G.R. No.

156407, January 15, 2014

through

THELMA
M.
ARANAS, Petitioner, v. TERESITA
V.
MERCADO, FELIMON V. MERCADO, CARMENCITA M.
SUTHERLAND, RICHARD V. MERCADO, MA. TERESITA
M.
ANDERSON,
AND
FRANKLIN
L.
MERCADO, Respondents.

On January 21, 1993, Teresita filed a compliance with the

order of January 8, 1993,3 supporting her inventory with
copies of three certificates of stocks covering the 44,806
Mervir Realty shares of stock;4 the deed of assignment
executed by Emigdio on January 10, 1991 involving real
properties with the market value of P4,440,651.10 in
exchange for 44,407 Mervir Realty shares of stock with
total par value of P4,440,700.00;5 and the certificate of
stock issued on January 30, 1979 for 300 shares of stock of
Cebu
Emerson
worth
P30,000.00.6

DECISION
BERSAMIN, J.:

the

order

of

January

8,

1993.

The probate court is authorized to determine the issue of

ownership of properties for purposes of their inclusion or
exclusion from the inventory to be submitted by the
administrator, but its determination shall only be
provisional unless the interested parties are all heirs of the
decedent, or the question is one of collation or
advancement, or the parties consent to the assumption of
jurisdiction by the probate court and the rights of third
parties are not impaired. Its jurisdiction extends to
matters incidental or collateral to the settlement and
distribution of the estate, such as the determination of the
status of each heir and whether property included in the
inventory is the conjugal or exclusive property of the
deceased spouse.

On January 26, 1993, Thelma again moved to require

Teresita to be examined under oath on the inventory, and
that she (Thelma) be allowed 30 days within which to file a
formal opposition to or comment on the inventory and the
supporting
documents
Teresita
had
submitted.

Antecedents

With the parties agreeing to submit themselves to the

jurisdiction of the court on the issue of what properties
should be included in or excluded from the inventory, the
RTC
set
dates
for
the
hearing
on
that
issue.8cralawlawlibrary

Emigdio S. Mercado (Emigdio) died intestate on January

12, 1991, survived by his second wife, Teresita V. Mercado
(Teresita), and their five children, namely: Allan V.
Mercado, Felimon V. Mercado, Carmencita M. Sutherland,
Richard V. Mercado, and Maria Teresita M. Anderson; and
his two children by his first marriage, namely: respondent
Franklin L. Mercado and petitioner Thelma M. Aranas
(Thelma).
Emigdio inherited and acquired real properties during his
lifetime. He owned corporate shares in Mervir Realty
Corporation (Mervir Realty) and Cebu Emerson
Transportation Corporation (Cebu Emerson). He assigned
his real properties in exchange for corporate stocks of
Mervir Realty, and sold his real property in Badian, Cebu
(Lot 3353 covered by Transfer Certificate of Title No.
3252)
to
Mervir
Realty.
On June 3, 1991, Thelma filed in the Regional Trial Court
(RTC) in Cebu City a petition for the appointment of
Teresita as the administrator of Emigdios estate (Special
Proceedings No. 3094CEB).1 The RTC granted the petition
considering that there was no opposition. The letters of
administration in favor of Teresita were issued on
September
7,
1992.
As the administrator, Teresita submitted an inventory of
the estate of Emigdio on December 14, 1992 for the
consideration and approval by the RTC. She indicated in
the inventory that at the time of his death, Emigdio had
left no real properties but only personal properties
worth P6,675,435.25 in all, consisting of cash of
P32,141.20; furniture and fixtures worth P20,000.00;
pieces of jewelry valued at P15,000.00; 44,806 shares of
stock of Mervir Realty worth P6,585,585.80; and 30 shares
of stock of Cebu Emerson worth P22,708.25.2
Claiming that Emigdio had owned other properties that
were excluded from the inventory, Thelma moved that the
RTC direct Teresita to amend the inventory, and to be
examined regarding it. The RTC granted Thelmas motion

Rule 73: Venue and Process

On February 4, 1993, the RTC issued an order expressing

the need for the parties to present evidence and for
Teresita to be examined to enable the court to resolve the
motion for approval of the inventory.7cralawred
On April 19, 1993, Thelma opposed the approval of the
inventory, and asked leave of court to examine Teresita on
the
inventory.

Ruling of the RTC

After a series of hearings that ran for almost eight years,
the RTC issued on March 14, 2001 an order finding and
holding that the inventory submitted by Teresita had
excluded properties that should be included, and
accordingly ruled:
WHEREFORE, in view of all the foregoing premises and
considerations,
the
Court
hereby
denies
the
administratrixs motion for approval of inventory. The
Court hereby orders the said administratrix to redo the
inventory of properties which are supposed to constitute
as the estate of the late Emigdio S. Mercado by including
therein the properties mentioned in the last five
immediately preceding paragraphs hereof and then submit
the revised inventory within sixty (60) days from notice of
this
order.
The Court also directs the said administratrix to render an
account of her administration of the estate of the late
Emigdio S. Mercado which had come to her possession. She
must render such accounting within sixty (60) days from
notice
hereof.
SO ORDERED.9ChanRoblesVirtualawlibrary
On March 29, 2001, Teresita, joined by other heirs of
Emigdio, timely sought the reconsideration of the order of
March 14, 2001 on the ground that one of the real
properties affected, Lot No. 3353 located in Badian, Cebu,
had already been sold to Mervir Realty, and that the
parcels of land covered by the deed of assignment had
already come into the possession of and registered in the
name of Mervir Realty.10 Thelma opposed the motion.
On May 18, 2001, the RTC denied the motion for

Page 1

reconsideration,11 stating that there was no cogent reason

for the reconsideration, and that the movants agreement
as heirs to submit to the RTC the issue of what properties
should be included or excluded from the inventory already
estopped them from questioning its jurisdiction to pass
upon the issue.
Decision of the CA
Alleging that the RTC thereby acted with grave abuse of
discretion in refusing to approve the inventory, and in
ordering her as administrator to include real properties
that had been transferred to Mervir Realty, Teresita, joined
by her four children and her stepson Franklin, assailed the
adverse orders of the RTC promulgated on March 14, 2001
and May 18, 2001 by petition for certiorari, stating:
I
THE HONORABLE RESPONDENT JUDGE HAS COMMITTED
GRAVE ABUSE OF JURISDICTION (sic) AMOUNTING TO
LACK OR EXCESS OF JURISDICTION IN HOLDING THAT
THE REAL PROPERTY WHICH WAS SOLD BY THE LATE
EMIGDIO S. MERCADO DURING HIS LIFETIME TO A
PRIVATE
CORPORATION
(MERVIR
REALTY
CORPORATION) BE INCLUDED IN THE INVENTORY OF
THE ESTATE OF THE LATE EMIGDIO S. MERCADO.
II
THE HONORABLE RESPONDENT JUDGE HAS COMMITTED
GRAVE ABUSE OF JURISDICTION (sic) AMOUNTING TO
LACK OR EXCESS OF JURISDICTION IN HOLDING THAT
REAL PROPERTIES WHICH ARE IN THE POSSESSION OF
AND ALREADY REGISTERED IN THE NAME (OF) PRIVATE
CORPORATION (MERVIR REALTY CORPORATION) BE
INCLUDED IN THE INVENTORY OF THE ESTATE OF THE
LATE EMIGDIO S. MERCADO.
III
THE HONORABLE RESPONDENT JUDGE HAS COMMITTED
GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR
EXCESS OF JURISDICTION IN HOLDING THAT
PETITIONERS ARE NOW ESTOPPED FROM QUESTIONING
ITS JURISDICTION IN PASSING UPON THE ISSUE OF WHAT
PROPERTIES SHOULD BE INCLUDED IN THE INVENTORY
OF THE ESTATE OF THE LATE EMIGDIO MERCADO.12
On May 15, 2002, the CA partly granted the petition for
certiorari, disposing as follows:13
WHEREFORE, FOREGOING PREMISES CONSIDERED, this
petition is GRANTED partially. The assailed Orders dated
March 14, 2001 and May 18, 2001 are hereby reversed and
set aside insofar as the inclusion of parcels of land known
as Lot No. 3353 located at Badian, Cebu with an area of
53,301 square meters subject matter of the Deed of
Absolute Sale dated November 9, 1989 and the various
parcels of land subject matter of the Deeds of Assignment
dated February 17, 1989 and January 10, 1991 in the
revised inventory to be submitted by the administratrix is
concerned
and affirmed in
all
other
respects.
SO ORDERED.
The CA opined that Teresita, et al. had properly filed the
petition for certiorari because the order of the RTC
directing a new inventory of properties was interlocutory;
that pursuant to Article 1477 of the Civil Code, to the effect

Rule 73: Venue and Process

that the ownership of the thing sold shall be transferred

to the vendee upon its actual and constructive delivery,
and to Article 1498 of the Civil Code, to the effect that the
sale made through a public instrument was equivalent to
the delivery of the object of the sale, the sale by Emigdio
and Teresita had transferred the ownership of Lot No.
3353 to Mervir Realty because the deed of absolute sale
executed on November 9, 1989 had been notarized; that
Emigdio had thereby ceased to have any more interest in
Lot 3353; that Emigdio had assigned the parcels of land to
Mervir Realty as early as February 17, 1989 for the
purpose of saving, as in avoiding taxes with the difference
that in the Deed of Assignment dated January 10, 1991,
additional seven (7) parcels of land were included; that as
to the January 10, 1991 deed of assignment, Mervir Realty
had been even at the losing end considering that such
parcels of land, subject matter(s) of the Deed of
Assignment dated February 12, 1989, were again given
monetary consideration through shares of stock; that
even if the assignment had been based on the deed of
assignment dated January 10, 1991, the parcels of land
could not be included in the inventory considering that
there is nothing wrong or objectionable about the estate
planning scheme; that the RTC, as an intestate court, also
had no power to take cognizance of and determine the
issue of title to property registered in the name of third
persons or corporation; that a property covered by the
Torrens system should be afforded the presumptive
conclusiveness of title; that the RTC, by disregarding the
presumption, had transgressed the clear provisions of law
and infringed settled jurisprudence on the matter; and that
the RTC also gravely abused its discretion in holding that
Teresita, et al. were estopped from questioning its
jurisdiction because of their agreement to submit to the
RTC the issue of which properties should be included in
the
inventory.
The CA further opined as follows:
In the instant case, public respondent court erred when it
ruled that petitioners are estopped from questioning its
jurisdiction considering that they have already agreed to
submit themselves to its jurisdiction of determining what
properties are to be included in or excluded from the
inventory to be submitted by the administratrix, because
actually, a reading of petitioners Motion for
Reconsideration dated March 26, 2001 filed before public
respondent court clearly shows that petitioners are not
questioning its jurisdiction but the manner in which it was
exercised for which they are not estopped, since that is
their right, considering that there is grave abuse of
discretion amounting to lack or in excess of limited
jurisdiction when it issued the assailed Order dated March
14, 2001 denying the administratrixs motion for approval
of the inventory of properties which were already titled
and in possession of a third person that is, Mervir Realty
Corporation, a private corporation, which under the law
possessed a personality distinct and separate from its
stockholders, and in the absence of any cogency to shred
the veil of corporate fiction, the presumption of
conclusiveness of said titles in favor of Mervir Realty
Corporation
should
stand
undisturbed.
Besides, public respondent court acting as a probate court
had no authority to determine the applicability of the
doctrine of piercing the veil of corporate fiction and even if
public respondent court was not merely acting in a limited
capacity as a probate court, private respondent
nonetheless failed to adjudge competent evidence that
would have justified the court to impale the veil of
corporate fiction because to disregard the separate

Page 2

jurisdictional personality of a corporation, the wrongdoing

must be clearly and convincingly established since it
cannot be presumed.14

only after a judgment has been rendered, with the ground

for appealing the order being included in the appeal of the
judgment
itself.

On November 15, 2002, the CA denied the motion for

reconsideration of Teresita, et al.15

The remedy against an interlocutory order not subject of

an appeal is an appropriate special civil action under Rule
65, provided that the interlocutory order is rendered
without or in excess of jurisdiction or with grave abuse of
discretion. Then is certiorariunder Rule 65 allowed to be
resorted to.

Issue
Did the CA properly determine that the RTC committed
grave abuse of discretion amounting to lack or excess of
jurisdiction in directing the inclusion of certain properties
in the inventory notwithstanding that such properties had
been either transferred by sale or exchanged for corporate
shares in Mervir Realty by the decedent during his
lifetime?
Ruling of the Court
The appeal is meritorious.
I
Was certiorari the
proper
to assail the questioned orders of the RTC?

recourse

The first issue to be resolved is procedural. Thelma

contends that the resort to the special civil action
for certiorari to assail the orders of the RTC by Teresita
and
her
corespondents
was
not
proper.
Thelmas

contention

cannot

be

sustained.

The propriety of the special civil action for certiorari as a

remedy depended on whether the assailed orders of the
RTC were final or interlocutory in nature. In Pahila
Garrido
v.
Tortogo,16 the
Court
distinguished
between final and interlocutory orders as follows:
The distinction between a final order and an interlocutory
order is well known. The first disposes of the subject
matter in its entirety or terminates a particular proceeding
or action, leaving nothing more to be done except to
enforce by execution what the court has determined, but
the latter does not completely dispose of the case but
leaves something else to be decided upon. An
interlocutory order deals with preliminary matters and the
trial on the merits is yet to be held and the judgment
rendered. The test to ascertain whether or not an order or
a judgment is interlocutory or final is: does the order or
judgment leave something to be done in the trial court with
respect to the merits of the case? If it does, the order or
judgment is interlocutory; otherwise, it is final.
The order dated November 12, 2002, which granted the
application for the writ of preliminary injunction, was an
interlocutory, not a final, order, and should not be the
subject of an appeal. The reason for disallowing an appeal
from an interlocutory order is to avoid multiplicity of
appeals in a single action, which necessarily suspends the
hearing and decision on the merits of the action during the
pendency of the appeals. Permitting multiple appeals will
necessarily delay the trial on the merits of the case for a
considerable length of time, and will compel the adverse
party to incur unnecessary expenses, for one of the parties
may interpose as many appeals as there are incidental
questions raised by him and as there are interlocutory
orders rendered or issued by the lower court. An
interlocutory order may be the subject of an appeal, but

Rule 73: Venue and Process

The assailed order of March 14, 2001 denying Teresitas

motion for the approval of the inventory and the order
dated May 18, 2001 denying her motion for
reconsideration were interlocutory. This is because the
inclusion of the properties in the inventory was not yet a
final determination of their ownership. Hence, the
approval of the inventory and the concomitant
determination of the ownership as basis for inclusion or
exclusion from the inventory were provisional and subject
to revision at anytime during the course of the
administration
proceedings.
In Valero Vda. De Rodriguez v. Court of Appeals,17 the Court,
in affirming the decision of the CA to the effect that the
order of the intestate court excluding certain real
properties from the inventory was interlocutory and could
be changed or modified at anytime during the course of the
administration proceedings, held that the order of
exclusion was not a final but an interlocutory order in the
sense that it did not settle once and for all the title to the
San Lorenzo Village lots. The Court observed there that:
The prevailing rule is that for the purpose of determining
whether a certain property should or should not be
included in the inventory, the probate court may pass
upon the title thereto but such determination is not
conclusive and is subject to the final decision in a
separate action regarding ownership which may be
instituted by the parties (3 Morans Comments on the
Rules of Court, 1970 Edition, pages 4489 and
473; Lachenal vs. Salas, L42257, June 14, 1976, 71 SCRA
262, 266).18 (Bold emphasis supplied)
To the same effect was De Leon v. Court of Appeals,19 where
the Court declared that a probate court, whether in a
testate or intestate proceeding, can only pass upon
questions of title provisionally, and reminded,
citing Jimenez v. Court of Appeals, that the patent reason is
the probate courts limited jurisdiction and the principle
that questions of title or ownership, which result in
inclusion or exclusion from the inventory of the property,
can only be settled in a separate action. Indeed, in the
cited case of Jimenez v. Court of Appeals,20 the Court
pointed out:
All that the said court could do as regards the said
properties is 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 a dispute as
to the ownership, then the opposing parties and the
administrator have to resort to an ordinary action for
a final determination of the conflicting claims of title
because the probate court cannot do so. (Bold emphasis
supplied)
On the other hand, an appeal would not be the correct
recourse for Teresita, et al. to take against the assailed
orders. The final judgment rule embodied in the first
paragraph of Section 1, Rule 41, Rules of Court,21 which
also governs appeals in special proceedings, stipulates that

Page 3

only the judgments, final orders (and resolutions) of a

court of law that completely disposes of the case, or of a
particular matter therein when declared by these Rules to
be appealable may be the subject of an appeal in due
course. The same rule states that an interlocutory order or
resolution (interlocutory because it deals with preliminary
matters, or that the trial on the merits is yet to be held and
the judgment rendered) is expressly made non
appealable.
Multiple appeals are permitted in special proceedings as a
practical recognition of the possibility that material issues
may be finally determined at various stages of the special
proceedings. Section 1, Rule 109 of the Rules of
Court enumerates the specific instances in which multiple
appeals may be resorted to in special proceedings, viz:
Section 1. Orders or judgments from which appeals may be
taken. An interested person may appeal in special
proceedings from an order or judgment rendered by a
Court of First Instance or a Juvenile and Domestic
Relations Court, where such order or judgment:
(a)

Allows

or

disallows

will;

(b) Determines who are the lawful heirs of a deceased

person, or the distributive share of the estate to which
such
person
is
entitled;
(c) Allows or disallows, in whole or in part, any claim
against the estate of a deceased person, or any claim
presented on behalf of the estate in offset to a claim
against
it;
(d) Settles the account of an executor, administrator,
trustee
or
guardian;
(e) Constitutes, in proceedings relating to the settlement of
the estate of a deceased person, or the administration of a
trustee or guardian, a final determination in the lower
court of the rights of the party appealing, except that no
appeal shall be allowed from the appointment of a special
administrator;
and
(f) Is the final order or judgment rendered in the case, and
affects the substantial rights of the person appealing,
unless it be an order granting or denying a motion for a
new trial or for reconsideration.
Clearly, the assailed orders of the RTC, being interlocutory,
did not come under any of the instances in which multiple
appeals are permitted.
II
Did the RTC commit grave abuse of discretion
in directing the inclusion of the properties
in the estate of the decedent?
In its assailed decision, the CA concluded that the RTC
committed grave abuse of discretion for including
properties in the inventory notwithstanding their having
been transferred to Mervir Realty by Emigdio during his
lifetime, and for disregarding the registration of the
properties in the name of Mervir Realty, a third party, by
applying the doctrine of piercing the veil of corporate
fiction.
Was

the

CA

correct

Rule 73: Venue and Process

in

its

conclusion?

