Pablo, planted with 376 fruit bearing coconut trees and
having an area of 11,739 sq. m. Bounded on the N. by Jacinto
Alvero, Anacleto Glorioso and Bernardino Alma; on the E. by
Bernardino Alma; on the S. by Rosendo Banaad, Jacinto
Alvero and Casayan River; and on the W. by Anacleto Glorioso
Covered by Tax No. 12715 for the year 1948 in the name of
Silvestra Glorioso, now Tax No. 31234, assessed at P2,720.00
in the name of defendant Geronimo Almanza;
D. A residential lot, situated at P. Alcantara Street, Int., City of
San Pablo, with an area of 153, sq. m. Bounded on the N. by
heirs of Pedro Calampiano; on the E. by Petronilo Cartago; on
the S. by Ignacio Yerro; and on the W. by Melecio Cabrera.
Covered by Tax No. 17653 for the year 1948 in the name of
Silvestra Glorioso, now Tax No. 21452, assessed at P610.00 in
the name of Cristeta Almanza; and
E. A parcel of coconut land, situated at Bo. Buenavista,
Candelaria, Quezon, planted with 300 coconut trees fruit
bearing. Area - 24,990 sq. m. Bounded on the N. (Ilaya) by
heirs of Pedro de Gala on the E. by Julian Garcia; on the S.
(Ibaba) by Julian Garcia, and on the W. by Taguan River.
Covered by Tax No. 21452, assessed at P910.00.
(Record on Appeal, pp. 4-6)

thereby leaving the possession and administration of the same

to the defendants.
After trial, the court rendered judgment, the dispositive portion
of which reads:
WHEREFORE, judgment is hereby rendered in favor of the
plaintiffs who are hereby declared to be entitled to ten twentyfourth (10/24) share on the five parcels of land in dispute. The
defendant Engracio Manese and the heirs of the deceased
Geronimo Almanza, who are represented in the instant case by
the administrator Florentino Cartena, are hereby required to
pay the plaintiffs from July 23, 1959 the sum of P625.00 per
annum until the ten-twenty fourth (10/24) share on the five
parcels of land are delivered to the plaintiffs, with legal interest
from the time this decision shall have become final.
With costs against the defendants.
SO ORDERED.
City of San Pablo, September 21, 1962.
(SGD) JOSE G. BAUTISTA
Judge
Record on Appeal, p. 47
From the aforesaid decision of the trial court, Florentino
Cartena, the substitute defendant for Geronimo Almanza,
appealed to the Court of Appeals. The other defendant,
Engracio Manese, did not appeal and execution was issued
with respect to the parcels of land in his possession, that is,
those described under Letters D and E in the complaint.
Hence, the subject matter of the case on appeal was limited to
the one-half undivided portion of only three of the five parcels
of land described under letters A, B and C in the complaint
which defendant Cartena admitted to be only in his possession.
2

Three sets of plaintiffs filed the complaint on December 1,

1959, namely: (a) the Bicomongs, children of Perpetua Bagsic;
(b) the Tolentinos, children of Igmedia Bagsic; and (c)
Francisco Bagsic, daughter of Ignacio Bagsic, in the Court of
First Instance of Laguna and San Pablo City against the
defendants Geronimo Almanza and Engracio Menese for the
recovery of their lawful shares in the properties left by Maura
Bagsic.
After the death of Maura Bagsic, the above-described
properties passed on to Cristela Almanza who took charge of
the administration of the same. Thereupon, the plaintiffs
approached her and requested for the partition of their aunt's
properties. However, they were prevailed upon by Cristeta
Almanza not to divide the properties yet as the expenses for
the last illness and burial of Maura Bagsic had not yet been
paid. Having agreed to defer the partition of the same, the
plaintiffs brought out the subject again sometime in 1959 only.
This time Cristeta Almanza acceded to the request as the
debts, accordingly, had already been paid. Unfortunately, she
died without the division of the properties having been effected,

On appeal, defendant-appellant Cartena contends that the

provisions of Arts. 995, 1006 and 1008 of the New Civil Code,
applied by the trial court in allowing plaintiffs-appellees to
succeed to the properties left by Maura Bagsic were not the
applicable provisions. He asserts that in the course of the trial
of the case in the lower court, plaintiffs requested defendants
to admit that Felipa Bagsic, the sole sister of full blood of
Maura Bagsic, died on May 9. 1955. Since Maura Bagsic died
on April 14, 1952, Felipa succeeded to Maura's estate. In
support thereof, he cites Art. 1004 of the New Civil Code which
provides that "should the only survivors be brothers and sisters
of the full blood, they shall inherit in equal shares," and he
concludes with the rule that the relatives nearest in degree
excludes the more distant ones. (Art. 962, New Civil Code)
On the other hand, plaintiffs-appellees claim that the date of
death of Felipa Bagsic was not raised as an issue in the trial
court. It was even the subject of stipulation of the parties as
clearly shown in the transcript of the stenographic notes that
Felipa Bagsic died on May 9. 1945. 3

The Court of Appeals ruled that the facts of the case have been
duly established in the trial court and that the only issue left for
determination is a purely legal question involving the correct
application of the law and jurisprudence on the matter, hence
the appellate court certified this case to Us.
We hold that the provisions of Art. 975, 1006 and 1008 of the
New Civil Code are applicable to the admitted facts of the case
at bar. These Articles provide:

erroneous factual assumption, that is, that Felipa Bagsic died

in 1955, which as indicated here before, is not true as she died
on May 9, 1945, thus she predeceased her sister Maura
Bagsic.
We find the judgment of the trial court to be in consonance with
law and jurisprudence.
ACCORDINGLY, the judgment of the trial court is hereby
affirmed. No costs.

Art. 975. When children of one or more brothers or sisters of

tile deceased survive, they shall inherit from the latter by
representation, if they survive with their uncles or aunts. But if
they alone survive, they shall inherit in equal portions."

Teehankee (Chairman), Makasiar, Muoz Palma, Martin and

Fernandez, JJ., concur.

Art. 1006. Should brothers and sisters of the full blood survive
together with brothers and sisters of the half blood, the former
shall be entitled to a share double that of the latter.

G.R. No. L-10033

Art. 1008. Children of brothers and sisters of the half blood

shall succeed per capita or per stirpes, in accordance with the
rules laid down for brothers and sisters of the full blood.
In the absence of defendants, ascendants, illegitimate children,
or a surviving spouse, Article 1003 of the New Civil Code
provides that collateral relatives shall succeed to the entire
estate of the deceased. It appearing that Maura Bagsic died
intestate without an issue, and her husband and all her
ascendants had died ahead of her, she is succeeded by the
surviving collateral relatives, namely the daughter of her sister
of full blood and the ten (10) children of her brother and two (2)
sisters of half blood in accordance with the provision of Art. 975
of the New Civil Code.
By virtue of said provision, the aforementioned nephews and
nieces are entitled to inherit in their own right. In AbellanaBacayo vs. Ferraris-Borromeo, L-19382, August 31, I965, 14
SCRA 986, this Court held that "nephews and nieces alone do
not inherit by right of representation (that is per stirpes) unless
concurring with brothers or sisters of the deceased."
Under the same provision, Art. 975, which makes no
qualification as to whether the nephews or nieces are on the
maternal or paternal line and without preference as to whether
their relationship to the deceased is by whole or half blood, the
sole niece of whole blood of the deceased does not exclude
the ten nephews and n of half blood. The only difference in
their right of succession is provided in Art. 1008, NCC in
relation to Article 1006 of the New Civil Code (supra), which
provisions, in effect, entitle the sole niece of full blood to a
share double that of the nephews and nieces of half blood.
Such distinction between whole and half blood relationships
with the deceased has been recognized in Dionisia Padura, et
al. vs. Melanie Baldovino, et al., No. L-11960, December 27,
1958, 104 Phil. 1065 (unreported) and in Alviar vs. Alviar, No.
L-22402, June 30, 1969, 28 SCRA 610).
The contention of the appellant that Maura Bagsic should be
succeeded by Felipa Bagsic, her sister of full blood, to the
exclusion of the nephews and nieces of half blood citing Art.
1004, NCC is unmeritorious and erroneous for it is based on an

August 30, 1917

THE
CITY
OF
MANILA,
petitioner-appellant,
vs.
THE ROMAN CATHOLIC ARCHBISHOP OF MANILA and
THE ADMINISTRATOR FOR THE ESTATE OF MARIA
CONCEPCION SARMIENTO, interveners-appellees.
City
Attorney
Escaler
for
appellant.
William A. Kincaid and Thomas L. Hartigan for the appellee
Roman
Catholic
Archbishop
of
Manila.
No appearance for the other appellee.
JOHNSON, J.:
This action was commenced in the Court of First Instance of
the city of Manila on the 15th day of February, 1913. Its
purpose was to have declared escheated to the city of Manila
certain property situated in and around said city; that said
property consists of five parcels of land located ion the districts
of Malate and Paco of the city of Manila, as shown in a plan, in
the office of the Department of Engineering and Public Works
of said city of Manila, No. B-10-27. The theory of the plaintiff is
that one Ana Sarmiento was the owner of said property and
died in the year 1668 without leaving "her or person entitled to
the same."
After hearing the evidence, the Honorable A. S. Crossfield, in a
carefully prepared opinion, reached the conclusion that the
prayer of the plaintiff should be denied without any finding as to
costs. From that conclusion the plaintiff appealed to this court
and made a number of assignments of error.
After an examination of the evidence adduced during the trial
of the cause, we find that the following facts were proved by a
large preponderance of the evidence: That Ana Sarmiento
resided, with her husband, in the city of Manila sometime prior
to the 17th day of November, 1668; that on said date she made
a will; that on the 23d day of November, 1668, she added a
codicil to said will, that on the 19th day of May, 1669, she made
another will making a part thereof the said codicil of November
23d, 1668; that said will contained provisions for the
establishment of a "Capellania de Misas;" that the first chaplain
of said capellania should be her nephew Pedro del Castillo;
that said will contained a provision for the administration of said
property in relation with the said "Capellania de Misas"

succeeding administration should continue perpetually; that

said Ana Sarmiento died about the year 1672; that for more
than two hundred years the intervener, the Roman Catholic
Archbishop of Manila, through his various agencies, has
administered said property; that the Roman Catholic
Archbishop of Manila has rightfully and legally succeeded in
accordance with the terms and provisions of the will of Ana
Sarmiento.

This appeal involves a controversy over one-half of the estate

of Tomas Rodriguez, decedent. The appellant, Margarita
Lopez, claims said half by the intestate succession as next of
kin and nearest heir; while the appellee, Luz Lopez de Bueno,
claims the same by accredition and in the character of
universal heir the will of the decedent. The trial court decided
the point of controversy in favor of Luz Lopez de Bueno, and
Margariat Lopez appealed.

Section 750 of Act No. 190 provides when property may be

declared escheated. It provides, "when a person dies intestate,
seized of real or personal property . . . leaving no heir or
person by law entitled to the same," that then and in that case
such property under the procedure provided for by sections
751 and 752, may de declared escheated.

The facts necessary to an understanding of the case are these:

On January 3, 1924, Tomas Rodriguez executed his last will
and testament, in the second clause of which he declared:

The proof shows that Ana Sarmiento did not die intestate. She
left a will. The will provides for the administration of said
property by her nephew as well as for the subsequent
administration of the same. She did not die without an heir nor
without persons entitled to administer her estate. It further
shows that she did not die without leaving a person by law
entitled to inherit her property. In view of the facts, therefore,
the property in question cannot be declared escheated as of
the property of Ana Sarmiento. If by any chance the property
may be declared escheated, it must be based upon the fact
that persons subsequent to Ana Sarmiento died intestate
without leaving heir or person by law entitled to the same.

Prior to the time of the execution of this will the testator, Tomas
Rodriguez, had been judicially declared incapable of taking
care of himself and had been placed under the care of his
cousin Vicente F. Lopez, as guardian. On January 7, 1924, or
only four days after the will above-mentioned was made,
Vicente F. Lopez died; and the testator, Tomas Rodriguez, died
on February 25, 1924, thereafter. At the time the will was made
Vicente F. Lopez had not presented his final accounts as
guardian, and no such accounts had been presented by him at
the time of his death. Margariat Lopez was a cousin and
nearest relative of the decedent. The will referred to, and after
having been contested, has been admitted to probate by
judicial determination (Torres and Lopez de Bueno vs. Lopez,
48 Phil., 772).

The will clearly, definitely and unequivocally defines and

designates what disposition shall be made of the property in
question. The heir mentioned in said will evidently accepted its
terms and permitted the property to be administered in
accordance therewith. And, so far as the record shows, it is still
being administered in accordance with the terms of said will for
the benefit of the real beneficiary as was intended by the
original owner.
The record fully and completely shows that the theory of the
plaintiff is without foundation either in fact or in law.
The judgment of the lower court is, therefore, hereby affirmed,
with costs in this instance. So ordered.
Arellano, C.J., Araullo, Street and Malcolm, JJ., concur.
G.R. No. L-25966

November 1, 1926

In the matter of the estate of Tomas Rodriguez, deceased.

MANUEL TORRES, special administrator, and LUZ LOPEZ
DE
BUENO,
heir,
appellee,
vs.
MARGARITA LOPEZ, opponent-appellant.
Marcaida, Capili and Ocampo and Camus, Delgado and Recto
for
appellant.
Araneta and Zaragoza for appellee.

STREET, J.:

I institute as the only and universal heirs to all my property, my

cousin Vicente F. Lopez and his daughter Luz Lopez de Bueno.

Our discussion of the legal problem presented should begin

with article 753 of the Civil Code which in effect declares that,
with certain exceptions in favor of near relatives, no
testamentary provision shall be valid when made by a ward in
favor of his guardian before the final accounts of the latter have
been approved. This provision is of undoubted application to
the situation before us; and the provision made in the will of
Tomas Rodriguez in favor of Vicente F. Lopez was not any
general incapacity on his part, but a special incapacity due to
the accidental relation of guardian and ward existing between
the parties.
We now pass to article 982 of the Civil Code, defining the right
of accretion. It is there declared, in effect, that accretion take
place in a testamentary succession, first when the two or more
persons are called to the same inheritance or the same portion
thereof without special designation of shares; and secondly,
when one of the persons so called dies before the testator or
renounces the inheritance or is disqualifying to receive it. In the
case before us we have a will calling Vicente F. Lopez and his
daughter, Luz Lopez de Bueno, to the same inheritance without
special designation of shares. In addition to this, one of the
persons named as heir has predeceased the testator, this
person being also disqualified to receive the estate even if he
had been alive at the time of the testator's death. This article
(982) is therefore also of exact application to the case in hand;
and its effect is to give to the survivor, Luz Lopez de Bueno,
not only the undivided half which she would have received in
conjunction with her father if he had been alive and qualified to
take, but also the half which pertained to him. There was no

error whatever, therefore, in the order of the trial court

declaring Luz Lopez de Bueno entitled to the whole estate.

incapacity to receive the legacy, a consideration which makes

a case for accretion rather than for intestate succession.

The argument in favor of the appellant supposes that there has

supervened a partial intestacy with respect to the half of the
estate which was intended for Vicente F. Lopez and that this
half has descended to the appellant, Margarita Lopez, as next
of kin and sole heir at law of the decedent. In this connection
attention is directed to article 764 of the Civil Code wherein it is
declared, among other things, that a will may be valid even
though the person instituted as heir is disqualified to inherit.
Our attention is next invited to article 912 wherein it is
declared, among other things, that legal succession takes
place if the heir dies before the testator and also when the heir
instituted is disqualified to succeed. Upon these provisions an
argument is planted conducting to the conclusion that the will
of Tomas Rodriguez was valid, notwithstanding the fact that
one of the individuals named as heirs in the will was
disqualified to take, and that as a consequence Margarita
Lopez s entitled to inherit the share of said disqualified heir.

The opinions of the commentators, so far as they have

expressed themselves on the subject, tend to the conclusion
that the right of accretion with regard to portions of an
inheritance left vacant by the death or disqualification of one of
the heirs or his renunciation of the inheritance is governed by
article 912, without being limited, to the extent supposed in
appellant's brief, by provisions of the Code relative to intestate
succession (Manresa, Comentarios al Codigo Civil Espaol,
4th ed., vol. VII, pp. 310, 311; id., 34; 13 Mucius Scaevola, pp.
372, 373, 285-287; 16 Mucius Scaevola, 186). Says Escriche:
"It is to be understood that one of the coheirs or colegatees
fails if nonexistent at the time of the making of the will, or he
renounces the inheritance or legacy, if he dies before the
testator, if the condition be not fulfilled, or if he becomes
otherwise incapacitated. . . . (Diccionario de Legislacion y
Jurisprudencia, vol. I, p. 225.)lawphil.net

We are the opinion that this contention is untenable and that

the appellee clearly has the better right. In playing the
provisions of the Code it is the duty of the court to harmonize
its provisions as far as possible, giving due effect to all; and in
case of conflict between two provisions the more general is to
be considered as being limited by the more specific. As
between articles 912 and 983, it is obvious that the former is
the more general of the two, dealing, as it does, with the
general topic of intestate succession while the latter is more
specific, defining the particular conditions under which
accretion takes place. In case of conflict, therefore, the
provisions of the former article must be considered limited by
the latter. Indeed, in subsection 3 of article 912 the provision
with respect to intestate succession is expressly subordinated
to article 983 by the expression "and (if) there is no right of
accretion." It is true that the same express qualification is not
found in subsection 4 of article 912, yet it must be so
understood, in view of the rule of interpretation above referred
to, by which the more specific is held to control the general.
Besides, this interpretation supplies the only possible means of
harmonizing the two provisions. In addition to this, article 986
of the Civil Code affords independent proof that intestate
succession to a vacant portion can only occur when accretion
is impossible.
The attorneys for the appellant direct attention to the fact that,
under paragraph 4 of article 912, intestate succession occurs
when the heir instituted is disqualified to succeed (incapaz de
suceder), while, under the last provision in paragraph 2 of
article 982, accretion occurs when one of the persons called to
inherit under the will is disqualified to receive the inheritance
(incapaz de recibirla). A distinction is then drawn between
incapacity to succeed and incapacity to take, and it is
contended that the disability of Vicente F. Lopez was such as
to bring the case under article 912 rather than 982. We are of
the opinion that the case cannot be made to turn upon so
refined an interpretation of the language of the Code, and at
any rate the disability to which Vicente F. Lopez was subject
was not a general disability to succeed but an accidental

In conclusion it may be worth observing that there has always

existed both in the civil and in the common law a certain legal
intendment, amounting to a mild presumption, against partial
intestacy. In Roman law, as is well known, partial testacy
systems a presumption against it, a presumption which has
its basis in the supposed intention of the testator.
The judgment appealed from will be affirmed, and it is so
ordered, with costs against the appellant.
Avancea, C, J., Villamor, Ostrand, Johns, Romualdez and
Villa-Real, JJ., concur.
G.R. No. L-62952 October 9, 1985
SOFIA
J.
NEPOMUCENO,
petitioner,
vs.
THE HONORABLE COURT OF APPEALS, RUFINA GOMEZ,
OSCAR JUGO ANG, CARMELITA JUGO, respondents.

GUTIERREZ, JR., J.:

This is a petition for certiorari to set aside that portion of the
decision of the respondent Court of Appeals (now intermediate
Appellate Court) dated June 3, 1982, as amended by the
resolution dated August 10, 1982, declaring as null and void
the devise in favor of the petitioner and the resolution dated
December 28, 1982 denying petitioner's motion for
reconsideration.
Martin Jugo died on July 16, 1974 in Malabon, Rizal. He left a
last Will and Testament duly signed by him at the end of the
Will on page three and on the left margin of pages 1, 2 and 4
thereof in the presence of Celestina Alejandro, Myrna C.
Cortez, and Leandro Leano, who in turn, affixed their
signatures below the attestation clause and on the left margin
of pages 1, 2 and 4 of the Will in the presence of the testator
and of each other and the Notary Public. The Will was
acknowledged before the Notary Public Romeo Escareal by
the testator and his three attesting witnesses.

In the said Will, the testator named and appointed herein

petitioner Sofia J. Nepomuceno as his sole and only executor
of his estate. It is clearly stated in the Will that the testator was
legally married to a certain Rufina Gomez by whom he had two
legitimate children, Oscar and Carmelita, but since 1952, he
had been estranged from his lawfully wedded wife and had
been living with petitioner as husband and wife. In fact, on
December 5, 1952, the testator Martin Jugo and the petitioner
herein, Sofia J. Nepomuceno were married in Victoria, Tarlac
before the Justice of the Peace. The testator devised to his
forced heirs, namely, his legal wife Rufina Gomez and his
children Oscar and Carmelita his entire estate and the free
portion thereof to herein petitioner. The Will reads in part:
Art. III. That I have the following legal heirs, namely: my
aforementioned legal wife, Rufina Gomez, and our son, Oscar,
and daughter Carmelita, both surnamed Jugo, whom I declare
and admit to be legally and properly entitled to inherit from me;
that while I have been estranged from my above-named wife
for so many years, I cannot deny that I was legally married to
her or that we have been separated up to the present for
reasons and justifications known fully well by them:
Art. IV. That since 1952, 1 have been living, as man and wife
with one Sofia J. Nepomuceno, whom I declare and avow to be
entitled to my love and affection, for all the things which she
has done for me, now and in the past; that while Sofia J.
Nepomuceno has with my full knowledge and consent, did
comport and represent myself as her own husband, in truth
and in fact, as well as in the eyes of the law, I could not bind
her to me in the holy bonds of matrimony because of my
aforementioned previous marriage;
On August 21, 1974, the petitioner filed a petition for the
probate of the last Will and Testament of the deceased Martin
Jugo in the Court of First Instance of Rizal, Branch XXXIV,
Caloocan City and asked for the issuance to her of letters
testamentary.
On May 13, 1975, the legal wife of the testator, Rufina Gomez
and her children filed an opposition alleging inter alia that the
execution of the Will was procured by undue and improper
influence on the part of the petitioner; that at the time of the
execution of the Will, the testator was already very sick and
that petitioner having admitted her living in concubinage with
the testator, she is wanting in integrity and thus, letters
testamentary should not be issued to her.
On January 6, 1976, the lower court denied the probate of the
Will on the ground that as the testator admitted in his Will to
cohabiting with the petitioner from December 1952 until his
death on July 16, 1974, the Will's admission to probate will be
an Idle exercise because on the face of the Will, the invalidity
of its intrinsic provisions is evident.
The petitioner appealed to the respondent-appellate court.
On June 2, 1982, the respondent court set aside the decision
of the Court of First Instance of Rizal denying the probate of
the will. The respondent court declared the Will to be valid
except that the devise in favor of the petitioner is null and void

pursuant to Article 739 in relation with Article 1028 of the Civil

Code of the Philippines. The dispositive portion of the decision
reads:
WHEREFORE, the decision a quo is hereby set aside, the will
in question declared valid except the devise in favor of the
appellant which is declared null and void. The properties so
devised are instead passed on in intestacy to the appellant in
equal shares, without pronouncement as to cost.
On June 15, 1982, oppositors Rufina Gomez and her children
filed a "Motion for Correction of Clerical Error" praying that the
word "appellant" in the last sentence of the dispositive portion
of the decision be changed to "appellees" so as to read: "The
properties so devised are instead passed on intestacy to the
appellees in equal shares, without pronouncement as to costs."
The motion was granted by the respondent court on August 10,
1982.
On August 23, 1982, the petitioner filed a motion for
reconsideration. This was denied by the respondent court in a
resolution dated December 28, 1982.
The main issue raised by the petitioner is whether or not the
respondent court acted in excess of its jurisdiction when after
declaring the last Will and Testament of the deceased Martin
Jugo validly drawn, it went on to pass upon the intrinsic validity
of the testamentary provision in favor of herein petitioner.
The petitioner submits that the validity of the testamentary
provision in her favor cannot be passed upon and decided in
the probate proceedings but in some other proceedings
because the only purpose of the probate of a Will is to
establish conclusively as against everyone that a Will was
executed with the formalities required by law and that the
testator has the mental capacity to execute the same. The
petitioner further contends that even if the provisions of
paragraph 1 of Article 739 of the Civil Code of the Philippines
were applicable, the declaration of its nullity could only be
made by the proper court in a separate action brought by the
legal wife for the specific purpose of obtaining a declaration of
the nullity of the testamentary provision in the Will in favor of
the person with whom the testator was allegedly guilty of
adultery or concubinage.
The respondents on the other hand contend that the fact that
the last Will and Testament itself expressly admits indubitably
on its face the meretricious relationship between the testator
and the petitioner and the fact that petitioner herself initiated
the presentation of evidence on her alleged ignorance of the
true civil status of the testator, which led private respondents to
present contrary evidence, merits the application of the
doctrine enunciated in Nuguid v. Felix Nuguid, et al. (17 SCRA
449) and Felix Balanay, Jr. v. Hon. Antonio Martinez, et al.
(G.R. No. L- 39247, June 27, 1975). Respondents also submit
that the admission of the testator of the illicit relationship
between him and the petitioner put in issue the legality of the
devise. We agree with the respondents.
The respondent court acted within its jurisdiction when after
declaring the Will to be validly drawn, it went on to pass upon

the intrinsic validity of the Will and declared the devise in favor
of the petitioner null and void.
The general rule is that in probate proceedings, the court's
area of inquiry is limited to an examination and resolution of the
extrinsic validity of the Will. The rule is expressed thus:
xxx xxx xxx
... It is elementary that a probate decree finally and definitively
settles all questions concerning capacity of the testator and the
proper execution and witnessing of his last Will and testament,
irrespective of whether its provisions are valid and enforceable
or otherwise. (Fernandez v. Dimagiba, 21 SCRA 428)
The petition below being for the probate of a Will, the court's
area of inquiry is limited to the extrinsic validity thereof. The
testators testamentary capacity and the compliance with the
formal requisites or solemnities prescribed by law are the only
questions presented for the resolution of the court. Any inquiry
into the intrinsic validity or efficacy of the provisions of the will
or the legality of any devise or legacy is premature.
xxx xxx xxx
True or not, the alleged sale is no ground for the dismissal of
the petition for probate. Probate is one thing; the validity of the
testamentary provisions is another. The first decides the
execution of the document and the testamentary capacity of
the testator; the second relates to descent and distribution
(Sumilang v. Ramagosa, 21 SCRA 1369)
xxx xxx xxx
To establish conclusively as against everyone, and once for all,
the facts that a will was executed with the formalities required
by law and that the testator was in a condition to make a will, is
the only purpose of the proceedings under the new code for
the probate of a will. (Sec. 625). The judgment in such
proceedings determines and can determine nothing more. In
them the court has no power to pass upon the validity of any
provisions made in the will. It can not decide, for example, that
a certain legacy is void and another one valid. ... (Castaneda v.
Alemany, 3 Phil. 426)
The rule, however, is not inflexible and absolute. Given
exceptional circumstances, the probate court is not powerless
to do what the situation constrains it to do and pass upon
certain provisions of the Will.
In Nuguid v. Nuguid (17 SCRA 449) cited by the trial court, the
testator instituted the petitioner as universal heir and
completely preterited her surviving forced heirs. A will of this
nature, no matter how valid it may appear extrinsically, would
be null and void. Separate or latter proceedings to determine
the intrinsic validity of the testamentary provisions would be
superfluous.
Even before establishing the formal validity of the will, the
Court in Balanay .Jr. v. Martinez (64 SCRA 452) passed upon
the validity of its intrinsic provisions.

Invoking "practical considerations", we stated:

The basic issue is whether the probate court erred in passing
upon the intrinsic validity of the will, before ruling on its
allowance or formal validity, and in declaring it void.
We are of the opinion that in view of certain unusual provisions
of the will, which are of dubious legality, and because of the
motion to withdraw the petition for probate (which the lower
court assumed to have been filed with the petitioner's
authorization) the trial court acted correctly in passing upon the
will's intrinsic validity even before its formal validity had been
established. The probate of a will might become an Idle
ceremony if on its face it appears to be intrinsically void. Where
practical considerations demand that the intrinsic validity of the
will be passed upon, even before it is probated, the court
should meet the issue (Nuguid v. Nuguid, 64 O.G. 1527, 17
SCRA 449. Compare with Sumilang vs. Ramagosa L-23135,
December 26, 1967, 21 SCRA 1369; Cacho v. Udan L-19996,
April 30, 1965, 13 SCRA 693).
There appears to be no more dispute at this time over the
extrinsic validity of the Will. Both parties are agreed that the
Will of Martin Jugo was executed with all the formalities
required by law and that the testator had the mental capacity to
execute his Will. The petitioner states that she completely
agrees with the respondent court when in resolving the
question of whether or not the probate court correctly denied
the probate of Martin Jugo's last Will and Testament, it ruled:
This being so, the will is declared validly drawn. (Page 4,
Decision, Annex A of Petition.)
On the other hand the respondents pray for the affirmance of
the Court of Appeals' decision in toto.
The only issue, therefore, is the jurisdiction of the respondent
court to declare the testamentary provision in favor of the
petitioner as null and void.
We sustain the respondent court's jurisdiction. As stated in
Nuguid v. Nuguid, (supra):
We pause to reflect. If the case were to be remanded for
probate of the will, nothing will be gained. On the contrary, this
litigation will be protracted. And for aught that appears in the
record, in the record, in the event of probate or if the court
rejects the will, probability exists that the case will come up
once again before us on the same issue of the intrinsic validity
or nullity of the will. Result, waste of time, effort, expense, plus
added anxiety. These are the practical considerations that
induce us to a belief that we might as well meet head-on the
issue of the validity of the provisions of the will in question.
(Section 2, Rule 1, Rules of Court. Case, et al. v. Jugo, et al.,
77 Phil. 517, 522). After all, there exists a justiciable
controversy crying for solution.
We see no useful purpose that would be served if we remand
the nullified provision to the proper court in a separate action
for that purpose simply because, in the probate of a will, the
court does not ordinarily look into the intrinsic validity of its
provisions.