The answer is in the negative. It is unavoidable to find that

the CA, in reaching its conclusion, ignored the law and the
facts that had fully warranted the assailed orders of the
RTC.
Under Section 6(a), Rule 78 of the Rules of Court, the
letters of administration may be granted at the discretion
of the court to the surviving spouse, who is competent and
willing to serve when the person dies intestate. Upon
issuing the letters of administration to the surviving
spouse, the RTC becomes dutybound to direct the
preparation and submission of the inventory of the
properties of the estate, and the surviving spouse, as the
administrator, has the duty and responsibility to submit
the inventory within three months from the issuance of
letters of administration pursuant to Rule 83 of the Rules
of Court, viz:
Section 1. Inventory and appraisal to be returned within
three months. Within three (3) months after his
appointment every executor or administrator shall return
to the court a true inventory and appraisal of all the
real and personal estate of the deceased which has
come into his possession or knowledge. In the
appraisement of such estate, the court may order one or
more of the inheritance tax appraisers to give his or their
assistance.
The usage of the word all in Section 1, supra, demands the
inclusion of all the real and personal properties of the
decedent in the inventory.22 However, the word all is
qualified by the phrase which has come into his possession
or knowledge, which signifies that the properties must be
known to the administrator to belong to the decedent or
are in her possession as the administrator. Section 1
allows no exception, for the phrase true inventory implies
that no properties appearing to belong to the decedent can
be excluded from the inventory, regardless of their being
in the possession of another person or entity.
The objective of the Rules of Court in requiring the
inventory and appraisal of the estate of the decedent is to
aid the court in revising the accounts and determining the
liabilities of the executor or the administrator, and in
making a final and equitable distribution (partition) of the
estate and otherwise to facilitate the administration of the
estate.23 Hence, the RTC that presides over the
administration of an estate is vested with wide discretion
on the question of what properties should be included in
the inventory. According to Peralta v. Peralta,24 the CA
cannot impose its judgment in order to supplant that of the
RTC on the issue of which properties are to be included or
excluded from the inventory in the absence of positive
abuse of discretion, for in the administration of the
estates of deceased persons, the judges enjoy ample
discretionary powers and the appellate courts should not
interfere with or attempt to replace the action taken by
them, unless it be shown that there has been a positive
abuse of discretion.25 As long as the RTC commits no
patently grave abuse of discretion, its orders must be
respected as part of the regular performance of its judicial
duty.
There is no dispute that the jurisdiction of the trial court as
an intestate court is special and limited. The trial court
cannot adjudicate title to properties claimed to be a part of
the estate but are claimed to belong to third parties by title
adverse to that of the decedent and the estate, not by
virtue of any right of inheritance from the decedent. All
that the trial court can do regarding said properties is to

Page 4

determine whether or not they should be included in the

inventory of properties to be administered by the
administrator. Such determination is provisional and may
be still revised. As the Court said in Agtarap v. Agtarap:26
The general rule is that the jurisdiction of the trial court,
either as a probate court or an intestate court, relates only
to matters having to do with the probate of the will and/or
settlement of the estate of deceased persons, but does not
extend to the determination of questions of ownership that
arise during the proceedings. The patent rationale for this
rule is that such court merely exercises special and limited
jurisdiction. As held in several cases, a probate court or
one in charge of estate 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, not by virtue of any
right of inheritance from the deceased but by title adverse
to that of the deceased and his estate. All that the said
court could do as regards said properties is to determine
whether or not they should be included in the inventory of
properties to be administered by the administrator. If
there is no dispute, there poses no problem, but if there is,
then the parties, the administrator, and the opposing
parties have to resort to an ordinary action before a court
exercising general jurisdiction for a final determination of
the
conflicting
claims
of
title.
However, this general rule is subject to exceptions as
justified
by
expediency
and
convenience.
First, the probate court may provisionally pass upon in
an intestate or a testate proceeding the question of
inclusion in, or exclusion from, the inventory of a piece
of property without prejudice to final determination of
ownership in a separate action. Second, if the interested
parties are all heirs to the estate, or the question is one of
collation or advancement, or the parties consent to the
assumption of jurisdiction by the probate court and
the rights of third parties are not impaired, then the
probate court is competent to resolve issues on
ownership. Verily, its jurisdiction extends to matters
incidental or collateral to the settlement and distribution
of the estate, such as the determination of the status of
each heir and whether the property in the inventory is
conjugal or exclusive property of the deceased
spouse.27 (Italics in the original; bold emphasis supplied)
It is clear to us that the RTC took pains to explain the
factual bases for its directive for the inclusion of the
properties in question in its assailed order of March 14,
2001, viz:
In the first place, the administratrix of the estate admitted
that Emigdio Mercado was one of the heirs of Severina
Mercado who, upon her death, left several properties as
listed in the inventory of properties submitted in Court in
Special Proceedings No. 306R which are supposed to be
divided among her heirs. The administratrix admitted,
while being examined in Court by the counsel for the
petitioner, that she did not include in the inventory
submitted by her in this case the shares of Emigdio
Mercado in the said estate of Severina Mercado. Certainly,
said properties constituting Emigdio Mercados share in
the estate of Severina Mercado should be included in the
inventory of properties required to be submitted to the
Court in this particular case.
In the second place, the administratrix of the estate of
Emigdio Mercado also admitted in Court that she did not
include in the inventory shares of stock of Mervir Realty

Rule 73: Venue and Process

Corporation which are in her name and which were paid

by her from money derived from the taxicab business
which she and her husband had since 1955 as a conjugal
undertaking. As these shares of stock partake of being
conjugal in character, onehalf thereof or of the value
thereof should be included in the inventory of the estate of
her
husband.
In the third place, the administratrix of the estate of
Emigdio Mercado admitted, too, in Court that she had a
bank account in her name at Union Bank which she opened
when her husband was still alive. Again, the money in said
bank account partakes of being conjugal in character, and
so, onehalf thereof should be included in the inventory of
the properties constituting as estate of her husband.
In the fourth place, it has been established during the
hearing in this case that Lot No. 3353 of Pls657D located
in Badian, Cebu containing an area of 53,301 square
meters as described in and covered by Transfer Certificate
of Title No. 3252 of the Registry of Deeds for the Province
of Cebu is still registered in the name of Emigdio S.
Mercado until now. When it was the subject of Civil Case
No. CEB12690 which was decided on October 19, 1995, it
was the estate of the late Emigdio Mercado which claimed
to be the owner thereof. Mervir Realty Corporation never
intervened in the said case in order to be the owner
thereof. This fact was admitted by Richard Mercado
himself when he testified in Court. x x x So the said
property located in Badian, Cebu should be included in the
inventory
in
this
case.
Fifthly and lastly, it appears that the assignment of several
parcels of land by the late Emigdio S. Mercado to Mervir
Realty Corporation on January 10, 1991 by virtue of the
Deed of Assignment signed by him on the said day (Exhibit
N for the petitioner and Exhibit 5 for the administratrix)
was a transfer in contemplation of death. It was made two
days before he died on January 12, 1991. A transfer made
in contemplation of death is one prompted by the thought
that the transferor has not long to live and made in place of
a testamentary disposition (1959 Prentice Hall, p. 3909).
Section 78 of the National Internal Revenue Code of 1977
provides that the gross estate of the decedent shall be
determined by including the value at the time of his death
of all property to the extent of any interest therein of
which the decedent has at any time made a transfer in
contemplation of death. So, the inventory to be approved
in this case should still include the said properties of
Emigdio Mercado which were transferred by him in
contemplation of death. Besides, the said properties
actually appeared to be still registered in the name of
Emigdio S. Mercado at least ten (10) months after his
death, as shown by the certification issued by the Cebu City
Assessors Office on October 31, 1991 (Exhibit O).28
Thereby, the RTC strictly followed the directives of
the Rules of Court and the jurisprudence relevant to the
procedure for preparing the inventory by the
administrator. The aforequoted explanations indicated
that the directive to include the properties in question in
the inventory rested on good and valid reasons, and thus
was far from whimsical, or arbitrary, or capricious.
Firstly, the shares in the properties inherited by Emigdio
from Severina Mercado should be included in the
inventory because Teresita, et al. did not dispute the fact
about the shares being inherited by Emigdio.
Secondly, with Emigdio and Teresita having been married
prior to the effectivity of the Family Code in August 3,

Page 5

1988, their property regime was the conjugal partnership

of gains.29 For purposes of the settlement of Emigdios
estate, it was unavoidable for Teresita to include his shares
in the conjugal partnership of gains. The party asserting
that specific property acquired during that property
regime did not pertain to the conjugal partnership of gains
carried the burden of proof, and that party must prove the
exclusive ownership by one of them by clear, categorical,
and convincing evidence.30 In the absence of or pending
the presentation of such proof, the conjugal partnership of
Emigdio and Teresita must be provisionally liquidated to
establish who the real owners of the affected properties
were,31and which of the properties should form part of the
estate of Emigdio. The portions that pertained to the estate
of Emigdio must be included in the inventory.
Moreover, although the title over Lot 3353 was already
registered in the name of Mervir Realty, the RTC made
findings that put that title in dispute. Civil Case No. CEB
12692, a dispute that had involved the ownership of Lot
3353, was resolved in favor of the estate of Emigdio, and
Transfer Certificate of Title No. 3252 covering Lot 3353
was still in Emigdios name. Indeed, the RTC noted in the
order of March 14, 2001, or ten years after his death, that
Lot 3353 had remained registered in the name of Emigdio.
Interestingly, Mervir Realty did not intervene at all in Civil
Case No. CEB12692. Such lack of interest in Civil Case No.
CEB12692 was susceptible of various interpretations,
including one to the effect that the heirs of Emigdio could
have already threshed out their differences with the
assistance of the trial court. This interpretation was
probable considering that Mervir Realty, whose business
was managed by respondent Richard, was headed by
Teresita herself as its President. In other words, Mervir
Realty appeared to be a family corporation.
Also, the fact that the deed of absolute sale executed by
Emigdio in favor of Mervir Realty was a notarized
instrument did not sufficiently justify the exclusion from
the inventory of the properties involved. A notarized deed
of sale only enjoyed the presumption of regularity in favor
of its execution, but its notarization did not per
se guarantee the legal efficacy of the transaction under the
deed, and what the contents purported to be. The
presumption of regularity could be rebutted by clear and
convincing evidence to the contrary.32 As the Court has
observed in Suntay v. Court of Appeals:33
x x x. 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.(Bold emphasis supplied)
It should likewise be pointed out that the exchange of
shares of stock of Mervir Realty with the real properties
owned by Emigdio would still have to be inquired into.
That Emigdio executed the deed of assignment two days
prior to his death was a circumstance that should put any
interested party on his guard regarding the exchange,
considering that there was a finding about Emigdio having
been sick of cancer of the pancreas at the time.34 In this
regard, whether the CA correctly characterized the
exchange as a form of an estate planning scheme remained
to be validated by the facts to be established in court.
The fact that the properties were already covered by

Rule 73: Venue and Process

Torrens titles in the name of Mervir Realty could not be a

valid basis for immediately excluding them from the
inventory in view of the circumstances admittedly
surrounding the execution of the deed of assignment. This
is because:
The Torrens system is not a mode of acquiring titles to
lands; it is merely a system of registration of titles to lands.
However, justice and equity demand that the titleholder
should not be made to bear the unfavorable effect of the
mistake or negligence of the States agents, in the absence
of proof of his complicity in a fraud or of manifest damage
to third persons. The real purpose of the Torrens system is
to quiet title to land and put a stop forever to any question
as to the legality of the title, except claims that were noted
in the certificate at the time of registration or that may
arise subsequent thereto. Otherwise, the integrity of the
Torrens system shall forever be sullied by the ineptitude
and inefficiency of land registration officials, who are
ordinarily presumed to have regularly performed their
duties.35
Assuming that only seven titled lots were the subject of the
deed of assignment of January 10, 1991, such lots should
still be included in the inventory to enable the parties, by
themselves, and with the assistance of the RTC itself, to
test and resolve the issue on the validity of the assignment.
The limited jurisdiction of the RTC as an intestate court
might have constricted the determination of the rights to
the properties arising from that deed,36 but it does not
prevent the RTC as intestate court from ordering the
inclusion in the inventory of the properties subject of that
deed. This is because the RTC as intestate court, albeit
vested only with special and limited jurisdiction, was still
deemed to have all the necessary powers to exercise such
jurisdiction
to
make
it
effective.37
Lastly, the inventory of the estate of Emigdio must be
prepared and submitted for the important purpose of
resolving the difficult issues of collation and advancement
to the heirs. Article 1061 of the Civil Code required every
compulsory heir and the surviving spouse, herein Teresita
herself, to bring into the mass of the estate any property
or right which he (or she) 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. Section 2, Rule 90
of the Rules of Court also provided that any advancement
by the decedent on the legitime of an heir may be heard
and determined by the court having jurisdiction of the
estate proceedings, and the final order of the court thereon
shall be binding on the person raising the questions and on
the heir. Rule 90 thereby expanded the special and limited
jurisdiction of the RTC as an intestate court about the
matters relating to the inventory of the estate of the
decedent by authorizing it to direct the inclusion of
properties donated or bestowed by gratuitous title to any
compulsory
heir
by
the
decedent.38
The determination of which properties should be excluded
from or included in the inventory of estate properties was
well within the authority and discretion of the RTC as an
intestate court. In making its determination, the RTC acted
with circumspection, and proceeded under the guiding
policy that it was best to include all properties in the
possession of the administrator or were known to the
administrator to belong to Emigdio rather than to exclude
properties that could turn out in the end to be actually part
of the estate. As long as the RTC commits no patent grave
abuse of discretion, its orders must be respected as part of

Page 6

the regular performance of its judicial duty. Grave abuse of

discretion means either that the judicial or quasijudicial
power was exercised in an arbitrary or despotic manner
by reason of passion or personal hostility, or that the
respondent judge, tribunal or board evaded a positive
duty, or virtually refused to perform the duty enjoined or
to act in contemplation of law, such as when such judge,
tribunal or board exercising judicial or quasijudicial
powers acted in a capricious or whimsical manner as to be
equivalent
to
lack
of
jurisdiction.39

In his Answer, Gaudioso alleged that he is the lawful son of

Magdaleno as evidenced by: (a) his certificate of Live Birth;
(b) two (2) letters from Polytechnic School; and (c) a
certified true copy of his passport.9 Further, by way of
affirmative defense, he claimed that: (a) petitioners have
no cause of action against him; (b) the complaint fails to
state a cause of action; and (c) the case is not prosecuted
by the real parties-in-interest, as there is no showing that
the petitioners have been judicially declared as
Magdalenos lawful heirs.10

In light of the foregoing, the CAs conclusion of grave abuse

of discretion on the part of the RTC was unwarranted and
erroneous.

The RTC Ruling

WHEREFORE, the Court GRANTS the petition for review

on certiorari; REVERSES and SETS ASIDEthe decision
promulgated on May 15, 2002; REINSTATES the orders
issued on March 14, 2001 and May 18, 2001 by the
Regional Trial Court in Cebu; DIRECTS the Regional Trial
Court in Cebu to proceed with dispatch in Special
Proceedings No. 3094CEB entitled Intestate Estate of the
late Emigdio Mercado, Thelma Aranas, petitioner, and to
resolve the case; and ORDERS the respondents to pay the
costs
of
suit.ChanRoblesVirtualawlibrary
SO ORDERED.
G.R. No. 198680

July 8, 2013

HEIRS OF MAGDALENO YPON, NAMELY, ALVARO YPON,

ERUDITA Y. BARON, CICERO YPON, WILSON YPON,
VICTOR
YPON,
AND
HINIDINO
Y.
PEALOSA, PETITIONERS,
vs.
GAUDIOSO PONTERAS RICAFORTE A.K.A. "GAUDIOSO
E. YPON," AND THE REGISTER OF DEEDS OF TOLEDO
CITY, RESPONDENTS.
RESOLUTION
PERLAS-BERNABE, J.:
This is a direct recourse to the Court from the Regional
Trial Court of Toledo City, Branch 59 (RTC), through a
petition for review on certiorari1 under Rule 45 of the
Rules of Court, raising a pure question of law. In particular,
petitioners assail the July 27, 20112 and August 31,
20113 Orders of the RTC, dismissing Civil Case No. T-2246
for lack of cause of action.
The Facts
On July 29, 2010, petitioners, together with some of their
cousins,4 filed a complaint for Cancellation of Title and
Reconveyance with Damages (subject complaint) against
respondent Gaudioso Ponteras Ricaforte a.k.a. "Gaudioso E.
Ypon" (Gaudioso), docketed as Civil Case No. T-2246.5 In
their complaint, they alleged that Magdaleno Ypon
(Magdaleno) died intestate and childless on June 28, 1968,
leaving behind Lot Nos. 2-AA, 2-C, 2-F, and 2-J which were
then covered by Transfer Certificates of Title (TCT) Nos. T44 and T-77-A.6 Claiming to be the sole heir of Magdaleno,
Gaudioso executed an Affidavit of Self-Adjudication and
caused the cancellation of the aforementioned certificates
of title, leading to their subsequent transfer in his name
under TCT Nos. T-2637 and T-2638,7 to the prejudice of
petitioners who are Magdalenos collateral relatives and
successors-in-interest.8

Rule 73: Venue and Process

On July 27, 2011, the RTC issued the assailed July 27, 2011
Order,11 finding that the subject complaint failed to state a
cause of action against Gaudioso. It observed that while the
plaintiffs therein had established their relationship with
Magdaleno in a previous special proceeding for the
issuance of letters of administration,12 this did not mean
that they could already be considered as the decedents
compulsory heirs. Quite the contrary, Gaudioso
satisfactorily established the fact that he is Magdalenos
son and hence, his compulsory heir through the
documentary evidence he submitted which consisted of:
(a) a marriage contract between Magdaleno and Epegenia
Evangelista; (b) a Certificate of Live Birth; (c) a Letter
dated February 19, 1960; and (d) a passport.13
The plaintiffs therein filed a motion for reconsideration
which was, however, denied on August 31, 2011 due to the
counsels failure to state the date on which his Mandatory
Continuing Legal Education Certificate of Compliance was
issued.14
Aggrieved, petitioners, who were among the plaintiffs in
Civil Case No. T-2246,15 sought direct recourse to the Court
through the instant petition.
The Issue Before the Court
The core of the present controversy revolves around the
issue of whether or not the RTCs dismissal of the case on
the ground that the subject complaint failed to state a
cause of action was proper.
The Courts Ruling
The petition has no merit.
Cause of action is defined as the act or omission by which a
party violates a right of another.16 It is well-settled that the
existence of a cause of action is determined by the
allegations in the complaint.17 In this relation, a complaint
is said to assert a sufficient cause of action if, admitting
what appears solely on its face to be correct, the plaintiff
would be entitled to the relief prayed for.18Accordingly, if
the allegations furnish sufficient basis by which the
complaint can be maintained, the same should not be
dismissed, regardless of the defenses that may be averred
by the defendants.19
As stated in the subject complaint, petitioners, who were
among the plaintiffs therein, alleged that they are the
lawful heirs of Magdaleno and based on the same, prayed
that the Affidavit of Self-Adjudication executed by
Gaudioso be declared null and void and that the transfer
certificates of title issued in the latters favor be cancelled.
While the foregoing allegations, if admitted to be true,
would consequently warrant the reliefs sought for in the
said complaint, the rule that the determination of a
decedents lawful heirs should be made in the
corresponding special proceeding20 precludes the RTC, in

Page 7

an ordinary action for cancellation of title and

reconveyance, from granting the same. In the case of Heirs
of Teofilo Gabatan v. CA,21 the Court, citing several other
precedents, held that the determination of who are the
decedents lawful heirs must be made in the proper special
proceeding for such purpose, and not in an ordinary suit
for recovery of ownership and/or possession, as in this
case:
Jurisprudence dictates that the determination of who are
the legal heirs of the deceased must be made in the proper
special proceedings in court, and not in an ordinary suit for
recovery
of
ownership
and
possession
of
property.1wphi1 This must take precedence over the
action for recovery of possession and ownership. The
Court has consistently ruled that the trial court cannot
make a declaration of heirship in the civil action for the
reason that such a declaration can only be made in a
special proceeding. Under Section 3, Rule 1 of the 1997
Revised Rules of Court, a civil action is defined as one by
which a party sues another for the enforcement or
protection of a right, or the prevention or redress of a
wrong while a special proceeding is a remedy by which a
party seeks to establish a status, a right, or a particular
fact. It is then decisively clear that the declaration of
heirship can be made only in a special proceeding
inasmuch as the petitioners here are seeking the
establishment of a status or right.
In the early case of Litam, et al. v. Rivera, this Court ruled
that the declaration of heirship must be made in a special
proceeding, and not in an independent civil action. This
doctrine was reiterated in Solivio v. Court of Appeals x x x:
In the more recent case of Milagros Joaquino v. Lourdes
Reyes, the Court reiterated its ruling that matters relating
to the rights of filiation and heirship must be ventilated in
the proper probate court in a special proceeding instituted
precisely for the purpose of determining such rights. Citing
the case of Agapay v. Palang, this Court held that the status
of an illegitimate child who claimed to be an heir to a
decedent's estate could not be adjudicated in an ordinary
civil action which, as in this case, was for the recovery of
property.22 (Emphasis and underscoring
supplied;
citations omitted)
By way of exception, the need to institute a separate
special proceeding for the determination of heirship may
be dispensed with for the sake of practicality, as when the
parties in the civil case had voluntarily submitted the issue
to the trial court and already presented their evidence
regarding the issue of heirship, and the RTC had
consequently rendered judgment thereon,23 or when a
special proceeding had been instituted but had been finally
closed and terminated, and hence, cannot be re-opened.24
In this case, none of the foregoing exceptions, or those of
similar nature, appear to exist. Hence, there lies the need
to institute the proper special proceeding in order to
determine the heirship of the parties involved, ultimately
resulting to the dismissal of Civil Case No. T-2246.
Verily, while a court usually focuses on the complaint in
determining whether the same fails to state a cause of
action, a court cannot disregard decisions material to the
proper appreciation of the questions before it.25 Thus,
concordant with applicable jurisprudence, since a
determination of heirship cannot be made in an ordinary
action for recovery of ownership and/or possession, the
dismissal of Civil Case No. T-2246 was altogether proper.
In this light, it must be pointed out that the RTC erred in

Rule 73: Venue and Process

ruling on Gaudiosos heirship which should, as herein

discussed, be threshed out and determined in the proper
special proceeding. As such, the foregoing pronouncement
should therefore be devoid of any legal effect.
WHEREFORE, the petition is DENIED. The dismissal of
Civil Case No. T-2246 is hereby AFFIRMED, without
prejudice to any subsequent proceeding to determine the
lawful heirs of the late Magdaleno Ypon and the rights
concomitant therewith.
SO ORDERED.
G.R. No. 204029

June 4, 2014

AVELINA ABARIENTOS REBUSQUILLO [substituted by

her heirs, except Emelinda R. Gualvez] and SALVADOR
A.
OROSCO, Petitioners,
vs.
SPS. DOMINGO and EMELINDA REBUSQUILLO GUALVEZ
and the CITY ASSESSOR OF LEGAZPI CITY,Respondents.
DECISION
VELASCO, JR., J.:
Before Us is a Petition for Review on Certiorari under Rule
45 assailing the Decision1 and Resolution2 dated March 30,
2012 and September 25, 2012, respectively, of the Court of
Appeals (CA) in CA-G.R. CV No. 93035, which reversed and
set aside the Decision dated January 20, 2009 of the
Regional Trial Court (RTC), Branch 4 in Legazpi City, in
Civil Case No. 10407.
The antecedent facts may be summarized as follows:
On October 26, 2004, petitioners Avelina Abarientos
Rebusquillo (Avelina) and Salvador Orosco (Salvador) filed
a Complaint for annulment and revocation of an Affidavit
of Self-Adjudication dated December 4, 2001 and a Deed of
Absolute Sale dated February 6, 2002 before the court a
quo. In it, petitioners alleged that Avelina was one of the
children of Eulalio Abarientos (Eulalio) and Victoria
Villareal (Victoria). Eulalio died intestate on July 3, 1964,
survived by his wife Victoria, six legitimate children, and
one illegitimate child, namely: (1) Avelina AbarientosRebusquillo, petitioner in this case; (2) Fortunata
Abarientos-Orosco, the mother of petitioner Salvador; (3)
Rosalino Abarientos; (4) Juan Abarientos; (5) Feliciano
Abarientos; (6) Abraham Abarientos; and (7) Carlos
Abarientos. His wife Victoria eventually died intestate on
June 30, 1983.
On his death, Eulalio left behind an untitled parcel of land
in Legazpi City consisting of two thousand eight hundred
sixty-nine(2,869) square meters, more or less, which was
covered by Tax Declaration ARP No. (TD) 0141.
In 2001, Avelina was supposedly made to sign two (2)
documents by her daughter Emelinda Rebusquillo-Gualvez
(Emelinda) and her son-in-law Domingo Gualvez
(Domingo), respondents in this case, on the pretext that
the documents were needed to facilitate the titling of the
lot. It was only in 2003, so petitioners claim, that Avelina
realized that what she signed was an Affidavit of SelfAdjudication and a Deed of Absolute Sale in favor of
respondents.
As respondents purportedly ignored her when she tried to
talk to them, Avelina sought the intervention of the RTC to
declare null and void the two (2) documents in order to

Page 8

reinstate TD0141 and so correct the injustice done to the

other heirs of Eulalio.
In their answer, respondents admitted that the execution
of the Affidavit of Self-Adjudication and the Deed of Sale
was intended to facilitate the titling of the subject
property. Paragraph 9 of their Answer reads:
Sometime in the year 2001, [petitioner] Avelina together
with the other heirs of Eulalio Abarientos brought out the
idea to [respondent] Emelinda Rebusquillo-Gualvez to
have the property described in paragraph 8 of the
complaint registered under the Torrens System of
Registration. To facilitate the titling of the property, so that
the same could be attractive to prospective buyers, it was
agreed that the propertys tax declaration could be
transferred to [respondents] Spouses [Emelinda] R.
Gualvez and Domingo Gualvez who will spend all the cost
of titling subject to reimbursement by all other heirs in
case the property is sold; That it was agreed that all the
heirs will be given their corresponding shares on the
property; That pursuant to said purpose Avelina
Abarientos-Rebusquillo with the knowledge and consent
of the other heirs signed and executed an Affidavit of SelfAdjudication and a Deed of Absolute Sale in favor of
[respondents] Gualvez. In fact, [petitioner] Avelina
Rebusquillo was given an advance sum of FIFTY
THOUSAND PESOS (P50,000.00) by [respondent] spouses
and all the delinquent taxes paid by [respondents].3
After trial, the RTC rendered its Decision dated January 20,
2009 annulling the Affidavit of Self-Adjudication and the
Deed of Absolute Sale executed by Avelina on the grounds
that (1) with regard to the Affidavit of Self-Adjudication,
she was not the sole heir of her parents and was not
therefore solely entitled to their estate; and (2) in the case
of the Deed of Absolute Sale, Avelina did not really intend
to sell her share in the property as it was only executed to
facilitate the titling of such property. The dispositive
portion of the RTC Decision reads:
WHEREFORE, premises considered, judgment is hereby
rendered, as follows:
1. The subject Affidavit of Self-Adjudication of the Estate of
the Deceased Spouses Eulalio Abarientos and Victoria
Villareal, dated December 4, 2001 as well as the subject
Deed of Absolute Sale, notarized on February 6, 2002,
covering the property described in par. 8 of the Amended
Complaint are hereby ordered ANNULLED;
2. That defendant City Assessors Officer of Legazpi City is
hereby ordered to CANCEL the Tax Declaration in the
name of private [respondents] spouses Gualvez under ARP
No. 4143 and to REINSTATE the Tax Declaration under
ARP No. 0141 in the name of Eulalio Abarientos;
3. By way of restitution, [petitioner] Avelina Abarientos
Rebusquillo is hereby ordered to return or refund to
[respondents] spouses Domingo Gualvez and Emelinda
Gualvez, the P50,000.00 given by the latter spouses to the
former.4
Assailing the trial courts decision, respondents interposed
an appeal with the CA arguing that the Deed of Sale cannot
be annulled being a public document that has for its object
the creation and transmission of real rights over the
immovable subject property. The fact that Avelinas
testimony was not offered in evidence, so respondents
argued, the signature on the adverted deed remains as
concrete proof of her agreement to its terms. Lastly,
respondents contended that the Complaint filed by

Rule 73: Venue and Process

petitioners Avelina and Salvador before the RTC is not the

proper remedy provided by law for those compulsory
heirs unlawfully deprived of their inheritance.
Pending the resolution of respondents appeal, Avelina
died intestate on September 1, 2009 leaving behind
several living heirs5 including respondent Emelinda.
In its Decision dated March 30, 2012, the appellate court
granted the appeal and reversed and set aside the Decision
of the RTC. The CA held that the RTC erred in annulling the
Affidavit of Self-Adjudication simply on petitioners
allegation of the existence of the heirs of Eulalio,
considering that issues on heirship must be made in
administration or intestate proceedings, not in an ordinary
civil action. Further, the appellate court observed that the
Deed of Absolute Sale cannot be nullified as it is a
notarized document that has in its favor the presumption
of regularity and is entitled to full faith and credit upon its
face.
Aggrieved by the CAs Decision, petitioner Avelina, as
substituted by her heirs except respondent Emelinda, and
petitioner Salvador are now before this Court ascribing
reversible error on the part of the appellate court.
We find merit in the instant petition.
It has indeed been ruled that the declaration of heirship
must be made in a special proceeding, not in an
independent civil action. However, this Court had likewise
held that recourse to administration proceedings to
determine who heirs are is sanctioned only if there is a
good and compelling reason for such recourse.6 Hence, the
Court had allowed exceptions to the rule requiring
administration proceedings as when the parties in the civil
case already presented their evidence regarding the issue
of heirship, and the RTC had consequently rendered
judgment upon the issues it defined during the pretrial.7 In Portugal v. Portugal-Beltran,8 this Court held:
In the case at bar, respondent, believing rightly or wrongly
that she was the sole heir to Portugals estate, executed on
February 15, 1988 the questioned Affidavit of Adjudication
under the second sentence of Rule 74, Section 1 of the
Revised Rules of Court. Said rule is an exception to the
general rule that when a person dies leaving a property, it
should be judicially administered and the competent court
should appoint a qualified administrator, in the order
established in Sec. 6, Rule 78 in case the deceased left no
will, or in case he did, he failed to name an executor
therein.
Petitioners claim, however, to be the exclusive heirs of
Portugal. A probate or intestate court, no doubt, has
jurisdiction to declare who are the heirs of a deceased.
It appearing, however, that in the present case the only
property of the intestate estate of Portugal is the Caloocan
parcel of land to still subject it, under the circumstances of
the case, to a special proceeding which could be long,
hence, not expeditious, just to establish the status of
petitioners as heirs is not only impractical; it is
burdensome to the estate with the costs and expenses of
an administration proceeding. And it is superfluous in light
of the fact that the parties to the civil case - subject of the
present case, could and had already in fact presented
evidence before the trial court which assumed jurisdiction
over the case upon the issues it defined during pre-trial.
In fine, under the circumstances of the present case, there
being no compelling reason to still subject Portugals

Page 9

estate to administration proceedings since a determination

of petitioners status as heirs could be achieved in the civil
case filed by petitioners, the trial court should proceed to
evaluate the evidence presented by the parties during the
trial and render a decision thereon upon the issues it
defined during pre-trial x x x. (emphasis supplied)
Similar to Portugal, in the present case, there appears to be
only one parcel of land being claimed by the contending
parties as the inheritance from Eulalio. It would be more
practical, as Portugal teaches, to dispense with a separate
special proceeding for the determination of the status of
petitioner Avelina as sole heir of Eulalio, especially in light
of the fact that respondents spouses Gualvez admitted in
court that they knew for a fact that petitioner Avelina was
not the sole heir of Eulalio and that petitioner Salvador
was one of the other living heirs with rights over the
subject land. As confirmed by the RTC in its Decision,
respondents have stipulated and have thereby admitted
the veracity of the following facts during the pre-trial:
IV UNCONTROVERTED FACTS: (Based on the stipulation
of facts in the Pre-Trial Order)
A. x x x
B. [Petitioners] and private [respondents] spouses Gualvez
admitted the following facts:
1. Identity of the parties;
2. Capacity of the [petitioners] and private [respondents]
to sue and be sued;
3. [Petitioner] Avelina Abarientos-Rebusquilllo is not the
only surviving heir of deceased spouses Eulalio and
Victoria Abarientos;
4. Petitioner Salvador Orosco is a co-owner/possessor of a
portion of the subject property;
5. Fortunata Abarientos-Orosco is the sister of Avelina
Abarientos;
6. [Respondent] Emelinda Rebusquillo-Gualves is a
daughter of [petitioner] Avelina A. Rebusquillo;
7. [Petitioner] Avelina Rebusquillo was born on Nov. 10,
1923;
8. The existence of Affidavit of Self-Adjudication of Estate
of the Deceased and Deed of Absolute Sale executed by
[petitioner] Avelina A. Rebusquillo on the subject
property.9 (emphasis supplied)
In light of the admission of respondents spouses Gualvez, it
is with more reason that a resort to special proceeding will
be but an unnecessary superfluity. Accordingly, the court a
quo had properly rendered judgment on the validity of the
Affidavit of Self-Adjudication executed by Avelina. As
pointed out by the trial court, an Affidavit of SelfAdjudication is only proper when the affiant is the sole
heir of the decedent. The second sentence of Section 1,
Rule 74 of the Rules of Court is patently clear that selfadjudication is only warranted when there is only one heir:
Section 1. Extrajudicial settlement by agreement between
heirs. x x x If there is only one heir, he may adjudicate to
himself the entire estate by means of an affidavit filed in
the office of the register of deeds. x x x (emphasis
supplied)