Article 739 of the Civil Code provides:

The following donations shall be void:
(1) Those made between persons who were guilty of adultery
or concubinage at the time of the donation;
(2) Those made between persons found guilty of the same
criminal offense, in consideration thereof;
(3) Those made to a public officer or his wife, descendants and
ascendants, by reason of his office.
In the case referred to in No. 1, the action for declaration of
nullity may be brought by the spouse of the donor or donee;
and the guilt of the donor and donee may be proved by
preponderance of evidence in the same action.
Article 1028 of the Civil Code provides:
The prohibitions mentioned in Article 739, concerning
donations inter vivos shall apply to testamentary provisions.
In Article III of the disputed Will, executed on August 15, 1968,
or almost six years before the testator's death on July 16,
1974, Martin Jugo stated that respondent Rufina Gomez was
his legal wife from whom he had been estranged "for so many
years." He also declared that respondents Carmelita Jugo and
Oscar Jugo were his legitimate children. In Article IV, he stated
that he had been living as man and wife with the petitioner
since 1952. Testator Jugo declared that the petitioner was
entitled to his love and affection. He stated that Nepomuceno
represented Jugo as her own husband but "in truth and in fact,
as well as in the eyes of the law, I could not bind her to me in
the holy bonds of matrimony because of my aforementioned
previous marriage.
There is no question from the records about the fact of a prior
existing marriage when Martin Jugo executed his Will. There is
also no dispute that the petitioner and Mr. Jugo lived together
in an ostensible marital relationship for 22 years until his death.
It is also a fact that on December 2, 1952, Martin Jugo and
Sofia J. Nepomuceno contracted a marriage before the Justice
of the Peace of Victoria, Tarlac. The man was then 51 years old
while the woman was 48. Nepomuceno now contends that she
acted in good faith for 22 years in the belief that she was
legally married to the testator.
The records do not sustain a finding of innocence or good faith.
As argued by the private respondents:
First. The last will and testament itself expressly admits
indubitably on its face the meretricious relationship between
the testator and petitioner, the devisee.
Second. Petitioner herself initiated the presentation of evidence
on her alleged ignorance of the true civil status of the testator,
which led private respondents to present contrary evidence.

In short, the parties themselves dueled on the intrinsic validity

of the legacy given in the will to petitioner by the deceased
testator at the start of the proceedings.
Whether or not petitioner knew that testator Martin Jugo, the
man he had lived with as man and wife, as already married,
was an important and specific issue brought by the parties
before the trial court, and passed upon by the Court of
Appeals.
Instead of limiting herself to proving the extrinsic validity of the
will, it was petitioner who opted to present evidence on her
alleged good faith in marrying the testator. (Testimony of
Petitioner, TSN of August 1, 1982, pp. 56-57 and pp. 62-64).
Private respondents, naturally, presented evidence that would
refute the testimony of petitioner on the point.
Sebastian Jugo, younger brother of the deceased testator,
testified at length on the meretricious relationship of his brother
and petitioner. (TSN of August 18,1975).
Clearly, the good faith of petitioner was by option of the parties
made a decisive issue right at the inception of the case.
Confronted by the situation, the trial court had to make a ruling
on the question.
When the court a quo held that the testator Martin Jugo and
petitioner 'were deemed guilty of adultery or concubinage', it
was a finding that petitioner was not the innocent woman she
pretended to be.
xxx xxx xxx
3. If a review of the evidence must be made nonetheless, then
private respondents respectfully offer the following analysis:
FIRST: The secrecy of the marriage of petitioner with the
deceased testator in a town in Tarlac where neither she nor the
testator ever resided. If there was nothing to hide from, why the
concealment' ? Of course, it maybe argued that the marriage of
the deceased with private respondent Rufina Gomez was
likewise done in secrecy. But it should be remembered that
Rufina Gomez was already in the family way at that time and it
would seem that the parents of Martin Jugo were not in favor of
the marriage so much so that an action in court was brought
concerning the marriage. (Testimony of Sebastian Jugo, TSN
of August 18, 1975, pp. 29-30)
SECOND: Petitioner was a sweetheart of the deceased
testator when they were still both single. That would be in 1922
as Martin Jugo married respondent Rufina Gomez on
November 29, 1923 (Exh. 3). Petitioner married the testator
only on December 5, 1952. There was a space of about 30
years in between. During those 30 years, could it be believed
that she did not even wonder why Martin Jugo did not marry
her nor contact her anymore after November, 1923 - facts that
should impel her to ask her groom before she married him in
secrecy, especially so when she was already about 50 years
old at the time of marriage.

THIRD: The fact that petitioner broke off from Martin Jugo in
1923 is by itself conclusive demonstration that she new that the
man she had openly lived for 22 years as man and wife was a
married man with already two children.
FOURTH: Having admitted that she knew the children of
respondent Rufina Gomez, is it possible that she would not
have asked Martin Jugo whether or not they were his
illegitimate or legitimate children and by whom? That is unFilipino.
FIFTH: Having often gone to Pasig to the residence of the
parents of the deceased testator, is it possible that she would
not have known that the mother of private respondent Oscar
Jugo and Carmelita Jugo was respondent Rufina Gomez,
considering that the houses of the parents of Martin Jugo
(where he had lived for many years) and that of respondent
Rufina Gomez were just a few meters away?
Such pretentions of petitioner Sofia Nepomuceno are
unbelievable. They are, to say the least, inherently improbable,
for they are against the experience in common life and the
ordinary instincts and promptings of human nature that a
woman would not bother at all to ask the man she was going to
marry whether or not he was already married to another,
knowing that her groom had children. It would be a story that
would strain human credulity to the limit if petitioner did not
know that Martin Jugo was already a married man in view of
the irrefutable fact that it was precisely his marriage to
respondent Rufina Gomez that led petitioner to break off with
the deceased during their younger years.
Moreover, the prohibition in Article 739 of the Civil Code is
against the making of a donation between persons who are
living in adultery or concubinage. It is the donation which
becomes void. The giver cannot give even assuming that the
recipient may receive. The very wordings of the Will invalidate
the legacy because the testator admitted he was disposing the
properties to a person with whom he had been living in
concubinage.
WHEREFORE, the petition is DISMISSED for lack of merit.
The decision of the Court of Appeals, now Intermediate
Appellate Court, is AFFIRMED. No costs.
SO ORDERED.
G.R. No. L-56340 June 24, 1983
SPOUSES ALVARO PASTOR, JR. and MA. ELENA
ACHAVAL
DE
PASTOR,
petitioners,
vs.
THE COURT OF APPEALS, JUAN Y. REYES, JUDGE OF
BRANCH I, COURT OF FIRST INSTANCE OF CEBU and
LEWELLYN BARLITO QUEMADA, respondents.

PLANA, J.:
I. FACTS:

This is a case of hereditary succession.

Alvaro Pastor, Sr. (PASTOR, SR.), a Spanish subject, died in
Cebu City on June 5, 1966, survived by his Spanish wife Sofia
Bossio (who also died on October 21, 1966), their two
legitimate children Alvaro Pastor, Jr. (PASTOR, JR.) and Sofia
Pastor de Midgely (SOFIA), and an illegitimate child, not
natural, by the name of Lewellyn Barlito Quemada QUEMADA
PASTOR, JR. is a Philippine citizen, having been naturalized in
1936. SOFIA is a Spanish subject. QUEMADA is a Filipino by
his mother's citizenship.
On November 13, 1970, QUEMADA filed a petition for the
probate and allowance of an alleged holographic will of
PASTOR, SR. with the Court of First Instance of Cebu, Branch
I (PROBATE COURT), docketed as SP No. 3128-R. The will
contained only one testamentary disposition: a legacy in favor
of QUEMADA consisting of 30% of PASTOR, SR.'s 42% share
in the operation by Atlas Consolidated Mining and
Development Corporation (ATLAS) of some mining claims in
Pina-Barot, Cebu.
On November 21, 1970, the PROBATE COURT, upon motion
of QUEMADA and after an ex parte hearing, appointed him
special administrator of the entire estate of PASTOR, SR.,
whether or not covered or affected by the holographic will. He
assumed office as such on December 4, 1970 after filing a
bond of P 5,000.00.
On December 7, 1970, QUEMADA as special administrator,
instituted against PASTOR, JR. and his wife an action for
reconveyance of alleged properties of the estate, which
included the properties subject of the legacy and which were in
the names of the spouses PASTOR, JR. and his wife, Maria
Elena Achaval de Pastor, who claimed to be the owners thereof
in their own rights, and not by inheritance. The action,
docketed as Civil Case No. 274-R, was filed with the Court of
First Instance of Cebu, Branch IX.
On February 2, 1971, PASTOR, JR. and his sister SOFIA filed
their opposition to the petition for probate and the order
appointing QUEMADA as special administrator.
On December 5, 1972, the PROBATE COURT issued an order
allowing the will to probate. Appealed to the Court of Appeals in
CA-G.R. No. 52961- R, the order was affirmed in a decision
dated May 9, 1977. On petition for review, the Supreme Court
in G.R. No. L-46645 dismissed the petition in a minute
resolution dated November 1, 1977 and remanded the same to
the PROBATE COURT after denying reconsideration on
January 11, 1978.
For two years after remand of the case to the PROBATE
COURT, QUEMADA filed pleading after pleading asking for
payment of his legacy and seizure of the properties subject of
said legacy. PASTOR, JR. and SOFIA opposed these
pleadings on the ground of pendency of the reconveyance suit
with another branch of the Cebu Court of First Instance. All
pleadings remained unacted upon by the PROBATE COURT.

On March 5, 1980, the PROBATE COURT set the hearing on

the intrinsic validity of the will for March 25, 1980, but upon
objection of PASTOR, JR. and SOFIA on the e ground of
pendency of the reconveyance suit, no hearing was held on
March 25. Instead, the PROBATE COURT required the parties
to submit their respective position papers as to how much
inheritance QUEMADA was entitled to receive under the wig.
Pursuant thereto, PASTOR. JR. and SOFIA submitted their
Memorandum of authorities dated April 10, which in effect
showed that determination of how much QUEMADA should
receive was still premature. QUEMADA submitted his Position
paper dated April 20, 1980. ATLAS, upon order of the Court,
submitted a sworn statement of royalties paid to the Pastor
Group of tsn from June 1966 (when Pastor, Sr. died) to
February 1980. The statement revealed that of the mining
claims being operated by ATLAS, 60% pertained to the Pastor
Group distributed as follows:
1. A. Pastor, Jr. ...................................40.5%
2. E. Pelaez, Sr. ...................................15.0%
3. B. Quemada .......................................4.5%
On August 20, 1980, while the reconveyance suit was still
being litigated in Branch IX of the Court of First Instance of
Cebu, the PROBATE COURT issued the now assailed Order of
Execution and Garnishment, resolving the question of
ownership of the royalties payable by ATLAS and ruling in
effect that the legacy to QUEMADA was not inofficious. [There
was absolutely no statement or claim in the Order that the
Probate Order of December 5, 1972 had previously resolved
the issue of ownership of the mining rights of royalties thereon,
nor the intrinsic validity of the holographic will.]
The order of August 20, 1980 found that as per the holographic
will and a written acknowledgment of PASTOR, JR. dated June
17, 1962, of the above 60% interest in the mining claims
belonging to the Pastor Group, 42% belonged to PASTOR, SR.
and only 33% belonged to PASTOR, JR. The remaining 25%
belonged to E. Pelaez, also of the Pastor Group. The
PROBATE COURT thus directed ATLAS to remit directly to
QUEMADA the 42% royalties due decedent's estate, of which
QUEMADA was authorized to retain 75% for himself as legatee
and to deposit 25% with a reputable banking institution for
payment of the estate taxes and other obligations of the estate.
The 33% share of PASTOR, JR. and/or his assignees was
ordered garnished to answer for the accumulated legacy of
QUEMADA from the time of PASTOR, SR.'s death, which
amounted to over two million pesos.
The order being "immediately executory", QUEMADA
succeeded in obtaining a Writ of Execution and Garnishment
on September 4, 1980, and in serving the same on ATLAS on
the same day. Notified of the Order on September 6, 1980, the
oppositors sought reconsideration thereof on the same date
primarily on the ground that the PROBATE COURT gravely
abused its discretion when it resolved the question of
ownership of the royalties and ordered the payment of
QUEMADA's legacy after prematurely passing upon the
intrinsic validity of the will. In the meantime, the PROBATE

COURT ordered suspension of payment of all royalties due

PASTOR, JR. and/or his assignees until after resolution of
oppositors' motion for reconsideration.
Before the Motion for Reconsideration could be resolved,
however, PASTOR, JR., this time joined by his wife Ma. ELENA
ACHAVAL DE PASTOR, filed with the Court of Appeals a
Petition for certiorari and Prohibition with a prayer for writ of
preliminary injunction (CA-G.R. No. SP- 11373-R). They
assailed the Order dated August 20, 1980 and the writ of
execution and garnishment issued pursuant thereto. The
petition was denied on November 18, 1980 on the grounds (1)
that its filing was premature because the Motion for
Reconsideration of the questioned Order was still pending
determination by the PROBATE COURT; and (2) that although
"the rule that a motion for reconsideration is prerequisite for an
action for certiorari is never an absolute rule," the Order
assailed is "legally valid. "
On December 9, 1980, PASTOR, JR. and his wife moved for
reconsideration of the Court of Appeal's decision of November
18, 1980, calling the attention of the appellate court to another
order of the Probate Court dated November 11, 1980 (i.e.,
while their petition for certiorari was pending decision in the
appellate court), by which the oppositors' motion for
reconsideration of the Probate Court's Order of August 20,
1980 was denied. [The November 11 Order declared that the
questions of intrinsic validity of the will and of ownership over
the mining claims (not the royalties alone) had been finally
adjudicated by the final and executory Order of December 5,
1972, as affirmed by the Court of Appeals and the Supreme
Court, thereby rendering moot and academic the suit for
reconveyance then pending in the Court of First Instance of
Cebu, Branch IX. It clarified that only the 33% share of
PASTOR, JR. in the royalties (less than 7.5% share which he
had assigned to QUEMADA before PASTOR, SR. died) was to
be garnished and that as regards PASTOR, SR.'s 42% share,
what was ordered was just the transfer of its possession to the
custody of the PROBATE COURT through the special
administrator. Further, the Order granted QUEMADA 6%
interest on his unpaid legacy from August 1980 until fully paid.]
Nonetheless, the Court of Appeals denied reconsideration.
Hence, this Petition for Review by certiorari with prayer for a
writ of pre y injunction, assailing the decision of the Court of
Appeals dated November 18, 1980 as well as the orders of the
Probate Court dated August 20, 1980, November 11, 1980 and
December 17, 1980, Med by petitioners on March 26, 1981,
followed by a Supplemental Petition with Urgent Prayer for
Restraining Order.
In April 1981, the Court (First Division) issued a writ of
preliminary injunction, the lifting of which was denied in the
Resolution of the same Division dated October 18, 1982,
although the bond of petitioners was increased from
P50,000.00 to P100,000.00.
Between December 21, 1981 and October 12, 1982, private
respondent filed seven successive motions for early resolution.
Five of these motions expressly prayed for the resolution of the

question as to whether or not the petition should be given due

course.
On October 18, 1982, the Court (First Division) adopted a
resolution stating that "the petition in fact and in effect was
given due course when this case was heard on the merits on
September 7, (should be October 21, 1981) and concise
memoranda in amplification of their oral arguments on the
merits of the case were filed by the parties pursuant to the
resolution of October 21, 1981 . . . " and denied in a resolution
dated December 13, 1982, private respondent's "Omnibus
motion to set aside resolution dated October 18, 1982 and to
submit the matter of due course to the present membership of
the Division; and to reassign the case to another ponente."
Upon Motion for Reconsideration of the October 18, 1982 and
December 13, 1982 Resolutions, the Court en banc resolved to
CONFIRM the questioned resolutions insofar as hey resolved
that the petition in fact and in effect had been given due
course.
II. ISSUES:
Assailed by the petitioners in these proceedings is the validity
of the Order of execution and garnishment dated August 20,
1980 as well as the Orders subsequently issued allegedly to
implement the Probate Order of December 5, 1972, to wit: the
Order of November 11, 1980 declaring that the Probate Order
of 1972 indeed resolved the issues of ownership and intrinsic
validity of the will, and reiterating the Order of Execution dated
August 20, 1980; and the Order of December 17, 1980
reducing to P2,251,516.74 the amount payable to QUEMADA
representing the royalties he should have received from the
death of PASTOR, SR. in 1966 up to February 1980.
The Probate Order itself, insofar as it merely allowed the
holographic will in probate, is not questioned. But petitioners
denounce the Probate Court for having acted beyond its
jurisdiction or with grave abuse of discretion when it issued the
assailed Orders. Their argument runs this way: Before the
provisions of the holographic win can be implemented, the
questions of ownership of the mining properties and the
intrinsic validity of the holographic will must first be resolved
with finality. Now, contrary to the position taken by the Probate
Court in 1980 i.e., almost eight years after the probate of the
will in 1972 the Probate Order did not resolve the two said
issues. Therefore, the Probate Order could not have resolved
and actually did not decide QUEMADA's entitlement to the
legacy. This being so, the Orders for the payment of the legacy
in alleged implementation of the Probate Order of 1972 are
unwarranted for lack of basis.
Closely related to the foregoing is the issue raised by
QUEMADA The Probate Order of 1972 having become final
and executory, how can its implementation (payment of legacy)
be restrained? Of course, the question assumes that
QUEMADA's entitlement to the legacy was finally adjudged in
the Probate Order.
On the merits, therefore, the basic issue is whether the Probate
Order of December 5, 1972 resolved with finality the questions

of ownership and intrinsic validity. A negative finding will

necessarily render moot and academic the other issues raised
by the parties, such as the jurisdiction of the Probate Court to
conclusively resolve title to property, and the constitutionality
and repercussions of a ruling that the mining properties in
dispute, although in the name of PASTOR, JR. and his wife,
really belonged to the decedent despite the latter's
constitutional disqualification as an alien.
On the procedural aspect, placed in issue is the propriety of
certiorari as a means to assail the validity of the order of
execution and the implementing writ.
III. DISCUSSION:
1. Issue of Ownership
(a) In a special proceeding for the probate of a will, the issue
by and large is restricted to the extrinsic validity of the will, i.e.,
whether the testator, being of sound mind, freely executed the
will in accordance with the formalities prescribed by law. (Rules
of Court, Rule 75, Section 1; Rule 76, Section 9.) As a rule, the
question of ownership is an extraneous matter which the
Probate Court cannot resolve with finality. Thus, for the
purpose of determining whether a certain property should or
should not be included in the inventory of estate properties, the
Probate Court may pass upon the title thereto, but such
determination is provisional, not conclusive, and is subject to
the final decision in a separate action to resolve title. [3 Moran,
Comments on the Rules of Court (1980 ed.), p. 458; Valero
Vda. de Rodriguez vs. Court of Appeals, 91 SCRA 540.]
(b) The rule is that execution of a judgment must conform to
that decreed in the dispositive part of the decision. (PhilippineAmerican Insurance Co. vs. Honorable Flores, 97 SCRA 811.)
However, in case of ambiguity or uncertainty, the body of the
decision may be scanned for guidance in construing the
judgment. (Heirs of Presto vs. Galang, 78 SCRA 534; Fabular
vs. Court of Appeals, 119 SCRA 329; Robles vs. Timario. 107
Phil. 809.)
The Order sought to be executed by the assailed Order of
execution is the Probate Order of December 5, 1972 which
allegedly resolved the question of ownership of the disputed
mining properties. The said Probate Order enumerated the
issues before the Probate Court, thus:
Unmistakably, there are three aspects in these proceedings:
(1) the probate of the holographic will (2) the intestate estate
aspect; and (3) the administration proceedings for the
purported estate of the decedent in the Philippines.
In its broad and total perspective the whole proceedings are
being impugned by the oppositors on jurisdictional grounds,
i.e., that the fact of the decedent's residence and existence of
properties in the Philippines have not been established.
Specifically placed in issue with respect to the probate
proceedings are: (a) whether or not the holographic will (Exhibit
"J") has lost its efficacy as the last will and testament upon the
death of Alvaro Pastor, Sr. on June 5, 1966, in Cebu City,
Philippines; (b) Whether or not the said will has been executed

with all the formalities required by law; and (c) Did the late
presentation of the holographic will affect the validity of the
same?

Spain, and prepare them for delivery to the heirs in good order
after partition and when directed by the Court, but only after the
payment of estate and inheritance taxes;

Issues In the Administration Proceedings are as follows: (1)

Was the ex- parte appointment of the petitioner as special
administrator valid and proper? (2) Is there any indispensable
necessity for the estate of the decedent to be placed under
administration? (3) Whether or not petition is qualified to be a
special administrator of the estate; and (4) Whether or not the
properties listed in the inventory (submitted by the special
administrator but not approved by the Probate Court) are to be
excluded.

(d) Subject to the outcome of the suit for reconveyance of

ownership and possession of real and personal properties in
Civil Case No. 274-T before Branch IX of the Court of First
Instance of Cebu, the intestate estate administration aspect
must proceed, unless, however, it is duly proven by the
oppositors that debts of the decedent have already been paid,
that there had been an extrajudicial partition or summary one
between the forced heirs, that the legacy to be given and
delivered to the petitioner does not exceed the free portion of
the estate of the testator, that the respective shares of the
forced heirs have been fairly apportioned, distributed and
delivered to the two forced heirs of Alvaro Pastor, Sr., after
deducting the property willed to the petitioner, and the estate
and inheritance taxes have already been paid to the
Government thru the Bureau of Internal Revenue.

Then came what purports to be the dispositive portion:

Upon the foregoing premises, this Court rules on and resolves
some of the problems and issues presented in these
proceedings, as follows:
(a) The Court has acquired jurisdiction over the probate
proceedings as it hereby allows and approves the so-called
holographic will of testator Alvaro Pastor, Sr., executed on July
31, 1961 with respect to its extrinsic validity, the same having
been duly authenticated pursuant to the requisites or
solemnities prescribed by law. Let, therefore, a certificate of its
allowance be prepared by the Branch Clerk of this Court to be
signed by this Presiding Judge, and attested by the seal of the
Court, and thereafter attached to the will, and the will and
certificate filed and recorded by the clerk. Let attested copies of
the will and of the certificate of allowance thereof be sent to
Atlas Consolidated Mining & Development Corporation,
Goodrich Bldg., Cebu City, and the Register of Deeds of Cebu
or of Toledo City, as the case may be, for recording.
(b) There was a delay in the granting of the letters
testamentary or of administration for as a matter of fact, no
regular executor and/or administrator has been appointed up to
this time and - the appointment of a special administrator was,
and still is, justified under the circumstances to take
possession and charge of the estate of the deceased in the
Philippines (particularly in Cebu) until the problems causing the
delay are decided and the regular executor and/or
administrator appointed.
(c) There is a necessity and propriety of a special administrator
and later on an executor and/or administrator in these
proceedings, in spite of this Court's declaration that the
oppositors are the forced heirs and the petitioner is merely
vested with the character of a voluntary heir to the extent of the
bounty given to him (under) the will insofar as the same will not
prejudice the legitimes of the oppositor for the following
reasons:
1. To submit a complete inventory of the estate of the
decedent-testator Alvaro Pastor, Sr.
2. To administer and to continue to put to prolific utilization of
the properties of the decedent;
3. To keep and maintain the houses and other structures and
belonging to the estate, since the forced heirs are residing in

The suitability and propriety of allowing petitioner to remain as

special administrator or administrator of the other properties of
the estate of the decedent, which properties are not directly or
indirectly affected by the provisions of the holographic will
(such as bank deposits, land in Mactan etc.), will be resolved in
another order as separate incident, considering that this order
should have been properly issued solely as a resolution on the
issue of whether or not to allow and approve the aforestated
will. (Emphasis supplied.)
Nowhere in the dispositive portion is there a declaration of
ownership of specific properties. On the contrary, it is manifest
therein that ownership was not resolved. For it confined itself to
the question of extrinsic validity of the win, and the need for
and propriety of appointing a special administrator. Thus it
allowed and approved the holographic win "with respect to its
extrinsic validity, the same having been duly authenticated
pursuant to the requisites or solemnities prescribed by law." It
declared that the intestate estate administration aspect must
proceed " subject to the outcome of the suit for reconveyance
of ownership and possession of real and personal properties in
Civil Case 274-T before Branch IX of the CFI of Cebu."
[Parenthetically, although the statement refers only to the
"intestate" aspect, it defies understanding how ownership by
the estate of some properties could be deemed finally resolved
for purposes of testate administration, but not so for intestate
purposes. Can the estate be the owner of a property for testate
but not for intestate purposes?] Then again, the Probate Order
(while indeed it does not direct the implementation of the
legacy) conditionally stated that the intestate administration
aspect must proceed "unless . . . it is proven . . . that the
legacy to be given and delivered to the petitioner does not
exceed the free portion of the estate of the testator," which
clearly implies that the issue of impairment of legitime (an
aspect of intrinsic validity) was in fact not resolved. Finally, the
Probate Order did not rule on the propriety of allowing
QUEMADA to remain as special administrator of estate
properties not covered by the holographic will, "considering
that this (Probate) Order should have been properly issued
solely as a resolution on the issue of whether or not to allow
and approve the aforestated will. "

(c) That the Probate Order did not resolve the question of
ownership of the properties listed in the estate inventory was
appropriate, considering that the issue of ownership was the
very subject of controversy in the reconveyance suit that was
still pending in Branch IX of the Court of First Instance of Cebu.
(d) What, therefore, the Court of Appeals and, in effect, the
Supreme Court affirmed en toto when they reviewed the
Probable Order were only the matters properly adjudged in the
said Order.
(e) In an attempt to justify the issuance of the Order of
execution dated August 20, 1980, the Probate Court in its
Order of November 11, 1980 explained that the basis for its
conclusion that the question of ownership had been formally
resolved by the Probate Order of 1972 are the findings in the
latter Order that (1) during the lifetime of the decedent, he was
receiving royalties from ATLAS; (2) he had resided in the
Philippines since pre-war days and was engaged in the mine
prospecting business since 1937 particularly in the City of
Toledo; and (3) PASTOR, JR. was only acting as dummy for
his father because the latter was a Spaniard.
Based on the premises laid, the conclusion is obviously farfetched.
(f) It was, therefore, error for the assailed implementing Orders
to conclude that the Probate Order adjudged with finality the
question of ownership of the mining properties and royalties,
and that, premised on this conclusion, the dispositive portion of
the said Probate Order directed the special administrator to
pay the legacy in dispute.
2. Issue of Intrinsic Validity of the Holographic Will (a) When PASTOR, SR. died in 1966, he was survived by his
wife, aside from his two legitimate children and one illegitimate
son. There is therefore a need to liquidate the conjugal
partnership and set apart the share of PASTOR, SR.'s wife in
the conjugal partnership preparatory to the administration and
liquidation of the estate of PASTOR, SR. which will include,
among others, the determination of the extent of the statutory
usufructuary right of his wife until her death. * When the
disputed Probate order was issued on December 5, 1972,
there had been no liquidation of the community properties of
PASTOR, SR. and his wife.
(b) So, also, as of the same date, there had been no prior
definitive determination of the assets of the estate of PASTOR,
SR. There was an inventory of his properties presumably
prepared by the special administrator, but it does not appear
that it was ever the subject of a hearing or that it was judicially
approved. The reconveyance or recovery of properties
allegedly owned but not in the name of PASTOR, SR. was still
being litigated in another court.
(c) There was no appropriate determination, much less
payment, of the debts of the decedent and his estate. Indeed, it
was only in the Probate Order of December 5, 1972 where the
Probate Court ordered that-

... a notice be issued and published pursuant to the provisions

of Rule 86 of the Rules of Court, requiring all persons having
money claims against the decedent to file them in the office of
the Branch Clerk of this Court."
(d) Nor had the estate tax been determined and paid, or at
least provided for, as of December 5, 1972.
(e) The net assets of the estate not having been determined,
the legitime of the forced heirs in concrete figures could not be
ascertained.
(f) All the foregoing deficiencies considered, it was not possible
to determine whether the legacy of QUEMADA - a fixed share
in a specific property rather than an aliquot part of the entire
net estate of the deceased - would produce an impairment of
the legitime of the compulsory heirs.
(g) Finally, there actually was no determination of the intrinsic
validity of the will in other respects. It was obviously for this
reason that as late as March 5, 1980 - more than 7 years after
the Probate Order was issued the Probate Court scheduled on
March 25, 1980 a hearing on the intrinsic validity of the will.
3. Propriety of certiorari
Private respondent challenges the propriety of certiorari as a
means to assail the validity of the disputed Order of execution.
He contends that the error, if any, is one of judgment, not
jurisdiction, and properly correctible only by appeal, not
certiorari.
Under the circumstances of the case at bar, the challenge must
be rejected. Grave abuse of discretion amounting to lack of
jurisdiction is much too evident in the actuations of the probate
court to be overlooked or condoned.
(a) Without a final, authoritative adjudication of the issue as to
what properties compose the estate of PASTOR, SR. in the
face of conflicting claims made by heirs and a non-heir (MA.
ELENA ACHAVAL DE PASTOR) involving properties not in the
name of the decedent, and in the absence of a resolution on
the intrinsic validity of the will here in question, there was no
basis for the Probate Court to hold in its Probate Order of
1972, which it did not, that private respondent is entitled to the
payment of the questioned legacy. Therefore, the Order of
Execution of August 20, 1980 and the subsequent
implementing orders for the payment of QUEMADA's legacy, in
alleged implementation of the dispositive part of the Probate
Order of December 5, 1972, must fall for lack of basis.
(b) The ordered payment of legacy would be violative of the
rule requiring prior liquidation of the estate of the deceased,
i.e., the determination of the assets of the estate and payment
of all debts and expenses, before apportionment and
distribution of the residue among the heirs and legatees.
(Bernardo vs. Court of Appeals, 7 SCRA 367.)
(c) Neither has the estate tax been paid on the estate of
PASTOR, SR. Payment therefore of the legacy to QUEMADA
would collide with the provision of the National Internal
Revenue Code requiring payment of estate tax before delivery

to any beneficiary of his distributive share of the estate

(Section 107 [c])

dispositive part of the latter, there are circumstances in the

instant case which justify the remedy applied for.