Rule 73: Venue and Process

As admitted by respondents, Avelina was not the sole heir

of Eulalio. In fact, as admitted by respondents, petitioner
Salvador is one of the co-heirs by right of representation of
his mother. Without a doubt, Avelina had perjured herself
when she declared in the affidavit that she is "the only
daughter and sole heir of spouses EULALIO ABARIENTOS
AND VICTORIA VILLAREAL."10 The falsity of this claim
renders her act of adjudicating to herself the inheritance
left by her father invalid. The RTC did not, therefore, err in
granting Avelinas prayer to declare the affidavit null and
void and so correct the wrong she has committed.
In like manner, the Deed of Absolute Sale executed by
Avelina in favor of respondents was correctly nullified and
voided by the RTC. Avelina was not in the right position to
sell and transfer the absolute ownership of the subject
property to respondents. As she was not the sole heir of
Eulalio and her Affidavit of Self-Adjudication is void, the
subject property is still subject to partition. Avelina, in fine,
did not have the absolute ownership of the subject
property but only an aliquot portion. What she could have
transferred to respondents was only the ownership of such
aliquot portion. It is apparent from the admissions of
respondents and the records of this case that Avelina had
no intention to transfer the ownership, of whatever extent,
over the property to respondents. Hence, the Deed of
Absolute Sale is nothing more than a simulated contract.
The Civil Code provides:
Art. 1345. Simulation of a contract may be absolute or
relative. The former takes place when the parties do not
intend to be bound at all; the latter, when the parties
conceal their true agreement. (emphasis supplied)
Art. 1346. An absolutely simulated or fictitious contract is
void. A relative simulation, when it does not prejudice a
third person and is not intended for any purpose contrary
to law, morals, good customs, public order or public policy
binds the parties to their real agreement.
In Heirs of Policronio Ureta Sr. v. Heirs of Liberato
Ureta,11 this Court explained the concept of the simulation
of contracts:
In absolute simulation, there is a colorable contract but it
has no substance as the parties have no intention to be
bound by it. The main characteristic of an absolute
simulation is that the apparent contract is not really
desired or intended to produce legal effect or in any way
alter the juridical situation of the parties. As a result, an
absolutely simulated or fictitious contract is void, and the
parties may recover from each other what they may have
given under the contract. However, if the parties state a
false cause in the contract to conceal their real agreement,
the contract is relatively simulated and the parties are still
bound by their real agreement. Hence, where the essential
requisites of a contract are present and the simulation
refers only to the content or terms of the contract, the
agreement is absolutely binding and enforceable between
the parties and their successors in interest. (emphasis
supplied)
In the present case, the true intention of the parties in the
execution of the Deed of Absolute Sale is immediately
apparent from respondents very own Answer to
petitioners Complaint. As respondents themselves
acknowledge, the purpose of the Deed of Absolute Sale was
simply to "facilitate the titling of the [subject] property,"
not to transfer the ownership of the lot to them.
Furthermore, respondents concede that petitioner
Salvador remains in possession of the property and that

Page 10

there is no indication that respondents ever took

possession of the subject property after its supposed
purchase. Such failure to take exclusive possession of the
subject property or, in the alternative, to collect rentals
from its possessor, is contrary to the principle of
ownership and is a clear badge of simulation that renders
the whole transaction void.12
Contrary to the appellate courts opinion, the fact that the
questioned Deed of Absolute Sale was reduced to writing
and notarized does not accord it the quality of
incontrovertibility otherwise provided by the parole
evidence rule. The form of a contract does not make an
otherwise simulated and invalid act valid. The rule on
parole evidence is not, as it were, ironclad. Sec. 9, Rule 130
of the Rules of Court provides the exceptions:
Section 9. Evidence of written agreements. x x x
However, a party may present evidence to modify, explain
or add to the terms of written agreement if he puts in issue
in his pleading:
(a) An intrinsic ambiguity, mistake or imperfection in the
written agreement;
(b) The failure of the written agreement to express the
true intent and agreement of the parties thereto;
(c) The validity of the written agreement; or
(d) The existence of other terms agreed to by the parties or
their successors in interest after the execution of the
written agreement.
The term "agreement" includes wills. (emphasis supplied)
The failure of the Deed of Absolute Sale to express the true
intent and agreement of the contracting parties was clearly
put in issue in the present case. Again, respondents
themselves admit in their Answer that the Affidavit of SelfAdjudication and the Deed of Absolute Sale were only
executed to facilitate the titling of the property. The RTC is,
therefore, justified to apply the exceptions provided in the
second paragraph of Sec. 9, Rule 130 to ascertain the true
intent of the parties, which shall prevail over the letter of
the document. That said, considering that the Deed of
Absolute Sale has been shown to be void for being
absolutely simulated, petitioners are not precluded from
presenting evidence to modify, explain or add to the terms
of the written agreement.13
WHEREFORE, the instant petition is GRANTED. The
Decision dated March 30, 2012 and the Resolution dated
September 25, 2012 of the Court of Appeals in CA-G.R. CV
No. 93035 are hereby REVERSED and SET ASIDE. The
Decision dated January 20, 2009 in Civil Case No. 10407 of
the Regional Trial Court (RTC),Branch 4 in Legazpi City is
REINSTATED.
SO ORDERED.
G.R. No. 128314

May 29, 2002

RODOLFO
V.
JAO, petitioner,
vs.
COURT OF APPEALS and PERICO V. JAO, respondents.
YNARES-SANTIAGO, J.:
Rodolfo and Perico Jao were the only sons of the spouses
Ignacio Jao Tayag and Andrea V. Jao, who died intestate in

Rule 73: Venue and Process

1988 and 1989, respectively. The decedents left real

estate, cash, shares of stock and other personal properties.
On April 17, 1991, Perico instituted a petition for issuance
of letters of administration before the Regional Trial Court
of Quezon City, Branch 99, over the estate of his parents,
docketed as Special Proceedings No. Q-91-8507.1 Pending
the appointment of a regular administrator, Perico moved
that he be appointed as special administrator. He alleged
that his brother, Rodolfo, was gradually dissipating the
assets of the estate. More particularly, Rodolfo was
receiving rentals from real properties without rendering
any accounting, and forcibly opening vaults belonging to
their deceased parents and disposing of the cash and
valuables therein.
Rodolfo moved for the dismissal of the petition on the
ground of improper venue.2 He argued that the deceased
spouses did not reside in Quezon City either during their
lifetime or at the time of their deaths. The decedents
actual residence was in Angeles City, Pampanga, where his
late mother used to run and operate a bakery. As the
health of his parents deteriorated due to old age, they
stayed in Rodolfos residence at 61 Scout Gandia Street,
Quezon City, solely for the purpose of obtaining medical
treatment and hospitalization. Rodolfo submitted
documentary evidence previously executed by the
decedents, consisting of income tax returns, voters
affidavits, statements of assets and liabilities, real estate
tax payments, motor vehicle registration and passports, all
indicating that their permanent residence was in Angeles
City, Pampanga.1wphi1.nt
In his opposition,3 Perico countered that their deceased
parents actually resided in Rodolfos house in Quezon City
at the time of their deaths. As a matter of fact, it was
conclusively declared in their death certificates that their
last residence before they died was at 61 Scout Gandia
Street, Quezon City.4 Rodolfo himself even supplied the
entry appearing on the death certificate of their mother,
Andrea, and affixed his own signature on the said
document.
Rodolfo filed a rejoinder, stating that he gave the
information regarding the decedents residence on the
death certificates in good faith and through honest
mistake. He gave his residence only as reference,
considering that their parents were treated in their late
years at the Medical City General Hospital in Mandaluyong,
Metro Manila. Their stay in his house was merely
transitory, in the same way that they were taken at
different times for the same purpose to Pericos residence
at Legaspi Towers in Roxas Boulevard. The death
certificates could not, therefore, be deemed conclusive
evidence of the decedents residence in light of the other
documents showing otherwise.5
The court required the parties to submit their respective
nominees for the position.6 Both failed to comply,
whereupon the trial court ordered that the petition be
archived.7
Subsequently, Perico moved that the intestate proceedings
be revived.8 After the parties submitted the names of their
respective nominees, the trial court designated Justice
Carlos L. Sundiam as special administrator of the estate of
Ignacio Jao Tayag and Andrea Jao.9
On April 6, 1994, the motion to dismiss filed by petitioner
Rodolfo was denied, to wit:

Page 11

A mere perusal of the death certificates of the spouses

issued separately in 1988 and 1989, respectively, confirm
the fact that Quezon City was the last place of residence of
the decedents. Surprisingly, the entries appearing on the
death certificate of Andrea V. Jao were supplied by movant,
Rodolfo V. Jao, whose signature appears in said document.
Movant, therefore, cannot disown his own representation
by taking an inconsistent position other than his own
admission. xxx xxx xxx.

OF
THE
DECEDENTS
RATHER
THAN
THE
OVERWHELMING EVIDENCE SHOWING THE CLEAR
INTENTION OF THE DECEDENTS TO ESTABLISH THEIR
PERMANENT RESIDENCE IN ANGELES CITY.
VI

WHEREFORE, in view of the foregoing consideration, this

court DENIES for lack of merit movants motion to dismiss.

RESPONDENT COURT ERRED IN APPLYING THE

PRINCIPLE OF ESTOPPEL AS AGAINST PETITIONER
WHICH CAN NOT BE MORE PERSUASIVE THAN THE
CLEAR INTENTION OF THE DECEDENTS THEMSELVES TO
ESTABLISH PERMANENT RESIDENCE IN ANGELES CITY.

SO ORDERED.10

VII

Rodolfo filed a petition for certiorari with the Court of

Appeals, which was docketed as CA-G.R. SP No. 35908. On
December 11, 1996, the Court of Appeals rendered the
assailed decision, the dispositive portion of which reads:

RESPONDENT COURT ERRED IN DISMISSING THE

PETITION FOR CERTIORARI DESPITE THE CLEAR ABUSE
OF DISCRETION ON THE PART OF THE TRIAL COURT IN
INSISTING TO TAKE COGNIZANCE OF SP. PROCEEDING
NO. Q-91-8507.13

WHEREFORE, no error, much less any grave abuse of

discretion of the court a quo having been shown, the
petition for certiorari is hereby DISMISSED. The
questioned order of the respondent Judge is affirmed in
toto.

The main issue before us is: where should the settlement

proceedings be had --- in Pampanga, where the decedents
had their permanent residence, or in Quezon City, where
they actually stayed before their demise?

SO ORDERED.11

Rule 73, Section 1 of the Rules of Court states:

Rodolfos motion for reconsideration was denied by the

Court of Appeals in the assailed resolution dated February
17, 1997.12 Hence, this petition for review, anchored on the
following grounds:

Where estate of deceased persons be settled. If

the decedent is an inhabitant of the Philippines at the time
of his death, whether a citizen or an alien, his will shall be
proved, or letters of administration granted, and his estate
settled, in the Court of First Instance in the province in
which he resides at the time of his death, and if he is an
inhabitant of a foreign country, the Court of First Instance
of any province in which he had estate. The court first
taking cognizance of the settlement of the estate of a
decedent shall exercise jurisdiction to the exclusion of all
other courts. The jurisdiction assumed by a court, so far as
it depends on the place of residence of the decedent, or of
the location of his estate, shall not be contested in a suit or
proceeding, except in an appeal from that court, in the
original case, or when the want of jurisdiction appears on
the record. (underscoring ours)

I
RESPONDENT COURT HAD DECIDED A QUESTION OF
SUBSTANCE IN A WAY NOT IN ACCORD WITH THE LAW
AND IS DIRECTLY CONTRADICTORY TO THE APPLICABLE
DECISION ALREADY RENDERED BY THIS HONORABLE
COURT.
II
RESPONDENT COURT ERRED IN DISREGARDING THE
RULING OF THIS HONORABLE COURT IN THE CASE
OF EUSEBIO VS. EUSEBIO, 100 PHILS. 593, WHICH
CLEARLY INTERPRETED WHAT IS MEANT BY RESIDENCE
IN SEC. 1 OF RULE 73 OF THE RULES OF COURT.
III
RESPONDENT COURT ERRED IN HOLDING THAT
PHYSICAL PRESENCE IN A PLACE AT THE TIME OF
DEATH IS DETERMINATIVE OF DECEDENTS RESIDENCE
RATHER THAN THE INTENTION OF THE DECEDENTS TO
ESTABLISH THEIR PERMANENT RESIDENCE IN ANOTHER
PLACE.
IV
RESPONDENT COURT ERRED IN APPLYING BY ANALOGY
THE RESIDENCE CONTEMPLATED IN SEC. 2 OF RULE 4
FOR THE PURPOSE OF SERVING SUMMONS TO A
DEFENDANT IN A PERSONAL ACTION TO THE RESIDENCE
CONTEMPLATED IN SEC. 1 OF RULE 73 FOR THE
PURPOSE OF DETERMINING VENUE IN THE SETTLEMENT
OF THE ESTATE OF A DECEASED.
V
RESPONDENT COURT ERRED IN GIVING MORE WEIGHT
TO THE ENTRY OF PETITIONER AND PRIVATE
RESPONDENT IN THE RESPECTIVE DEATH CERTIFICATES

Rule 73: Venue and Process

Clearly, the estate of an inhabitant of the Philippines shall

be settled or letters of administration granted in the
proper court located in the province where the
decedent resides at the time of his death.
Petitioner Rodolfo invokes our ruling in the case of Eusebio
v. Eusebio, et al.,14 where we held that the situs of
settlement proceedings shall be the place where the
decedent had his permanent residence or domicile at the
time of death. In determining residence at the time of
death, the following factors must be considered, namely,
the decedent had: (a) capacity to choose and freedom of
choice; (b) physical presence at the place chosen; and (c)
intention to stay therein permanently.15 While it appears
that the decedents in this case chose to be physically
present in Quezon City for medical convenience, petitioner
avers that they never adopted Quezon City as their
permanent residence.1wphi1.nt
The contention lacks merit.
The facts in Eusebio were different from those in the case
at bar. The decedent therein, Andres Eusebio, passed away
while in the process of transferring his personal
belongings to a house in Quezon City. He was then
suffering from a heart ailment and was advised by his
doctor/son to purchase a Quezon City residence, which

Page 12

was nearer to his doctor. While he was able to acquire a

house in Quezon City, Eusebio died even before he could
move therein. In said case, we ruled that Eusebio retained
his domicile --- and hence, residence --- in San Fernando,
Pampanga. It cannot be said that Eusebio changed his
residence because, strictly speaking, his physical presence
in Quezon City was just temporary.
In the case at bar, there is substantial proof that the
decedents have transferred to petitioners Quezon City
residence. Petitioner failed to sufficiently refute
respondents assertion that their elderly parents stayed in
his house for some three to four years before they died in
the late 1980s.
Furthermore, the decedents respective death certificates
state that they were both residents of Quezon City at the
time of their demise. Significantly, it was petitioner himself
who filled up his late mothers death certificate. To our
mind, this unqualifiedly shows that at that time, at least,
petitioner recognized his deceased mothers residence to
be Quezon City. Moreover, petitioner failed to contest the
entry in Ignacios death certificate, accomplished a year
earlier by respondent.
The recitals in the death certificates, which are admissible
in evidence, were thus properly considered and presumed
to be correct by the court a quo. We agree with the
appellate courts observation that since the death
certificates were accomplished even before petitioner and
respondent quarreled over their inheritance, they may be
relied upon to reflect the true situation at the time of their
parents death.
The death certificates thus prevailed as proofs of the
decedents residence at the time of death, over the
numerous documentary evidence presented by petitioner.
To be sure, the documents presented by petitioner
pertained not to residence at the time of death, as
required by the Rules of Court, but to permanent
residence or domicile. In Garcia-Fule v. Court of
Appeals,16 we held:
xxx xxx xxx the term "resides" connotes ex vi
termini "actual residence" as distinguished from "legal
residence or domicile." This term "resides", like the terms
"residing" and "residence", is elastic and should be
interpreted in the light of the object or purpose of the
statute or rule in which it is employed. In the application of
venue statutes and rules Section 1, Rule 73 of the Revised
Rules of Court is of such nature residence rather
than domicile is the significant factor. Even where the
statute uses the word "domicile" still it is construed as
meaning residence and not domicile in the technical sense.
Some cases make a distinction between the terms
"residence" and "domicile" but as generally used in
statutes fixing venue, the terms are synonymous, and
convey the same meaning as the term "inhabitant." In
other words, "resides" should be viewed or understood in
its popular sense, meaning, the personal, actual or physical
habitation of a person, actual residence or place of abode.
It signifies physical presence in a place and actual stay
thereat. In this popular sense, the term means merely
residence, that is, personal residence, not legal residence
or domicile. Residence simply requires bodily presence as
an inhabitant in a given place, while domicile requires
bodily presence in that place and also an intention to make
it ones domicile. No particular length of time of residence
is required though; however, the residence must be more
than temporary.17