(d) The assailed order of execution was unauthorized, having

been issued purportedly under Rule 88, Section 6 of the Rules
of Court which reads:

Petitioner MA. ELENA ACHAVAL DE PASTOR, wife of

PASTOR, JR., is the holder in her own right of three mining
claims which are one of the objects of conflicting claims of
ownership. She is not an heir of PASTOR, SR. and was not a
party to the probate proceedings. Therefore, she could not
appeal from the Order of execution issued by the Probate
Court. On the other hand, after the issuance of the execution
order, the urgency of the relief she and her co-petitioner
husband seek in the petition for certiorari states against
requiring her to go through the cumbersome procedure of
asking for leave to intervene in the probate proceedings to
enable her, if leave is granted, to appeal from the challenged
order of execution which has ordered the immediate transfer
and/or garnishment of the royalties derived from mineral
properties of which she is the duly registered owner and/or
grantee together with her husband. She could not have
intervened before the issuance of the assailed orders because
she had no valid ground to intervene. The matter of ownership
over the properties subject of the execution was then still being
litigated in another court in a reconveyance suit filed by the
special administrator of the estate of PASTOR, SR.

Sec. 6. Court to fix contributive shares where devisees,

legatees, or heirs have been in possession. Where
devisees, legatees, or heirs have entered into possession of
portions of the estate before the debts and expenses have
been settled and paid and have become liable to contribute for
the payment of such debts and expenses, the court having
jurisdiction of the estate may, by order for that purpose, after
hearing, settle the amount of their several liabilities, and order
how much and in what manner each person shall contribute,
and may issue execution as circumstances require.
The above provision clearly authorizes execution to enforce
payment of debts of estate. A legacy is not a debt of the estate;
indeed, legatees are among those against whom execution is
authorized to be issued.
... there is merit in the petitioners' contention that the probate
court generally cannot issue a writ of execution. It is not
supposed to issue a writ of execution because its orders
usually refer to the adjudication of claims against the estate
which the executor or administrator may satisfy without the
necessity of resorting to a writ of execution. The probate court,
as such, does not render any judgment enforceable by
execution.
The circumstances that the Rules of Court expressly specifies
that the probate court may issue execution (a) to satisfy (debts
of the estate out of) the contributive shares of devisees,
legatees and heirs in possession of the decedent's assets
(Sec. 6. Rule 88), (b) to enforce payment of the expenses of
partition (Sec. 3, Rule 90), and (c) to satisfy the costs when a
person is cited for examination in probate proceedings (Sec.
13, Rule 142) may mean, under the rule of inclusion unius est
exclusion alterius, that those are the only instances when it can
issue a writ of execution. (Vda. de Valera vs. Ofilada, 59 SCRA
96, 108.)
(d) It is within a court's competence to order the execution of a
final judgment; but to order the execution of a final order (which
is not even meant to be executed) by reading into it terms that
are not there and in utter disregard of existing rules and law, is
manifest grave abuse of discretion tantamount to lack of
jurisdiction. Consequently, the rule that certiorari may not be
invoked to defeat the right of a prevailing party to the execution
of a valid and final judgment, is inapplicable. For when an order
of execution is issued with grave abuse of discretion or is at
variance with the judgment sought to be enforced (PVTA vs.
Honorable Gonzales, 92 SCRA 172), certiorari will lie to abate
the order of execution.
(e) Aside from the propriety of resorting to certiorari to assail an
order of execution which varies the terms of the judgment
sought to be executed or does not find support in the

Likewise, at the time petitioner PASTOR, JR. Med the petition

for certiorari with the Court of Appeals, appeal was not
available to him since his motion for reconsideration of the
execution order was still pending resolution by the Probate
Court. But in the face of actual garnishment of their major
source of income, petitioners could no longer wait for the
resolution of their motion for reconsideration. They needed
prompt relief from the injurious effects of the execution order.
Under the circumstances, recourse to certiorari was the
feasible remedy.
WHEREFORE, the decision of the Court of Appeals in CA G.R.
No. SP-11373-R is reversed. The Order of execution issued by
the probate Court dated August 20, 1980, as well as all the
Orders issued subsequent thereto in alleged implementation of
the Probate Order dated December 5, 1972, particularly the
Orders dated November 11, 1980 and December 17, 1980, are
hereby set aside; and this case is remanded to the appropriate
Regional Trial Court for proper proceedings, subject to the
judgment to be rendered in Civil Case No. 274-R.
SO ORDERED.
[G.R. No. 108947. September 29, 1997]
ROLANDO SANCHEZ, FLORIDA MIERLY SANCHEZ,
ALFREDO T. SANCHEZ and MYRNA T. SANCHEZ,
petitioners, vs. THE HONORABLE COURT OF APPEALS,
ROSALIA S. LUGOD, ARTURO S. LUGOD, EVELYN
LUGOD-RANISES and ROBERTO S. LUGOD, respondents.
DECISION
PANGANIBAN, J.:
Is a petition for certiorari, in lieu of appeal, the proper remedy
to correct orders of a probate court nullifying certain deeds of

sale and, thus, effectively passing upon title to the properties

subject of such deeds? Is a compromise agreement
partitioning inherited properties valid even without the approval
of the trial court hearing the intestate estate of the deceased
owner?

On January 14, 1969, [herein petitioners] as heirs of Juan C.

Sanchez, filed a petition for letters of administration (Special
Proceedings No. 1022) over the intestate estate of Juan C.
Sanchez, which petition was opposed by (herein private
respondent) Rosalia.lxii

The Case

On October 30, 1969, however, [herein private respondent]

Rosalia and [herein petitioners] assisted by their respective
counsels executed a compromise agreement (Annex D,
Petition) wherein they agreed to divide the properties
enumerated therein of the late Juan C. Sanchez.

These questions are answered by this Court as it resolves the

petition for review on certiorari before us assailing the
November 23, 1992 Decisionlvii of the Court of Appealslviii in CAG.R. SP No. 28761 which annulled the decision lix of the trial
courtlx and which declared the compromise agreement among
the parties valid and binding even without the said trial courts
approval. The dispositive portion of the assailed Decision
reads:
WHEREFORE, for the reasons hereinabove set forth and
discussed, the instant petition is GRANTED and the challenged
decision as well as the subsequent orders of the respondent
court are ANNULLED and SET ASIDE. The temporary
restraining order issued by this Court on October 14, 1992 is
made PERMANENT. The compromise agreement dated
October 30, 1969 as modified by the memorandum of
agreement of April 13, 1970 is DECLARED valid and binding
upon herein parties. And Special Proceedings No. 44-M and
1022 are deemed CLOSED and TERMINATED.
SO ORDERED. lxi
The Antecedent Facts
The facts are narrated by the Court of Appeals as follows:
[Herein private respondent] Rosalia S. Lugod is the only child
of spouses Juan C. Sanchez and Maria Villafranca while
[herein private respondents] Arturo S. Lugod, Evelyn L.
Ranises and Roberto S. Lugod are the legitimate children of
[herein private respondent] Rosalia.
[Herein petitioners] Rolando, Florida Mierly, Alfredo and Myrna,
all surnamed Sanchez, are the illegitimate children of Juan C.
Sanchez.
Following the death of her mother, Maria Villafranca, on
September 29, 1967, [herein private respondent] Rosalia filed
on January 22, 1968, thru counsel, a petition for letters of
administration over the estate of her mother and the estate of
her father, Juan C. Sanchez, who was at the time in state of
senility (Annex B, Petition).
On September 30, 1968, [herein private respondent] Rosalia,
as administratrix of the intestate estate of her mother,
submitted an inventory and appraisal of the real and personal
estate of her late mother (Annex C, Petition).
Before the administration proceedings in Special Proceedings
No. 44-M could formally be terminated and closed, Juan C.
Sanchez, [herein private respondent] Rosalias father, died on
October 21, 1968.

On November 3, 1969, petitioner Rosalia was appointed by

[the trial court], and took her oath as the administratrix of her
fathers intestate estate.
On January 19, 1970, [herein petitioners] filed a motion to
require administratrix, [herein private respondent] Rosalia, to
deliver deficiency of 24 hectares and or to set aside
compromise agreement (Annex E, Petition).
Under date of April 13, 1970, (herein private respondent)
Rosalia and [herein petitioners] entered into and executed a
memorandum of agreement which modified the compromise
agreement (Annex F. Petition)
On October 25, 1979, or nine years later, [herein petitioners]
filed, thru counsel, a motion to require [herein private
respondent] Rosalia to submit a new inventory and to render
an accounting over properties not included in the compromise
agreement (Annex G, Petition). They likewise filed a motion to
defer the approval of the compromise agreement (Annex H,
Ibid), in which they prayed for the annulment of the
compromise agreement on the ground of fraud.
On February 4, 1980, however, counsel for [herein petitioners]
moved to withdraw his appearance and the two motions he
filed, Annex G and H (Annex I, Petition).
On February 28, 1980, the [trial] court issued an order directing
[herein private respondent] Rosalia to submit a new inventory
of properties under her administration and an accounting of the
fruits thereof, which prompted [herein private respondent]
Rosalia to file a rejoinder on March 31, 1980 (Annex K,
Petition).
On May 12, 1980, [herein petitioners], thru new counsel, filed a
motion to change administratrix (Annex L, Petition) to which
[herein private respondent] Rosalia filed an opposition
(AnnexM, Ibid).
The parties were subsequently ordered to submit their
respective position papers, which they did (Annexes N and O,
Petition). On September 14, 1989, former counsel of (herein
petitioners) entered his re-appearance as counsel for (herein
petitioners).
On the bases of memoranda submitted by the parties, the [trial
court], this time presided by Judge Vivencio A. Galon,
promulgated its decision on June 26, 1991, the dispositive
portion of which states:

WHEREFORE, premises considered, judgment is hereby

rendered as follows by declaring and ordering:
1.That the entire intestate estate of Maria Villafranca Sanchez
under Special Proceedings No.44-M consists of all her
paraphernal properties and one-half (1/2) of the conjugal
properties which must be divided equally between Rosalia
Sanchez de Lugod and Juan C. Sanchez;
2.That the entire intestate estate of Juan C. Sanchez under
Special Proceedings No. 1022 consists of all his capital
properties, one-half (1/2) from the conjugal partnership of gains
and one-half (1/2) of the intestate estate of Maria Villafranca
under Special Proceedings No. 44-M;
3.That one-half (1/2) of the entire intestate estate of Juan C.
Sanchez shall be inherited by his only legitimate daughter,
Rosalia V. Sanchez de Lugod while the other one-half (1/2)
shall be inherited and be divided equally by, between and
among the six (6) illegitimate children, namely: Patricia Alburo,
Maria Ramuso Sanchez, Rolando Pedro T. Sanchez, Florida
Mierly T. Sanchez, Alfredo T. Sanchez and Myrna T. Sanchez;
4.That all the Deed (sic) of Absolute Sales executed by Juan C.
Sanchez and Maria Villafranca in favor of Rosalia Sanchez
Lugod, Arturo S. Lugod, Evelyn S. Lugod and Roberto S.
Lugod on July 26, 1963 and June 26, 1967 are all declared
simulated and fictitious and must be subject to collation and
partition among all heirs;
5.That within thirty (30) days from finality of this decision,
Rosalia Sanchez Lugod is hereby ordered to prepare a project
of partition of the intestate estate of Juan C. Sanchez under
Special Proceedings No. 1022 and distribute and deliver to all
heirs their corresponding shares. If she fails to do so within the
said thirty (30) days, then a Board of Commissioners is hereby
constituted, who are all entitled to honorarium and per diems
and other necessary expenses chargeable to the estate to be
paid by Administratrix Rosalia S. Lugod, appointing the
Community Environment and Natural Resources Officer
(CENRO) of Gingoog City as members thereof, with the task to
prepare the project of partition and deliver to all heirs their
respective shares within ninety (90) days from the finality of
said decision;
6.That within thirty (30) days from receipt of this decision,
Administratrix Rosalia Sanchez Vda. de Lugod is hereby
ordered to submit two (2) separate certified true and correct
accounting, one for the income of all the properties of the entire
intestate estate of Maria Villafranca under Special Proceedings
No. 44-M, and another for the properties of the entire intestate
estate of Juan C. Sanchez under Special Proceedings No.
1022 duly both signed by her and both verified by a Certified
Public Accountant and distribute and deliver to her six (6)
illegitimate brothers and sisters in equal shares, one -half (1/2)
of the net income of the estate of Juan C. Sanchez from
October 21, 1968 up to the finality of this decision;
7.For failure to render an accounting report and failure to give
cash advances to the illegitimate children of Juan C. Sanchez
during their minority and hour of need from the net income of

the estate of Juan C. Sanchez, which adversely prejudiced

their social standing and pursuit of college education, (the trial
court) hereby orders Rosalia Sanchez Vda. de Lugod to pay
her six (6) illegitimate brothers and sisters the sum of Five
Hundred Thousand (P500,000.00) Pesos, as exemplary
damages, and also the sum of One Hundred Fifty Thousand
(P150,000.00) Pesos for attorneys fees;
8.Upon release of this decision and during its pendency, should
appeal be made, the Register of Deeds and Assessors of the
Provinces and Cities where the properties of Juan C. Sanchez
and Maria Villafranca are located, are all ordered to register
and annotate in the title and/or tax declarations, the dispositive
portion of this decision for the protection of all heirs and all
those who may be concerned.
SO ORDERED.
[Herein private respondent] Rosalia filed a motion for
reconsideration dated July 17, 1991 (Annex P, Petition) on
August 6, 1991.
On August 13, 1991, [herein petitioners] filed a motion for
execution and opposition to [herein private respondent]
Rosalias motion for reconsideration (Annex Q, Petition).
On September 3, 1991, [the trial court] issued an Omnibus
Order (Annex S, Petition) declaring, among other things, that
the decision at issue had become final and executory.
[Herein private respondent] Rosalia then filed a motion for
reconsideration of said Omnibus Order (Annex T, Petition).
Said [herein private respondent] was allowed to file a
memorandum in support of her motion (Annex V, Petition).
On June 26, 1991, [the trial court] issued and Order denying
petitioner Rosalias motion for reconsideration (Annex W,
Petition).lxiii
Thereafter, private respondents elevated the case to the Court
of Appeals via a petition for certiorari and contended:
I
The [trial court] has no authority to disturb the compromise
agreement.
II
The [trial court] has arbitrarily faulted [herein private
respondent] Rosalia S. Lugod for alleged failure to render an
accounting which was impossible.
III
The [trial court] acted without jurisdiction in derogation of the
constitutional rights of [herein private respondents] Arturo S.
Lugod, Evelyn L. Ranises and Roberto S. Lugod when [the trial
court] decided to annul the deed of sale between the said
[herein private respondents] and Juan C. Sanchez without
affording them their day in court.
IV

[The trial court judge] defied without rhyme or reason wellestablished and entrenched jurisprudence when he determined
facts sans any evidence thereon.
V

P21,690.00
II. CONJUGAL PROPERTY OF JUAN C. SANCHEZ AND
MARIA VILLAFRANCA DE SANCHEZ

For claritys sake, this Court hereby reproduces verbatim the

compromise agreementlxv of the parties:

(1)
Agricultural Land. Covered by Tax Decl. No. 06447,
Cad. Lot No. 2745, C-7 located at Agay-ayan, Gingoog City
and bounded on the North by Lot Nos. 2744, 2742, 2748;
South by Lot No. 2739; East by Lot No. 2746; West by Lot No.
2741, containing an area of FOURTEEN THOUSAND SEVEN
HUNDRED (14,700) sq. ms. more or less.

COMPROMISE AGREEMENT

P1,900.00

COME NOW, the parties in the above-entitled case, motivated

by their mutual desire to preserve and maintain harmonious
relations between and among themselves, for mutual valuable
considerations and in the spirit of good will and fair play, and,
for the purpose of this Compromise Agreement, agree to the
following:

(2)
Agricultural Land. Covered by Tax Decl. No. 06449,
Cad, Lot No. 3271 C-7 located at Panyangan, Lanao, Gingoog
City and bounded on the North by Lot No. 3270; South by Lot
Nos. 2900 & 3462; East by Panyangan River & F. Lumanao;
and Part of Lot 3272; and West by Samay Creek, containing an
area of ONE HUNDRED FOUR THOUSAND SIX HUNDRED
(104,600) sq. ms. more or less.

[The trial court] grossly misinterpreted [herein

respondent] Rosalia S. Lugods right to appeal.lxiv

private

1. That the deceased Juan C. Sanchez who died intestate on

October 21, 1968 was legally married to Maria Villafranca de
Sanchez, who predeceased her on September 29, 1967, out of
whose wedlock Rosalia Sanchez Lugod, Oppositor herein, was
born, thus making her the sole and only surviving legitimate
heir of her deceased parents;
2. That the said deceased Juan C. Sanchez, left illegitimate
children, Intervenors-Oppositors and Petitioners, respectively,
herein namely;

P11,580.00
(3)
Agricultural Land. Covered by Tax Decl. No. 06449,
Cad. Lot No. 2319, Case 2, located at Murallon, Gingoog City
and bounded on the North by Lot No. 1061; South by
Hinopolan Creek; East by Lot No. 1044; and West by Lot No.
1041, containing an area of THREE THOUSAND TWO
HUNDRED TWENTY FIVE (3,225) sq. ms. more or less.

(2) Maria Ramoso Sanchez, born out of wedlock on May 9,

1937 at Gingoog, Misamis Oriental, now, Gingoog City, to
Alberta Ramoso;

(4)
Agricultural Land. Covered by Tax Decl. No. 06452,
Cad. Lot No. 3272, C-7 Part 4 located at Panyangan, Lunao,
Gingoog City and bounded on the North by Lot Nos. 3270 &
3273; East by Panyangan River; South by Panyangan River;
and West by Lot Nos. 3270 & 3271, containing an area of
FIFTY FIVE THOUSAND SIX HUNDRED (55,600) sq. ms.
more or less, being claimed by Damian Querubin.

(3)

P2.370.00

(1) Patricio Alburo, born out of wedlock on March 17, 1926 at

Cebu City, Philippines, to Emilia Alburo;

(a) Rolando Pedro Sanchez, born on May 19, 1947,

(b) Florida Mierly Sanchez, born on February 16, 1949,

(c) Alfredo Sanchez, born on July 21, 1950,and
(d) Myrna Sanchez, born on June 16, 1952, all born out of
wedlock to Laureta Tampus in Gingoog City, Philippines.
3. That the deceased Juan C. Sanchez left the following
properties, to wit:
I. SEPARATE CAPITAL OF JUAN C. SANCHEZ
NATURE, DESCRIPTION AND AREA ASSESSED VALUE
(1)
Agricultural Land. Covered by Tax. Decl. No. 06458,
Cad. Lot No. 1041 C-2, located at Murallon, Gingoog City and
bounded on the North by Lot Nos. 1033, 1035, 1036, 1037,
1039, 1040, 1042 & 1043; South by Lot No. 1080, 1088, 1087
& 1084; East by Lot Nos. 1089, 1061 & 2319; West by Lot Nos.
954, 1038, 1057& 1056, containing an area of ONE HUNDRED
EIGHTY THREE THOUSAND SIX HUNDRED SEVENTY TWO
(183, 672) sq. ms. more or less.

(5)
Agricultural Land. Covered by Tax Decl. No. 06453,
Cad. Lot No. 3270 Case 7, located at Sunog, Lunao, Gingoog
City and bounded on the North by Samay Creek & Lot 3267;
South by Lot Nos. 3271 & 3272; East by Lot Nos. 3269 & 3273;
and West by Samay Creek, containing an area of FOUR
HUNDRED EIGHT THREE THOUSAND SIX HUNDRED
(483,600) sq. ms. more or less.
P61,680.00
(6)
Agricultural Land. Covered by Tax Decl. No. 06457,
Cad. Lot No. 3273, C-7 Part 2 located at Panyangan, Lunao,
Gingoog City and bounded on the North by Lot No. 3269;
South by Lot No. 3272; East by Panyangan River; and West by
Lot No. 3270, contaning an area of THIRTY FOUR
THOUSAND THREE HUNDRED (34,300) sq. ms. more or
less, being claimed by Miguel Tuto.
P3,880.00

(7)
Agricultural Land. Covered by Tax Decl. No. 12000,
Cad. Lot No. 2806, Case 7 located at Agayayan, Gingoog City
and bounded on the North by Agayayan River; South by
Victoriano Barbac; East by Isabelo Ramoso; and West by
Restituto Baol, contaning an area of SIX THOUSAND SIX
HUNDRED SEVENTY SIX (6,676) sq. ms. more or less.
P380.00

P1,050.00
(14)
Agricultural Land. Covered by Tax, Decl. No. 06789,
Cad. Lot No. 5157-C-7, located at Kiogat, Agayayan, Gingoog
City and bounded on the North by Lot No. 5158, 5159, 5156;
South by SE-Steep Bank; East by NW, by Lot No. 5158,
Villafranca, containing an area of NINETY SIX THOUSAND
TWO HUNDRED (96,200) sq. ms. more or less.

(8)
Agricultural Land. Covered by Tax Decl. No. 12924,
Cad. Lot No. 1206 C-1 located at Cahulogan, Gingoog City and
bounded on the NW., by Lot No. 1209; SW., by Lot No. 1207;
East by National Highway; and West by Lot No. 1207;
containing an area of FOUR THOUSAND FIVE HUNDRED
THIRTEEN (4,513) sq. ms. more or less.

P3,370.00

P740.00

1.

(9)
Agricultural Land. Covered by Tax Decl. No. 12925,
Cad. Lot No. 5554, located at Tinaytayan, Pigsalohan, Gingoog
City and bounded on the North by Lot Nos. 5559 & 5558;
South by Lot No. 3486; East by Lot No. 5555; and West by Lot
No. 5355, containing an area of EIGHTEEN THOUSAND FIVE
HUNDRED TWENTY EIGHT (18,528) sq. ms. more or less.

Rural Bank of Gingoog, Inc.

P320.00

III. PERSONAL ESTATE (CONJUGAL)

NATURE AND DESCRIPTION
LOCATION

APPRAISAL

Fifty (50) shares of stock

at P100.00 per share

P5,000.00
2.

Four (4) shares of Preferred Stock

with San Miguel Corporation

400.00

(10)
Agricultural Land. Covered by Tax Decl. No. 12926,
Cad. Lot No. 5555 C-7 located at Tinaytayan, Pigsalojan,
Gingoog City and bounded on the North by Tinaytayan Creek &
Lot Nos. 5557 & 5558; South by Lot Nos. 3486, 3487, 3488,
3491& 3496; East by Cr. & Lot No. 3496; and West by Lot No.
5554, containing an area of SEVENTY SEVEN THOUSAND
SEVEN HUNDRED SEVENTY SIX (77,776) sq. ms. more or
less.

4. That, the parties hereto have agreed to divide the aboveenumerated properties in the following manner, to wit:

P1,350.00

Agricultural Land. Covered by Tax Decl. No. 06453, Cad. Lot

No. 3270 Case 7, located at Sunog, Lunao, Gingoog City and
bounded on the North by Samay Creek & Lot 3267; South by
Lot Nos. 3271 and 3272; East by Lot Nos. 3269 & 3273; and
West by Samay Creek, containing an area of FOUR
HUNDRED EIGHTY THREE THOUSAND SIX HUNDRED
(483,600) sq. ms. and assessed in the sum of P61,680.00.

(11)
A Commercial Land. Covered by Tax Decl. No. 06454,
Cad. Lot No. 61-C-1 located at Guno-Condeza Sts., Gingoog
City and bounded on the North by Lot 64; South by Road-Lot
613 Condeza St; East by Lot Nos. 63, and 62; West by RoadLot 614-Guno St., containing an area of ONE THOUSAND
FORTY TWO (1,042) sq. ms. more or less.
P9,320.00
(12)
A Commercial Land. Covered by Tax Decl. No. 06484,
Lot No. 5, Block 2, located at Cabuyoan, Gingoog City and
bounded on the North by Lot No. 4, block 2; South by Lot No.
8, block 2; East by Lot No. 6, block 2, West by Subdivision
Road, containing an area of FOUR HUNDRED (400) sq. ms.
more or less.
P12,240.00
(13)
A Commercial Land. Covered by Tax Decl. No. 15798,
Block No. 7-A-16-0 located at Cabuyoan, Gingoog City and
bounded on the North by Lot No. 7-A-16-0; South by Lot No. 716-0; East by Lot No. 7-A-18-Road; West by Lot No. 8, PSU120704-Julito Arengo vs. Restituto Baol, containing an area of
TWO HUNDRED SIXTEEN (216) sq. ms. more or less.

(a)
To Patricio Alburo, Maria Ramoso Sanchez, Roland
Pedro T. Sanchez, Florida Mierly Sanchez, Alfredo T. Sanchez
and Myrna T. Sanchez, in equal pro-indiviso shares,
considering not only their respective areas but also the
improvements existing thereon, to wit:

(b)
To Rosalia Sanchez Lugod all the rest of the
properties, both real and personal, enumerated above with the
exception of the following:
(1)
Two Preferred Shares of Stock in the San Miguel
Corporation, indicated in San Miguel Corporation Stock
Certificate No. 30217, which two shares she is ceding in favor
of Patricio Alburo;
(2)
The house and lot designated as Lot No. 5, Block 2
together with the improvements thereon and identified as
parcel No. II-12, lot covered by Tax Decl. No. 15798 identified
as Parcel No. II-13 in the above enumerated, and Cad. Lot No.
5157-C-7 together with the improvements thereon, which is
identified as parcel No. II-14 of the above-enumeration of
properties, which said Rosalia S. Lugod is likewise ceding and
renouncing in favor of Rolando Pedro, Florida Mierly, Alfredo

and Myrna, all surnamed Sanchez, in equal pro-indiviso

shares;
5.
That Rolando Pedro, Florida Mierly, Alfredo and
Myrna, all surnamed Sanchez hereby acknowledge to have
received jointly and severally in form of advances after October
21, 1968 the aggregate sum of EIGHT THOUSAND FIVE
HUNDRED THIRTY-THREE PESOS (P8,533.94) and NINETYFOUR CENTAVOS;
6.
That the parties hereto likewise acknowledge and
recognize in the indebtedness of the deceased Juan G.
Sanchez and his deceased wife Maria Villafranca Sanchez to
the Lugod Enterprises, Inc., in the sum of P43,064.99;
7.
That the parties hereto shall be responsible for the
payment of the estate and inheritance taxes proportionate to
the value of their respective shares as may be determined by
the Bureau of Internal Revenue and shall likewise be
responsible for the expenses of survey and segregation of their
respective shares;
8.
That Patricio Alburo, Maria Ramoso Sanchez, Roland
Pedro Sanchez, Florida Mierly Sanchez, Alfredo Sanchez and
Myrna Sanchez hereby waive, relinquish and renounce, jointly
and individually, in a manner that is absolute and irrevocable,
all their rights and interests, share and participation which they
have or might have in all the properties, both real and personal,
known or unknown and/or which may not be listed herein, or in
excess of the areas listed or mentioned herein, and/or which
might have been, at one time or another, owned by, registered
or placed in the name of either of the spouses Juan C.
Sanchez or Maria Villafranca de Sanchez or both, and which
either one or both might have sold, ceded, transferred, or
donated to any person or persons or entity and which parties
hereto do hereby confirm and ratify together with all the
improvements thereon, as well as all the produce and
proceeds thereof, and particularly of the properties, real and
personal listed herein, as well as demandable obligations due
to the deceased spouses Juan C. Sanchez, before and after
the death of the aforementioned spouses Juan C. Sanchez and
Maria Villafranca de Sanchez, in favor of oppositor Rosalia S.
Lugod;
9.
That the expenses of this litigation including attorneys
fees shall be borne respectively by the parties hereto;
10.
That Laureta Tampus for herself and guardian adlitem of her minor children, namely: Florida Mierly, Alfredo, and
Myrna, all surnamed Sanchez, hereby declare that she has no
right, interest, share and participation whatsoever in the estate
left by Juan C. Sanchez and/or Maria Villafranca de Sanchez,
or both, and that she likewise waives, renounces, and
relinquishes whatever rigid, share, participation or interest
therein which she has or might have in favor of Rosalia S.
Lugod;
11.
That, the parties hereto mutually waive and renounce
in favor of each other any whatever claims or actions, arising
from, connected with, and as a result of Special Proceedings
Nos. 44-M and 1022 of the Court of First Instance of Misamis

Oriental, Rosalia S. Lugod, warranting that the parcel of land

ceded to the other parties herein contains 48 hectares and 36
acres.
12.
That, Rosalia S. Lugod shall assume as she hereby
assumes the payment to Lugod Enterprises, Inc., of the sum of
P51,598.93 representing the indebtedness of the estate of
Juan C. Sanchez and Maria Villafranca de Sanchez and the
advances made to Rolando Pedro, Mierly, Alfredo, and Myrna
all surnamed Sanchez, mentioned in paragraphs 5 and 6
hereof and, to give effect to this Agreement, the parties hereto
agree to have letters of administration issued in favor of
Rosalia S. Lugod without any bond.
That Rosalia S. Lugod likewise agrees to deliver possession
and enjoyment of the parcel of land herein ceded to petitioners
and intervenors immediately after the signing of this agreement
and that the latter also mutually agree among themselves to
have the said lot subdivided and partitioned immediately in
accordance with the proportion of one sixth (1/6) part for every
petitioner and intervenor and that in the meantime that the
partition and subdivision is not yet effected, the administrations
of said parcel of land shall be vested jointly with Laureta
Tampos, guardian ad litem of petitioners and Maria Ramoso,
one of the intervenors who shall see to it that each petitioner
and intervenor is given one sixth (1/6) of the net proceeds of all
agricultural harvest made thereon.
WHEREFORE, it is most respectfully prayed that the foregoing
compromise agreement be approved.
Medina, Misamis Oriental, October 30, 1969.
(Sgd.)

(Sgd.)

PATRICIO ALBURO
ROSALIA S. LUGOD
Intervenor-Oppositor
Oppositor
(Sgd.)
MARIA RAMOSO SANCHEZ

ASSISTED BY:

Intervenor-Oppositor
(Sgd.)
ASSISTED BY:
REYES

PABLO S.

R-101Navarro Bldg.
(Sgd.)

Don A. Velez St.

REYNALDO L. FERNANDEZ
City

Cagayan de Oro

Gingoog City
(Sgd.)

(Sgd.)

ROLANDO PEDRO T. SANCHEZ

ALFREDO T. SANCHEZ

Petitioner
Petitioner
(Sgd.)

(Sgd.)

FLORIDA MIERLY T. SANCHEZ

MYRNA T. SANCHEZ

Petitioner
Petitioner

amended the above compromise. (It will be reproduced later in

our discussion of the second issue raised by the petitioners.)
The Court of Appeals, in a Resolutionlxvi dated September 4,
1992, initially dismissed private respondents petition. Acting,
however, on a motion for reconsideration and a supplemental
motion for reconsideration dated September 14, 1992 and
September 25, 1992, respectively,lxvii Respondent Court
thereafter reinstated private respondents petition in a
resolutionlxviii dated October 14, 1992.
In due course, the Court of Appeals, as earlier stated, rendered
its assailed Decision granting the petition, setting aside the trial
courts decision and declaring the modified compromise
agreement valid and binding.

(Sgd.)

LAURETA TAMPUS
For
herself and as Guardian

Hence, this appeal to this Court under Rule 45 of the Rules of

Court.
The Issues

AdLitem of the minors

Florida
Mierly, Alfredo, and
Myrna,
all surnamed Sanchez
ASSISTED BY:

TEOGENES VELEZ, JR.

Counsel
for Petitioners

In this appeal, petitioners invite the Courts attention to the

following issues:
I
The respondent court grossly erred in granting the petition for
certiorari under Rule 65 considering that the special civil action
of certiorari may not be availed of as a substitute for an appeal
and that, in any event, the grounds invoked in the petition are
merely alleged errors of judgment which can no longer be done
in view of the fact that the decision of the lower court had long
become final and executory.
II

The Clerk of Court

Prescinding from the foregoing, the respondent court erred in

annulling the decision of the lower court for the reason that a
compromise agreement or partition, as the court construed the
same to be, executed by the parties on October 30, 1969 was
void and unenforceable the same not having been approved by
the intestate court and that the same having been seasonably
repudiated by petitioners on the ground of fraud.

Court of First Instance

III

Branch III, Medina, Mis. Or.

The respondent court grossly erred in ignoring and

disregarding findings of facts of the lower court that the alleged
conveyances of real properties made by the spouses Juan C.
Sanchez and Maria Villafranca just before their death in favor
of their daughter and grandchildren, private respondents
herein, are tainted with fraud or made in contemplation of
death, hence, collationable.

Cagayan
de Oro City

Greetings:
Please set the foregoing compromise
agreement for the approval of the Honorable Court today, Oct.
30, 1969.
(Sgd.)

(Sgd.)
(Sgd.)

IV

PABLO S. REYES
TEOGENES VELEZ, JR.
REYNALDO L. FERNANDEZ

In any event, the respondent court grossly erred in treating the

lower courts declaration of fictitiousness of the deeds of sale as
a final adjudication of annulment.

The Memorandum of Agreement dated April 13, 1970, which

the parties entered into with the assistance of their counsel,

The respondent court grossly erred in declaring the termination

of the intestate proceedings even as the lower court had not
made a final and enforceable distribution of the estate of the
deceased Juan C. Sanchez.
VI
Prescinding from the foregoing, the respondent court grossly
erred in not at least directing respondent Rosalia S. Lugod to
deliver the deficiency of eight (8) hectares due petitioners
under the compromise agreement and memorandum of
agreement, and in not further directing her to include in the
inventory properties conveyed under the deeds of sale found
by the lower court to be part of the estate of Juan C.
Sanchez.lxix
The salient aspects of some issues are closely intertwined;
hence, they are hereby consolidated into three main issues
specifically dealing with the following subjects: (1) the propriety
of certiorari as a remedy before the Court of Appeals, (2) the
validity of the compromise agreement, and (3) the presence of
fraud in the execution of the compromise and/or collation of the
properties sold.
The Courts Ruling
The petition is not meritorious.
First Issue: Propriety of Certiorari
Before the Court of Appeals
Since private respondents had neglected or failed to file an
ordinary appeal within the reglementary period, petitioners
allege that the Court of Appeals erred in allowing private
respondents recourse to Rule 65 of the Rules of Court. They
contend that private respondents invocation of certiorari was
procedurally defective.lxx They further argue that private
respondents, in their petition before the Court of Appeals,
alleged errors of the trial court which, being merely errors of
judgment and not errors of jurisdiction, were not correctable by
certiorari.lxxi This Court disagrees.
Doctrinally entrenched is the general rule that certiorari is not a
substitute for a lost appeal. However, Justice Florenz D.
Regalado lists several exceptions to this rule, viz.: (1) where
the appeal does not constitute a speedy and adequate remedy
(Salvadades vs. Pajarillo, et al., 78 Phil. 77), as where 33
appeals were involved from orders issued in a single
proceeding which will inevitably result in a proliferation of more
appeals (PCIB vs. Escolin, et al., L-27860 and 27896, Mar. 29,
1974); (2) where the orders were also issued either in excess
of or without jurisdiction (Aguilar vs. Tan, L-23600, Jun 30,
1970, Cf. Bautista, et al. vs. Sarmiento, et al., L-45137, Sept.
231985); (3) for certain special consideration, as public welfare
or public policy (See Jose vs. Zulueta, et al. -16598, May 31,
1961 and the cases cited therein); (4) where in criminal
actions, the court rejects rebuttal evidence for the prosecution
as, in case of acquittal, there could be no remedy (People vs.
Abalos, L029039, Nov. 28, 1968); (5) where the order is a
patent nullity (Marcelo vs. De Guzman, et al., L-29077, June
29, 1982); and (6) where the decision in the certiorari case will

avoid future litigations (St. Peter Memorial Park, Inc. vs.

Campos, et al., L-38280, Mar. 21, 1975).lxxii Even in a case
where the remedy of appeal was lost, the Court has issued the
writ of certiorari where the lower court patently acted in excess
of or outside its jurisdiction,lxxiii as in the present case.
A petition for certiorari under Rule 65 of the Rules of Court is
appropriate and allowable when the following requisites
concur: (1) the writ is directed against a tribunal, board or
officer exercising judicial or quasi-judicial functions; (2) such
tribunal, board or officer has acted without or in excess of
jurisdiction, or with grave abuse of discretion amounting to lack
or excess of jurisdiction; and (3) there is no appeal or any
plain, speedy and adequate remedy in the ordinary course of
law.lxxiv After a thorough review of the case at bar, we are
convinced that all these requirements were met.
As a probate court, the trial court was exercising judicial
functions when it issued its assailed resolution. The said court
had jurisdiction to act in the intestate proceedings involved in
this case with the caveat that, due to its limited jurisdiction, it
could resolve questions of title only provisionally.lxxv It is
hornbook doctrine that in a special proceeding for the probate
of a will, the question of ownership is an extraneous matter
which the probate court cannot resolve with finality. This
pronouncement no doubt applies with equal force to an
intestate proceeding as in the case at bar.lxxvi In the instant
case, the trial court rendered a decision declaring as simulated
and fictitious all the deeds of absolute sale which, on July 26,
1963 and June 26, 1967, Juan C. Sanchez and Maria
Villafranca executed in favor of their daughter, Rosalia
Sanchez Lugod; and grandchildren, namely, Arturo S. Lugod,
Evelyn S. Lugod and Roberto S. Lugod. The trial court ruled
further that the properties covered by the said sales must be
subject to collation. Citing Article 1409 (2) of the Civil Code, the
lower court nullified said deeds of sale and determined with
finality the ownership of the properties subject thereof. In doing
so, it clearly overstepped its jurisdiction as a probate court.
Jurisprudence teaches:
[A] probate court or one in charge of proceedings whether
testate or intestate cannot adjudicate or determine title to
properties claimed to be a part of the estate and which are
claimed to belong to outside parties. All that the said court
could do as regards said properties is to determine whether
they should or should not be included in the inventory or list of
properties to be administered by the administrator. If there is
not dispute, well and good, but if there is, then the parties, the
administrator, and the opposing parties have to resort to an
ordinary action for a final determination of the conflicting claims
of title because the probate court cannot do so.lxxvii
Furthermore, the trial court committed grave abuse of
discretion when it rendered its decision in disregard of the
parties compromise agreement.lxxviii Such disregard, on the
ground that the compromise agreement was not approved by
the court,lxxix is tantamount to an evasion of positive duty or to a
virtual refusal to perform the duty enjoined or to act in
contemplation and within the bounds of law.lxxx

The foregoing issues clearly involve not only the correctness of

the trial courts decision but also the latters jurisdiction. They
encompass plain errors of jurisdiction and grave abuse of
discretion, not merely errors of judgment.lxxxi Since the trial
court exceeded its jurisdiction, a petition for certiorari is
certainly a proper remedy. Indeed, it is well-settled that (a)n act
done by a probate court in excess of its jurisdiction may be
corrected by certiorari.lxxxii
Consistent with the foregoing, the following disquisition by
respondent appellate court is apt:
As a general proposition, appeal is the proper remedy of
petitioner Rosalia here under Rule 109 of the Revised Rules of
Court. But the availability of the ordinary course of appeal does
not constitute sufficient ground to [prevent] a party from making
use of the extraordinary remedy of certiorari where appeal is
not an adequate remedy or equally beneficial, speedy and
sufficient (Echauz vs. Court of Appeals, 199 SCRA 381). Here,
considering that the respondent court has disregarded the
compromise agreement which has long been executed as early
as October, 1969 and declared null and void the deeds of sale
with finality, which, as a probate court, it has no jurisdiction to
do, We deem ordinary appeal is inadequate. Considering
further the [trial courts] granting of [herein petitioners] motion
for execution of the assailed decision, lxxxiii [herein private
respondent] Rosalias resort to the instant petition [for review on
certiorari] is all the more warranted under the
circumstances.lxxxiv
We thus hold that the questioned decision and resolutions of
the trial court may be challenged through a special civil action
for certiorari under Rule 65 of the Rules of Court. At the very
least, this case is a clear exception to the general rule that
certiorari is not a substitute for a lost appeal because the trial
courts decision and resolutions were issued without or in
excess of jurisdiction, which may thus be challenged or
attacked at any time. A void judgment for want of jurisdiction is
no judgment at all. It cannot be the source of any right nor the
creator of any obligation. All acts performed pursuant to it and
all claims emanating from it have no legal effect. Hence, it can
never become final and any writ of execution based on it is
void; x x x it may be said to be a lawless thing which can be
treated as an outlaw and slain at sight, or ignored wherever
and whenever it exhibits its head. lxxxv
Second Issue: Validity of Compromise Agreement
Petitioners contend that, because the compromise agreement
was executed during the pendency of the probate proceedings,
judicial approval is necessary to shroud it with validity. They
stress that the probate court had jurisdiction over the properties
covered by said agreement. They add that Petitioners Florida
Mierly, Alfredo and Myrna were all minors represented only by
their mother/natural guardian, Laureta Tampus.lxxxvi
These contentions lack merit. Article 2028 of the Civil Code
defines a compromise agreement as a contract whereby the
parties, by making reciprocal concessions, avoid a litigation or
put an end to one already commenced. Being a consensual
contract, it is perfected upon the meeting of the minds of the

parties. Judicial approval is not required for its perfection.lxxxvii

Petitioners argument that the compromise was not valid for
lack of judicial approval is not novel; the same was raised in
Mayuga vs. Court of Appeals,lxxxviii where the Court, through
Justice Irene R. Cortes, ruled:
It is alleged that the lack of judicial approval is fatal to the
compromise. A compromise is a consensual contract. As such,
it is perfected upon the meeting of the minds of the parties to
the contract. (Hernandez v. Barcelon, 23 Phil. 599 [1912]; see
also De los Reyes v. de Ugarte, 75 Phil. 505 [1945].) And from
that moment not only does it become binding upon the parties
(De los Reyes v. De Ugarte, supra ), it also has upon them the
effect and authority of res judicata (Civil Code, Art. 2037), even
if not judicially approved (Meneses v. De la Rosa, 77 Phil. 34
[1946]; Vda. De Guilas v. David, 132 Phil. 241, L-24280, 23
SCRA 762 [May 27, 1968]; Cochingyan v. Cloribel, L-27070-71
[April 22, 1977], 76 SCRA 361). (Italics found in the original.)
In the case before us, it is ineludible that the parties knowingly
and freely entered into a valid compromise agreement.
Adequately assisted by their respective counsels, they each
negotiated its terms and provisions for four months; in fact,
said agreement was executed only after the fourth draft. As
noted by the trial court itself, the first and second drafts were
prepared successively in July, 1969; the third draft on
September 25, 1969; and the fourth draft, which was finally
signed by the parties on October 30, 1969, lxxxix followed. Since
this compromise agreement was the result of a long drawn out
process, with all the parties ably striving to protect their
respective interests and to come out with the best they could,
there can be no doubt that the parties entered into it freely and
voluntarily. Accordingly, they should be bound thereby.xc To be
valid, it is merely required under the law to be based on real
claims and actually agreed upon in good faith by the parties
thereto.xci
Indeed, compromise is a form of amicable settlement that is
not only allowed but also encouraged in civil cases.xcii Article
2029 of the Civil Code mandates that a court shall endeavor to
persuade the litigants in a civil case to agree upon some fair
compromise.
In opposing the validity and enforcement of the compromise
agreement, petitioners harp on the minority of Florida Mierly,
Alfredo and Myrna. Citing Article 2032 of the Civil Code, they
contend that the courts approval is necessary in compromises
entered into by guardians and parents in behalf of their wards
or children.xciii
However, we observe that although denominated a
compromise agreement, the document in this case is
essentially a deed of partition, pursuant to Article 1082 of the
Civil Code which provides that [e]very act which is intended to
put an end to indivision among co-heirs and legatees or
devisees is deemed to be a partition, although it should purport
to be a sale, an exchange, a compromise, or any other
transaction.
For a partition to be valid, Section 1, Rule 74 of the Rules of
Court, requires the concurrence of the following conditions: (1)

the decedent left no will; (2) the decedent left no debts, or if

there were debts left, all had been paid; (3) the heirs and
liquidators are all of age, or if they are minors, the latter are
represented by their judicial guardian or legal representatives;
and (4) the partition was made by means of a public instrument
or affidavit duly filed with the Register of Deeds. xciv We find that
all the foregoing requisites are present in this case. We
therefore affirm the validity of the parties compromise
agreement/partition in this case.
In any event, petitioners neither raised nor ventilated this issue
in the trial court. This new question or matter was manifestly
beyond the pale of the issues or questions submitted and
threshed out before the lower court which are reproduced
below, viz.:
I
Are the properties which are the object of the sale by
the deceased spouses to their grandchildren collationable?
II
Are the properties which are the object of the sale by
the deceased spouses to their legitimate daughter also
collationable?
III
The first and second issues being resolved, how
much then is the rightful share of the four (4) recognized
illegitimate children?xcv
Furthermore, the 27-page Memorandum dated February 17,
1990 filed by petitioners before the Regional Trial Court xcvi
readily reveals that they never questioned the validity of the
compromise. In their comment before the Court of Appeals, xcvii
petitioners based their objection to said compromise
agreement on the solitary reason that it was tainted with fraud
and deception, zeroing specifically on the alleged fraud
committed by private respondent Rosalia S. Lugod.xcviii The
issue of minority was first raised only in petitioners Motion for
Reconsideration of the Court of Appeals Decision;xcix thus, it is
as if it was never duly raised in that court at all. c Hence, this
Court cannot now, for the first time on appeal, entertain this
issue, for to do so would plainly violate the basic rule of fair
play, justice and due process.ci We take this opportunity to
reiterate and emphasize the well-settled rule that (a)n issue
raised for the first time on appeal and not raised timely in the
proceedings in the lower court is barred by estoppel. Questions
raised on appeal must be within the issues framed by the
parties and, consequently, issues not raised in the trial court
cannot be raised for the first time on appeal.cii
The petitioners likewise assail as void the provision on waiver
contained in No. 8 of the aforequoted compromise, because it
allegedly constitutes a relinquishment by petitioners of a right
to properties which were not known.ciii They argue that such
waiver is contrary to law, public policy, morals or good custom.
The Court disagrees. The assailed waiver pertained to their
hereditary right to properties belonging to the decedents estate
which were not included in the inventory of the estates
properties. It also covered their right to other properties
originally belonging to the spouses Juan Sanchez and Maria
Villafranca de Sanchez which have been transferred to other
persons. In addition, the parties agreed in the compromise to
confirm and ratify said transfers. The waiver is valid because,

contrary to petitioners protestation, the parties waived a known

and existing interest -- their hereditary right which was already
vested in them by reason of the death of their father. Article
777 of the Civil Code provides that (t)he rights to the
succession are transmitted from the moment of death of the
decedent. Hence, there is no legal obstacle to an heirs waiver
of his/her hereditary share even if the actual extent of such
share is not determined until the subsequent liquidation of the
estate.civ At any rate, such waiver is consistent with the intent
and letter of the law advocating compromise as a vehicle for
the settlement of civil disputes.cv
Finally, petitioners contend that Private Respondent Rosalia T.
Lugods alleged fraudulent acts, specifically her concealment of
some of the decedents properties, attended the actual
execution of the compromise agreement.cvi This argument is
debunked by the absence of any substantial and convincing
evidence on record showing fraud on her part. As aptly
observed by the appellate court:
[Herein petitioners] accuse [herein private respondent] Rosalia
of fraud or deception by alleging, inter alia, that the parcel of
land given to them never conformed to the stated area, i.e.,
forty-eight (48) hectares, as stated in the compromise
agreement. We find this argument unconvincing and
unmeritorious. [Herein petitioners] averment of fraud on the
part of [herein private respondent] Rosalia becomes untenable
when We consider the memorandum of agreement they later
executed with [herein private respondent] Rosalia wherein said
compromise agreement was modified by correcting the actual
area given to [herein petitioners] from forty-eight (48) hectares
to thirty-six (36) hectares only. If the actual area allotted to
them did not conform to the 48 hectare area stated in the
compromise agreement, then why did they agree to the
memorandum of agreement whereby their share in the estate
of their father was even reduced to just 36 hectares? Where is
fraud or deception there? Considering that [herein petitioners]
were ably represented by their lawyers in executing these
documents and who presumably had explained to them the
import and consequences thereof, it is hard to believe their
charge that they were defrauded and deceived by [herein
private respondent] Rosalia.
If the parcel of land given to [herein petitioners], when actually
surveyed, happened to be different in area to the stated area of
48 hectares in the compromise agreement, this circumstance is
not enough proof of fraud or deception on [herein private
respondent] Rosalias part. Note that Tax Declaration No.
06453 plainly discloses that the land transferred to [herein
petitioners] pursuant to the compromise agreement contained
an area of 48 hectares (Annex A, Supplemental Reply). And
when [herein petitioners] discovered that the land allotted to
them actually contained only 24 hectares, a conference
between the parties took place which led to the execution and
signing of the memorandum of agreement wherein [herein
petitioners] distributive share was even reduced to 36 hectares.
In the absence of convincing and clear evidence to the
contrary, the allegation of fraud and deception cannot be
successfully imputed to [herein private respondent] Rosalia
who must be presumed to have acted in good faith.cvii

The memorandum of agreement freely and validly entered into

by the parties on April 13, 1970 and referred to above reads:
MEMORANDUM OF AGREEMENT
The parties assisted by their respective counsel have agreed
as they hereby agree:
1. To amend the compromise agreement executed by them on
October 30, 1969 so as to include the following:
a.
Correction of the actual area being given to the
petitioners and intervenors, all illegitimate children of the late
Juan C. Sanchez, forty-eight (48) hectares, thirty-six (36) acres
as embodied in the aforementioned compromise agreement to
thirty-six (36) hectares only, thus enabling each of them to get
six (6) hectares each.
b.
That the said 36-hectare area shall be taken from that
parcel of land which is now covered by O.C.T. No. 146 (Patent
No. 30012) and the adjoining areas thereof designated as Lot
A and Lot C as reflected on the sketch plan attached to the
record of this case prepared by Geodetic Engineer Olegario E.
Zalles pursuant to the Courts commission of March 10, 1970
provided, however, that if the said 36-hectare area could not be
found after adding thereto the areas of said lots A and C, then
the additional area shall be taken from what is designated as
Lot B, likewise also reflected in the said sketch plan attached to
the records;
c.
That the partition among the six illegitimate children of
the late Juan C. Sanchez (petitioners and intervenors) shall be
effective among themselves in such a manner to be agreed
upon by them, each undertaking to assume redemption of
whatever plants found in their respective shares which need
redemption from the tenants thereof as well as the continuity of
the tenancy agreements now existing and covering the said
shares or areas.
d.
The subdivision survey shall be at the expense of the
said petitioners and intervenors prorata.
e.
That the administratrix agrees to deliver temporary
administration of the area designated as Lot 5 of the Valles
Sketch Plan pending final survey of the said 36-hectare area.
Cagayan de Oro City, April 13, 1970.
(Sgd.)
LAURETA TAMPOS
For herself and as Guardian
ad-litem of Rolando, Mierly,
Alfredo and Myrna, all
surnamed Sanchez
Assisted by:
(Sgd.)

TEOGENES VELEZ, Jr.

Counsel for Petitioners
(Sgd.)
ROSALIA S. LUGOD
Administratrix
Assisted by:
(Sgd.)
PABLO S. REYES
Counsel for Administratrix
(Sgd.)
MARIA RABOSO SANCHEZ
Intervenorcviii
Not only did the parties knowingly enter into a valid
compromise agreement; they even amended it when they
realized some errors in the original. Such correction
emphasizes the voluntariness of said deed.
It is also significant that all the parties, including the then
minors, had already consummated and availed themselves of
the benefits of their compromise.cix This Court has consistently
ruled that a party to a compromise cannot ask for a rescission
after it has enjoyed its benefits.cx By their acts, the parties are
ineludibly estopped from questioning the validity of their
compromise agreement. Bolstering this conclusion is the fact
that petitioners questioned the compromise only nine years
after its execution, when they filed with the trial court their
Motion to Defer Approval of Compromise Agreement, dated
October 26, 1979.cxi In hindsight, it is not at all farfetched that
petitioners filed said motion for the sole reason that they may
have felt shortchanged in their compromise agreement or
partition with private respondents, which in their view was
unwise and unfair. While we may sympathize with this rueful
sentiment of petitioners, we can only stress that this alone is
not sufficient to nullify or disregard the legal effects of said
compromise which, by its very nature as a perfected contract,
is binding on the parties. Moreover, courts have no jurisdiction
to look into the wisdom of a compromise or to render a
decision different therefrom.cxii It is a well-entrenched doctrine
that the law does not relieve a party from the effects of an
unwise, foolish, or disastrous contract, entered into with all the
required formalities and with full awareness of what he was
doingcxiii and a compromise entered into and carried out in good
faith will not be discarded even if there was a mistake of law or
fact, (McCarthy vs. Barber Steamship Lines, 45 Phil. 488)
because courts have no power to relieve parties from
obligations voluntarily assumed, simply because their contracts
turned out to be disastrous deals or unwise investments. cxiv
Volenti non fit injuria.

Corollarily, the petitioners contend that the Court of Appeals

gravely abused its discretion in deeming Special Proceedings
Nos. 44-M and 1022 CLOSED and TERMINATED, arguing that
there was as yet no order of distribution of the estate pursuant
to Rule 90 of the Rules of Court. They add that they had not
received their full share thereto. cxv We disagree. Under Section
1, Rule 90 of the Rules of Court, an order for the distribution of
the estate may be made when the debts, funeral charges, and
expenses of administration, the allowance to the widow, and
inheritance tax, if any, had been paid. This order for the
distribution of the estates residue must contain the names and
shares of the persons entitled thereto. A perusal of the whole
record, particularly the trial courts conclusion,cxvi reveals that all
the foregoing requirements already concurred in this case. The
payment of the indebtedness of the estates of Juan C.
Sanchez and Maria Villafranca in the amount of P51,598.93
was shouldered by Private Respondent Rosalia, who also
absorbed or charged against her share the advances of
Rolando T. Lugod in the sum of P8,533.94, in compliance with
Article 1061 of the Civil Code on collation.cxvii Furthermore, the
compromise of the parties, which is the law between them,
already contains the names and shares of the heirs to the
residual estate, which shares had also been delivered. On this
point, we agree with the following discussion of the Court of
Appeals:
But what the (trial court) obviously overlooked in its
appreciation of the facts of this case are the uncontroverted
facts that (herein petitioners) have been in possession and
ownership of their respective distributive shares as early as
October 30, 1969 and they have received other properties in
addition to their distributive shares in consideration of the
compromise agreement which they now assail. Proofs thereof
are Tax Declarations No. 20984, 20985, 20986, 20987, 20988,
20989 and 20990 (Annexes B to H, Supplemental Reply) in the
respective names of (herein petitioners), all for the year 1972.
(Herein petitioners) also retained a house and lot, a residential
lot and a parcel of agricultural land (Annexes I, J and K, Ibid.)
all of which were not considered in the compromise agreement
between the parties. Moreover, in the compromise agreement
per se, it is undoubtedly stated therein that cash advances in
the aggregate sum of P8,533.94 were received by (herein
petitioners) after October 21, 1968 (Compromise Agreement,
par. 5)cxviii
All the foregoing show clearly that the probate court had
essentially finished said intestate proceedings which,
consequently, should be deemed closed and terminated. In
view of the above discussion, the Court sees no reversible
error on the part of the Court of Appeals.
Third Issue: Fraud and Collation
Petitioners fault Respondent Court for not ordering Private
Respondent Rosalia T. Lugod to deliver to them the deficiency
as allegedly provided under the compromise agreement. They
further contend that said court erred in not directing the
provisional inclusion of the alleged deficiency in the inventory
for purposes of collating the properties subject of the
questioned deeds of sale.cxix We see no such error. In the trial
court, there was only one hearing conducted, and it was held

only for the reception of the evidence of Rosalia S. Lugod to

install her as administratix of the estate of Maria Villafranca.
There was no other evidence, whether testimonial or
otherwise, received, formally offered to, and subsequently
admitted by the probate court below; nor was there a trial on
the merits of the parties conflicting claims.cxx In fact, the
petitioners moved for the deferment of the compromise
agreement on the basis of alleged fraudulent concealment of
properties -- NOT because of any deficiency in the land
conveyed to them under the agreements.cxxi Hence, there is no
hard evidence on record to back up petitioners claims.
In any case, the trial court noted Private Respondent Rosalias
willingness to reimburse any deficiency actually proven to exist.
It subsequently ordered the geodetic engineer who prepared
the certification and the sketch of the lot in question, and who
could have provided evidence for the petitioners, to bring
records of his relocation survey.cxxii However, Geodetic
Engineer Idulsa did not comply with the courts subpoena
duces tecum and ad testificandum. Neither did he furnish the
required relocation survey.cxxiii No wonder, even after a
thorough scrutiny of the records, this Court cannot find any
evidence to support petitioners allegations of fraud against
Private Respondent Rosalia.
Similarly, petitioners allegations of fraud in the execution of the
questioned deeds of sale are bereft of substance, in view of the
palpable absence of evidence to support them. The legal
presumption of validity of the questioned deeds of absolute
sale, being duly notarized public documents, has not been
overcome.cxxiv On the other hand, fraud is not presumed. It
must be proved by clear and convincing evidence, and not by
mere conjectures or speculations. We stress that these deeds
of sale did not involve gratuitous transfers of future inheritance;
these were contracts of sale perfected by the decedents during
their lifetime.cxxv Hence, the properties conveyed thereby are
not collationable because, essentially, collation mandated
under Article 1061 of the Civil Code contemplates properties
conveyed inter vivos by the decedent to an heir by way of
donation or other gratuitous title.
In any event, these alleged errors and deficiencies regarding
the delivery of shares provided in the compromise,
concealment of properties and fraud in the deeds of sale are
factual in nature which, as a rule, are not reviewable by this
Court in petitions under Rule 45.cxxvi Petitioners have failed to
convince us that this case constitutes an exception to such
rule. All in all, we find that the Court of Appeals has sufficiently
addressed the issues raised by them. Indeed, they have not
persuaded us that said Court committed any reversible error to
warrant a grant of their petition.
WHEREFORE, the petition is hereby DENIED and the assailed
Decision of the Court of Appeals is AFFIRMED.
SO ORDERED.
[G.R. No. 138842. October 18, 2000]
NATIVIDAD P. NAZARENO, MAXIMINO P. NAZARENO, JR.,
petitioners, vs. COURT OF APPEALS, ESTATE OF

MAXIMINO A. NAZARENO, SR., ROMEO P. NAZARENO and

ELIZA NAZARENO, respondents.
DECISION
MENDOZA, J.:

Quezon City. Bounded on the N., along line 1-2 by Lot 15,
Block D-3 of plan Bsd - 10642; along line 2-3 by Lot 4, Block D3 of plan Bsd-10642; along line 3-4 by Aurora Boulevard (Road
Lot-1, Bsd-10642); and along line 4-1 by Lot 3-D of the
subdivision plan. Beginning at a point marked 1 on plan, being
S.29 deg. 26E., 1156.22 m. from B.L.L.M. 9, Quezon City,

This is a petition for review on certiorari of the decision cxxvii of

the Court of Appeals in CA-GR CV No. 39441 dated May 29,
1998 affirming with modifications the decision of the Regional
Trial Court, Branch 107, Quezon City, in an action for
annulment of sale and damages.

thence N. 79 deg. 53E., 12.50 m. to point 2;

The facts are as follows:

thence N. 10 deg. 07W., 40.00 m. to the point

Maximino Nazareno, Sr. and Aurea Poblete were husband and

wife. Aurea died on April 15, 1970, while Maximino, Sr. died on
December 18, 1980. They had five children, namely, Natividad,
Romeo, Jose, Pacifico, and Maximino, Jr. Natividad and
Maximino, Jr. are the petitioners in this case, while the estate
of Maximino, Sr., Romeo, and his wife Eliza Nazareno are the
respondents.

of beginning; containing an area of FIVE HUNDRED (500)

SQUARE METERS. All points referred to are indicated on the
plan and are marked on the ground as follows: points 1 and 4
by P.L.S. Cyl. Conc. Mons. bearings true; date of the original
survey, April 8-July 15, 1920 and that of the subdivision survey,
March 25, 1956.