Rule 73: Venue and Process

Both the settlement court and the Court of Appeals found

that the decedents have been living with petitioner at the
time of their deaths and for some time prior thereto. We
find this conclusion to be substantiated by the evidence on
record. A close perusal of the challenged decision shows
that, contrary to petitioners assertion, the court below
considered not only the decedents physical presence in
Quezon City, but also other factors indicating that the
decedents stay therein was more than temporary. In the
absence of any substantial showing that the lower courts
factual findings stemmed from an erroneous apprehension
of the evidence presented, the same must be held to be
conclusive and binding upon this Court.
Petitioner strains to differentiate between the venue
provisions found in Rule 4, Section 2,18 on ordinary civil
actions, and Rule 73, Section 1, which applies specifically
to settlement proceedings. He argues that while venue in
the former understandably refers to actual physical
residence for the purpose of serving summons, it is the
permanent residence of the decedent which is significant
in Rule 73, Section 1. Petitioner insists that venue for the
settlement of estates can only refer to permanent
residence or domicile because it is the place where the
records of the properties are kept and where most of the
decedents properties are located.
Petitioners argument fails to persuade.
It does not necessarily follow that the records of a persons
properties are kept in the place where he permanently
resides. Neither can it be presumed that a persons
properties can be found mostly in the place where he
establishes his domicile. It may be that he has his domicile
in a place different from that where he keeps his records,
or where he maintains extensive personal and business
interests. No generalizations can thus be formulated on the
matter, as the question of where to keep records or retain
properties is entirely dependent upon an individuals
choice and peculiarities.
At any rate, petitioner is obviously splitting straws when
he differentiates between venue in ordinary civil actions
and venue in special proceedings. In Raymond v. Court of
Appeals19 and Bejer v. Court of Appeals,20 we ruled that
venue for ordinary civil actions and that for special
proceedings have one and the same meaning. As thus
defined, "residence", in the context of venue provisions,
means nothing more than a persons actual residence or
place of abode, provided he resides therein with continuity
and consistency.21 All told, the lower court and the Court of
Appeals correctly held that venue for the settlement of the
decedents intestate estate was properly laid in the Quezon
City court.
WHEREFORE, in view of the foregoing, the petition
is DENIED, and the decision of the Court of Appeals in CAG.R. SP No. 35908 is AFFIRMED.
SO ORDERED.
G.R. No. 102126 March 12, 1993
ANGELICA
LEDESMA, petitioner,
vs.
INTESTATE
ESTATE
OF
CIPRIANO
PEDROSA
represented by Nelson Jimena, Honorable Judge Bethel
Katalbas-Moscardon in her capacity as Presiding
Judge-Designate,
Branch
51,
RTC,
Bacolod
City,respondents.

Page 13

Hector P. Teodosio of Defensor and Teodocio Law Office for

petitioner.
Edmundo G. Manlapao for private respondent.

PADILLA, J.:
This is a special civil action for certiorari under Rule 65
assailing an order dated 24 January 1991 issued by herein
respondent presiding judge-designate Bethel KatalbasMoscardon of the Regional Trial Court of Bacolod City,
Branch 51 which considered the supplemental action for
partition (after annulment of the marriage) as terminated
due to the death of one of the spouses (husband) and the
pendency of intestate proceedings over his estate.
Petitioner Angelica Ledesma's marriage to Cipriano
Pedrosa was declared a nullity by the Regional Trial Court
of Negros Occidental, Branch 51 on 8 February 1984 in
Civil Case No. 1446. 1 The dispositive portion of the order
annulling the marriage also provided thus:
. . . that the properties acquired by plaintiff Cipriano
Pedrosa and defendant Angelica Ledesma at the time they
were living together as common-law husband and wife is
(sic) owned by them as co-owners to be governed by the
provisions on co-ownership of the civil code; that the
properties acquired by plaintiff and defendant after their
marriage was solemnized on March 25, 1965, which was
annulled by this Court in the above-entitled proceeding,
forms (sic) part of the conjugal partnership and upon
dissolution of the marriage, to be liquidated in accordance
with the provision of the civil code. 2
Surprisingly it took some time before the next order
implementing the above disposition was issued on 4 May
1989, the pertinent part of which reads:
. . . . It appearing from the records that the court has to
verify and determine the correct inventory of the
properties of Cipriano Pedrosa and Angelica Ledesma, the
parties, including the receiver, through their respective
attorneys, are ordered to submit their respective
inventory, if one has not been submitted yet, before June 1,
1989. . . . . 3
Pending receipt by the court of the ordered inventory,
Cipriano Pedrosa died. A separate petition for the probate
of
his
last
will
and
testament
was
filed. 4 Nelson Jimena was named executor and substituted
Pedrosa in the partition proceedings (Civil Case No. 1446).
Due to disagreement of the parties on the characterization
of the properties, the court in the partition proceedings
ordered (30 March 1990) the submission of comments,
objections and manifestations on the project of partition
submitted by the parties. During a lull in the proceedings,
the presiding judge also passed away. On 24 January 1991
the following now-questioned order was issued by the
herein respondent presiding-judge designate who took
over:
It is informed by Atty. Pio Villoso that insofar as the status
of this case is concerned, the plaintiff who has long been
dead, was substituted by the administrator, now the
plaintiff Nelson Jimena, and Atty. Vicente Sabornay, as the
receiver. Furthermore, the judgment as to the annulment
of the marriage had already been rendered partially by
then Presiding Judge Quirino Abad Santos, Jr., on February
8, 1984. What is being litigated here by the parties affects

Rule 73: Venue and Process

the property division to dissolve the partnership.

However, the plaintiff died and an intestate proceeding is
now pending before Branch 43 whereby the said Nelson
Jimena was actually the appointed administrator, and who
was substituted as plaintiff in this case.
With all these informations, and considering the nature of
the action, the Court finds the substitution of the original
plaintiff improper, as the defendant herein can pursue her
claim over the properties before the intestate proceedings
being instituted. Action for intervention in order that the
judgment in this particular proceeding can be
implemented, can be raised in the intestate Court.
Likewise, the appointment of the receiver conflicts with
that of the judicial administrator considering that with the
filing of the intestate case, the properties of the deceased
plaintiff are in custodia legis and this Court losses
jurisdiction in determining further the distribution of the
properties.
In view of the above, without prejudice to the defendant's
right to file as intervenor in the intestate proceedings with
the judgment annulling the marriage, the proceedings
becomes moot and academic with the pendency of the
intestate proceeding before Branch 43. This case is
therefore deemed TERMINATED. 5
With the denial of petitioner's motion for reconsideration
by the respondent court, this special civil action was
initiated.
Petitioner argues that respondent judge reneged in the
performance of a lawful duty when she refrained from
rendering a decision in the partition case (Civil Case No.
1446) and considered the same closed and terminated,
due to the pendency of intestate proceedings over the
deceased husband's estate (Sp. Proc. No. 4159). 6 It is
likewise erroneous, petitioner contends, to rule that
petitioner's remedy is a motion for intervention in said
intestate proceedings to implement judgment in the
marriage-annulment case, since petitioner has already
presented all her evidence in the annulment case to prove
which properties acquired during the marriage pertain to
her.
The case of Macadangdang vs. Court of Appeals, 7 where a
similar issue was involved the husband having died
after the legal separation of the spouses had been finally
decreed but before the actual liquidation of their
community of properties is on point. The Court therein
said:
WE do not find merit in petitioner's submission that the
questioned decision had not become final and executory
since the law explicitly and clearly provides for the
dissolution and liquidation of the conjugal partnership of
gains or the absolute community of property as among the
effects of the final decree of legal separation. Article 106 of
the Civil Code thus reads:
Art. 106. The decree of legal separation shall have the
following effects:
1) The spouses shall be entitled to live separately from
each other, but the marriage bonds shall not be severed;
2) The conjugal partnership of gains or the absolute
conjugal community of property shall be dissolved and
liquidated, but the offending spouse shall have no right to
any share of the profits earned by the partnership or
community, without prejudice to the provisions of Article
176;

Page 14

xxx xxx xxx

The aforequoted provision mandates the dissolution and
liquidation of the property regime of the spouses upon
finality of the decree of legal separation. Such dissolution
and liquidation are necessary consequences of the final
decree. This legal effect of the decree of legal separation
ipso facto or automatically follows, as an inevitable
incident of, the judgment decreeing legal separation for the
purpose of determining the share of each spouse in the
conjugal assets.
xxx xxx xxx
. . . the decision of the trial court dated January 4, 1973
decreeing the legal separation between then spouses
Antonio
Macadangdang
and
Filomena
Gaviana
Macadangdang had long become final and executory and
the division of the conjugal property in a "supplemental
decision" is a mere incident of the decree of legal
separation.
Since We have ruled on the finality of the judgment
decreeing the spouses' legal separation as of January 4,
1973, the remaining issue for Our resolution is the final
disposition of their conjugal partnership of gains which
partnership, by reason of the final decree, had been
automatically dissolved. The law (Article 106, 107 of the
Civil Code) clearly spells out the effects of a final decree of
legal separation on the conjugal property.
The death on November 30, 1979 of herein petitioner who
was declared the guilty spouse by the trial court, before
the liquidation of the conjugal property is effected, poses a
new problem which can be resolved simply by the
application of the rules on intestate succession with
respect to the properties of the deceased petitioner.
Thus, the rules on dissolution and liquidation of the
conjugal partnership of gains under the aforecited
provisions of the Civil Code would be applied effective
January 4, 1973 when the decree of legal separation
became final. Upon the liquidation and distribution
conformably with the law governing the effects of the final
decree of legal separation, the law on intestate succession
should take over in the disposition of whatever remaining
properties heave been allocated to petitioner. This
procedure involves details which properly pertain to the
lower court.
The properties that may be allocated to the deceased
petitioner by virtue of the liquidation of the conjugal
assets, shall be distributed in accordance with the laws of
intestate succession in Special Proceedings No. 134.
The Macadangdang decision involved legal separation but,
with equal reason, the doctrine enunciated therein should
be applied to a marriage annulment which is the situation
at bar. The respondent presiding judge is directed to
decide the partition (liquidation) case (Civil Case No.
1446) within thirty (30) days from receipt of notice of this
decision to determine which of the properties of the
conjugal partnership should be adjudicated to the husband
and the wife. This is but a consequence or incident of its
decision rendered in the same case annulling the marriage.
Petitioner's letters to the Court indicate that she is seventy
(70) years of age and the prolonged action for partition
(liquidation) has taken a toll on her resources. Justice and
equity demand the disposition of her case with dispatch.
Any properties that may be adjudicated to the deceased
husband Pedrosa can then be distributed in accordance

Rule 73: Venue and Process

with his last will and testament in the special proceedings

involving his estate (Sp. Proc. No. 4159).
ACCORDINGLY, the respondent Judge's order dated 24
January 1991 considering Civil Case No. 1446 closed and
terminated for being moot and academic is REVERSED and
SET ASIDE. Respondent Judge or whoever may have
succeeded her is ordered to decide said action for partition
(liquidation) within thirty (30) days from receipt of this
decision.
SO ORDERED.
[G.R.

No.

L-6622.

July

31,

1957.]

Intestate Estate of the deceased MARCELO DE BORJA.

CRISANTO DE BORJA, administrator-appellant, v. JUAN
DE
BORJA,
ET
AL., Oppositors-Appellees.
E.

V.

Filamor

for Appellant.

Juan de Borja for himself and co-appellees.

SYLLABUS

1.
PLEADING
AND
PRACTICE;
NATURE
OF
COUNTERCLAIM. A counterclaim is a relief available to
a party-defendant against the adverse party which may or
may not be independent from the main issue.
2. ID.; PARTIES; COUNSEL FOR A PARTY SHOULD NOT BE
INCLUDED AS DEFENDANT IN COUNTERCLAIM. The
appearance of a lawyer as Counsel for a party and his
participation in a case as such counsel does not make him
a party to the action. The fact that he represents the
interests of his client or that he acts in their behalf will not
hold him liable for or make him entitled to any award that
the Court may adjudicate to the parties, other than his
professional fees. The principle that a counterclaim cannot
be filed against persons who are acting in representation
of another such as trustees in their individual capacities
(Chambers v. Cameron 2 Fed. Rules Service 155; 29 of
Supp. 742), could be applied with more force and effect in
the case of a counsel whose participation in the action is
merely confined to the preparation of the defense of the
client.
3. COURTS; JURISDICTION OF PROBATE COURT LIMITED
AND SPECIAL. In taking cognizance of a special
proceedings for the purpose of settling the estate of a
deceased person, the Court of First Instance in its capacity
as a probate Court is clothed with a limited jurisdiction
which cannot expand to Collateral matters not arising out
of or in anyway related to the settlement and adjudication
of the properties of the deceased for it is a settled rule that
the jurisdiction of a probate Court is limited and special.
Although there is a tendency now to relax this rule and
extend the jurisdiction of the probate Court in respect to
matters incidental and collateral to the exercise of its
recognized powers, this should be understood to
comprehend only cases related to those powers
specifically
allowed
by
the
statutes.
4. DAMAGES; COUNTERCLAIM; TESTATE OF INTESTATE
PROCEEDINGS: MORAL DAMAGES IS EXTRANEOUS
MATTER From whatever angle it may be looked at, a

Page 15

counterclaim for moral damages demanded by an

administrator against the heirs for alleged utterances,
pleadings and actuations made in the course of a
proceeding, is an extraneous matter in a testate or
intestate proceedings. The injection into the action of
incidental questions entirely foreign in probate
proceedings should not be encouraged for to do otherwise
would run counter to the clear intention of the law.
5. EXECUTOR AND ADMINISTRATORS; ACTS CF
ADMINISTRATOR CONSIDERED MALADMINISTRATION;
ACCOUNTABILITY FOR LOSS OR DAMAGE. Where the
records are replete with instances of highly irregular
practices of the administrator such as the pretended
ignorance of the necessity of a book or ledger or at least a
list of chronological and dated entries of money or produce
the intestate acquired and the amount of disbursement
made for the same properties; that admittedly the
administrator did not have even a list of the names of the
lessees of the properties under his administration, nor
even a list of those who owed back rentals, and mixing the
funds of the estate under his administration with his
personal funds instead of keeping a current account for the
Intestate in his capacity as administrator, in such instances
the probate Court is justified in finding him guilty of acts of
maladministration and in holding him accountable for loss
or damage to Intestate.

DECISION

FELIX, J.:

The case. Quintin, Francisco, Crisanta and Juliana, all

surnamed de Borja, are the legitimate children of Marcelo
de Borja, who, upon his demise sometime in 1924 or 1925,
left a considerable amount of property. Intestate
proceedings must have followed, and the pre-war records
of the case either burned, lost or destroyed during the last
war, because the record shows that in 1930 Quintin de
Borja was already the administrator of the Intestate Estate
of
Marcelo
de
Borja.
In the early part of 1938, Quintin de Borja died and
Crisanto de Borja, son of Francisco de Borja, was
appointed and took over as administrator of the Estate.
Francisco de Borja, on the other hand, assumed his duties
as executor of the will of Quintin de Borja, but upon
petition of the heirs of said deceased on the ground that
his interests were conflicting with that of his brothers
estate, he was later required by the Court to resign as such
executor and was succeeded by Rogelio Limaco, a son-inlaw
of
Quintin
de
Borja.
It also appears that on February 16, 1940, at the hearing
set for the approval of the statement of accounts of the late
administrator of the Intestate Estate of Marcelo de Borja,
then being opposed by Francisco de Borja, the parties
submitted an agreement, which was approved by the Court
(Exh. A). Said agreement, translated into English, reads as
follows:chanrob1es
virtual
1aw
library
1. All the accounts submitted and those that are to be

Rule 73: Venue and Process

submitted corresponding to this year will be considered

approved;
2. No heir shall claim anything of the harvests from the
lands in Cainta that came from Exequiel Ampil, deceased,
nor from the land in Tabuatin, Nueva Ecija;
3. That the amounts of money taken by each heir shall be
considered as deposited in conjunction with the other
properties of the Intestate and shall form part of the mass
without
drawing
any
interest;
4. That it shall be understood as included in this mass the
sum of twelve thousand pesos (P12,000) that the sisters
Crisanta and Juliana de Borja paid of their own money as
part of the price of the lands in Cainta and three thousand
pesos (P3,000) the price of the machinery for irrigation;
5. The right, interests or participation that the deceased
Quintin de Borja has or may have in Civil Case No. 6190 of
the Court of First Instance of Nueva Ecija, shall be likewise
included in the total mass of the inheritance of the
Intestate;
6. Not only the lands in Tabuatin but also those in Cainta
coming from the now deceased Exequiel Ampil shall also
form part of the total mass of the inheritance of the
Intestate
of
the
late
Marcelo
de
Borja;
7. Once the total of the inheritance of the Intestate is made
up as specified before in this Agreement, partition thereof
will be made as follows:chanrob1es virtual 1aw library
From the total mass shall be deducted in case or in kind,
Twelve Thousand Pesos (P12,000) that shall be delivered
to Da. Juliana de Borja and Da. Crisanta de Borja in equal
shares, and the rest shall be divided among the four heirs,
i.e., Don Francisco de Borja, the heirs of Quintin de Borja,
Da. Juliana de Borja and Da. Crisanta de Borja, in equal
parts.
(TRANSLATION)
The Intestate remained under the administration of
Crisanto de Borja until the outbreak of the war. From then
on and until the termination of the war, there was a lull
and state of inaction in Special Proceeding No. 2414 of the
Court of First Instance of Rizal, Pasig branch (In the Matter
of the Intestate Estate of Marcelo de Borja), until upon
petition filed by Miguel B. Dayco, as administrator of the
estate of his deceased mother, Crisanta de Borja, who is
one of the heirs, for the reconstitution of the records of this
case, the Court on December 11, 1945, ordered the
reconstitution of the same, requiring the administrator to
submit his report and a copy of the project of partition.
On January 3, 1946, the administrator, Dr. Crisanto de
Borja, filed his accounts for the period ranging from March
1 to December 22, 1945, which according to the heirs of
Quintin de Borja were so inadequate and general that on
February 28, 1946, they filed a motion for specification. On
April 30, 1946, they also filed their opposition to said
statement of accounts alleging that the income reported in
said statement was very much less than the true and actual
income of the estate and that the expenses appearing
therein were exaggerated and/or not actually incurred,
and prayed that the statement of accounts submitted by
the
administrator
be
disapproved.
The administrator later filed another report of his
administration, dated August 9, 1949, corresponding to the
period lapsed from December 23, 1945, to July 31, 1949,
showing a cash balance of P71.96, but with pending

Page 16

obligation

amounting

to

P35,415.