During their marriage, Maximino Nazareno, Sr. and Aurea

Poblete acquired properties in Quezon City and in the Province
of Cavite. It is the ownership of some of these properties that is
in question in this case.
It appears that after the death of Maximino, Sr., Romeo filed an
intestate case in the Court of First Instance of Cavite, Branch
XV, where the case was docketed as Sp. Proc. No. NC-28.
Upon the reorganization of the courts in 1983, the case was
transferred to the Regional Trial Court of Naic, Cavite. Romeo
was appointed administrator of his fathers estate.
In the course of the intestate proceedings, Romeo discovered
that his parents had executed several deeds of sale conveying
a number of real properties in favor of his sister, Natividad. One
of the deeds involved six lots in Quezon City which were
allegedly sold by Maximino, Sr., with the consent of Aurea, to
Natividad on January 29, 1970 for the total amount of
P47,800.00. The Deed of Absolute Sale reads as follows:
DEED OF ABSOLUTE SALE
KNOW ALL MEN BY THESE PRESENTS:
I, MAXIMINO A. NAZARENO, Filipino, married to Aurea
Poblete-Nazareno, of legal age and a resident of the Mun. of
Naic, Prov. of Cavite, Philippines,
-WITNESSETHThat I am the absolute registered owner of six (6) parcels of
land with the improvements thereon situated in Quezon City,
Philippines, which parcels of land are herewith described and
bounded as follows, to wit:
TRANS. CERT. OF TITLE NO. 140946
A parcel of land (Lot 3-B of the subdivision plan Psd-47404,
being a portion of Lot 3, Block D-3 described on plan Bsd10642, G.L.R.O. Record No.) situated in the Quirino District,

thence S. 10 deg. 07E., 40.00 m. to point 3;

thence S. 79 deg. 53W., 12.50 m. to point 4;

TRANS. CERT. OF TITLE NO. 132019

A parcel of land (Lot 3, Block 93 of the subdivision plan Psd57970 being a portion of Lot 6, Pcs-4786, G.L.R.O. Rec. No.
917) situated in Quirino District Quezon City. Bounded on the
NW., along line 1-2, by Lot 1, Block 93; on the NE., along line
2-3, by Road Lot 101; on the SE., along line 3-4, by Road Lot
100; on the SW., along line 4-1, by Lot 4, Block 93; all of the
subdivision plan. Beginning at point marked 1 on plan, being S.
65 deg. 40 3339.92 m. from B.L.L.M. No. 1, Marikina, Rizal;
thence N. 23 deg. 28 min. E., 11.70 m. to point 2;
thence S. 66 deg. 32 min. E., 18.00 m. to point 3;
thence S. 23 deg. 28 min. W., 11.70 m. to point 4;
thence N. 66 deg. 32. min. W., 18.00 m. to the point
of beginning; containing an area of TWO HUNDRED TEN
SQUARE METERS AND SIXTY SQUARE DECIMETERS
(210.60). All points referred to are indicated on the plan and
are marked on the ground by B.L. Cyl. Conc. Mons. 15 x 60
cm.; bearings true; date of the original survey, Nov. 10, 1920
and Jan. 31-March 31, 1924 and that of the subdivision survey,
February 1 to September 30, 1954. Date approved - March 9,
1962.
TRANS. CERT. OF TITLE NO. 118885
A parcel of land (Lot No. 10, of the consolidation and
subdivision plan Pcs-988, being a portion of the consolidated
Lot No. 26, Block No. 6, Psd-127, and Lots Nos. 27-A and 27B, Psd-14901, G.L.R.O. Record No. 917), situated in the
District of Cubao, Quezon City, Island of Luzon. Bounded on
the NE., by Lot No. 4 of the consolidation and subdivision plan;
on the SE., by Lot No. 11 of the consolidation and subdivision
plan; on the SW., by Lot No. 3 of the consolidation and
subdivision plan; and on the NW., by Lot No. 9 of the
consolidation and subdivision plan. Beginning at a point

marked 1 on the plan, being S. 7 deg. 26W., 4269.90 m. more

or less from B.L.L.M. No. 1, Mp. of Mariquina;
thence S. 25 deg. 00E., 12.00 m. to point 2;
thence S. 64 deg. 59W., 29.99 m. to point 3;
thence N. 25 deg. 00W., 12.00 m to point 4;
thence N. 64 deg. 59E., 29.99 m. to the point of
beginning; containing an area of THREE HUNDRED SIXTY
SQUARE METERS (360), more or less. All points referred to
are indicated on the plan and on the ground are marked by
P.L.S. Conc. Mons. 15 x 60 cm.; bearings true; declination 0
deg. 50E., date of the original survey, April 8 to July 15, 1920,
and that of the consolidation and subdivision survey, April 24 to
26, 1941.
TRANS. CERT. OF TITLE NO. 118886
A parcel of land (Lot No. 11, of the consolidation and
subdivision plan Pcs-988, being a portion of the consolidated
Lot No. 26, Block No. 6, Psd-127, and Lots Nos. 27-A and 27B, Psd-14901, G.L.R.O. Record No. 917), situated in the
District of Cubao, Quezon City, Island of Luzon. Bounded on
the NE., by Lot No. 4 of the consolidation and subdivision plan;
on the SE., by Lot No. 12 of the consolidation and subdivision
plan; on the SW., by Lot No. 3 of the consolidation and
subdivision plan; on the NW., by Lot No. 10 of the consolidation
and subdivision plan. Beginning at a point marked 1 on plan,
being S. 79 deg. 07W., 4264.00 m. more or less from B.L.L.M.
No. 1, Mp. of Mariquina;
thence S. 64 deg. 59W., 29.99 m. to point 2;
thence N. 25 deg. 00W., 12.00 m. to point 3;
thence N. 64 deg. 59E., 29.99 m. to point 4;
thence S. 26 deg. 00E., 12.00 m. to the point of
beginning; containing an area of THREE HUNDRED SIXTY
SQUARE METERS (360), more or less. All points referred to
are indicated on the plan and on the ground, are marked by
P.L.S. Conc. Mons. 15 x 60 cm.; bearings true; declination 0
deg. 50E.; date of the original survey, April 8 to July 15, 1920,
and that of the consolidation and subdivision survey, April 24 to
26, 1941.
A parcel of land (Lot No. 13 of the consolidation and
subdivision plan Pcs-988, being a portion of the consolidated
Lot No. 26, Block No. 6, Psd-127, and Lots Nos. 27-A and 27B, Psd-14901, G.L.R.O. Record No. 917), situated in the
District of Cubao, Quezon City, Island of Luzon. Bounded on
the NE., by Lot No. 4 of the consolidation and subdivision plan;
on the SE., by Lot No. 14, of the consolidation; and subdivision
plan; on the SW., by Lot No. 3 of the consolidation and
subdivision plan; and on the NW., by Lot No. 12, of the
consolidation and subdivision plan. Beginning at the point
marked 1 on plan, being S.78 deg. 48W., 4258.20 m. more or
less from B.L.L.M. No. 1, Mp. of Mariquina;

thence S. 64 deg. 58W., 30.00 m. to point 2;

thence N. 25 deg. 00W., 12.00 m. to point 3;
thence N. 64 deg. 59E., 29.99 m. to point 4;
thence S.25 deg. 00E., 12.00 m. to point of
beginning; containing an area of THREE HUNDRED SIXTY
SQUARE METERS (360, more or less. All points referred to
are indicated on the plan and on the ground are marked by
P.L.S. Conc. Mons. 15 x 60 cm.; bearings true; declination 0
deg. 50E., date of the original survey, April 8 to July 15, 1920,
and that of the consolidation and subdivision survey, April 24 to
26, 1941.
A parcel of land (Lot No. 14, of the consolidation and
subdivision plan Pcs-988, being a portion of the consolidated
Lot No. 26, Block No. 6, Psd-127, and Lots Nos. 27-A and 27B, Psd-14901, G.L.R.O. Record No. 917), situated in the
District of Cubao, Quezon City, Island of Luzon. Bounded on
the NE., by Lot No. 4 of the consolidation and subdivision plan;
on the SE., by Lot No. 15, of the consolidation and subdivision
plan; on the SW., by Lot No. 3 of the consolidation and
subdivision plan; and on the NW., by Lot No. 13 of the
consolidation and subdivision plan. Beginning at the point
marked 1 on plan, being S.78 deg. 48W., 4258.20 m. more or
less from B.L.L.M. No. 1, Mp. of Mariquina;
thence S. 25 deg. 00E., 12.00 m. to point 2;
thence S. 65 deg. 00W., 30.00 m. to point 3;
thence S. 65 deg. 00W., 12.00 m. to point 4;
thence N.64 deg. 58E., 30.00 m. to the point of
beginning; containing an area of THREE HUNDRED SIXTY
SQUARE METERS (360), more or less. All points referred to
are indicated on the plan and on the ground are marked by
P.L.S. Conc. Mons. 15 x 60 cm.; bearings true; declination 0
deg. 50E., date of the original survey, April 8 to July 15, 1920,
and that of the consolidation and subdivision survey, April 24 to
26, 1941.
That for and in consideration of the sum of FORTY THREE
THOUSAND PESOS (P43,000.00) PHILIPPINE CURRENCY,
to me in hand paid by NATIVIDAD P. NAZARENO, Filipino,
single, of legal age and a resident of the Mun. of Naic, Prov. of
Cavite, Philippines, the receipt whereof is acknowledged to my
entire satisfaction, I do hereby CEDE, SELL, TRANSFER,
CONVEY and ASSIGN unto the said Natividad P. Nazareno,
her heirs, administrators and assigns, all my title, rights,
interests and participations to the abovedescribed parcels of
land with the improvements thereon, with the exception of LOT
NO. 11 COVERED BY T.C.T. NO. 118886, free of any and all
liens and encumbrances; and
That for and in consideration of the sum of FOUR THOUSAND
EIGHT HUNDRED PESOS (P4,800.00) PHILIPPINE
CURRENCY, to me in hand paid by NATIVIDAD P.
NAZARENO, Filipino, single, of legal age and a resident of the

Mun. of Naic, Prov. of Cavite, Philippines, the receipt whereof

is acknowledged to my entire satisfaction, I do hereby CEDE,
SELL, TRANSFER, CONVEY and ASSIGN unto the said
Natividad P. Nazareno, her heirs, administrators and assigns,
all my title, rights, interests and participations in and to Lot No.
11 covered by T.C.T. No. 118886 above-described, free of any
and all liens and encumbrances, with the understanding that
the title to be issued in relation hereto shall be separate and
distinct from the title to be issued in connection with Lots Nos.
13 and 14, although covered by the same title.

Nazareno never intended to sell the six lots to Natividad and

that Natividad was only to hold the said lots in trust for her
siblings. He presented the Deed of Partition and Distribution
dated June 28, 1962 executed by Maximino Sr. and Aurea and
duly signed by all of their children, except Jose, who was then
abroad and was represented by their mother, Aurea. By virtue
of this deed, the nine lots subject of this Deed of Partition were
assigned by raffle as follows:

IN WITNESS WHEREOF, I have hereunto signed this deed of

absolute sale in the City of Manila, Philippines, this 29th day of
January, 1970.cxxviii

2. Natividad - Lots 23 (312 m2) and 24 (379 m2)

By virtue of this deed, transfer certificates of title were issued to

Natividad, to wit: TCT No. 162738 (Lot 3-B), cxxix TCT No.
162739 (Lot 3),cxxx TCT No. 162735 (Lot 10),cxxxi TCT No.
162736 (Lot 11),cxxxii and TCT No. 162737 (Lots 13 and 14),cxxxiii
all of the Register of Deeds of Quezon City.

4. Pacifico - Lots 13 (360 m2) and 14 (360 m2)

Among the lots covered by the above Deed of Sale is Lot 3-B
which is registered under TCT No. 140946. This lot had been
occupied by Romeo, his wife Eliza, and by Maximino, Jr. since
1969. Unknown to Romeo, Natividad sold Lot 3-B on July 31,
1982 to Maximino, Jr., cxxxiv for which reason the latter was
issued TCT No. 293701 by the Register of Deeds of Quezon
City.cxxxv
When Romeo found out about the sale to Maximino, Jr., he and
his wife Eliza locked Maximino, Jr. out of the house. On August
4, 1983, Maximino, Jr. brought an action for recovery of
possession and damages with prayer for writs of preliminary
injunction and mandatory injunction with the Regional Trial
Court of Quezon City. On December 12, 1986, the trial court
ruled in favor of Maximino, Jr. In CA-G.R. CV No. 12932, the
Court of Appeals affirmed the decision of the trial court.cxxxvi
On June 15, 1988, Romeo in turn filed, on behalf of the estate
of Maximino, Sr., the present case for annulment of sale with
damages against Natividad and Maximino, Jr. The case was
filed in the Regional Trial Court of Quezon City, where it was
docketed as Civil Case No. 88-58.cxxxvii Romeo sought the
declaration of nullity of the sale made on January 29, 1970 to
Natividad and that made on July 31, 1982 to Maximino, Jr. on
the ground that both sales were void for lack of consideration.
On March 1, 1990, Natividad and Maximino, Jr. filed a thirdparty complaint against the spouses Romeo and Eliza. cxxxviii
They alleged that Lot 3, which was included in the Deed of
Absolute Sale of January 29, 1970 to Natividad, had been
surreptitiously appropriated by Romeo by securing for himself a
new title (TCT No. 277968) in his name. cxxxix They alleged that
Lot 3 is being leased by the spouses Romeo and Eliza to third
persons. They therefore sought the annulment of the transfer
to Romeo and the cancellation of his title, the eviction of
Romeo and his wife Eliza and all persons claiming rights from
Lot 3, and the payment of damages.
The issues having been joined, the case was set for trial.
Romeo presented evidence to show that Maximino and Aurea

1. Romeo - Lot 25-L (642 m2)

3. Maximino, Jr. - Lots 6 (338 m2) and 7 (338 m2)

5. Jose - Lots 10 (360 m2) and 11 (360 m2)

Romeo received the title to Lot 25-L under his name,cxl while
Maximino, Jr. received Lots 6 and 7 through a Deed of Sale
dated August 16, 1966 for the amount of P9,500.00.cxli Pacifico
and Joses shares were allegedly given to Natividad, who
agreed to give Lots 10 and 11 to Jose, in the event the latter
came back from abroad. Natividads share, on the other hand,
was sold to third persons cxlii because she allegedly did not like
the location of the two lots. But, Romeo said, the money
realized from the sale was given to Natividad.
Romeo also testified that Lot 3-B was bought for him by his
father, while Lot 3 was sold to him for P7,000.00 by his parents
on July 4, 1969.cxliii However, he admitted that a document was
executed by his parents transferring six properties in Quezon
City, i.e., Lots 3, 3-B, 10, 11, 13, and 14, to Natividad.
Romeo further testified that, although the deeds of sale
executed by his parents in their favor stated that the sale was
for a consideration, they never really paid any amount for the
supposed sale. The transfer was made in this manner in order
to avoid the payment of inheritance taxes.cxliv Romeo denied
stealing Lot 3 from his sister but instead claimed that the title to
said lot was given to him by Natividad in 1981 after their father
died.
Natividad and Maximino, Jr. claimed that the Deed of Partition
and Distribution executed in 1962 was not really carried out.
Instead, in December of 1969, their parents offered to sell to
them the six lots in Quezon City, i.e., Lots 3, 3-B, 10, 11, 13
and 14. However, it was only Natividad who bought the six
properties because she was the only one financially able to do
so. Natividad said she sold Lots 13 and 14 to Ros-Alva
Marketing Corp.cxlv and Lot 3-B to Maximino, Jr. for
P175,000.00.cxlvi Natividad admitted that Romeo and the latters
wife were occupying Lot 3-B at that time and that she did not
tell the latter about the sale she had made to Maximino, Jr.
Natividad said that she had the title to Lot 3 but it somehow got
lost. She could not get an original copy of the said title because
the records of the Registrar of Deeds had been destroyed by
fire. She claimed she was surprised to learn that Romeo was
able to obtain a title to Lot 3 in his name.

Natividad insisted that she paid the amount stated in the Deed
of Absolute Sale dated January 29, 1970. She alleged that their
parents had sold these properties to their children instead of
merely giving the same to them in order to impose on them the
value of hardwork.
Natividad accused Romeo of filing this case to harass her after
Romeo lost in the action for recovery of possession (Civil Case
No. Q-39018) which had been brought against him by
Maximino, Jr. It appears that before the case filed by Romeo
could be decided, the Court of Appeals rendered a decision in
CA-GR CV No. 12932 affirming the trial courts decision in favor
of Maximino, Jr.
On August 10, 1992, the trial court rendered a decision, the
dispositive portion of which states:
WHEREFORE, judgment is hereby rendered declaring the
nullity of the Deed of Sale dated January 29, 1970. Except as
to Lots 3, 3-B, 13 and 14 which had passed on to third
persons, the defendant Natividad shall hold the rest in trust for
Jose Nazareno to whom the same had been adjudicated. The
Register of Deeds of Quezon City is directed to annotate this
judgment on Transfer Certificate of Titles Nos. 162735 and
162736 as a lien in the titles of Natividad P. Nazareno.

LIKEWISE, THE SAID REGISTER OF DEEDS IS DIRECTED

TO CANCEL TCT NO. 293701 (formerly 162705) OVER LOT
3-B AND RESTORE TCT NO. 140946 IN THE NAME OF
MAXIMINO NAZARENO SR. AND AUREA POBLETE.cxlviii
On appeal to the Court of Appeals, the decision of the trial
court was modified in the sense that titles to Lot 3 (in the name
of Romeo Nazareno) and Lot 3-B (in the name of Maximino
Nazareno, Jr.), as well as to Lots 10 and 11 were cancelled
and ordered restored to the estate of Maximino Nazareno, Sr.
The dispositive portion of the decision dated May 29, 1998
reads:
WHEREFORE, the appeal is GRANTED. The decision and the
order in question are modified as follows:
1. The Deed of Absolute Sale dated 29 January 1970 and the
Deed of Absolute Sale dated 31 July 1982 are hereby declared
null and void;
2. Except as to Lots 13 and 14 ownership of which has passed
on to third persons, it is hereby declared that Lots 3, 3-B, 10
and 11 shall form part of the estate of the deceased Maximino
Nazareno, Sr.;

The defendants counterclaim is dismissed. Likewise, the thirdparty complaint is dismissed.

3. The Register of Deeds of Quezon City is hereby ordered to

restore TCT No. 140946 (covering Lot 3-B), TCT No. 132019
(covering Lot 3), TCT No. 118885 (covering Lot 10), and TCT
No. 118886 (covering Lot 11).cxlix

The defendants are hereby directed to pay to the plaintiff jointly

and severally the sum of P30,000 as and for attorneys fees.
Likewise, the third-party plaintiff is directed to pay the thirdparty defendants attorneys fees of P20,000.

Petitioners filed a motion for reconsideration but it was denied

in a resolution dated May 27, 1999. Hence this petition.

All other claims by one party against the other are dismissed.
SO ORDERED.cxlvii
Natividad and Maximino, Jr. filed a motion for reconsideration.
As a result, on October 14, 1992 the trial court modified its
decision as follows:
WHEREFORE, the plaintiffs Partial Motion for Reconsideration
is hereby granted. The judgment dated August 10, 1992 is
hereby amended, such that the first paragraph of its dispositive
portion is correspondingly modified to read as follows:
WHEREFORE, judgment is hereby rendered declaring the
nullity of the Deeds of Sale dated January 29, 1970 and July
31, 1982.
Except as to Lots 3, 13 and 14 which had passed on to third
person, the defendant Natividad shall hold the rest OF THE
PROPERTIES COVERED BY THE DEED OF SALE DATED
JANUARY 29, 1970 (LOTS 10 and 11) in trust for Jose
Nazareno to whom the same had been adjudicated.
The Register of Deeds of Quezon City is directed to annotate
this judgment on Transfer Certificates of Title No. 162735 and
162736 as a lien on the titles of Natividad P. Nazareno.

Petitioners raise the following issues:

1.
WHETHER OR NOT THE UNCORROBORATED
TESTIMONY OF PRIVATE RESPONDENT ROMEO P.
NAZARENO CAN DESTROY THE FULL FAITH AND CREDIT
ACCORDED TO NOTARIZED DOCUMENTS LIKE THE DEED
OF ABSOLUTE SALE DATED JANUARY 29, 1970 (EXH. 1)
EXECUTED BY THE DECEASED SPOUSES MAXIMINO A.
NAZARENO, SR. AND AUREA POBLETE IN FAVOR OF
PETITIONER NATIVIDAD P. NAZARENO.
2.
WHETHER OR NOT THE RESPONDENT COURT
GROSSLY MISAPPRECIATED THE FACTS OF THE CASE
WITH RESPECT TO THE VALIDITY OF THE SAID DEED OF
ABSOLUTE SALE DATED JANUARY 29, 1970 (EXH. 1) IN
THE LIGHT OF THE FOLLOWING:
A) THE DOCUMENTARY EVIDENCE, ALL OF WHICH ARE
NOTARIZED, EXECUTED BY THE DECEASED SPOUSES
DURING THEIR LIFETIME INVOLVING SOME OF THEIR
CONJUGAL PROPERTIES.
B) THE EXECUTION OF AN EXTRA-JUDICIAL PARTITION
WITH WAIVER OF RIGHTS AND CONFIRMATION OF SALE
DATED MAY 24, 1975 (EXH. 14A) OF THE ESTATE OF
AUREA POBLETE BY THE DECEASED MAXIMINO A.
NAZARENO, SR. AND THEIR CHILDREN INVOLVING THE
ONLY REMAINING ESTATE OF AUREA POBLETE THUS
IMPLIEDLY ADMITTING THE VALIDITY OF PREVIOUS

DISPOSITIONS MADE BY SAID DECEASED SPOUSES ON

THEIR CONJUGAL PROPERTIES, HALF OF WHICH WOULD
HAVE BECOME A PART OF AUREA POBLETES ESTATE
UPON HER DEMISE.
C) THE ADMISSION MADE BY MAXIMINO A. NAZARENO,
SR. IN HIS TESTIMONY IN OPEN COURT ON AUGUST 13,
1980 DURING HIS LIFETIME IN CIVIL CASE NO. NC-712
(EXH. 81, 81B) THAT HE HAD SOLD CERTAIN PROPERTIES
IN FAVOR OF NATIVIDAD P. NAZARENO THUS BELYING
THE CLAIM OF ROMEO P. NAZARENO THAT THE DEED OF
ABSOLUTE SALE DATED JANUARY 29, 1970 IS ONE
AMONG THE DOCUMENTS EXECUTED BY THE
DECEASED SPOUSES TO BE WITHOUT CONSIDERATION.
D) THE ADMISSIONS MADE BY ROMEO P. NAZARENO
HIMSELF CONTAINED IN A FINAL DECISION OF THE
RESPONDENT COURT IN CA-GR CV NO. 12932 DATED
AUGUST 31, 1992 AND AN ANNEX APPEARING IN HIS
ANSWER TO THE COMPLAINT IN CIVIL CASE NO. Q-39018
(EXH. 11-B) INVOLVING LOT 3B, ONE OF THE PROPERTIES
IN QUESTION THAT THE SAID PROPERTY IS OWNED BY
PETITIONER NATIVIDAD P. NAZARENO.
E) THE PARTIAL PROJECT OF PARTITION DATED MAY 24,
1995 WHICH WAS APPROVED BY THE INTESTATE COURT
IN SP. PROC. NO. NC-28 AND EXECUTED IN
ACCORDANCE WITH THE LATTER COURTS FINAL ORDER
DATED JULY 9, 1991 DETERMINING WHICH WERE THE
REMAINING PROPERTIES OF THE ESTATE.
3.
WHETHER OR NOT THE DEED OF ABSOLUTE
SALE DATED JANUARY 29, 1970 EXECUTED BY THE
DECEASED SPOUSES MAXIMINO A. NAZARENO, SR. AND
AUREA POBLETE DURING THEIR LIFETIME INVOLVING
THEIR CONJUGAL PROPERTIES IS AN INDIVISIBLE
CONTRACT? AND IF SO WHETHER OR NOT UPON THEIR
DEATH, THE ESTATE OF MAXIMINO A. NAZARENO, SR.
ALONE CAN SEEK THE ANNULMENT OF SAID SALE?
4.
WHETHER OR NOT THE SALE OF LOT 3 UNDER
THE DEED OF ABSOLUTE SALE DATED JANUARY 29, 1970
IN FAVOR OF PETITIONER NATIVIDAD P. NAZARENO, IS
VALID CONSIDERING THAT AS PER THE ORDER OF THE
LOWER COURT DATED NOVEMBER 21, 1990. ROMEO
NAZARENO ADMITTED THAT HE DID NOT PAY THE
CONSIDERATION STATED IN THE DEED OF ABSOLUTE
SALE DATED JULY 4, 1969 EXECUTED BY THE DECEASED
SPOUSES IN HIS FAVOR (EXH. M-2).
5.
WHETHER OR NOT AS A CONSEQUENCE, THE
TITLE ISSUED IN THE NAME OF ROMEO P. NAZARENO,
TCT NO. 277968 (EXH. M) SHOULD BE CANCELLED AND
DECLARED NULL AND VOID AND A NEW ONE ISSUED IN
FAVOR OF NATIVIDAD P. NAZARENO PURSUANT TO THE
DEED OF ABSOLUTE SALE EXECUTED IN THE LATTERS
FAVOR ON JANUARY 29, 1970 BY THE DECEASED
SPOUSES.cl
We find the petition to be without merit.

First. Petitioners argue that the lone testimony of Romeo is

insufficient to overcome the presumption of validity accorded to
a notarized document.
To begin with, the findings of fact of the Court of Appeals are
conclusive on the parties and carry even more weight when
these coincide with the factual findings of the trial court. This
Court will not weigh the evidence all over again unless there is
a showing that the findings of the lower court are totally devoid
of support or are clearly erroneous so as to constitute serious
abuse of discretion.cli The lone testimony of a witness, if
credible, is sufficient. In this case, the testimony of Romeo that
no consideration was ever paid for the sale of the six lots to
Natividad was found to be credible both by the trial court and
by the Court of Appeals and it has not been successfully
rebutted by petitioners. We, therefore, have no reason to
overturn the findings by the two courts giving credence to his
testimony.
The fact that the deed of sale was notarized is not a guarantee
of the validity of its contents. As held in Suntay v. Court of
Appeals:clii
Though the notarization of the deed of sale in question vests in
its favor the presumption of regularity, it is not the intention nor
the function of the notary public to validate and make binding
an instrument never, in the first place, intended to have any
binding legal effect upon the parties thereto. The intention of
the parties still and always is the primary consideration in
determining the true nature of a contract.
Second. Petitioners make capital of the fact that in C.A.-G.R.
CV No. 12932, which was declared final by this Court in G.R.
No. 107684, the Court of Appeals upheld the right of Maximino,
Jr. to recover possession of Lot 3-B. In that case, the Court of
Appeals held:
As shown in the preceding disquisition, Natividad P. Nazareno
acquired the property in dispute by purchase in 1970. She was
issued Transfer Certificate of Title No. 162738 of the Registry
of Deeds of Quezon City. When her parents died, her mother
Aurea Poblete-Nazareno in 1970 and her father Maximino A.
Nazareno, Sr. in 1980, Natividad P. Nazareno had long been
the exclusive owner of the property in question. There was no
way therefore that the aforesaid property could belong to the
estate of the spouses Maximino Nazareno, Sr. and Aurea
Poblete. The mere fact that Romeo P. Nazareno included the
same property in an inventory of the properties of the
deceased Maximino A. Nazareno, Sr. will not adversely affect
the ownership of the said realty. Appellant Romeo P.
Nazarenos suspicion that his parents had entrusted all their
assets under the care and in the name of Natividad P.
Nazareno, their eldest living sister who was still single, to be
divided upon their demise to all the compulsory heirs, has not
progressed beyond mere speculation. His barefaced allegation
on the point not only is without any corroboration but is even
belied by documentary evidence. The deed of absolute sale
(Exhibit B), being a public document (Rule 132, Secs. 19 and
23, Revised Rules on Evidence), is entitled to great weight; to
contradict the same, there must be evidence that is clear,
convincing and more than merely preponderant (Yturralde vs.

Aganon, 28 SCRA 407; Favor vs. Court of Appeals, 194 SCRA

308). Defendants-appellants own conduct disproves their claim
of co-ownership over the property in question. Being
themselves the owner of a ten-unit apartment building along
Stanford St., Cubao Quezon City, defendants-appellants, in a
letter of demand to vacate addressed to their tenants (Exhibits
P, P-1 and P-2) in said apartment, admitted that the house and
lot located at No. 979 Aurora Blvd., Quezon City where they
were residing did not belong to them. Also, when they applied
for a permit to repair the subject property in 1977, they stated
that the property belonged to and was registered in the name
of Natividad P. Nazareno. Among the documents submitted to
support their application for a building permit was a copy of
TCT No. 162738 of the Registry of Deeds of Quezon City in the
name of Natividad Nazareno (Exhibit O and submarkings; tsn
March 15, 1985, pp. 4-5).cliii
To be sure, that case was for recovery of possession based on
ownership of Lot 3-B. The parties in that case were Maximino,
Jr., as plaintiff, and the spouses Romeo and Eliza, as
defendants. On the other hand, the parties in the present case
for annulment of sale are the estate of Maximino, Sr., as
plaintiff, and Natividad and Maximino, Jr., as defendants.
Romeo and Eliza were named third-party defendants after a
third-party complaint was filed by Natividad and Maximino, Jr.
As already stated, however, this third-party complaint
concerned Lot 3, and not Lot 3-B.
The estate of a deceased person is a juridical entity that has a
personality of its own.cliv Though Romeo represented at one
time the estate of Maximino, Sr., the latter has a separate and
distinct personality from the former. Hence, the judgment in
CA-GR CV No. 12932 regarding the ownership of Maximino,
Jr. over Lot 3-B binds Romeo and Eliza only, and not the estate
of Maximino, Sr., which also has a right to recover properties
which were wrongfully disposed.
Furthermore, Natividads title was clearly not an issue in the
first case. In other words, the title to the other five lots subject
of the present deed of sale was not in issue in that case. If the
first case resolved anything, it was the ownership of Maximino,
Jr. over Lot 3-B alone.
Third. Petitioners allege that, as shown by several deeds of
sale executed by Maximino, Sr. and Aurea during their lifetime,
the intention to dispose of their real properties is clear.
Consequently, they argue that the Deed of Sale of January 29,
1970 should also be deemed valid.
This is a non-sequitur. The fact that other properties had
allegedly been sold by the spouses Maximino, Sr. and Aurea
does not necessarily show that the Deed of Sale made on
January 29, 1970 is valid.
Romeo does not dispute that their parents had executed deeds
of sale. The question, however, is whether these sales were
made for a consideration. The trial court and the Court of
Appeals found that the Nazareno spouses transferred their
properties to their children by fictitious sales in order to avoid
the payment of inheritance taxes.

Indeed, it was found both by the trial court and by the Court of
Appeals that Natividad had no means to pay for the six lots
subject of the Deed of Sale.
All these convince the Court that Natividad had no means to
pay for all the lots she purportedly purchased from her parents.
What is more, Romeos admission that he did not pay for the
transfer to him of lots 3 and 25-L despite the considerations
stated in the deed of sale is a declaration against interest and
must ring with resounding truth. The question is, why should
Natividad be treated any differently, i.e., with consideration for
the sale to her, when she is admittedly the closest to her
parents and the one staying with them and managing their
affairs? It just seems without reason. Anyway, the Court is
convinced that the questioned Deed of Sale dated January 29,
1970 (Exh. A or 1) is simulated for lack of consideration, and
therefore ineffective and void.clv
In affirming this ruling, the Court of Appeals said:
Facts and circumstances indicate badges of a simulated sale
which make the Deed of Absolute Sale dated 29 January 1970
void and of no effect. In the case of Suntay vs. Court of
Appeals (251 SCRA 430 [1995]), the Supreme Court held that
badges of simulation make a deed of sale null and void since
parties thereto enter into a transaction to which they did not
intend to be legally bound.
It appears that it was the practice in the Nazareno family to
make simulated transfers of ownership of real properties to
their children in order to avoid the payment of inheritance
taxes. Per the testimony of Romeo, he acquired Lot 25-L from
his parents through a fictitious or simulated sale wherein no
consideration was paid by him. He even truthfully admitted that
the sale of Lot 3 to him on 04 July 1969 (Deed of Absolute
Sale, Records, Vol. II, p. 453) likewise had no consideration.
This document was signed by the spouses Max, Sr. and Aurea
as vendors while defendant-appellant Natividad signed as
witness.clvi
Fourth. Petitioners argue further:
The Deed of Absolute Sale dated January 29, 1970 is an
indivisible contract founded on an indivisible obligation. As
such, it being indivisible, it can not be annulled by only one of
them. And since this suit was filed only by the estate of
Maximino A. Nazareno, Sr. without including the estate of
Aurea Poblete, the present suit must fail. The estate of
Maximino A. Nazareno, Sr. can not cause its annulment while
its validity is sustained by the estate of Aurea Poblete.clvii
An obligation is indivisible when it cannot be validly performed
in parts, whatever may be the nature of the thing which is the
object thereof. The indivisibility refers to the prestation and not
to the object thereof.clviii In the present case, the Deed of Sale
of January 29, 1970 supposedly conveyed the six lots to
Natividad. The obligation is clearly indivisible because the
performance of the contract cannot be done in parts, otherwise
the value of what is transferred is diminished. Petitioners are
therefore mistaken in basing the indivisibility of a contract on
the number of obligors.

In any case, if petitioners only point is that the estate of

Maximino, Sr. alone cannot contest the validity of the Deed of
Sale because the estate of Aurea has not yet been settled, the
argument would nonetheless be without merit. The validity of
the contract can be questioned by anyone affected by it. clix A
void contract is inexistent from the beginning. Hence, even if
the estate of Maximino, Sr. alone contests the validity of the
sale, the outcome of the suit will bind the estate of Aurea as if
no sale took place at all.

DANILO D. MENDOZA, also doing business under the

name and style of ATLANTIC EXCHANGE PHILIPPINES,
petitioner, vs. COURT OF APPEALS, PHILIPPINE
NATIONAL BANK, FERNANDO MARAMAG, JR., RICARDO
G. DECEPIDA and BAYANI A. BAUTISTA, respondents.

Fifth. As to the third-party complaint concerning Lot 3, we find

that this has been passed upon by the trial court and the Court
of Appeals. As Romeo admitted, no consideration was paid by
him to his parents for the Deed of Sale. Therefore, the sale
was void for having been simulated. Natividad never acquired
ownership over the property because the Deed of Sale in her
favor is also void for being without consideration and title to Lot
3 cannot be issued in her name.

Before us is a petition for review on certiorari of the Decisionclxiii

dated August 8, 1994 of the respondent Court of Appeals
(Tenth Division) in CA-G.R. CV No. 38036 reversing the
judgmentclxiv of the Regional Trial Court (RTC) and dismissing
the complaint therein.

Nonetheless, it cannot be denied that Maximino, Sr. intended

to give the six Quezon City lots to Natividad. As Romeo
testified, their parents executed the Deed of Sale in favor of
Natividad because the latter was the only female and the only
unmarried member of the family.clx She was thus entrusted with
the real properties in behalf of her siblings. As she herself
admitted, she intended to convey Lots 10 and 11 to Jose in the
event the latter returned from abroad. There was thus an
implied trust constituted in her favor. Art. 1449 of the Civil Code
states:
There is also an implied trust when a donation is made to a
person but it appears that although the legal estate is
transmitted to the donee, he nevertheless is either to have no
beneficial interest or only a part thereof.
There being an implied trust, the lots in question are therefore
subject to collation in accordance with Art. 1061 which states:
Every compulsory heir, who succeeds with other compulsory
heirs, must bring into the mass of the estate any property or
right which he may have received from the decedent, during
the lifetime of the latter, by way of donation, or any other
gratuitous title, in order that it may be computed in the
determination of the legitime of each heir, and in the account of
the partition.
As held by the trial court, the sale of Lots 13 and 14 to RosAlva Marketing, Corp. on April 20, 1979clxi will have to be
upheld for Ros-Alva Marketing is an innocent purchaser for
value which relied on the title of Natividad. The rule is settled
that every person dealing with registered land may safely rely
on the correctness of the certificate of title issued therefor and
the law will in no way oblige him to go behind the certificate to
determine the condition of the property.clxii
WHEREFORE, the decision of the Court of Appeals is
AFFIRMED.
SO ORDERED.
Bellosillo, (Chairman), Quisumbing, and De Leon, Jr., JJ.,
concur.

DECISION
DE LEON, JR., J.:

Petitioner Danilo D. Mendoza is engaged in the domestic and

international trading of raw materials and chemicals. He
operates under the business name Atlantic Exchange
Philippines (Atlantic), a single proprietorship registered with the
Department of Trade and Industry (DTI). Sometime in 1978 he
was granted by respondent Philippine National Bank (PNB) a
Five Hundred Thousand Pesos (P500,000.00) credit line and a
One Million Pesos (P1,000,000.00) Letter of Credit/Trust
Receipt (LC/TR) line.
As security for the credit accommodations and for those which
may thereinafter be granted, petitioner mortgaged to
respondent PNB the following: 1) three (3) parcels of land clxv
with improvements in F. Pasco Avenue, Santolan, Pasig; 2) his
house and lot in Quezon City; and 3) several pieces of
machinery and equipment in his Pasig coco-chemical plant.
The real estate mortgageclxvi provided the following escalation
clause:
(f) The rate of interest charged on the obligation secured by
this mortgage as well as the interest on the amount which may
have been advanced by the Mortgagee in accordance with
paragraph (d) of the conditions herein stipulated shall be
subject during the life of this contract to such increase within
the rates allowed by law, as the Board of Directors of the
Mortgagee may prescribe for its debtors.
Petitioner executed in favor of respondent PNB three (3)
promissory notes covering the Five Hundred Thousand Pesos
(P500,000.00) credit line, one dated March 8, 1979 for Three
Hundred Ten Thousand Pesos (P310,000.00); another dated
March 30, 1979 for Forty Thousand Pesos (P40,000.00); and
the last dated September 27, 1979 for One Hundred Fifty
Thousand Pesos (P150,000.00). The said 1979 promissory
notes uniformly stipulated: "with interest thereon at the rate of
12% per annum, until paid, which interest rate the Bank may, at
any time, without notice, raise within the limits allowed by law
xxx."clxvii
Petitioner made use of his LC/TR line to purchase raw
materials from foreign importers. He signed a total of eleven
(11) documents denominated as "Application and Agreement
for Commercial Letter of Credit,"clxviii on various dates from
February 8 to September 11, 1979, which uniformly contained
the following clause: "Interest shall be at the rate of 9% per

annum from the date(s) of the draft(s) to the date(s) of arrival of

payment therefor in New York. The Bank, however, reserves
the right to raise the interest charges at any time depending on
whatever policy it may follow in the future."clxix
In a letter dated January 3, 1980 and signed by Branch
Manager Fil S. Carreon Jr., respondent PNB advised petitioner
Mendoza that effective December 1, 1979, the bank raised its
interest rates to 14% per annum, in line with Central Bank's
Monetary Board Resolution No. 2126 dated November 29,
1979.
On March 9, 1981, he wrote a letter to respondent PNB
requesting for the restructuring of his past due accounts into a
five-year term loan and for an additional LC/TR line of Two
Million Pesos (P2,000,000.00).clxx According to the letter,
because of the shut-down of his end-user companies and the
huge amount spent for the expansion of his business,
petitioner failed to pay to respondent bank his LC/TR accounts
as they became due and demandable.
Ceferino D. Cura, Branch Manager of PNB Mandaluyong
replied on behalf of the respondent bank and required
petitioner to submit the following documents before the bank
would act on his request: 1) Audited Financial Statements for
1979 and 1980; 2) Projected cash flow (cash in - cash out) for
five (5) years detailed yearly; and 3) List of additional
machinery and equipment and proof of ownership thereof.
Cura also suggested that petitioner reduce his total loan
obligations to Three Million Pesos (P3,000,000.00) "to give us
more justification in recommending a plan of payment or
restructuring of your accounts to higher authorities of the
Bank."clxxi
On September 25, 1981, petitioner sent another letter
addressed to PNB Vice-President Jose Salvador, regarding his
request for restructuring of his loans. He offered respondent
PNB the following proposals: 1) the disposal of some of the
mortgaged properties, more particularly, his house and lot and
a vacant lot in order to pay the overdue trust receipts; 2)
capitalization and conversion of the balance into a 5-year term
loan payable semi-annually or on annual installments; 3) a new
Two Million Pesos (P2,000,000.00) LC/TR line in order to
enable Atlantic Exchange Philippines to operate at full capacity;
4) assignment of all his receivables to PNB from all domestic
and export sales generated by the LC/TR line; and 5)
maintenance of the existing Five Hundred Thousand Pesos
(P500,000.00) credit line.
The petitioner testified that respondent PNB Mandaluyong
Branch found his proposal favorable and recommended the
implementation of the agreement. However, Fernando
Maramag, PNB Executive Vice-President, disapproved the
proposed release of the mortgaged properties and reduced the
proposed new LC/TR line to One Million Pesos
(P1,000,000.00).clxxii Petitioner claimed he was forced to agree
to these changes and that he was required to submit a new
formal proposal and to sign two (2) blank promissory notes.
In a letter dated July 2, 1982, petitioner offered the following
revised proposals to respondent bank: 1) the restructuring of

past due accounts including interests and penalties into a 5year term loan, payable semi-annually with one year grace
period on the principal; 2) payment of Four Hundred Thousand
Pesos (P400,000.00) upon the approval of the proposal; 3)
reduction of penalty from 3% to 1%; 4) capitalization of the
interest component with interest rate at 16% per annum; 5)
establishment of a One Million Pesos (P1,000,000.00) LC/TR
line against the mortgaged properties; 6) assignment of all his
export proceeds to respondent bank to guarantee payment of
his loans.
According to petitioner, respondent PNB approved his
proposal. He further claimed that he and his wife were asked to
sign two (2) blank promissory note forms. According to
petitioner, they were made to believe that the blank promissory
notes were to be filled out by respondent PNB to conform with
the 5-year restructuring plan allegedly agreed upon. The first
Promissory Note,clxxiii No. 127/82, covered the principal while
the second Promissory Note,clxxiv No. 128/82, represented the
accrued interest.
Petitioner testified that respondent PNB allegedly contravened
their verbal agreement by 1) affixing dates on the two (2)
subject promissory notes to make them mature in two (2) years
instead of five (5) years as supposedly agreed upon; 2)
inserting in the first Promissory Note No. 127/82 an interest
rate of 21% instead of 18%; 3) inserting in the second
Promissory Note No. 128/82, the amount stated therein
representing the accrued interest as One Million Five Hundred
Thirty Six Thousand Four Hundred Ninety Eight Pesos and
Seventy Three Centavos (P1,536,498.73) when it should only
be Seven Hundred Sixty Thousand Three Hundred Ninety
Eight Pesos and Twenty Three Centavos (P760,398.23) and
pegging the interest rate thereon at 18% instead of 12%.
The subject Promissory Notes Nos. 127/82 and 128/82 both
dated December 29, 1982 in the principal amounts of Two
Million Six Hundred Fifty One Thousand One Hundred
Eighteen Pesos and Eighty Six Centavos (P2,651,118.86) and
One Million Five Hundred Thirty Six Thousand Seven Hundred
Ninety Eight and Seventy Three Centavos (P1,536,798.73)
respectively and marked Exhibits BB and CC respectively,
were payable on equal semi-annual amortization and
contained the following escalation clause:
x x x which interest rate the BANK may increase within the
limits allowed by law at any time depending on whatever policy
it may adopt in the future; Provided, that, the interest rate on
this note shall be correspondingly decreased in the event that
the applicable maximum interest rate is reduced by law or by
the Monetary Board. In either case, the adjustment in the
interest rate agreed upon shall take effect on the effectivity
date of the increase or decrease in the maximum interest rate.
xxx
It appears from the record that the subject Promissory Notes
Nos. 127/82 and 128/82 superseded and novated the three (3)
1979 promissory notes and the eleven (11) 1979 Application
and Agreement for Commercial Letter of Credit which the
petitioner executed in favor of respondent PNB.

According to the petitioner, sometime in June 1983 the new

PNB Mandaluyong Branch Manager Bayani A. Bautista
suggested that he sell the coco-chemical plant so that he could
keep up with the semi-annual amortizations. On three (3)
occasions, Bautista even showed up at the plant with some
unidentified persons who claimed that they were interested in
buying the plant.

and the cancellation of the new titles issued to PNB; that PNB
vacate the subject premises in Pasig and turn the same over to
the petitioner; and also the nullification of the extrajudicial
foreclosure and sheriff's sale of the mortgaged chattels, and
that the chattels be returned to petitioner Mendoza if they were
removed from his Pasig premises or be paid for if they were
lost or rendered unserviceable.

Petitioner testified that when he confronted the PNB

management about the two (2) Promissory Notes Nos. 127/82
and 128/82 (marked Exhibits BB and CC respectively) which
he claimed were improperly filled out, Bautista and Maramag
assured him that the five-year restructuring agreement would
be implemented on the condition that he assigns 10% of his
export earnings to the Bank.clxxv In a letter dated August 22,
1983, petitioner Mendoza consented to assign 10% of the net
export proceeds of a Letter of Credit covering goods amounting
to One Hundred Fourteen Thousand Dollars ($114,000.00). clxxvi
However, petitioner claimed that respondent PNB subsequently
debited 14% instead of 10% from his export proceeds.clxxvii

The trial court also ordered respondent PNB to restructure to

five-years petitioner's principal loan of Two Million Six Hundred
Fifty One Thousand One Hundred Eighteen Pesos and Eighty
Six Centavos (P2,651,118.86) and the accumulated capitalized
interest on the same in the amount of Seven Hundred Sixty
Thousand Three Hundred Eighty Nine Pesos and Twenty
Three Centavos (P760,389.23) as of December 1982, and that
respondent PNB should compute the additional interest from
January 1983 up to October 15, 1984 only when respondent
PNB took possession of the said properties, at the rate of 12%
and 9% respectively.

Pursuant to the escalation clauses of the subject two (2)

promissory notes, the interest rate on the principal amount in
Promissory Note No. 127/82 was increased from 21% to 29%
on May 28, 1984, and to 32% on July 3, 1984 while the interest
rate on the accrued interest per Promissory Note No. 128/82
was increased from 18% to 29% on May 28, 1984, and to 32%
on July 3, 1984.
Petitioner failed to pay the subject two (2) Promissory Notes
Nos. 127/82 and 128/82 (Exhibits BB and CC) as they fell due.
Respondent PNB extra-judicially foreclosed the real and chattel
mortgages, and the mortgaged properties were sold at public
auction to respondent PNB, as highest bidder, for a total of
Three Million Seven Hundred Ninety Eight Thousand Seven
Hundred Nineteen Pesos and Fifty Centavos (P3,798,719.50).
The petitioner filed in the RTC in Pasig, Rizal a complaint for
specific performance, nullification of the extra-judicial
foreclosure and damages against respondents PNB, Fernando
Maramag Jr., Ricardo C. Decepida, Vice-President for
Metropolitan Branches, and Bayani A. Bautista. He alleged that
the Extrajudicial Foreclosure Sale of the mortgaged properties
was null and void since his loans were restructured to a fiveyear term loan; hence, it was not yet due and demandable; that
the escalation clauses in the subject two (2) Promissory Notes
Nos. 127/82 and 128/82 were null and void, that the total
amount presented by PNB as basis of the foreclosure sale did
not reflect the actual loan obligations of the plaintiff to PNB;
that Bautista purposely delayed payments on his exports and
caused delays in the shipment of materials; that PNB withheld
certain personal properties not covered by the chattel
mortgage; and that the foreclosure of his mortgages was
premature so that he was unable to service his foreign clients,
resulting in actual damages amounting to Two Million Four
Thousand Four Hundred Sixty One Pesos (P2,004,461.00).
On March 16, 1992, the trial court rendered judgment in favor
of the petitioner and ordered the nullification of the extrajudicial
foreclosure of the real estate mortgage, the Sheriffs sale of the
mortgaged real properties by virtue of consolidation thereof

The trial court also ordered respondent PNB to grant petitioner

Mendoza an additional Two Million Pesos (P2,000,000.00) loan
in order for him to have the necessary capital to resume
operation. It also ordered respondents PNB, Bayani A. Bautista
and Ricardo C. Decepida to pay to petitioner actual damages
in the amount of Two Million One Hundred Thirteen Thousand
Nine Hundred Sixty One Pesos (P2,113,961.00) and the peso
equivalent of Six Thousand Two Hundred Fifteen Dollars
($6,215.00) at the prevailing foreign exchange rate on October
11, 1983; and exemplary damages in the amount of Two
Hundred Thousand Pesos (P200,000.00).
Respondent PNB appealed this decision of the trial court to the
Court of Appeals. And the Court of Appeals reversed the
decision of the trial court and dismissed the complaint. Hence,
this petition.
It is the petitioners contention that the PNB management
restructured his existing loan obligations to a five-year term
loan and granted him another Two Million Pesos
(P2,000,000.00) LC/TR line; that the Promissory Notes Nos.
127/82 and 128/82 evidencing a 2-year restructuring period or
with the due maturity date December 29, 1984 were filled out
fraudulently by respondent PNB, and contrary to his verbal
agreement with respondent PNB; hence, his indebtedness to
respondent PNB was not yet due and the extrajudicial
foreclosure of his real estate and chattel mortgages was
premature. On the other hand, respondent PNB denies that
petitioner's loan obligations were restructured to five (5) years
and maintains that the subject two (2) Promissory Notes Nos.
127/82 and 128/82 were filled out regularly and became due as
of December 29, 1984 as shown on the face thereof.
Respondent Court of Appeals held that there is no evidence of
a promise from respondent PNB, admittedly a banking
corporation, that it had accepted the proposals of the petitioner
to have a five-year restructuring of his overdue loan
obligations. It found and held, on the basis of the evidence
adduced, that "appellee's (Mendoza) communications were
mere proposals while the bank's responses were not

categorical that the appellee's request had been favorably

accepted by the bank."

We feel certain that Mr. Cura will be pleased to discuss matters

of mutual interest with you.

Contending that respondent PNB had allegedly approved his

proposed five-year restructuring plan, petitioner presented
three (3) documents executed by respondent PNB officials.
The first document is a letter dated March 16, 1981 addressed
to the petitioner and signed by Ceferino D. Cura, Branch
Manager of PNB Mandaluyong, which states:

xxx

x x x In order to study intelligently the feasibility of your above

request, please submit the following documents/papers within
thirty (30) days from the date thereof, viz:
1.

Audited Financial Statements for 1979 and 1980;

2.
Projected cash flow (cash in - cash out) for five years
detailed yearly; and
3.
List of additional machinery and equipment and proof
of ownership thereof.
We would strongly suggest, however, that you reduce your
total obligations to at least P3 million (principal and interest and
other charges) to give us more justification in recommending a
plan of payment or restructuring of your accounts to higher
authorities of this bank.
The second document is a letter dated May 11, 1981
addressed to Mr. S. Pe Benito, Jr., Managing Director of the
Technological Resources Center and signed by said PNB
Branch Manager, Ceferino D. Cura. According to petitioner, this
letter showed that respondent PNB seriously considered the
restructuring of his loan obligations to a five-year term loan, to
wit:
xxx
At the request of our client, we would like to furnish you with
the following information pertinent to his accounts with us:
xxx
We are currently evaluating the proposal of the client to restructure his accounts with us into a five-year plan.
We hope that the above information will guide you in evaluating
the proposals of Mr. Danilo Mendoza.
xxx
The third document is a letter dated July 8, 1981 addressed to
petitioner and signed by PNB Assistant Vice-President
Apolonio B. Francisco.
xxx
Considering that your accounts/accommodations were granted
and carried in the books of our Mandaluyong Branch, we would
suggest that your requests and proposals be directed to
Ceferino Cura, Manager of our said Branch.

Petitioner also presented a letter which he addressed to Mr.

Jose Salvador, Vice-President of the Metropolitan Branches of
PNB, dated September 24, 1981, which reads:
Re: Restructuring of our Account into a 5-year Term Loan and
Request for the Establishment of a P2.0 Million LC/TR Line
Dear Sir:
In compliance with our discussion last September 17, we would
like to formalize our proposal to support our above requested
assistance from the Philippine National Bank.
xxx
Again we wish to express our sincere appreciation for your
open-minded approach towards the solution of this problem
which we know and will be beneficial and to the best interest of
the bank and mutually advantageous to your client.
xxx
Petitioner argues that he submitted the requirements according
to the instructions given to him and that upon submission
thereof, his proposed five-year restructuring plan was deemed
automatically approved by respondent PNB.
We disagree.
Nowhere in those letters is there a categorical statement that
respondent PNB had approved the petitioners proposed fiveyear restructuring plan. It is stretching the imagination to
construe them as evidence that his proposed five-year
restructuring plan has been approved by the respondent PNB
which is admittedly a banking corporation. Only an absolute
and unqualified acceptance of a definite offer manifests the
consent necessary to perfect a contract. clxxviii If anything, those
correspondences only prove that the parties had not gone
beyond the preparation stage, which is the period from the start
of the negotiations until the moment just before the agreement
of the parties.clxxix
There is nothing in the record that even suggests that
respondent PNB assented to the alleged five-year restructure
of petitioners overdue loan obligations to PNB. However, the
trial court ruled in favor of petitioner Mendoza, holding that
since petitioner has complied with the conditions of the alleged
oral contract, the latter may not renege on its obligation to
honor the five-year restructuring period, under the rule of
promissory estoppel. Citing Ramos v. Central Bank,clxxx the trial
court said:
The broad general rule to the effect that a promise to do or not
to do something in the future does not work an estoppel must
be qualified, since there are numerous cases in which an
estoppel has been predicated on promises or assurances as to
future conduct. The doctrine of promissory estoppel is by no

means new, although the name has been adopted only in

comparatively recent years. According to that doctrine, an
estoppel may arise from the making of a promise, even though
without consideration, if it was intended that the promise
should be relied upon and in fact it was relied upon, and if a
refusal to enforce it would be virtually to sanction the
perpetration of fraud or would result in other injustice. In this
respect, the reliance by the promisee is generally evidenced by
action or forbearance on his part, and the idea has been
expressed that such action or forbearance would reasonably
have been expected by the promissor. xxx
The doctrine of promissory estoppel is an exception to the
general rule that a promise of future conduct does not
constitute an estoppel. In some jurisdictions, in order to make
out a claim of promissory estoppel, a party bears the burden of
establishing the following elements: (1) a promise reasonably
expected to induce action or forebearance; (2) such promise
did in fact induce such action or forebearance, and (3) the
party suffered detriment as a result.clxxxi
It is clear from the forgoing that the doctrine of promissory
estoppel presupposes the existence of a promise on the part of
one against whom estoppel is claimed. The promise must be
plain and unambiguous and sufficiently specific so that the
Judiciary can understand the obligation assumed and enforce
the promise according to its terms.clxxxii For petitioner to claim
that respondent PNB is estopped to deny the five-year
restructuring plan, he must first prove that respondent PNB had
promised to approve the plan in exchange for the submission
of the proposal. As discussed earlier, no such promise was
proven, therefore, the doctrine does not apply to the case at
bar. A cause of action for promissory estoppel does not lie
where an alleged oral promise was conditional, so that reliance
upon it was not reasonable.clxxxiii It does not operate to create
liability where it does not otherwise exist.clxxxiv
Since there is no basis to rule that petitioner's overdue loan
obligations were restructured to mature in a period of five (5)
years, we see no other option but to respect the two-year
period as contained in the two (2) subject Promissory Notes
Nos. 127/82 and 128/82, marked as Exhibits BB and CC
respectively which superseded and novated all prior loan
documents signed by petitioner in favor of respondent PNB.
Petitioner argues, in his memorandum, that "respondent Court
of Appeals had no basis in saying that the acceptance of the
five-year restructuring is totally absent from the record."clxxxv On
the contrary, the subject Promissory Notes Nos. 127/82 and
128/82 are clear on their face that they were due on December
29, 1984 or two (2) years from the date of the signing of the
said notes on December 29, 1982.
Petitioner claims that the two (2) subject Promissory Notes
Nos. 127/82 and 128/82 were signed by him in blank with the
understanding that they were to be subsequently filled out to
conform with his alleged oral agreements with PNB officials,
among which is that they were to become due only after five
(5) years. If petitioner were to be believed, the PNB officials
concerned committed a fraudulent act in filling out the subject
two (2) promissory notes in question. Private transactions are
presumed to be fair and regular.clxxxvi The burden of presenting

evidence to overcome this presumption falls upon petitioner.

Considering that petitioner imputes a serious act of fraud on
respondent PNB, which is a banking corporation, this court will
not be satisfied with anything but the most convincing
evidence. However, apart from petitioner's self-serving verbal
declarations, we find no sufficient proof that the subject two (2)
Promissory Notes Nos. 127/82 and 128/82 were completed
irregularly. Therefore, we rule that the presumption has not
been rebutted.
Besides, it could be gleaned from the record that the petitioner
is an astute businessman who took care to reduce in writing his
business proposals to the respondent bank. It is unthinkable
that the same person would commit the careless mistake of
leaving his subject two (2) promissory notes in blank in the
hands of other persons. As the respondent Court of Appeals
correctly pointed out:
Surely, plaintiff-appellee who is a C.P.A and a Tax Consultant
(p. 3 TSN, January 9, 1990) will insist that the details of the two
promissory notes he and his wife executed in 1982 should be
specific to enable them to make the precise computation in the
event of default as in the case at bench. In fact, his alleged
omission as a C.P.A. and a Tax Consultant to insist that the two
promissory notes be filled up on important details like the rates
of interest is inconsistent with the legal presumption of a
person who takes ordinary care of his concerns (Section 3 (c),
Rule 131, Revised Rules on Evidence).
As pointed out by the Court of Appeals, Orlando Montecillo,
Chief, Loans and Discounts, PNB Mandaluyong Branch,
testified that the said Promissory Notes Nos. 127/82 and
128/82 were completely filled out when Danilo Mendoza signed
them (Rollo, p. 14).
In a last-ditch effort to save his five-year loan restructuring
theory, petitioner contends that respondent PNB's action of
withholding 10% from his export proceeds is proof that his
proposal had been accepted and the contract had been
partially executed. He claims that he would not have consented
to the additional burden if there were no corresponding benefit.
This contention is not well taken. There is no credible proof that
the 10% assignment of his export proceeds was not part of the
conditions of the two-year restructuring deal. Considering that
the resulting amount obtained from this assignment of export
proceeds was not even enough to cover the interest for the
corresponding month,clxxxvii we are hard-pressed to construe it
as the required proof that respondent PNB allegedly approved
the proposed five-year restructuring of petitioners overdue loan
obligations.
It is interesting to note that in his Complaint, petitioner made no
mention that the assignment of his export proceeds was a
condition for the alleged approval of his proposed five-year
loan restructuring plan. The Complaint merely alleged that
"plaintiff in a sincere effort to make payments on his obligations
agreed to assign 10% of his export proceeds to defendant
PNB." This curious omission leads the court to believe that the
alleged link between the petitioners assignment of export
proceeds and the alleged five-year restructuring of his overdue
loans was more contrived than real.

It appears that respondent bank increased the interest rates on

the two (2) subject Promissory Notes Nos. 127/82 and 128/82
without the prior consent of the petitioner. The petitioner did not
agree to the increase in the stipulated interest rate of 21% per
annum on Promissory Note No. 127/82 and 18% per annum on
Promissory Note No. 128/82. As held in several cases, the
unilateral determination and imposition of increased interest
rates by respondent bank is violative of the principle of
mutuality of contracts ordained in Article 1308 of the Civil
Code.clxxxviii As held in one case:clxxxix

private sale and apply the proceeds thereof to the payment of

this note.

It is basic that there can be no contract in the true sense in the

absence of the element of agreement, or of mutual assent of
the parties. If this assent is wanting on the part of one who
contracts, his act has no more efficacy than if it had been done
under duress or by a person of unsound mind.

A stipulation in the mortgage, extending its scope and effect to

after-acquired property is valid and binding where the afteracquired property is in renewal of, or in substitution for, goods
on hand when the mortgage was executed, or is purchased
with the proceeds of the sale of such goods.cxcii As earlier
pointed out, the petitioner did not present any proof as to when
the subject movables were acquired.