On August 22, 1949, Juan de Borja and sisters, heirs of the

deceased Quintin de Borja, filed their opposition to the
statement of accounts filed by the administrator on the
ground that same was not detailed enough to enable the
interested parties to verify the same; that they cannot
understand why the Intestate could suffer any loss
considering that during the administration of the same by
the late Quintin de Borja, the Estate accumulated gains of
more than P100,000 in the form of advances to the heirs as
well as cash balance; that they desired to examine the
accounts of Dr. Crisanto de Borja to verify the loss and
therefore prayed that the administrator be ordered to
deposit with the Clerk of Court all books, receipts, accounts
and other papers pertaining to the Estate of Marcelo de
Borja. This motion was answered by the administrator
contending that the Report referred to was already clear
and enough, the income as well as the expenditures being
specified therein; that he had to spend for the repairs of
the properties of the Estate damaged during the Japanese
occupation; that the allegation that during the
administration of Quintin de Borja the Estate realized a
profit of P100,000 was not true, because instead of gain
there was even a shortage in the funds although said
administrator had collected all his fees (honorarios) and
commissions corresponding to the entire period of his
incumbency; that the obligations mentioned in said Report
will be liquidated before the termination of the
proceedings in the same manner as it is done in any other
intestate case; that he was willing to submit all the receipts
of the accounts for the examination of the interested
parties before the Clerk or before the Court itself; that this
Intestate could be terminated, the project of partition
having been allowed and confirmed by the Supreme Court
and that the Administrator was also desirous of
terminating it definitely for the benefit of all the parties.
On September 14, 1949, the administrator filed another
statement of accounts covering the period of from March 1,
1945, to July 31, 1949, which showed a cash balance of
P71.95, with pending obligations in the sum of P35,810.
The heirs of Quintin de Borja, Juan de Borja and his sisters,
registered their opposition to said statement of accounts
and prayed the Court to disapprove the same and to
appoint an accountant to go over the books of the
administrator and to submit a report thereon as soon as
possible. The heir Juliana de Borja also formally offered
her objection to the approval of the accounts submitted by
the administrator and prayed further that said
administrator be required to submit a complete
accounting of his administration of the Estate from 1937 to
1949. On the other hand, Francisco de Borja and Miguel B.
Dayco, as the only heir of the deceased Crisanta de Borja,
submitted to the Court an agreement to relieve the
administrator from accounting for the period of the
Japanese occupation; that as to the accounting from 1937
to 1941, they affirmed their conformity with the
agreement entered into by all the heirs appearing in the
Bill of Exceptions of Juliana de Borja; and that they have no
objection to the approval of the statement of accounts
submitted by the administrator covering the years 1945 to
1949.
On December 6, 1949, the administrator, answered the
opposition of the heir Juliana de Borja, alleging that the
corresponding statement of accounts for the years 1937,
1938, 1939, 1940 and 1941 were presented and approved
by the Court before and during the Japanese occupation,
but the records of the same were destroyed in the Office of

Rule 73: Venue and Process

the Clerk of that Court during the liberation of the province

of Rizal, and his personal records were also lost during the
Japanese occupation, when his house was burned; that
Judge Pea who was presiding over the Court in 1945
impliedly denied the petition of the heirs to require him to
render an accounting for the period from 1942 to the early
part of 1945, for the reason that whatever money obtained
from the Estate during said period could not be made the
subject of any adjudication it having been declared fiat
money and without value, and ordered that the statement
of accounts be presented only for the period starting from
March 1, 1945. The administrator further stated that he
was anxious to terminate this administration but some of
the heirs had not yet complied with the conditions
imposed in the project of partition which was approved by
the Supreme Court; that in accordance with said partition
agreement, Juliana de Borja must deliver to the
administrator all the jewelry, objects of value, utensils and
other personal belongings of the deceased spouses
Marcelo de Borja and Tarcila Quiogue, which said heir had
kept and continued to retain in her possession; that the
heirs of Quintin de Borja should deliver to the
administrator all the lands and a document transferring in
favor of the Intestate the two parcels of land with a total
area of 71 hectares of cultivated land in Cabanatuan,
Nueva Ecija which were in the possession of said heirs,
together with the house of Feliciana Mariano Vda. de
Sarangaya, which were the objects of Civil Case No. 6190
mentioned in Paragraph 11 of the project of partition; that
as a consequence of the said dispossession, the heirs of
Quintin de Borja must deliver to the administrator the
products of the 71 hectares of land in Cabanatuan, Nueva
Ecija, and the rentals of the house of Feliciana Mariano or
else render to the Court an accounting of the products of
these properties from the time they took possession of the
same in 1937 to the present; that there was a pending
obligation amounting to P36,000 as of September 14,
1949, which the heirs should pay before the properties
adjudicated to them would be delivered. The Court,
however, ordered the administrator on December 10,
1949, to show and prove by evidence why he should not be
required to include in his accounts the proceeds of his
administration
from
1937.
Meantime, Juliana de Borja filed a Constancia denying
possession of any jewelry belonging to the deceased
spouses Marcelo de Borja and Tarcila Quiogue or any other
persona] belonging of said spouses, and signified her
willingness to turn over to the administrator the
silverwares mentioned in Paragraph III of the project of
partition, which were the only property in her care, on the
date that she would expect the delivery to her of her share
in the inheritance from her deceased parents.
On July 6, 1950, Juan de Borja and his sisters Marcela,
Saturnina, Eufracia, Jacoba and Olimpia, all surnamed de
Borja, as heirs of Quintin de Borja, filed a motion for the
delivery to them of their inheritance in the estate,
tendering to the administrator a document ceding and
transferring to the latter all the rights, interests and
participation of Quintin de Borja in Civil Case No. 7190 of
the Court of First Instance of Nueva Ecija, pursuant to the
provisions of the Project of Partition, and expressing their
willingness to put up a bond if required to do so by the
Court, and on July 18, 1950, the Court ordered the
administrator to deliver to Marcela, Juan, Saturnina,
Eufracia, Jacoba and Olimpia, all surnamed de Borja, all the
properties adjudicated to them in the Project of Partition
dated February 8, 1944, upon the latters filing a bond in
the sum of P10,000 conditioned upon the payment of such
obligation as may be ordered by the Court after a hearing

Page 17

on the controverted accounts of the administrator. The

Court considered the fact that the heirs had complied with
the requirement imposed by the Project of Partition when
they tendered the document ceding and transferring the
rights and interests of Quintin de Borja in the
aforementioned lands and expressed the necessity of
terminating the proceedings as soon as practicable,
observing that the Estate had been under administration
for over twenty-five years already. The Court, however,
deferred action on the petition filed by the special
administratrix of the Intestate Estate of Juliana de Borja
until after compliance with the conditions imposed by the
project of partition. But on July 20, 1950, apparently
before the properties were delivered to the heirs,
Francisco de Borja and Miguel B. Dayco filed a motion
informing the Court that the two parcels of land located in
Cabanatuan, Nueva Ecija, produced some 21,300 cavans of
palay, amounting to P213,000 at P10 per cavan, which
were enjoyed by some heirs; that the administrator
Crisanto de Borja had not taken possession of the same for
circumstances beyond his control; and that there also
existed the sum of P70,204 which the former
administrator, Quintin de Borja, received from properties
that were redeemed, but which amount did not come into
the hands of the present administrator because according
to reliable information, same was delivered to the heir
Juliana de Borja who deposited it in her name at the
Philippine National Bank. It was, therefore prayed that the
administrator be required to exert the necessary effort to
ascertain the identity of the person or persons who were
in possession of the same amount and of the value of the
products of the lands in Mayapyap, Cabanatuan, Nueva
Ecija, and to recover the same for the Intestate Estate.
On July 28, 1950, the special administratrix of the estate of
Juliana de Borja, then deceased, filed an answer to the
motion of these two heirs, denying the allegation that said
heir received any product of the lands mentioned from
Quintin de Borja, and informed the Court that the
Mayapyap property had always been in the possession of
Francisco de Borja himself and prayed the Court that the
administrator be instructed to demand all the fruits and
products of said property from Francisco de Borja.
On July 28, 1950, the heirs of Quintin de Borja also filed
their opposition to the said motion of Francisco de Borja
and Miguel B. Dayco on the ground that the petition was
superfluous because the present proceeding was only for
the approval of the statement of accounts filed by the
administrator; that said motion was improper because it
was asking the Court to order the administrator to
perform what he was duty bound to do; and that said heirs
were already barred or estopped from raising that
question in view of their absolute ratification of and assent
to the statement of accounts submitted by the
administrator.
On August 16, 1950, by order of the Court, the properties
adjudicated to Juliana de Borja in the Project of Partition
were finally delivered to the estate of said heir upon the
filing of a bond for P20,000. In that same order, the Court
denied the administrators motion to reconsider the order
of July 18, 1950, requiring him to deliver to the heirs of
Quintin de Borja the properties corresponding to them, on
the ground that there existed no sufficient reason to
disturb said order. It also ruled that as the petition of
Francisco de Borja and Miguel B. Dayco made mention of
certain properties allegedly belonging to the Intestate, said
petition should properly be considered together with the
final
accounts
of
the
administrator.

Rule 73: Venue and Process

The administrator raised the matter by certiorari to this

Tribunal, which was docketed as G. R. No. L-4179, and on
May 30, 1951, We rendered decision affirming the order
complained of, finding that the heirs Juan de Borja and
sisters have complied with the requirement imposed in the
Project of Partition upon the tender of the document of
cession of rights and quit-claim executed by Marcela de
Borja, the administratrix of the Estate of Quintin de Borja,
and holding that the reasons advanced by the
administrator in opposing the execution of the order of
delivery
were
trivial.
On August 27, 1951, the administrator filed his amended
statement of accounts covering the period from March 1,
1945, to July 31, 1949, which showed a cash balance of
P36,660. An additional statement of accounts filed on
August 31, 1951 for the period of from August 1, 1949, to
August 31, 1951, showed a cash balance of P5,851.17 and
pending obligations in the amount of P6,165.03.
The heirs of Quintin de Borja again opposed the approval
of these statements of accounts charging the administrator
with having failed to include the fruits which the estate
should have accrued from 1941 to 1951 amounting to
P479,429.70, but as the other heirs seemed satisfied with
the accounts presented by said administrator and as their
group was only one of the 4 heirs of Intestate Estate, they
prayed that the administrator be held liable for only
P119,932.42 which was 1/4 of the amount alleged to have
been omitted. On October 4, 1951, the administrator filed a
reply to said opposition containing a counterclaim for
moral damages against all the heirs of Quintin de de Borja
in the sum of P30,000 which was admitted by the Court
over the objection of the heirs of Quintin de Borja that the
said
pleading
was
filed
out
of
time.
The oppositors, the heirs of Quintin de Borja, then filed
their answer to the counterclaim denying the charges
therein, but later served interrogatories on the
administrator relative to the averments of said
counterclaim. Upon receipt of the answer to said
interrogatories specifying the acts upon which the claim
for moral damages was based, the oppositors filed an
amended answer contending that inasmuch as the acts,
manifestations and pleadings referred to therein were
admittedly committed and prepared by their lawyer, Atty.
Amador E. Gomez, same cannot be made the basis of a
counterclaim, said lawyer not being a party to the action,
and furthermore, as the acts upon which the claim for
moral damages were based had been committed prior to
the effectivity of the new Civil Code, the provisions of said
Code on moral damages could not be invoked. On January
15, 1952, the administrator filed an amended counterclaim
including the counsel for the oppositors as defendant.
There followed a momentary respite in the proceedings
until another judge was assigned to preside over said court
to dispose of the old cases pending therein. On August 15,
1952, Judge Encarnacion issued an order denying
admission to administrators amended counterclaim
directed against the lawyer, Atty. Amador E. Gomez,
holding that a lawyer, not being a party to the action,
cannot be made answerable for counterclaims. Another
order was also issued on the same date dismissing the
administrators counterclaim for moral damages against
the heirs of Quintin de Borja and their counsel for the
alleged defamatory acts, manifestations and utterances,
and stating that granting the same to be meritorious, yet it
was a strictly private controversy between said heirs and
the administrator which would not in any way affect the
interest of the Intestate, and, therefore, not proper in an

Page 18

intestate proceedings. The Court stressed that to allow the

ventilation of such personal controversies would further
delay the proceedings in the case which had already lagged
for almost 30 years, a situation which the Court would not
countenance.
Having disposed of these pending incidents which arose
out of the principal issue, that is, the disputed statement of
accounts submitted by the administrator, the Court
rendered judgment on September 5, 1952, ordering the
administrator to distribute the funds in his possession to
the heirs as follows: P1,395.90 to the heirs of Quintin de
Borja; P314.99 to Francisco de Borja; P314.99 to the Estate
of Juliana de Borja and P314.99 to Miguel B. Dayco, but as
the latter still owed the intestate the sum of P900, said
heirs was ordered to pay instead the 3 others the sum of
P146.05 each. After considering the testimonies of the
witnesses presented by both parties and the available
records on hand, the Court found the administrator guilty
of maladministration and sentenced Crisanto de Borja to
pay to the oppositors, the heirs of Quintin de Borja, the
sum of P83,337.31, which was 1/4 of the amount which
the estate lost, with legal interest from the date of the
judgment. On the same day, the Court also issued an order
requiring the administrator to deliver to the Clerk of that
Court PNB Certificate of Deposit No. 211649 for P978.50
which was issued in the name of Quintin de Borja.
The administrator, Dr. Crisanto de Borja, gave notice to
appeal from the lower Courts orders of August 15, 1952,
the decision of September 5, 1952, and the order of even
date, but when the Record on Appeal was finally approved,
the Court ordered the exclusion of the appeal from the
order of September 5, 1952, requiring the administrator to
deposit the PNB Certificate of Deposit No. 211649 with the
Clerk of Court, after the oppositors had shown that during
the hearing of that incident, the parties agreed to abide by
whatever resolution the Court would make on the
ownership of the funds covered by that deposit.
The issues. Reducing the issues to bare essentials, the
questions left for our determination are: (1) whether the
counsel for a party in a case may be included as a
defendant in a counterclaim; (2) whether a claim for moral
damages may be entertained in a proceeding for the
settlement of an estate; (3) what may be considered as acts
of maladministration and whether an administrator, as the
one in the case at bar, may be held accountable for any loss
or damage that the estate under his administration may
incur by reason of his negligence, bad faith or acts of
maladministration; and (4) in the case at bar has the
Intestate or any of the heirs suffered any loss or damage by
reason of the administrators negligence, bad faith or
maladministration? If so, what is the amount of such loss
or
damage?
I. Section 1, Rule 10, of the Rules of Court defines a
counterclaim as:chanrob1es virtual 1aw library
SECTION 1. Counterclaim Defined. A counterclaim is
any claim, whether for money or otherwise, which a party
may have against the opposing party. A counterclaim need
not diminish or defeat the recovery sought by the opposing
party, but may claim relief exceeding in amount or
different in kind from that sought by the opposing partys
claim.
It is an elementary rule of procedure that a counterclaim is
a relief available to a party-defendant against the adverse
party which may or may not be independent from the main
issue. There is no controversy in the case at bar, that the