Similarly, contract changes must be made with the consent of

the contracting parties. The minds of all the parties must meet
as to the proposed modification, especially when it affects an
important aspect of the agreement. In the case of loan
contracts, it cannot be gainsaid that the rate of interest is
always a vital component, for it can make or break a capital
venture.
It has been held that no one receiving a proposal to change a
contract to which he is a party is obliged to answer the
proposal, and his silence per se cannot be construed as an
acceptance.cxc Estoppel will not lie against the petitioner
regarding the increase in the stipulated interest on the subject
Promissory Notes Nos. 127/82 and 128/82 inasmuch as he
was not even informed beforehand by respondent bank of the
change in the stipulated interest rates. However, we also note
that the said two (2) subject Promissory Notes Nos. 127/82 and
128/82 expressly provide for a penalty charge of 3% per
annum to be imposed on any unpaid amount when due.
Petitioner prays for the release of some of his movablescxci
being withheld by respondent PNB, alleging that they were not
included among the chattels he mortgaged to respondent
bank. However, petitioner did not present any proof as to when
he acquired the subject movables and hence, we are not
disposed to believe that the same were after-acquired chattels
not covered by the chattel and real estate mortgages.
In asserting its rights over the subject movables, respondent
PNB relies on a common provision in the two (2) subject
Promissory Notes Nos. 127/82 and 128/82 which states:
In the event that this note is not paid at maturity or when the
same becomes due under any of the provisions hereof, we
hereby authorized the BANK at its option and without notice, to
apply to the payment of this note, any and all moneys,
securities and things of value which may be in its hands on
deposit or otherwise belonging to me/us and for this purpose.
We hereby, jointly and severally, irrevocably constitute and
appoint the BANK to be our true Attorney-in-Fact with full
power and authority for us in our name and behalf and without
prior notice to negotiate, sell and transfer any moneys
securities and things of value which it may hold, by public or

It is clear, however, from the above-quoted provision of the said

promissory notes that respondent bank is authorized, in case
of default, to sell things of value belonging to the mortgagor
which may be on its hands for deposit or otherwise belonging
to me/us and for this purpose. Besides the petitioner executed
not only a chattel mortgage but also a real estate mortgage to
secure his loan obligations to respondent bank.

More importantly, respondent bank makes a valid argument for

the retention of the subject movables. Respondent PNB
asserts that those movables were in fact "immovables by
destination" under Art. 415 (5) of the Civil Code. cxciii It is an
established rule that a mortgage constituted on an immovable
includes not only the land but also the buildings, machinery
and accessories installed at the time the mortgage was
constituted as well as the buildings, machinery and
accessories belonging to the mortgagor, installed after the
constitution thereof.cxciv
Petitioner also contends that respondent PNBs bid prices for
this foreclosed properties in the total amount of Three Million
Seven Hundred Ninety Eight Thousand Seven Hundred
Nineteen Pesos and Fifty Centavos (P3,798,719.50), were
allegedly unconscionable and shocking to the conscience of
men. He claims that the fair market appraisal of his foreclosed
plant site together with the improvements thereon located in
Pasig, Metro Manila amounted to Five Million Four Hundred
Forty One Thousand Six Hundred Fifty Pesos (P5,441,650.00)
while that of his house and lot in Quezon City amounted to
Seven Hundred Twenty Two Thousand Pesos (P722,000.00)
per the appraisal report dated September 20, 1990 of Cuervo
Appraisers, Inc.cxcv That contention is not well taken
considering that:
1.
The total of the principal amounts alone of petitioners
subject Promissory Notes Nos. 127/82 and 128/82 which are
both overdue amounted to Four Million One Hundred Eighty
Seven Thousand Nine Hundred Seventeen Pesos and Fifty
Nine Centavos (P4,187,917.59).
2.
While the appraisal of Cuervo Appraisers, Inc. was
undertaken in September 1990, the extrajudicial foreclosure of
petitioners real estate and chattel mortgages have been
effected way back on October 15, 1984, October 23, 1984 and
December 21, 1984.cxcvi Common experience shows that real
estate values especially in Metro Manila tend to go upward due
to developments in the locality.
3.
In the public auction/foreclosure sales, respondent
PNB, as mortgagee, was not obliged to bid more than its

claims or more than the amount of petitioners loan obligations

which are all overdue. The foreclosed real estate and chattel
mortgages which petitioner earlier executed are accessory
contracts covering the collaterals or security of his loans with
respondent PNB. The principal contracts are the Promissory
Notes Nos. 127/82 and 128/82 which superseded and novated
the 1979 promissory notes and the 1979 eleven (11)
Applications and Agreements for Commercial Letter of Credit.
Finally, the record shows that petitioner did not even attempt to
tender any redemption price to respondent PNB, as highest
bidder of the said foreclosed real estate properties, during the
one-year redemption period.
In view of all the foregoing, it is our view and we hold that the
extrajudicial foreclosure of petitioners real estate and chattel
mortgages was not premature and that it was in fact legal and
valid.
WHEREFORE, the petition is hereby DENIED. The challenged
Decision of the Court of Appeals in CA-G.R. CV No. 38036 is
AFFIRMED with modification that the increase in the stipulated
interest rates of 21% per annum and 18% per annum
appearing on Promissory Notes Nos. 127/82 and 128/82
respectively is hereby declared null and void.
SO ORDERED.
AZNAR BROTHERS REALTY COMPANY, petitioner, vs.
COURT OF APPEALS, LUIS AYING, DEMETRIO SIDA,
FELOMINO AUGUSTO, FEDERICO ABING, and ROMEO
AUGUSTO, respondents.
DECISION
DAVIDE, JR., C.J.:
This is a petition for review on certiorari under Rule 45 of the
Revised Rules of Court seeking to reverse and set aside the 26
March 1996 Decision1 of the Court of Appeals declaring the
private respondents the rightful possessors de facto of the
subject lot and permanently enjoining Sheriff Juan Gato or his
representative from effecting the demolition of private
respondents houses.
Culled from the evidence proffered by petitioner Aznar Brothers
Realty Co. (hereafter AZNAR), it appears that Lot No. 4399
containing an area of 34,325 square meters located at Brgy.
Mactan, Lapu-Lapu City, was acquired by AZNAR from the
heirs of Crisanta Maloloy-on by virtue of an Extrajudicial
Partition of Real Estate with Deed of Absolute Sale dated 3
March 1964. This deed was registered with the Register of
Deeds of Lapu-Lapu City on 6 March 1964 as shown on the
face thereof. After the sale, petitioner AZNAR declared this
property under its name for taxation purposes and regularly
paid the taxes thereon. Herein private respondents were
allegedly allowed to occupy portions of Lot No. 4399 by mere
tolerance provided that they leave the land in the event that the
company would use the property for its purposes. Later,
AZNAR entered into a joint venture with Sta. Lucia Realty

Development Corporation for the development of the subject

lot into a multi-million peso housing subdivision and beach
resort. When its demands for the private respondents to vacate
the land failed, AZNAR filed with the Municipal Trial Court
(MTCC) of Lapu-Lapu City a case for unlawful detainer and
damages, which was docketed as Civil Case No. R-1027.
On the other hand, the private respondents alleged that they
are the successors and descendants of the eight children of
the late Crisanta Maloloy-on, whose names appear as the
registered owners in the Original Certificate of Title No. RC2856. They had been residing and occupying the subject
portion of the land in the concept of owner since the time of
their parents and grandparents, except for Teodorica Andales
who was not a resident in said premises. Private respondents
claimed that the Extrajudicial Partition of Real Estate with Deed
of Absolute Sale is void ab initio for being simulated and
fraudulent, and they came to know of the fraud only when
AZNAR entered into the land in the last quarter of 1991 and
destroyed its vegetation. They then filed with the Regional Trial
Court (RTC) of Lapu-Lapu City a complaint seeking to declare
the subject document null and void. This case was docketed as
Civil Case No. 2930-L.
On 1 February 1994, the MTCC rendered a decision ordering
the private respondents to (a) vacate the land in question upon
the finality of the judgment; and (b) pay P8,000 as attorneys
fees and P2,000 as litigation expenses, plus costs.2
The MTCC delved into the issue of ownership in order to
resolve the issue of possession. It found that petitioner AZNAR
acquired ownership of Lot No. 4399 by virtue of the
Extrajudicial Partition of Real Estate with Deed of Absolute
Sale executed by the Heirs of Crisanta Maloloy-on on 3 March
1964, which was registered with the Register of Deeds of
Lapu-Lapu City on 6 March 1964 as appearing on the face
thereof. Private respondents allegation that two of the
signatories were not heirs of the registered owners; that some
of the signatories were already dead at the date of the
execution of the deed; and that many heirs were not parties to
the extrajudicial partition is a form of a negative pregnant,
which had the effect of admitting that the vendors, except those
mentioned in the specific denial, were heirs and had the legal
right to sell the subject land to petitioner. The fact that some or
most heirs had not signed the deed did not make the document
null and void ab initio but only annullable, unless the action had
already prescribed. Since the private respondents occupied the
land merely by tolerance, they could be judicially ejected
therefrom. That the Deed has not been annotated on OCT RO2856 is of no moment, since said title was reconstituted only on
25 August 1988, while the subject Deed was executed on 3
March 1964. Lastly, the reconstituted title has not as yet been
transferred to a purchaser for value.
Aggrieved by the decision of the MTCC, private respondents
appealed to the RTC.
During the pendency of the appeal, or on 8 March 1994, the
RTC, upon Aznars ex parte motion, issued an order granting

the issuance of a writ of execution pursuant to Section 8, Rule

70 of the Revised Rules of Court in view of the failure of private
respondents to put up a supersedeas bond. A week later, a writ
of execution was issued. The sheriff then served upon private
respondents the said writ of execution together with a notice to
vacate. On 11 April 1994, the sheriff padlocked their houses,
but later in the day, private respondents re-entered their
houses. Thus, on 6 May 1994, AZNAR filed an omnibus motion
for the issuance of a writ of demolition, which private
respondents opposed. This motion was set for hearing three
times, but the parties opted to submit a consolidated
memorandum and agreed to submit the same for resolution.3
On 22 July 1994, the RTC affirmed the decision of the MTCC
and ordered the issuance of a writ of demolition directing the
sheriff to demolish private respondents houses and other
improvements which might be found on the subject premises.4
On 29 July 1994, a writ of demolition was issued, and notices
of demolition were served upon private respondents. Per
Sheriffs Report,5 private respondents houses were demolished
on 3 August 1994, except for two houses which were moved
outside the premises in question upon the plea of the owners
thereof.
On appeal by the private respondents, the Court of Appeals
reversed and set aside the decision of the RTC; declared the
private respondents as the rightful possessors de facto of the
land in question; and permanently enjoined Sheriff Juan Gato
or whoever was acting in his stead from effectuating the
demolition of the houses of the private respondents.
In arriving at its challenged decision, the Court of Appeals
noted that at the time AZNAR entered the property, the private
respondents had already been in possession thereof
peacefully, continuously, adversely and notoriously since time
immemorial. There was no evidence that petitioner was ever in
possession of the property. Its claim of ownership was based
only on an Extrajudicial Partition with Deed of Absolute Sale,
which private respondents, however, claimed to be null and
void for being simulated and fraudulently obtained. The Court
of Appeals further held that where not all the known heirs had
participated in the extrajudicial agreement of partition, the
instrument would be null and void and therefore could not be
registered.6 Moreover, AZNAR was estopped to assert
ownership of the property in question, since it had admitted in a
pleading in the reconstitution proceedings that the property had
never been conveyed by the decreed owners. Additionally,
from 1988 up to the filing of the ejectment case on 4 August
1993, AZNAR never registered the extrajudicial partition
despite opportunities to do so. Its allegation that private
respondents occupied the property by mere tolerance was not

proved. Pursuant to the ruling in Vda. de Legazpi v. Avendano,7

the fact that the right of the private respondents was so
seriously placed in issue and the execution of the decision in
the ejectment case would have meant demolition of private
respondents houses constituted an equitable reason to
suspend the enforcement of the writ of execution and order of
demolition.
AZNAR then elevated the case to this Court, via this petition for
review on certiorari, contending that respondent Court of
Appeals erred in
1.
... reversing the judgments of the Municipal Trial Court
and the Regional Trial Court of Lapu-Lapu City despite the
finality of the judgments and the full implementation thereof;
2.
... invoking lack of prior physical possession over the
land in question by the petitioner as one ground in its Decision
sought to be reviewed;
3.
... holding that the Extrajudicial Partition with Deed of
Absolute Sale was null and void;
4.
...holding that petitioner was in estoppel in pais when
it made the allegation that the property was not sold or
encumbered in its petition for reconstitution of title;
5.
... applying the ruling in the case of Vda. de Legazpi
vs. Avendano (79 SCRA 135 [1977]).
We shall jointly discuss the first and fifth assigned errors for
being interrelated with each other.
In its first assigned error, petitioner argues that the decision of
the MTCC of Lapu-Lapu City had become final and
immediately executory in view of the undisputed failure of the
private respondents to post a supersedeas bond as required by
Section 8, Rule 70 of the Revised Rules of Court.
We do not agree. Since the private respondents had
seasonably filed an appeal with the RTC of Lapu-Lapu City, the
judgment of the MTCC of Lapu-Lapu City did not become final.
And for reasons hereunder stated, the perfection of the appeal
was enough to stay the execution of the MTCC decision.
Under the former Section 8, Rule 70 of the Rules of Court, 8 if
the judgment of the municipal trial court in an ejectment case is
adverse to the defendant, execution shall issue immediately. To
stay the immediate execution of the judgment, the defendant
must (1) perfect his appeal; (2) file a supersedeas bond to
answer for the rents, damages, and costs accruing down to the
time of the judgment appealed from; and (3) periodically
deposit the rentals falling due during the pendency of the
appeal.9

3
4

As a rule, the filing of a supersedeas bond is mandatory and if

not filed, the plaintiff is entitled as a matter of right to the
immediate execution of the judgment. An exception is where
the trial court did not make any findings with respect to any
amount in arrears, damages or costs against the defendant, 10
in which case no bond is necessary to stay the execution of the
judgment. Thus, in Once v. Gonzales,11 this Court ruled that the
order of execution premised on the failure to file a
supersedeas bond was groundless and void because no such
bond was necessary there being no back rentals adjudged in
the appealed judgment.
Similarly, in the instant case, there was no need for the private
respondents to file a supersedeas bond because the judgment
of the MTCC did not award rentals in arrears or damages. The
attorneys fees of P8,000 and the litigation expenses of P2,000
awarded in favor of the petitioner need not be covered by a
bond, as these are not the damages contemplated in Section 8
of Rule 70 of the Rules of Court. The damages referred to
therein are the reasonable compensation for the use and
occupation of the property which are generally measured by its
fair rental value and cannot refer to other damages which are
foreign to the enjoyment or material possession of the
property.12 Neither were the private respondents obliged to
deposit the rentals falling due during the pendency of the
appeal in order to secure a stay of execution because the
appealed judgment did not fix the reasonable rental or
compensation for the use of the premises.13 Hence, it was error
for the RTC to order the execution of the judgment of the
MTCC.
At any rate, pursuant to Section 21 of the Revised Rules of
Summary Procedure, the decision of the RTC affirming the
decision of the MTCC has become immediately executory,
without prejudice to the appeal before the Court of Appeals.
The said Section repealed Section 10 of the Rules of Court
allowing during the pendency of the appeal with the Court of
Appeals a stay of execution of the RTC judgment with respect
to the restoration of possession where the defendant makes a
periodic deposit of rentals. Thus, immediate execution of the
judgment becomes a ministerial duty of the court. No new writ
of execution was, however, issued. Nevertheless, the writ of
demolition thereafter issued was sufficient to constitute a writ of
execution, as it substantially complied with the form and
contents of a writ of execution as provided for under Section 8
of Rule 39 of the Rules of Court. Moreover, private
respondents were duly notified and heard on the omnibus
motion for the issuance of the writ of demolition and were given
five days to remove their houses.14

Invoking Legaspi v. Avendao,15 the Court of Appeals held that

there was an equitable reason to suspend the enforcement of
the writ of execution and order of demolition until after the final
determination of the civil case for the nullification of the
Extrajudicial Partition with Deed of Absolute Sale.
In Legaspi, this Court held:
Where the action ... is one of illegal detainer ... and the right of
the plaintiff to recover the premises is seriously placed in issue
in a proper judicial proceeding, it is more equitable and just and
less productive of confusion and disturbance of physical
possession, with all its concomitant inconvenience and
expense [f]or the court in which the issue of legal possession,
whether involving ownership or not, is brought to restrain,
should a petition for preliminary injunction be filed with it, the
effects of any order or decision in the unlawful detainer case in
order to await the final judgment in the more substantive case
involving legal possession or ownership.
In the instant case, private respondents petition for review with
prayer for the immediate issuance of a temporary restraining
order (TRO) or preliminary injunction was mailed on 2 August
1994 but was received by the Court of Appeals only on 30
August 1994. Meanwhile, on 3 August 1994, the writ of
demolition was implemented, resulting in the demolition of
private respondents houses. Hence, any relevant issue arising
from the issuance or enforcement of the writ had been
rendered moot and academic. Injunction would not lie
anymore, as the acts sought to have been enjoined had
already become a fait accompli or an accomplished or
consummated act.
Now on the applicability to unlawful detainer cases of the
requirement of prior physical possession of the disputed
property. Contrary to the ruling of the Court of Appeals, prior
physical possession by the plaintiff of the subject property is
not an indispensable requirement in unlawful detainer cases,
although it is indispensable in an action for forcible entry.16 The
lack of prior physical possession on the part of AZNAR is
therefore of no moment, as its cause of action in the unlawful
detainer case is precisely to terminate private respondents
possession of the property in question.17
We now come to the issue of the validity of the Extrajudicial
Partition with Deed of Absolute Sale.

10

In an action for ejectment, the only issue involved is

possession de facto. However, when the issue of possession
cannot be decided without resolving the issue of ownership,
the court may receive evidence upon the question of title to the
property but solely for the purpose of determining the issue of
possession.18

11

15

12

16

13

17

14

18

In the instant case, private respondents have set up the

defense of ownership and questioned the title of AZNAR to the
subject lot, alleging that the Extrajudicial Partition with Deed of
Absolute Sale upon which petitioner bases its title is null and
void for being simulated and fraudulently made.
First, private respondents claim that not all the known heirs of
Crisanta Maloloy-on participated in the extrajudicial partition,
and that two persons who participated and were made parties
thereto were not heirs of Crisanta. This claim, even if true,
would not warrant rescission of the deed. Under Article 1104 of
the Civil Code, "[a] partition made with preterition of any of the
compulsory heirs shall not be rescinded, unless it be proved
that there was bad faith or fraud on the part of the persons
interested; but the latter shall be proportionately obliged to pay
to the person omitted the share which belongs to him." In the
present case, no evidence of bad faith or fraud is extant from
the records. As to the two parties to the deed who were
allegedly not heirs, Article 1105 is in point; it provides: "A
partition which includes a person believed to be an heir, but
who is not, shall be void only with respect to such person." In
other words, the participation of non-heirs does not render the
partition void in its entirety but only to the extent corresponding
to them.
Private respondents also allege that some of the persons who
were made parties to the deed were already dead, while others
were still minors. Moreover, the names of some parties thereto
were misspelled, and others who knew how to read and write
their names were made to appear to have affixed only their
thumbmark in the questioned document. Likewise, the
signatures of those who were made parties were forged.
The foregoing are bare allegations with no leg to stand on. No
birth or death certificates were presented before the MTCC to
support the allegations that some of the parties to the deed
were minors and others were already dead at the time of the
execution of the deed. What private respondents adduced as
evidence was merely a family tree, which was at most selfserving. It was only when the case was on appeal with the RTC
that the private respondents presented as Annex "B" of their
Memorandum and Appeal Brief a photocopy of the certificate of
death of Francisco Aying,19 son of Crisanta Maloloy-on, who
reportedly died on 7 March 1963. This certificate was allegedly
issued on 17 January 1992 by the Parish Priest of Virgen de
Regla Parish, Lapu-Lapu City. The fact remains, however, that
this photocopy was not certified to be a true copy.
It is worthy to note that the Extrajudicial Partition with Deed of
Absolute Sale is a notarized document. As such, it has in its
favor the presumption of regularity, and it carries the
evidentiary weight conferred upon it with respect to its due
execution.20 It is admissible in evidence without further proof of
authenticity21 and is entitled to full faith and credit upon its

face.22 He who denies its due execution has the burden of

proving that contrary to the recital in the Acknowledgment he
never appeared before the notary public and acknowledged the
deed to be his voluntary act.23 It must also be stressed that
whoever alleges forgery has the burden of proving the same.
Forgery cannot be presumed but should be proved by clear
and convincing evidence.24 Private respondents failed to
discharge this burden of proof; hence, the presumption in favor
of the questioned deed stands.
Private respondents contend that there was violation of the
Notarial Law because the lawyer who prepared and notarized
the document was AZNARs representative in the execution of
the said document. Under Section 22 of the Spanish Notarial
Law of 1889, a notary public could not authenticate a contract
which contained provisions in his favor or to which any of the
parties interested is a relative of his within the fourth civil
degree or second degree of affinity; otherwise, pursuant to
Section 28 thereof, the document would not have any effect.
This rule on notarial disqualification no longer holds true with
the enactment of Act No. 496, which repealed the Spanish
Notarial Law.25 Under the Notarial Law in force at the time of
the notarization of the questioned deed, Chapter 11 of the
Revised Administrative Code, only those who had been
convicted of any crime involving moral turpitude were
disqualified to notarize documents. Thus, a representative of a
person in whose favor a contract was executed was not
necessarily so disqualified. Besides, there is no proof that Atty.
Ramon Igaa was a representative of petitioner in 1964; what
appears on record is that he was the Chief of the petitioners
Legal Department in 1993. Additionally, this alleged violation of
the Notarial Law was raised only now.
Anent the non- annotation of the Extrajudicial Partition with
Deed of Absolute Sale in the reconstituted Original Certificate
of Title No. RO-2856, the same does not render the deed
legally defective. It must be borne in mind that the act of
registering a document is never necessary to give the
conveyance legal effect as between the parties26 and the
vendors heirs. As between the parties to a sale, registration is
not indispensable to make it valid and effective. The peculiar
force of a title is exhibited only when the purchaser has sold to
innocent third parties the land described in the conveyance.
The purpose of registration is merely to notify and protect the
interests of strangers to a given transaction, who may be
ignorant thereof, and the non-registration of the deed
evidencing said transaction does not relieve the parties thereto
of their obligations thereunder.27 Here, no right of innocent third
persons or subsequent transferees of the subject lot is

22
23
24

19

25

20

26

21

27

involved; thus, the conveyance executed in favor of AZNAR by

private respondents and their predecessors is valid and binding
upon them, and is equally binding and effective against their
heirs.28
The principle that registration is the operative act that gives
validity to the transfer or creates a lien upon the land "refers to
cases involving conflicting rights over registered property and
those of innocent transferees who relied on the clean title of
the properties."29 This principle has no bearing on the present
case, as no subsequent transfer of the subject lot to other
persons has been made either by private respondents or their
predecessors-in-interest.30
By and large, it appears on the face of the Extrajudicial
Partition with Deed of Absolute Sale that the same was
registered on 6 March 1964. The registration was under Act
No. 3344 on unregistered lands allegedly because at the time,
no title was existing in the files of the Register of Deeds of
Lapu-Lapu City, as it was allegedly lost during the last world
war. It was only on 8 August 1988 that the title was
reconstituted at the instance of the petitioner.
As to the fourth assigned error, we do not agree with the Court
of Appeals and the private respondents that petitioner is in
estoppel to assert ownership over the subject property
because of petitioners own allegation in the petition for
reconstitution, to wit:
That certificates of title were issued thereto but were lost during
the last world war. That the same were not conveyed much
less offered as a collateral for any debt contracted or delivered
for the security of payment of any obligation in favor of any
person or lending institution.
The words "the same" in the second sentence of the aforequoted paragraph clearly refers to the certificates of title. This
means that the certificates of title, not necessarily the subject
lot, were not conveyed or offered as a collateral but were lost
during the last world war. Indeed, as petitioner contends, it
would be very absurd and self-defeating construction if we
were to interpret the above-quoted allegation in the manner
that the Court of Appeals and the private respondents did, for
how could petitioner, who is claiming ownership over the
subject property, logically allege that the property was not sold
to it?
It bears repeating that petitioners claim of possession over the
subject lot is anchored on its claim of ownership on the basis of
the Extrajudicial Partition with Deed of Absolute Sale. Our
ruling on the issue of the validity of the questioned deed is
solely for the purpose of resolving the issue of possession and
is to be regarded merely as provisional, without prejudice,
however, to the final determination of the issue in the other

28
29
30

case for the annulment or cancellation of the Extrajudicial

Partition with Deed of Absolute Sale.
WHEREFORE, the petition is GRANTED. The challenged
decision of public respondent Court of Appeals in CA-G.R. SP
No. 35060 is hereby REVERSED, and the decision of the
Regional Trial Court, Branch 27, Lapu-Lapu City, is
REINSTATED.
No pronouncement as to costs.
SO ORDERED.

G.R. Nos. L-63253-54 April 27, 1989

PABLO
RALLA,
petitioner,
vs.
HON. ROMULO P. UNTALAN, HON. DOMINGO CORONEL
REYES, AND LEONIE RALLA, PETER RALLA AND
MARINELLA RALLA, respondents.
SARMIENTO, J.:
This petition seeks the nullification of the Order of respondent
Judge Romulo P. Untalan, 1 dated July 16,1981, excluding
from the probate proceedings sixty-three parcels of land, as
well as the Orders issued by respondent Judge Domingo
Coronel Reyes, 2 denying the petitioner's motions for
reconsideration of the same Order of Judge Untalan dated July
16, 1981.
The petition's beginnings are traced to January 27, 1959, when
Rosendo Ralla, a widower, filed a petition for the probate of his
own will in the then Court of First Instance (now Regional Trial
Court) of Albay, which was docketed as Special Proceedings
No. 564. In his will he left his entire estate to his son, Pablo
(the petitioner herein who, upon his death during the pendency
of this petition, was substituted by his heirs), leaving nothing to
his other son, Pedro.
In the same year, Pedro Ralla filed an action for the partition of
the estate of their mother, Paz Escarella; this was docketed as
Civil Case No. 2023.
In the course of the hearing of the probate case (Special
Proceedings No. 564), Pablo Ralla filed a motion to dismiss the
petition for probate on the ground that he was no longer
interested in the allowance of the will of his late father,
Rosendo Ralla, for its probate would no longer be beneficial
and advantageous to him. This motion was denied, and the
denial was denied by the Court of Appeals. (The latter court
agreed with the lower court's conclusion that, indeed, the
petitioner stood to gain if the testate proceedings were to be
dismissed because then he would not be compelled to submit
for inclusion in the inventory of the estate of Rosendo Ralla
149 parcels of land from which he alone had been collecting
rentals and receiving income, to the exclusion and prejudice of
his brother, Pedro Ralla, who was being deprived of his
successional rights over the said properties.) The denial of this
motion to dismiss was likewise affirmed by this Court (in G.R.