Rule 73: Venue and Process

acts, manifestations and actuations alleged to be

defamatory and upon which the counterclaim was based
were done or prepared by counsel for oppositors; and the
administrator contends that as the very oppositors
manifested that whatever civil liability arising from acts,
actuations, pleadings and manifestations attributable to
their lawyer is enforceable against said lawyer, the
amended counterclaim was filed against the latter not in
his individual or personal capacity but as counsel for the
oppositors. It is his stand, therefore, that the lower court
erred in denying admission to said pleading. We differ
from the view taken by the administrator. The appearance
of a lawyer as counsel for a party and his participation in a
case as such counsel does not make him a party to the
action. The fact that he represents the interests of his
client or that he acts in their behalf will not hold him liable
for or make him entitled to any award that the Court may
adjudicate to the parties, other than his professional fees.
The principle that a counterclaim cannot be filed against
persons who are acting in representation of another
such as trustees in their individual capacities
(Chambers v. Cameron, 2 Fed. Rules Service, p. 155; 29 F.
Supp. 742) could be applied with more force and effect in
the case of a counsel whose participation in the action is
merely confined to the preparation of the defense of his
client. Appellant, however, asserted that he filed the
counterclaim against said lawyer not in his individual
capacity but as counsel for the heirs of Quintin de Borja.
But as we have already stated that the existence of a
lawyer-client relationship does not make the former a
party to the action, even this allegation of appellant will
not alter the result We have arrived at.
Granting that the lawyer really employed intemperate
language in the course of the hearings or in the
preparation of the pleadings filed in connection with this
case, the remedy against said counsel would be to have
him cited for contempt of court or take other
administrative measures that may be proper in the case,
but certainly not a counterclaim for moral damages.
II. Special Proceedings No. 6414 of the Court of First
Instance of Rizal (Pasig branch) was instituted for the
purpose of settling the Intestate Estate of Marcelo de
Borja. In taking cognizance of the case, the Court was
clothed with a limited jurisdiction which cannot expand to
collateral matters not arising out of or in any way related
to the settlement and adjudication of the properties of the
deceased, for it is a settled rule that the jurisdiction of a
probate court is limited and special (Guzman v. Anog, 37
Phil. 361). Although there is a tendency now to relax this
rule and extend the jurisdiction of the probate court in
respect to matters incidental and collateral to the exercise
of its recognized powers (14 Am. Jur. 251-252), this should
be understood to comprehend only cases related to those
powers specifically allowed by the statutes. For it was even
said
that:jgc:chanrobles.com.ph
"Probate proceedings are purely statutory and their
functions limited to the control of the property upon the
death of its owner, and cannot extend to the adjudication
of collateral questions" (Woesmes, The American Law of
Administration,
Vol.
I,
p.
514,
662663).
It was in the acknowledgment of its limited jurisdiction
that the lower court dismissed the administrators
counterclaim for moral damages against the oppositors,
particularly against Marcela de Borja who allegedly
uttered derogatory remarks intended to cast dishonor to
said administrator sometime in 1950 or 1951, his Honors
ground being that the court exercising limited jurisdiction

Page 19

cannot entertain claims of this kind which should properly

belong to a court of general jurisdiction. From whatever
angle it may be looked at, a counterclaim for moral
damages demanded by an administrator against the heirs
for alleged utterances, pleadings and actuations made in
the course of the proceeding, is an extraneous matter in a
testate or intestate proceedings. The injection into the
action of incidental questions entirely foreign in probate
proceedings should not be encouraged for to do otherwise
would run counter to the clear intention of the law, for it
was
held
that:jgc:chanrobles.com.ph
"The speedy settlement of the estate of deceased persons
for the benefit of the creditors and those entitled to the
residue by way of inheritance or legacy after the debts and
expenses of administration have been paid, is the ruling
spirit of our probate law" (Magbanua v. Akel, 72 Phil., 567,
40
Off.
Gaz.,
1871).
III. and IV. This appeal arose from the opposition of the
heirs of Quintin de Borja to the approval of the statements
of accounts rendered by the administrator of the Intestate
Estate of Marcelo de Borja, on the ground that certain
fruits which should have accrued to the estate were
unaccounted for, which charge the administrator denied.
After a protracted and extensive hearing on the matter, the
Court, finding the administrator, Dr. Crisanto de Borja,
guilty of certain acts of maladministration, held him liable
for the payment to the oppositors, the heirs of Quintin de
Borja, of 1/4 of the unreported income which the estate
should have received. The evidence presented in the court
below bear out the following facts:chanrob1es virtual 1aw
library
(a) The estate owns a 6-door building, Nos. 1541, 1543,
1545, 1547, 1549 and 1551 in Azcarraga Street, Manila,
situated in front of the Arranque market. Of this property,
the administrator reported to have received for the estate
the following rentals:chanrob1es virtual 1aw library
Period

of

Time

Total

rentals

Unnual

monthly
March

rental
to

December,

1945
1946

P3,085.00
4,980.00

P51.42

January

to

December,

January

to

December,

1947

8,330.00

115.70

January

to

December,

1948

9,000.00

125.00

January

to

December,

1949

8,840.00

122.77

January

to

December,

1950

6,060.00

184.16

TOTAL

69.17

P40,295.00

The oppositors, in disputing this reported income,

presented at the witness stand Lauro Aguila, a lawyer who
occupied the basement of Door No. 1541 and the whole of
Door No. 1543 from 1945 to November 15, 1949, and who
testified that he paid rentals on said apartments as
follows:chanrob1es
virtual
1aw
library
1945
Door

No.

1541

February

P20.00

Door

Rule 73: Venue and Process

(basement)
No.

1543

March
April

20.00

For

60.00

months

month

at

P300

P2,100.00

May-December

800.00

Total

P900.00

1946
January-December
P4,080.00

P1,200.00

January-December

1947
January
February
March

P100.00
100.00
180.00

January
February
March

P380.00
380

1-15

00
190.00

April-December 1,440.00 March 16-December 4,085.00

1,820.00

P5,035.00

1948
January-December
P5,150.00

P1,920.00

January-December

1949
January-November
P4,315.00

15

P1,680.00

January-December

From the testimony of said witness, it appears that from

1945 to November 15, 1949, he paid a total of P28,200 for
the lease of Door No. 1543 and the basement of Door No.
1541. These figures were not controverted or disputed by
the administrator but claimed that said tenant subleased
the apartments occupied by Pedro Enriquez and Soledad
Sodora and paid the said rentals, not to the administrator,
but to said Enriquez. The transcript of the testimony of this
witness really bolster this contention - that Lauro Aguila
talked with said Pedro Enriquez when he leased the
aforementioned apartments and admitted paying the
rentals to the latter and not to the administrator. It is
interesting to note that Pedro Enriquez is the same person
who appeared to be the administrators collector, duly
authorized to receive the rentals from this Azcarraga
property and for which services, said Enriquez received 5
per cent of the amount he might be able to collect as
commission. If we are to believe appellants contention,
aside from the commission that Pedro Enriquez received
he also sublet the apartments he was occupying at a very
much higher rate than that he actually paid the estate
without the knowledge of the administrator or with his
approval. As the administrator also seemed to possess that
peculiar habit of giving little importance to bookkeeping
methods, for he never kept a ledger or book of entry for
amounts received for the estate, We find no record of the
rentals the lessees of the other doors were paying. It was,
however, brought about at the hearing that the 6 doors of
this building are of the same sizes and construction and
the lower Court based its computation of the amount this
property should have earned for the estate on the rental
paid by Atty. Aguila for the 1 1/2 doors that he occupied.
We see no excuse why the administrator could not have
taken cognizance of these rates and received the same for
the benefit of the estate he was administering, considering
the fact that he used to make trips to Manila usually once a

Page 20

month and for which he charged to the estate P8 as

transportation
expenses
for
every
trip.
Basing on the rentals paid by Atty. Aguila for 1 1/2 doors,
the estate would have received P112,800 from February 1,
1945, to November 15, 1949, for the 6 doors, but the lower
Court held him accountable not only for the sum of
P34,235 reported for the period ranging from March 1,
1945, to December 31, 1949, but also for a deficit of
P90,525 or a total of P124,760. The record shows,
however that the upper floor of Door No. 1549 was vacant
in September, 1949, and as Atty. Aguila used to pay P390 a
month for the use of an entire apartment from September
to November, 1949, and he also paid P160 for the use of
the basement of an apartment (Door No. 1541), the use,
therefore, of said upper floor would cost P230 which
should be deducted, even if the computation of the lower
Court
would
have
to
be
followed.
There being no proper evidence to show that the
administrator collected more rentals than those reported
by him, except in the instance already mentioned, We are
reluctant to hold him accountable in the amount for which
he was held liable by the lower Court, and We think that
under the circumstances it would be more just to add to
the sum reported by the administrator as received by him
as rents for 1945-1949 only, the difference between the
sum reported as paid by Atty. Aguila and the sum actually
paid by the latter as rents of 1 1/2 of the apartments
during the said period, or P25,457.09 1/4 of which is
P6,364.27 which shall be paid to the oppositors.
The record also shows that in July, 1950, the administrator
delivered to the other heirs Doors Nos. 1545, 1547, 1549
and 1551 although Doors Nos. 1541 and 1543 adjudicated
to the oppositors remained under his administration. For
the period from January to June, 1950, that the entire
property was still administered by him, the administrator
reported to have received for the 2 oppositors apartments
for said period of six months at P168.33 a month, the sum
of P1,010 which belongs to the oppositors and should be
taken from the amount reported by the administrator.
The lower Court computed at P40 a month the pre-war
rental admittedly received for every apartment, the
income that said property would have earned from 1941
to 1944, or a total of P11,520, but as We have to exclude
the period covered by the Japanese occupation, the estate
should receive only P2,880 1/4 of which P720 the
administrator should pay to the oppositors for the year
1941.
(b) The Intestate estate also owned a parcel of land in
Mayapyap, Nueva Ecija, with an area of 71 hectares, 95
ares and 4 centares, acquired by Quintin de Borja from the
spouses Cornelio Sarangaya and Feliciana Mariano in Civil
Case No. 6190 of the Court of First Instance of said
province. In virtue of the agreement entered into by the
heirs, this property was turned over by the estate of
Quintin de Borja to the intestate and formed part of the
general mass of said estate. The report of the
administrator failed to disclose any return from this
property alleging that he had not taken possession of the
same. He does not deny however that he knew of the
existence of this land but claimed that when he demanded
the delivery of the Certificate of Title covering this
property, Rogelio Limaco, then administrator of the estate
of Quintin de Borja, refused to surrender the same and he
did not take any further action to recover the same.

Borja was in possession of this property from 1940 to

1950, the oppositors presented several witnesses, among
them was an old man, Narciso Punzal, who testified that he
knew both Quintin and Francisco de Borja; that before the
war or sometime in 1937, the former administrator of the
Intestate, Quintin de Borja, offered him the position of
overseer (encargado) of this land but he was not able to
assume the same due to the death of said administrator;
that on July 7, 1951, herein appellant invited him to go to
his house in Pateros, Rizal, and while in said house, he was
instructed by appellant to testify in court next day that he
was the overseer of the Mayapyap property for Quintin de
Borja from 1937-1944, delivering the yearly proceeds of
1,000 cavanes of palay to Rogelio Limaco; that he did not
need to be afraid because both Quintin de Borja and
Rogelio Limaco were already dead. But as he knew that the
facts on which he was to testify were false, he went instead
to the house of one of the daughters of Quintin de Borja,
who, together with her brother, Atty. Juan de Borja,
accompanied him to the house of the counsel for said
oppositors before whom his sworn declaration was taken
(Exh.
3).
Other witnesses, i.e., Isidro Benuya, Federico Cojo, Emilio
de la Cruz and Ernesto Mangulabnan, testified that they
were some of the tenants of the Mayapyap property; that
they were paying their shares to the overseers of Francisco
de Borja and sometimes to his wife, which the
administrator was not able to contradict, and the lower
Court found no reason why the administrator would fail to
take possession of this property considering that this was
even the subject of the agreement of February 16, 1940,
executed
by
the
heirs
of
the
Intestate.
The lower Court, giving due credence to the testimonies of
the witnesses for the oppositors, computed the loss the
estate suffered in the form of unreported income from the
rice lands for 10 years at P67,000 (6,700 a year) and the
amount of P4,000 from the remaining portion of the land
not devoted to rice cultivation which was being leased at
P20 per hectare. Consequently, the Court held the
administrator liable to appellees in the sum of P17,750
which is 1/4, of the total amount which should have
accrued
to
the
estate
for
this
item.
But if We exclude the 3 years of occupation, the income for
7 years would be P46,900 for the ricelands and P2,800 (at
P400 a year) for the remaining portion not devoted to rice
cultivation or a total of P48,700, 1/4 of which is P12,175
which We hold the administrator liable to the oppositors.
(c) The Hacienda Jalajala located in said town of Rizal, was
divided into 3 parts: the Punta section belonged to Marcelo
de Borja, the Bagombong pertained to Bernardo de Borja
and Francisco de Borja got the Jalajala proper. For the
purpose of this case, we will just deal with that part called
Junta. This property has an area of 1,345, hectares, 29 ares
and 2 centares (Exh. 36) of which, according to the
surveyor who measured the same, 200 hectares were of
cultivated rice fields and 100 hectares dedicated to the
planting of upland rice. It has also timberland and forest
which produce considerable amount of trees and
firewoods. From the said property which has an assessed
value of P115,000 and for which the estates pay real estate
tax of P1,500 annually, the administrator reported the
following.
Expenditures
(not

including

To counteract the insinuation that the Estate of Quintin de

Rule 73: Venue and Process

Page 21

administrations
Year

Income

fees.

1945

P625.00

P1,310.42

1946

1,800.00

3,471.00

1947

2,550.00

2,912.91

1948

1,828.00

3,311.88

1949

3,204.50

4,792.09

1950

2,082.00

2,940.91

P12,089.50

P18,739.21

This statement was assailed by the oppositors and to

substantiate their charge that the administrator did not file
the true income of the property, they presented several
witnesses who testified that there were about 200 tenants
working therein, that these tenants paid to Crisanto de
Borja rentals at the rate of 6 cavanes of palay per hectare;
that in the years of 1943 and 1944, the Japanese were the
ones who collected their rentals, and that the estate could
have received no less than 1,000 cavanes of palay yearly.
After the administrator had presented witnesses to refute
the facts previously testified to by the witnesses for the
oppositors, the Court held that the report of the
administrator did not contain the real income of the
property devoted to rice cultivation, which was fixed at
1,000 cavanes every year for 1941, 1942, 1945, 1946,
1947, 1948, 1949 and 1950, or a total of 8,000 cavanes
valued at P73,000. But as the administrator accounted for
the sum of P11,155 collected from rice harvests and if to
this amount we add the sum of P8,739.20 for expenses,
this will make a total of P19,894.20, thus leaving a deficit
of P53,105.80, 1/4 of which will be P13,276.45 which the
administrator is held liable to pay the heirs of Quintin de
Borja.
It was also proved during the hearing that the forestland of
this property yields considerable amount of marketable
firewoods. Taking into consideration the testimonies of
witnesses for both parties, the Court arrived at the
conclusion that the administrator sold to Gregorio Santos
firewoods worth P600 in 1941, P3,500 in 1945 and P4,200
in 1946 or a total of P8,300. As the report included only
the amount of P625, there was a balance of P7,675 in favor
of the estate. The oppositors were not able to present any
proof of sales made after these years, if there were any and
the administrator was held accountable to the oppositors
for
only
P1,918.75.
(d) The estate also owned ricefields in Cainta, Rizal, with a
total area of 22 hectares, 76 ares and 66 centares. Of this
particular item, the administrator reported an income of
P12,104 from 1945 to 1951. The oppositors protested
against this report and presented witnesses to disprove
the
same.
Basilio Javier worked as a tenant in the land of Juliana de
Borja which is near the land belonging to the Intestate, the
2 properties being separated only by a river. As tenant of
Juliana de Borja, he knew the tenants working on the
property and also knows that both lands are of the same
class, and that an area accommodating one cavan of
seedlings yields at most 100 cavanes and 60 cavanes at the
least. The administrator failed to overcome this testimony.
The lower Court considering the facts testified to by this

Rule 73: Venue and Process

witness made a finding that the property belonging to this

Intestate was actually occupied by several persons
accommodating 13 1/2 cavanes of seedlings; that as for
every cavan of seedlings, the land produces 60 cavanes of
palay, the whole area under cultivation would have yielded
810 cavanes a year and under the 50-50 sharing system
(which was testified to by witness Javier), the estate
should have received no less than 405 cavanes every year.
Now, for the period of 7 years from 1941 to 1950,
excluding the 3 years of war the corresponding earning
of the estate should be 2,835 cavanes, out of which the 405
cavanes from the harvest of 1941 is valued at P1,215 and
the rest 2,430 cavanes at P10 is valued at P24,300, or all in
all P25,515. If from this amount the reported income of
P12,104 is deducted, there will be a balance of P13,411.10
1/4, of which or P3,352.75 the administrator is held liable
to
pay
to
the
oppositors.
(e) The records show that the administrator paid
surcharges and penalties with a total of P988.75 for his
failure to pay on time the taxes imposed on the properties
under his administration. He advanced the reason that he
lagged in the payment of those tax obligations because of
lack of cash balance for the estate. The oppositors,
however, presented evidence that on October 29, 1939, the
administrator received from Juliana de Borja the sum of
P20,475.17 together with certain papers pertaining to the
intestate (Exh. 4), aside from the checks in the name of
Quintin de Borja. Likewise, for his failure to pay the taxes
on the building at Azcarraga for 1947, 1948 and 1949, said
property was sold at public auction and the administrator
had to redeem the same at P3,295.48, although the amount
that should have been paid was only P2,917.26. The estate
therefore suffered a loss of P378.22. Attributing these
surcharges and penalties to the negligence of the
administrator, the lower Court adjudged him liable to pay
the oppositors 1/4 of P1,366.97, the total loss suffered by
the
Intestate,
or
P341.74.
(f) Sometime in 1942, a big fire razed numerous houses in
Pateros, Rizal, including that of Dr. Crisanto de Borja.
Thereafter, he claimed that among the properties burned
therein was his safe containing P15,000 belonging to the
estate under his administration. The administrator
contended that this loss was already proved to the
satisfaction of the Court who approved the same by order
of January 8, 1943, purportedly issued by Judge Servillano
Platon (Exh. B). The oppositors contested the genuineness
of this order and presented on April 21, 1950, an expert
witness who conducted several tests to determine the
probable age of the questioned document, and arrived at
the conclusion that the questioned ink writing" (Fdo)"
appearing at the bottom of Exhibit B cannot be more than
4 years old (Exh. 39). However, another expert witness
presented by the administrator contradicted this finding
and testified that this conclusion arrived at by expert
witness Mr. Pedro Manzaares was not supported by
authorities and was merely the result of his own theory, as
there was no method yet discovered that would determine
the age of a document, for every document has its own
reaction to different chemicals used in the tests. There is,
however, another fact that called the attention of the lower
Court: the administrator testified that the money and other
papers delivered by Juliana de Borja to him on October 29,
1939, were saved from said fire. The administrator
justified the existence of these valuables by asserting that
these properties were locked by Juliana de Borja in her
drawer in the "casa solariega" in Pateros and hence was
not in his safe when his house, together with the safe, was
burned. This line of reasoning is really subject to doubt
and the lower Court opined, that it runs counter to the