No. L-26253). 3 On the scheduled hearing on November 3,

1966, the petitioner reiterated his lack of interest in the probate
of the subject will. Consequently, the court, through Judge
Perfecto Quicho, declared Pedro and Pablo Ralla the only
heirs of Rosendo Ralla who should share equally upon the
division of the latter's estate, and thereupon converted the
testate proceedings into one of intestacy.
Meanwhile, the brothers agreed to compromise in the partition
case (Civil Case No. 2023). On December 18, 1967, they
entered into a project of partition whereby sixty-three parcels of
land, apparently forming the estate of their deceased mother,
Paz Escarella, were amicably divided between the two of them.
This project of partition was approved on December 19,1967
by Judge Ezekiel Grageda.
Eleven years later, or on February 28, 1978, Joaquin
Chancoco, brother-in- law of the petitioner (Pablo) filed a
petition, docketed as Special Proceedings No. 1106, for the
probate of the same will of Rosendo Ralla on the ground that
the decedent owed him P5,000.00. Pablo Ralla then filed a
manifestation stating that he had no objections to the probate;
thereafter, he filed a "Motion to Intervene as Petitioner for the
Probate of the Will." This motion was heard ex parte and
granted despite the written opposition of the heirs of Pedro
Ralla. Likewise, the petition for probate was granted; Teodorico
Almine, son-in-law of the petitioner, was appointed special
administrator, over and above the objection of the heirs of
Pedro Ralla. However, in taking possession of the properties
belonging to the estate of Rosendo Ralla, Teodorico Almine
also took possession of the sixty-three parcels of land covered
by the project of partition mentioned earlier. Consequently, the
heirs of Pedro Ralla (the private respondents herein) moved to
exclude from the estate of Rosendo Ralla the aforesaid parcels
of land.
In an Omnibus order dated August 3, 1979, 4 respondent
Judge Romulo P. Untalan ruled, inter alia, that the sixty-three
parcels of land should be included in the proceedings for the
settlement of the estate of Rosendo Ralla and that said
proceedings (both Special Proceedings No. 564 and Special
Proceedings No. 1106, which were ordered consolidated by
this Court) should proceed as probate proceedings.
About two years later, or on June 11, 1981, the private
respondents filed a "Petition To Submit Anew For
Consideration Of The Court The Exclusion Of 67 (sic) Parcels
of Land Subject Of The Project Of Partition In Civil Case No.
2023." 5 In his Order of July 16,1981, Judge Untalan
reconsidered his earlier Order, to wit:
Premises considered, Order is hereby issued reconsidering the
Omnibus Order of this Court dated August 3,1979, more
particularly paragraph 3 of the dispositive portion thereof. The
Project of Partition should, therefore, be respected and upheld.
Hence, the sixty-three (63) parcels referred to therein should
be excluded from the probate proceedings and, likewise from
the administration of Special Administrator Teodorico Almine,
Jr.
SO ORDERED. 6

Thereafter, the petitioner filed a motion for reconsideration of

the foregoing order but the same was denied 7 by respondent
Judge Domingo Coronel Reyes, to whose sala Special
Proceedings No. 564 and No. 1 1 06 were apparently
transferred. Still, a second motion for reconsideration was filed;
the same, however, was also denied. 8
In assailing the aforesaid Order of July 16, 1981, the following
arguments are raised in the present special civil action for
certiorari.
The first argument is stated as follows:
... The extrajudicial partition of the 63 parcels made after the
filing of the petition for the probate of the Will, and before said
Will was probated, is a NULLITY, considering that as already
decided by this Court in the case of Ernesto M. Guevara, vs.
Rosario Guevara et al., Vol. 74 Phil. Reports, there can be no
valid partition among the heirs till after the Will had been
probated. ... 9
The above argument is obviously flawed and misleading for the
simple reason that the aforementioned partition was made in
the civil case for partition of the estate of Paz Escarella, which
is distinct from, and independent of, the special proceedings for
the probate of the will of Rosendo Ralla.
Verily, the rule is that there can be no valid partition among the
heirs till after the will has been probated. This, of course,
presupposes that the properties to be partitioned are the same
properties embraced in the win. Thus the rule invoked is
inapplicable in this instance where there are two separate
cases (Civil Case No. 2023 for partition, and Special
Proceedings No. 564 originally for the probate of a will), each
involving the estate of a different person (Paz Escarella and
Rosendo Ralla, respectively) comprising dissimilar properties.
In his second and third arguments, 10 the petitioner claims that
the Order of August 3, 1979 mentioned earlier could no longer
be validly reversed by the court two years after it was issued.
Thus, it is alleged that by flip-flopping, Judge Untalan
committed a grave abuse of discretion.
An examination of the August 3, 1979 Order would reveal that
the same resolved a number of divergent issues (ten as
enumerated) 11 springing from four separate special
proceedings,12 all of which were pending in Branch I of the
then Court of First Instance of Albay; accordingly, there are at
least nine 13 specific directives contained therein. However, a
distinction must be made between those directives that partake
of final orders and the other directives that are in the nature of
inter-locutory orders.
Two closely related orders are the following quoted portions of
the said August 3, 1979 Order of respondent Judge Untalan:
xxx xxx xxx
2. The 149 parcels referred to in our elucidation on issue No. 2
as well as the 63 lots also mentioned therein all of which may
be summed up to 212 parcels, except those already validly
disposed, conveyed, or transferred to third persons, should be

submitted, at least provisionally, to the probate or testate

proceedings. Hence, the Motion to exclusion the 149 parcels
filed on June 2, 1979, by petitioner intervenor Pablo Ralla thru
counsel in Special Proceeding 1106 and the motion for
exclusion filed by the heirs of Pedro Ralla thru counsel in
Special Proceedings 564 and 1106 are hereby Denied;
(Emphasis supplied.)
3. The Project of partition, for purposes of these proceedings,
is hereby stripped of its judicial recognition; 14

xxx xxx xxx

As regards the abovequoted paragraph 2, this Court finds that
the same is interlocutory in character because it did not decide
the action with finality and left substantial proceedings still to
be had.15 The foregoing order of inclusion of the subject
parcels of land was a mere incident that arose in the settlement
of the estate of Rosendo Ralla. It is elementary that
interlocutory orders, prior to the rendition of the final judgment,
are, at any time, subject to such corrections or amendments as
the court may deem proper. Thus, in issuing the questioned
Order dated July 16,1981, which reversed the aforementioned
interlocutory order and upheld the project of partition,
respondent Judge Untalan acted well within his jurisdiction and
without grave abuse of discretion.
There is, however, a more important reason why we do not find
any grave abuse of discretion in the issuance of the questioned
Order dated July 16,1981. Consider the following undisputed
facts: the properties involved in the present petition were the
subject of the project of partition signed by both the petitioner,
Pablo Ralla, and Pedro Ralla in Civil Case No. 2023; the lower
court approved the said project of partition on December 19,
1967; subsequently, Pablo and Pedro Ralla jointly manifested
that they had already received "the ownership and possession
of the respective parcels of land adjudicated to them in the said
project of partition," 16 and upon their motion Judge Ezekiel
Grageda declared the partition case closed and terminated in
its Order of December 29, 1967; there was no appeal made
from this decision within the reglementary period to do so,
consequently, it attained finality.

partition . . . They can not attack the partition collaterally, as

they are trying to do in this case. 18 (Emphasis supplied.)
Based on the foregoing pronouncements, the Order of August
3, 1979 setting aside the project of Partition was clearly
erroneous. Realizing this and the fact that it was not yet too
late for him to correct his mistake, respondent Judge Untalan
issued the questioned Order of July 16, 1981.
In fine, the partition in Civil Case No. 2023 is valid and binding
upon the petitioner and Pedro Ralla, as well as upon their
heirs, especially as this was accompanied by delivery of
possession to them of their respective shares in the inheritance
from their mother, the late Paz Escarella. They are duty bound
to respect the division agreed upon by them and embodied in
the document of partition.
Thus, the petitioner could no longer question the exclusion of
the lands subject of the partition from the proceedings for the
settlement of the estate of Rosendo Ralla. Could it be that the
petitioner's keen interest in including these lands in the estate
proceedings is directly related to the fact that his son-in-law is
the administrator of the said estate of Rosendo Ralla?
WHEREFORE, the petition is hereby DISMISSED.
Costs against the petitioner.
SO ORDERED.

SECOND DIVISION

G.R. No. L-39247 June 27, 1975

In the Matter of the Petition to Approve the Will of
Leodegaria Julian. FELIX BALANAY, JR., petitioner,
vs.
HON. ANTONIO M. MARTINEZ, Judge of the Court of First
Instance of Davao, Branch VI; AVELINA B. ANTONIO and
DELIA B. LANABAN, respondents.
AQUINO, J.:

Furthermore, the Court had occasion to rule that

Where a partition had not only been approved and thus
become a judgment of the court, but distribution of the estate in
pursuance of such partition had fully been carried out, and the
heirs had received the property assigned to them, they are
precluded from subsequently attacking its validity or any part of
it. 17
Likewise:
Where a piece of land has been included in a partition, and
there is no allegation that the inclusion was effected through
improper means or without the petitioners' knowledge, the
partition barred any further litigation on said title and operated
to bring the property under the control and jurisdiction of the
court for proper disposition according to the tenor of the

Felix Balanay, Jr. appealed by certiorari from the order of the

Court of First Instance of Davao dated February 28, 1974,
declaring illegal and void the will of his mother, Leodegaria
Julian, converting the testate proceeding into an intestate
proceeding and ordering the issuance of the corresponding
notice to creditors (Special Case No. 1808). The antecedents
of the appeal are as follows:
Leodegaria Julian, a native of Sta. Maria, Ilocos Sur, died on
February 12, 1973 in Davao City at the age of sixty-seven. She
was survived by her husband, Felix Balanay, Sr., and by their
six legitimate children named Felix Balanay, Jr., Avelina B.
Antonio, Beatriz B. Solamo, Carolina B. Manguiob, Delia B.
Lanaban and Emilia B. Pabaonon.

Felix J. Balanay, Jr. filed in the lower court a petition dated

February 27, 1973 for the probate of his mother's notarial will
dated September 5, 1970 which is written in English. In that will
Leodegaria Julian declared (a) that she was the owner of the
"southern half of nine conjugal lots (par. II); (b) that she was
the absolute owner of two parcels of land which she inherited
from her father (par. III), and (c) that it was her desire that her
properties should not be divided among her heirs during her
husband's lifetime and that their legitimes should be satisfied
out of the fruits of her properties (Par. IV).
Then, in paragraph V of the will she stated that after her
husband's death (he was eighty-two years old in 1973) her
paraphernal lands and all the conjugal lands (which she
described as "my properties") should be divided and distributed
in the manner set forth in that part of her will. She devised and
partitioned the conjugal lands as if they were all owned by her.
She disposed of in the will her husband's one half share of the
conjugal assets. *
Felix Balanay, Sr. and Avelina B. Antonio opposed the probate
of the will on the grounds of lack of testamentary capacity,
undue influence, preterition of the husband and alleged
improper partition of the conjugal estate. The oppositors
claimed that Felix Balanay, Jr. should collate certain properties
which he had received from the testatrix.
Felix Balanay, Jr., in his reply to the opposition, attached
thereto an affidavit of Felix Balanay, Sr. dated April 18, 1973
wherein he withdrew his opposition to the probate of the will
and affirmed that he was interested in its probate. On the same
date Felix Balanay, Sr. signed an instrument captioned
"Conformation (sic) of Division and Renunciation of Hereditary
Rights" wherein he manifested that out of respect for his wife's
will he "waived and renounced' his hereditary rights in her
estate in favor of their six children. In that same instrument he
confirmed the agreement, which he and his wife had perfected
before her death, that their conjugal properties would be
partitioned in the manner indicated in her will.
Avelina B. Antonio, an oppositor, in her rejoinder contended
that the affidavit and "conformation" of Felix Balanay, Sr. were
void. The lower court in its order of June 18, 1973 "denied" the
opposition and reset for hearing the probate of the will. It gave
effect to the affidavit and conformity of Felix Balanay, Sr. In an
order dated August 28, 1973 it appointed its branch clerk of
court as special administrator of the decedent's estate.
Mrs. Antonio moved for the reconsideration of the lower court's
order of June 18, 1973 on the grounds (a) that the testatrix
illegally claimed that she was the owner of the southern half of
the conjugal lots and (b) that she could not partition the
conjugal estate by allocating portions of the nine lots to her
children. Felix Balanay, Jr., through his counsel, Hermenegildo
Cabreros, opposed that motion. The lower court denied it in its
order of October 15, 1973.
In the meanwhile, another lawyer appeared in the case. David
O. Montaa, Sr., claiming to be the lawyer of petitioner Felix
Balanay, Jr. (his counsel of record was Atty. Cabreros), filed a
motion dated September 25, 1973 for "leave of court to

withdraw probate of alleged will of Leodegaria Julian and

requesting authority to proceed by intestate estate
proceeding." In that motion Montaa claimed to be the lawyer
not only of the petitioner but also of Felix Balanay, Sr., Beatriz
B. Solamo, Carolina B. Manguiob and Emilia B. Pabaonon.
Montaa in his motion assailed the provision of the will which
partitioned the conjugal assets or allegedly effected a
compromise of future legitimes. He prayed that the probate of
the will be withdrawn and that the proceeding be converted into
an intestate proceeding. In another motion of the same date he
asked that the corresponding notice to creditors be issued.
Avelina B. Antonio and Delia B. Lanaban, through Atty. Jose B.
Guyo, in their comments dated October 15, 1973 manifested
their conformity with the motion for the issuance of a notice to
creditors. They prayed that the will be declared void for being
contrary to law and that an intestacy be declared.
The lower court, acting on the motions of Atty. Montaa,
assumed that the issuance of a notice to creditors was in order
since the parties had agreed on that point. It adopted the view
of Attys. Montaa and Guyo that the will was void. So, in its
order of February 28, 1974 it dismissed the petition for the
probate, converted the testate proceeding into an intestate
proceeding, ordered the issuance of a notice to creditors and
set the intestate proceeding for hearing on April 1 and 2, 1974.
The lower court did not abrogate its prior orders of June 18 and
October 15, 1973. The notice to creditors was issued on April
1, 1974 and published on May 2, 9 and 16 in the Davao Star in
spite of petitioner's motion of April 17, 1974 that its publication
be held in abeyance.
Felix Balanay, Jr., through a new counsel, Roberto M. Sarenas,
in a verified motion dated April 15, 1974, asked for the
reconsideration of the lower court's order of February 28, 1974
on the ground that Atty. Montaa had no authority to withdraw
the petition for the allowance of the will. Attached to the motion
was a copy of a letter dated March 27, 1974 addressed to Atty.
Montaa and signed by Felix Balanay, Jr., Beatriz V. Solamo,
Carolina B. Manguiob and Emilia B. Pabaonon, wherein they
terminated Montaa's services and informed him that his
withdrawal of the petition for the probate of the will was without
their consent and was contrary to their repeated reminder to
him that their mother's will was "very sacred" to them.
Avelina B. Antonio and Delia B. Lanaban opposed the motion
for reconsideration. The lower court denied the motion in its
order of June 29, 1974. It clarified that it declared the will void
on the basis of its own independent assessment of its
provisions and not because of Atty. Montaa's arguments.
The basic issue is whether the probate court erred in passing
upon the intrinsic validity of the will, before ruling on its
allowance or formal validity, and in declaring it void.
We are of the opinion that in view of certain unusual provisions
of the will, which are of dubious legality, and because of the
motion to withdraw the petition for probate (which the lower
court assumed to have been filed with the petitioner's
authorization), the trial court acted correctly in passing upon

the will's intrinsic validity even before its formal validity had
been established. The probate of a will might become an idle
ceremony if on its face it appears to be intrinsically void. Where
practical considerations demand that the intrinsic validity of the
will be passed upon, even before it is probated, the court
should meet the issue (Nuguid vs. Nuguid, 64 O.G. 1527, 17
SCRA 449. Compare with Sumilang vs. Ramagosa, L-23135,
December 26, 1967, 21 SCRA 1369; Cacho vs. Udan, L19996, April 30, 1965, 13 SCRA 693).1wph1.t
But the probate court erred in declaring, in its order of February
28, 1974 that the will was void and in converting the testate
proceeding into an intestate proceeding notwithstanding the
fact that in its order of June 18, 1973 , it gave effect to the
surviving husband's conformity to the will and to his
renunciation of his hereditary rights which presumably included
his one-half share of the conjugal estate.
The rule is that "the invalidity of one of several dispositions
contained in a will does not result in the invalidity of the other
dispositions, unless it is to be presumed that the testator would
not have made such other dispositions if the first invalid
disposition had not been made" (Art. 792, Civil Code). "Where
some of the provisions of a will are valid and others invalid, the
valid parts will be upheld if they can be separated from the
invalid without defeating the intention of the testator or
interfering with the general testamentary scheme, or doing
injustice to the beneficiaries" (95 C.J.S. 873).
The statement of the testatrix that she owned the "southern
half of the conjugal lands is contrary to law because, although
she was a coowner thereof, her share was inchoate and
proindiviso (Art. 143, Civil Code; Madrigal and Paterno vs.
Rafferty and Concepcion, 38 Phil. 414). But That illegal
declaration does not nullify the entire will. It may be
disregarded.
The provision of the will that the properties of the testatrix
should not be divided among her heirs during her husband's
lifetime but should be kept intact and that the legitimes should
be paid in cash is contrary to article 1080 of the Civil Code
which reads:
ART. 1080. Should a person make a partition of his estate by
an act inter vivos, or by will, such partition shall be respected,
insofar as it does not prejudice the legitime of the compulsory
heirs.
A parent who, in the interest of his or her family, to keep any
agricultural, industrial, or manufacturing enterprise intact, may
avail himself of the right granted him in this article, by ordering
that the legitime of the other children to whom the property is
not assigned be paid in cash. (1056a)
The testatrix in her will made a partition of the entire conjugal
estate among her six children (her husband had renounced his
hereditary rights and his one-half conjugal share). She did not
assign the whole estate to one or more children as envisaged
in article 1080. Hence, she had no right to require that the
legitimes be paid in cash. On the other hand, her estate may
remain undivided only for a period of twenty years. So, the

provision that the estate should not be divided during her

husband's lifetime would at most be effective only for twenty
years from the date of her death unless there are compelling
reasons for terminating the coownership (Art. 1083, Civil
Code).
Felix Balanay, Sr. could validly renounce his hereditary rights
and his one-half share of the conjugal partnership (Arts. 179[1]
and 1041, Civil Code) but insofar as said renunciation partakes
of a donation of his hereditary rights and his one-half share in
the conjugal estate (Art. 1060[1] Civil Code), it should be
subject to the limitations prescribed in articles 750 and 752 of
the Civil Code. A portion of the estate should be adjudicated to
the widower for his support and maintenance. Or at least his
legitime should be respected.
Subject to the foregoing observations and the rules on
collation, the will is intrinsically valid and the partition therein
may be given effect if it does not prejudice the creditors and
impair the legitimes. The distribution and partition would
become effective upon the death of Felix Balanay, Sr. In the
meantime, the net income should be equitably divided among
the children and the surviving spouse.
It should be stressed that by reason of the surviving husband's
conformity to his wife's will and his renunciation of his
hereditary rights, his one-half conjugal share became a part of
his deceased wife's estate. His conformity had the effect of
validating the partition made in paragraph V of the will without
prejudice, of course, to the rights of the creditors and the
legitimes of the compulsory heirs.
Article 793 of the Civil Code provides that "property acquired
after the making of a will shall only pass thereby, as if the
testator had it at the time of making the will, should it expressly
appear by the will that such was his intention". Under article
930 of the Civil Code "the legacy or devise of a thing belonging
to another person is void, if the testator erroneously believed
that the thing pertained to him. But if the thing bequeathed,
though not belonging to the testator when he made the will,
afterwards becomes his, by whatever title, the disposition shall
take effect."
In the instant case there is no doubt that the testatrix and her
husband intended to partition the conjugal estate in the manner
set forth in paragraph V of her will. It is true that she could
dispose of by will only her half of the conjugal estate (Art. 170,
Civil Code) but since the husband, after the dissolution of the
conjugal partnership, had assented to her testamentary
partition of the conjugal estate, such partition has become
valid, assuming that the will may be probated.
The instant case is different from the Nuguid case, supra,
where the testatrix instituted as heir her sister and preterited
her parents. Her will was intrinsically void because it preterited
her compulsory heirs in the direct line. Article 854 of the Civil
Code provides that "the preterition or omission of one, some,
or all of the compulsory heirs in the direct line, whether living at
the time of the execution of the will or born after the death of
the testator, shall annul the institution of heir; but the devises
and legacies, shall be valid insofar as they are not inofficious."

Since the preterition of the parents annulled the institution of

the sister of the testatrix and there were no legacies and
devises, total intestacy resulted (.Art. 960[2], Civil
Code).1wph1.t
In the instant case, the preterited heir was the surviving
spouse. His preterition did not produce intestacy. Moreover, he
signified his conformity to his wife's will and renounced his
hereditary rights. .
It results that the lower court erred in not proceeding with the
probate of the will as contemplated in its uncancelled order of
June 18, 1973. Save in an extreme case where the will on its
face is intrinsically void, it is the probate court's duty to pass
first upon the formal validity of the will. Generally, the probate
of the will is mandatory (Art. 838, Civil Code; Guevara vs.
Guevara, 74 Phil. 479 and 98 Phil. 249; Fernandez vs.
Dimagiba, L-23638, October 12, 1967, 21 SCRA 428).
As aptly stated by Mr. Justice Barredo, "the very existence of a
purported testament is in itself prima facie proof that the
supposed testator has willed that his estate should be
distributed in the manner therein provided, and it is incumbent
upon the state that, if legally tenable, such desire be given
effect independent of the attitude of the parties affected
thereby" (Resolution, Vda. de Precilla vs. Narciso, L-27200,
August 18, 1972, 46 SCRA 538, 565).
To give effect to the intention and wishes of the testatrix is the
first and principal law in the matter of testaments (Dizon-Rivera
vs. Dizon, L-24561, June 30, 1970, 33 SCRA 554, 561).
Testacy is preferable to intestacy. An interpretation that will
render a testamentary disposition operative takes precedence
over a construction that will nullify a provision of the will (Arts.
788 and 791, Civil Code).
Testacy is favored. Doubts are resolved in favor of testacy
especially where the will evinces an intention on the part of the
testator to dispose of practically his whole estate. So
compelling is the principle that intestacy should be avoided and
that the wishes of the testator should prevail that sometimes
the language of the will can be varied for the purpose of giving
it effect (Austria vs. Reyes, L-23079, February 27, 1970, 31
SCRA 754, 762).

"immediately after granting letters of testamentary or of

administration, the court shall issue a notice requiring all
persons having money claims against the decedent to file them
in the office of the clerk of said court" clearly contemplates the
appointment of an executor or regular administrator and not
that of a special administrator.
It is the executor or regular administrator who is supposed to
oppose the claims against the estate and to pay such claims
when duly allowed (See. 10, Rule 86 and sec. 1, Rule 88,
Rules of Court).
We also take this occasion to point out that the probate court's
appointment of its branch clerk of court as special administrator
(p. 30, Rollo) is not a salutary practice because it might
engender the suspicion that the probate Judge and his clerk of
court are in cahoots in milking the decedent's estate. Should
the branch clerk of court commit any abuse or devastavit in the
course of his administration, the probate Judge might find it
difficult to hold him to a strict accountability. A court employee
should devote his official time to his official duties and should
not have as a sideline the administration of a decedent's
estate.
WHEREFORE, the lower court's orders of February 28, and
June 29, 1974 are set aside and its order of June 18, 1973,
setting for hearing the petition for probate, is affirmed. The
lower court is directed to conduct further proceedings in
Special Case No. 1808 in consonance with this opinion. Costs,
against the private respondents.
SO ORDERED.
G.R. No. L-65656 February 28, 1985
AMORANTE
PLAN,
vs.
INTERMEDIATE APPELLATE
BAUTISTA, respondents.

petitioner,
COURT

and

FEDERICO

AQUINO, J.:

The law has a tender regard for the wishes of the testator as
expressed in his will because any disposition therein is better
than that which the law can make (Castro vs. Bustos, L-25913,
February 28, 1969, 27 SCRA 327, 341).

The issue in this case is whether Federico Bautista could nullify

in a separate action, instead of in the intestate proceeding for
his deceased father's estate, the sale of two conjugal lots, with
the theater thereon, made by his mother Florencia Topacio as
administratrix to Amorante Plan with the authorization and
approval of the probate court. Federico, who claims a 1/8
interest in the property, alleged that he was not notified of the
sale. His mother had a 5/8 interest in the property. The
Appellate Court allowed Federico to redeem the said lots
although he never prayed for such redemption.

Two other errors of the lower court may be noticed. It erred in

issuing a notice to creditors although no executor or regular
administrator has been appointed. The record reveals that it
appointed a special administrator. A notice to creditors is not in
order if only a special administrator has been appointed.
Section 1, Rule 86 of the Rules of Court, in providing that

In the intestate proceeding for the settlement of Regino

Bautista's estate, his widow filed a motion dated December 9,
1964 for authority to sell to Plan the two lots and theater for not
less than P140,000. The purpose was to pay the debts
amounting to P117,220. The motion was set for hearing on
December 18, 1964. It was indicated in the motion that the

As far as is legally possible, the expressed desire of the

testator must be followed and the dispositions of the properties
in his will should be upheld (Estorque vs. Estorque, L-19573,
June 30, 1970, 33 SCRA 540, 546).

children were notified through one child named Milagros

Bautista (18-20, Record on Appeal).
On December 22, 1964 Judge Jose B. Jimenez granted the
authority to sell to Plan the entire estate of the deceased for
not less than P140, 000 so as to pay the obligations of the
estate "land it appearing that all the heirs have conformed
thereto" (20-21, Record on Appeal).
On that day, Florencia Topacio and Plan executed a deed of
absolute sale with assumption of mortgage obligations for the
two lots with an area of 664 square meters together with the
theater (with a total assessed value of P52,720) and the
apparatus used therein.
It was recited in the deed of sale that Regino's estate owed
Plan P25,700 and a mortgage debt of P44,292.07 to the
Philippine National Bank which Plan assumed. The amount
actually received by the administratrix as vendor was
P70,00793. Milagros Bautista-Alcantara, the heir through
whom the other six children were allegedly notified, was an
instrumental witness in the sale.
A motion to approve the sale was filed on January 5, 1965.
Judge Jimenez signed the original deed under the word
"Approved" to indicate that the sale was okayed by the probate
court. It should be noted that in 1963 the widow and four of her
seven children as owners of 7/8 interest in the said property
had, in consideration of P9,600, agreed to sell that same
property to Plan for the same amount of P140,000 (12-17,
Record on Appeal).
Sixteen days after the sale, or on January 7, 1965, Federico
Bautista filed an "Opposition to Agreement to Sell Absolute
Sale, Project of Partition and Request for Inventory and
Accounting of Estate and for Furnishing of Orders, Notices and
Pleadings". The clerk of court set the said opposition for
hearing on January 26, 1965. On that date Judge Jimenez
gave Federico's counsel ten days within which to interpose any
opposition to the project of partition filed by the administratrix
on October 16, 1964 which had not been acted upon by the
court and of which the decedent's six children were notified
through Milagros Bautista.
Federico's counsel did not file any objection to the project of
partition. The reason is not hard to surmise. The estate sought
to be partitioned had already been sold to Plan.

No action was taken by the probate court up this time on the

petition for relief. The widow or administratrix did not render an
accounting of the sum of P70,007.93 which she received from
Plan. Only Federico among her seven children questioned the
sale. She died on September 18, 1969 or more than four years
and eight months after the sale. More than a year after her
death or on August 6, 1971, she was succeeded by Milagros
Bautista-Alcantara as administratrix, the same heir who took
part in consummating the sale to Plan. The other six children,
including Federico, signified their conformity to her
appointment as administratrix.
As there was no movement in the case for an unreasonable
length of time, Judge Catolico in his order of March 22, 1973
ordered it archived until an interested party moves for the
termination thereof (p. 185, Record).
In a motion and supplementary motion dated August 27 and
September 3, 1973 Milagros asked that her bond be reduced
to P500. Through her counsel, she alleged that the two lots
and theater were sold by her mother with the approval of the
court and the proceeds of the sale were used to pay the claims
of the creditors. Federico and the other five children signified
their conformity to Milagros' motions. A copy was sent to the
seventh child Luz in Lipa City. Judge Catolico reduced the
bond to P2,000. In a prior order, Judge Catolico called
Milagros' attention to her failure to present an accounting.
Instead of asking the court to act on his petition for relief from
the orders authorizing and approving the sale, Federico
Bautista on July 13, 1965 filed a separate action against Plan,
Civil Case No. N-806, to nullify the sale. He did not implead his
mother, brothers and sisters.
Judge Catolico in his order of February 4, 1971 dismissed the
action without prejudice. He ruled that the nullity of sale as to
Federico's 1/16 share should be resolved in the intestate
proceeding (41, Record on Appeal).
On June 13, 1974, after his mother's death, Federico sued
Plan again for the nullification of the sale, Civil Case No. N2145. Judge Vallejos in his order of October 7, 1974 reiterated
the ruling of Judge Catolico. He dismissed Federico's
complaint and also the intervention of the administratrix,
Milagros Bautista-Alcantara, without prejudice to pursuing any
available remedy in the intestate proceeding and not in a
separate action (42, Record on Appeal).

Then, Federico filed on March 2, 1965, or 56 days after the

approval of the sale, a "petition for relief from order". Judge
Jimenez had informed him on January 26, 1965 that his
"opposition" was filed out of time. He alleged in his opposition
that counsel for the administratrix misrepresented to the court
that all the heirs had approved of the sale and that there was
fraud in not giving notice to the heirs of the proposed sale.

Less than a year later, on April 1, 1975, Federico for the third
time filed a separate action against Plan, Civil Case No. 2282,
to annul the sale. After trial, Judge Fule dismissed the case on
the same ground, namely, that his remedy is in the intestate
proceeding. He should not be allowed to seek relief outside the
intestate court (145-147, Record on Appeal).

He contended that because there was no compliance with

section 7, Rule 89 of the Rules of Court the sale was void. He
prayed that the order authorizing the sale be set aside "and the
case tried upon its merits" (pp. 174-5, Record).

Federico appealed to the Court of Appeals which in its decision

dated September 13, 1983, through Justice Pascual, reversed
Judge Fule's decision. It declared void the agreement to sell
and the sale, ordered Plan to reconvey to Federico the
disputed property for P140,000 and to pay him P3,000 a month
from December 22, 1964 up to the time the possession of the

property is turned over to Federico, with legal interest from that

date until fully paid, plus P50,000 as attorney's fees. The
reconveyance was based on article 1088 of the Civil Code.
We hold that the Appellate Court erred in ordering Plan to
reconvey the disputed property to Federico Bautista upon
payment of P140,000 and to pay him P3,000 a month as
income from December 22, 1964.
Said judgment is bereft of factual and legal basis. Federico did
not pray for reconveyance in his complaint. He was not the
owner of the property in 1964. He prayed for receivership, for
nullification of the agreement to sell and the sale itself and for
the refund by Plan of all the income which he received from the
property from the time he possessed it in the concept of owner
(10, Record on Appeal).
Article 1088 of the Civil Code does not justify legal redemption
in this case because it refers to sale of hereditary rights, and
not to specific properties, for the payment of the debts of the
decedent's estate as to which there is no legal redemption.
"In the administration and liquidation of the estate of a
deceased person, sales ordered by the probate court for
payment of debts are final and not subject to legal redemption.
Unlike in ordinary execution sales, there is no legal provision
allowing redemption in the sale of property for payment of
debts of a deceased person" (Abarro vs. De Guia, 72 Phil.
245). Such sale is not the one contemplated in article 1067,
now article 1088 of the Civil Code (Vda. de Mendoza, 69 Phil.
155).
In Jimenez vs. Jimenez, 67 Phil. 263, the deceased Josefa
Jimenez left an estate consisting of Lot No. 1090 with a house
of mixed materials with a total assessed value of P490.
Geronimo Jimenez had a claim against her estate in the sum of
P359 for expenses of her last illness and funeral.
The Cavite Court of First Instance ordered the sale of the said
lot and house to pay the claim of Geronimo. At the auction
sale, Geronimo was the only bidder. The property was
adjudicated to him for P432. He was placed by the sheriff in
possession of said property. One Gregoria Jimenez, an heir of
the deceased Josefa Jimenez, filed a motion praying that she
be allowed to redeem the property from Geronimo. The Cavite
court denied the motion.
It was held that Gregoria could not be allowed to redeem the
property because properties of a decedent, which are sold at
public auction for the payment of his debts, are not subject to
redemption.
In the instant case, we agree with Judges Fule, Catolico and
Vallejos that Federico's remedy is in the intestate proceeding
where his petition for relief has been pending for nearly twenty
years. He should amend it by impleading the present
administratrix and Plan himself and serving copies of the
petition upon them. Plan, as the purchaser of the disputed
property, is a forced intervenor in the intestate proceeding. He
should answer the amended petition for the annulment of the
sale. The probate court has jurisdiction over him.

Federico should also ask for an accounting of the P70,007.93

received by his mother. His brothers and sisters should also be
served with copies of the amended petition. The case of Tagle
and Ignacio, Jr. vs. Manalo, 105 Phil. 1123, cited by Federico
Bautista in his brief, is not in point because the testamentary
proceeding in that case was already closed and the purchaser
did not want to be pulled into the probate proceeding. Here, the
purchaser had no objection to litigating the validity of the sale
in the intestate proceeding.
The probate court, having authorized and approved the sale,
should resolve the issue as to its validity.
More important is that if all the interested parties are heard, an
amicable settlement may be reached.
WHEREFORE, the decision of the Appellate Court is reversed
and set aside. The trial court's judgment is affirmed. No costs.
SO ORDERED.

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