Page 22

ordinary course of human behavior for an administrator to

leave in the drawer of the "aparador" of Juliana de Borja
the money and other documents belonging to the estate
under his administration, which delivery has receipted for,
rather than to keep it in his safe together with the alleged
P15,000 also belonging to the Intestate. The subsequent
orders of Judge Platon also put the defense of appellant to
bad light, for on February 6, 1943, the Court required
Crisanto de Borja to appear before the Court of
examination of the other heirs in connection with the
reported loss, and on March 1, 1943, authorized the
lawyers for the other parties to inspect the safe allegedly
burned (Exh. 35). It is inconceivable that Judge Platon
would still order the inspection of the safe if there was
really an order approving the loss of those P15,000. We
must not forget, in this connection, that the records of this
case were burned and that at the time of the hearing of this
incident in 1951, Judge Platon was already dead. The lower
Court also found no reason why the administrator should
keep in his possession such amount of money, for ordinary
prudence would dictate that as an administration funds
that come into his possession in a fiduciary capacity should
not be mingled with his personal funds and should have
been deposited in the Bank in the name of the intestate.
The administrator was held responsible for this loss and
ordered to pay 1/4 thereof, or the sum of P3,750.
(g)

Unauthorized

expenditures

1. The report of the administrator contained certain sums

amounting to P2,130 paid to and receipted by Juanita V.
Jarencio the administrators wife, as his private secretary.
In explaining this item, the administrator alleged that he
needed her services to keep receipts and records for him,
and that he did not secure first the authorization from the
court before making these disbursements because it was
merely
a
pure
administrative
function.
The keeping of receipts and retaining in his custody
records connected with the management of the properties
under administration is a duty that properly belongs to the
administrator, necessary to support the statement of
accounts that he is obliged to submit to the court for
approval. If ever his wife took charge of the safekeeping of
these receipts and for which she should be compensated,
the same should be taken from his fee. This disbursement
was disallowed by the Court for being unauthorized and
the administrator required to pay the oppositors 1/4
thereof
or
P532.50.
2. The salaries of Pedro Enriquez, as collector of the
Azcarraga property; of Briccio Matienzo and Leoncio
Perez, as encargados, and of Vicente Panganiban and
Herminigildo Macetas as forest-guards were found
justified, although unauthorized, as they appear to be
reasonable and necessary for the care and preservation of
the
Intestate.
3. The lower Court disallowed as unjustified and
unnecessary the expenses for salaries paid to special
policemen amounting to P1,509. Appellant contended that
he sought for the services of Macario Kamungol and others
to act as special policemen during harvest time because
most of the workers tilling the Punta property were not
natives of Jalajala but of the neighboring towns and they
were likely to run away with the harvest without giving
the share of the estate if they were not policed. This kind of
reasoning did not appear to be convincing to the trial judge
as the cause for such fear seemed to exist only in the
imagination. Granting that such kind of situation existed,
the proper thing for the administrator to do would have

Rule 73: Venue and Process

been to secure the previous authorization from the Court if

he failed to secure the help of the local police. He should be
held liable for this unauthorized expenditure and pay the
heirs of Quintin de Borja 1/4 thereof or P377.25.
4. From the year 1942 when his house was burned, the
administrator and his family took shelter at the house
belonging to the Intestate known as "casa solariega"
which, in the Project of Partition, was adjudicated to his
father, Francisco de Borja. This property, however,
remained under his administration and for its repairs he
spent from 1945-1950, P1,465.14, duly receipted.
None of these repairs appear to be extraordinary for the
receipts were for nipa, for carpenters and thatchers.
Although it is true that Rule 85, Section 2 provides
that:chanrob1es
virtual
1aw
library
SEC. 2. EXECUTOR OR ADMINISTRATOR TO KEEP
BUILDINGS IN REPAIR. An executor or administrator
shall maintain in tenantable repair the houses and other
structures and fences belonging to the estate, and deliver
the same in such repair to the heirs or devisees when
directed
so
to
do
by
the
court.
yet considering that during his occupancy of the said "casa
solariega" he was not paying any rental at all, it is but
reasonable that he should take care of the expenses for the
ordinary repair of said house. Appellant asserted that had
he and his family not occupied the same, they would have
to pay someone to watch and take care of said house. But
this will not excuse him from this responsibility for the
disbursements he made in connection with the
aforementioned repairs because even if he stayed in
another house, he would have had to pay rentals or else
take charge also of expenses for the repairs of his
residence. The administrator should be held liable to the
oppositors
in
the
amount
of
P366.28.
5. Appellant reported to have incurred expenses
amounting to P6,304.75 for alleged repairs on the rice mill
in Pateros, also belonging to the Intestate. Of the
disbursements made therein, the items corresponding, to
Exhibits I, I-1, I-21, L-26, L-15, L-64 and L-65, in the total
sum of P570.70 were rejected by the lower court on the
ground that they were all unsigned although some were
dated. The lower Court, however, made an oversight in
including the sum of P150 covered by Exhibit L-26 which
was duly signed by Claudio Reyes because this does not
refer to the repair of the rice-mill but for the roofing of the
house and another building and shall be allowed.
Consequently, the sum of P570.70 shall be reduced to
P420.70 which added to the sum of P3,059 representing
expenditures rejected as unauthorized to wit:chanrob1es
virtual
1aw
library
Exhibit

L-59

P500.00

Yek

Wing

Exhibit

L-60

616.00

Yek

Wing

Exhibit

L-61

600.00

Yek

Wing

Exhibit

L-62

840.00

Yek

Wing

Exhibit

L-63

180.00

Yek

Wing

Exhibit
Total

Q-2

323.00

scale

"Howe"
P3,059.00

will give a total of P3,479 1/4 of which is P869.92 that

Page 23

belongs

to

the

oppositors.

6. On the reported expenses for planting in the Cainta

ricefields: In his statement of accounts, appellant
reported to have incurred a total expense of P5,977 for the
planting of the ricefields in Cainta, Rizal, from the
agricultural year 1945-46 to 1950-51. It was proved that
the prevailing sharing system in this part of the country
was on 50-50 basis. Appellant admitted that expenses for
planting were advanced by the estate and liquidated after
each harvest. But the report, except for the agricultural
year 1950 contained nothing of the payments that the
tenants should have made. If the total expenses for said
planting amounted to P5,977, 1/2 thereof or P2,988.50
should have been paid by the tenants as their share of such
expenditures, and as P965 was reported by the
administrator as paid back in 1950, there still remains a
balance of P2,023.50 unaccounted for. For this shortage,
the administrator is responsible and should pay the
oppositors
1/4
thereof
or
P505.87.
7. On the transportation expenses of the administrator:
It appears that from the year 1945 to 1951, the
administrator charged the estate with a total of P5,170 for
transportation expenses. The unreceipted disbursements
were correspondingly itemized, a typical example of which
is
as
follows:jgc:chanrobles.com.ph
"1950
"Gastos

de

viaje

del

administrador

"From

Pateros

"To

Pasig

"To

Manila

"To

Cainta

"To

Jalajala

50

50
8

P
x

x
5

P
x

4.00

P200.00

P10.00

P500.00

8.00
P35.00

P
=

64.00
P175.00

P939.00"
(Exhibit

W-54)

From the report of the administrator, We are being made

to believe that the Intestate estate is a losing proposition
and assuming arguendo that this is true, that precarious
financial condition which he, as administrator, should
know, did not deter Crisanto de Borja from charging to the
depleted funds of the estate comparatively big amounts for
his transportation expenses. Appellant tried to justify
these charges by contending that he used his own car in
making those trips to Manila, Pasig and Cainta and a
launch in visiting the properties in Jalajala, and they were
for the gasoline consumed. This rather unreasonable
spending of the estates fund prompted the Court to
observe that one will have to spend only P0.40 for
transportation in making a trip from Pateros to Manila and
practically the same amount in going to Pasig. From his
report for 1949 alone, appellant made a total of 97 trips to
these places or an average of one trip for every 3 1/2 days.
Yet We must not forget that it was during this period that
the administrator failed or refused to take cognizance of
the prevailing rentals of commercial places in Manila that
caused certain loss to the estate and for which he was
accordingly held responsible. For the reason that the
alleged disbursements made for transportation expenses
cannot be said to be economical, the lower Court held that
the administrator should be held liable to the oppositors

Rule 73: Venue and Process

for 1/4 thereof or the sum of P1,292.50, though We think

that this sum should still be reduced to P500.
8.

Other

expenses:chanrob1es

virtual

1aw

library

The administrator also ordered 40 booklets of printed

contracts of lease in the name of the Hacienda Jalajala
which cost P150. As the said hacienda was divided into 3
parts, one belonging to this Intestate and the other two
parts to Francisco de Borja and Bernardo de Borja,
ordinarily the Intestate should only shoulder 1/3 of the
said expense, but as the tenants who testified during the
hearing of the matter testified that those printed forms
were not being used, the Court adjudged the administrator
personally responsible for this amount. The records reveal,
however, that this printed form was not utilized because
the tenants refused to sign any, and We can presume that
when the administrator ordered for the printing of the
same, he did not foresee this situation. As there is no
showing that said printed contracts were used by another
and that they are still in the possession of the
administrator which could be utilized anytime, this
disbursement
may
be
allowed.
The report also contains a receipt of payment made to Mr.
Severo Abellera in the sum of P375 for his transportation
expenses as one of the two commissioners who prepared
the Project of Partition. The oppositors were able to prove
that on May 24, 1941, the Court authorized the
administrator to withdraw from the funds of the Intestate
the sum of P300 to defray the transportation expenses of
the commissioners. The administrator, however, alleged
that he used this amount for the payment of certain fees
necessary in connection with the approval of the proposed
plan of the Azcarraga property which was then being
processed in the City Engineers Office. From that
testimony, it would seem that appellant could even go to
the extent of disobeying the order of the Court specifying
for what purpose that amount should be appropriated and
took upon himself the task of judging for what it will serve
best. Since he was not able to show or prove that the
money intended and ordered by the Court to be paid for
the transportation expenses of the commissioners was
spent for the benefit of the estate as claimed, the
administrator should be held responsible therefor and pay
to the oppositors 1/4 of P375 or the sum of P93.75.
The records reveal that for the service of summons to the
defendants in Civil Case No. 84 of the Court of First
Instance of Rizal, P104 was paid to the Provincial Sheriff of
the same province (Exhibit H-7). However, an item for P40
appeared to have been paid to the Chief of Police of Jalajala
allegedly for the service of the same summons. Appellant
claimed that as the defendants in said case lived in remote
barrios, the services of the Chief of Police as delegate or
agent of the Provincial Sheriff were necessary. He forgot
probably the fact that local chiefs of police are deputy
sheriffs ex-officio. The administrator was therefore
ordered by the lower Court to pay 1/4 of said amount or
P10
to
the
oppositors.
The administrator included in his Report the sum of P550
paid to Atty. Filamor for his professional services rendered
for the defense of the administrator in G. R. No. L-4179,
which was decided against him, with costs. The lower
Court disallowed this disbursement on the ground that this
Court provided that the costs of that litigation should not
be borne by the estate but by the administrator himself,
personally.
Costs of a litigation in the Supreme Court taxed by the

Page 24

Clerk of Court, after a verified petition has been filed by the

prevailing party, shall be awarded to said party and will
only include his fee and that of his attorney for their
appearance which shall not be more than P40; expenses
for the printing and the copies of the record on appeal; all
lawful charges imposed by the Clerk of Court; fees for the
taking of depositions and other expenses connected with
the appearance of witnesses or for lawful fees of a
commissioner (De la Cruz, Philippine Supreme Court
Practice, p. 70-71). If the costs provided for in that case,
which this Court ordered to be chargeable personally
against the administrator are not recoverable by the latter,
with more reason this item could not be charged against
the Intestate. Consequently, the administrator should pay
the oppositors 1/4 of the sum of P550 or P137.50.
(e) The lower Court in its decision required appellant to
pay the oppositors the sum of P1,395 out of the funds still
in
the
possession
of
the
administrator.
In the statement of accounts submitted by the
administrator, there appeared a cash balance of P5,851.17
as of August 31, 1951. From this amount, the sum of
P1,002.96 representing the Certificate of Deposit No.
21619 and Check No. 57338, both of the Philippine
National Bank and in the name of Quintin de Borja, was
deducted leaving a balance of P4,848. As Judge Zulueta
ordered the delivery to the oppositors of the amount of
P1,890 in his order of October 8, 1951; the delivery of the
amount of P810 to the estate of Juliana de Borja in his
order of October 23, 1951, and the sum of P932.32 to the
same estate of Juliana de Borja by order of the Court of
February 29, 1952, or a total of P3,632.32 after deducting
the same from the cash in the possession of the
administrator, there will only be a remainder of P134.98.
The Intestate is also the creditor of Miguel B. Dayco, heir
and administrator of the estate of Crisanta de Borja, in the
sum of P900 (Exhibits S and S-1). Adding this credit to the
actual cash on hand, there will be a total of P1,034.98, 1/4
of which or P258.74 properly belongs to the oppositors.
However, as there is only a residue of P134.98 in the hands
of the administrator and dividing it among the 3 groups of
heirs who are not indebted to the Intestate, each group will
receive P44.99, and Miguel B. Dayco is under obligation to
reimburse
P213.76
to
each
of
them.
The lower Court ordered the administrator to deliver to
the oppositors the amount of P1,395.90 and P314.99 each
to Francisco de Borja and the estate of Juliana de Borja, but
as We have arrived at the computation that the three heirs
not indebted to the Intestate ought to receive P44.99 each
out of the amount of P134.98, the oppositors are entitled
to the sum of P1,080.91 the amount deducted from
them as taxes but which the Court ordered to be returned
to them plus P44.99 or a total of P1,125.90. It
appearing, however, that in a Joint Motion dated
November 27, 1952, duly approved by the Court, the
parties agreed to fix the amount at P1,125.58, as the
amount due and said heirs have already received this
amount in satisfaction of this item, no other sum can be
chargeable
against
the
administrator.
(f) The probate Court also ordered the administrator to
render an accounting of his administration during the
Japanese occupation on the ground that although appellant
maintained that whatever money he received during that
period is worthless, same having been declared without
any value, yet during the early years of the war, or during
1942-43, the Philippine peso was still in circulation, and
articles of prime necessity as rice and firewood

Rule 73: Venue and Process

commanded high prices and were paid with jewels or

other
valuables.
But We must not forget that in his order of December 11,
1945, Judge Pea required the administrator to render an
accounting of his administration only from March 1, 1945,
to December of the same year without ordering said
administrator to include therein the occupation period.
Although the Court below mentioned the condition then
prevailing during the war-years, We cannot simply
presume, in the absence of proof to that effect, that the
administrator received such valuables or properties for
the use or in exchange of any asset or produce of the
Intestate, and in view of the aforementioned order of Judge
Pea, which We find no reason to disturb, We see no
practical reason for requiring appellant to account for
those occupation years when everything was affected by
the abnormal conditions created by the war. The records
of the Philippine National Bank show that there was a
current account jointly in the names of Crisanto de Borja
and Juanita V. Jarencio, his wife, with a balance of
P36,750.35 in Japanese military notes and admittedly
belonging to the Intestate and We do not believe that the
oppositors or any of the heirs would be interested in an
accounting for the purpose of dividing or distributing this
deposit.
(g) On the sum
fees:chanrob1es

of P13,294
virtual

for administrators
1aw
library

It is not disputed that the administrator set aside for

himself and collected from the estate the sum of P13,294
as his fees from 1945 to 1951 at the rate of P2,400 a year.
There is also no controversy as to the fact that this
appropriated amount was taken without the order or
previous approval by the probate Court. Neither is there
any doubt that the administration of the Intestate estate by
Crisanto de Borja is far from satisfactory.
Yet it is a fact that Crisanto de Borja exercised the
functions of an administrator and is entitled also to a
certain amount as compensation for the work and services
he has rendered as such. Now, considering the extent and
size of the estate, the amount involved and the nature of
the properties under administration, the amount collected
by the administrator for his compensation at P200 a
month is not unreasonable and should therefore be
allowed.
It might be argued against this disbursement that the
records are replete with instances of highly irregular
practices of the administrator, such as the pretended
ignorance of the necessity of a book or ledger or at least a
list of chronological and dated entries of money or produce
the Intestate acquired and the amount of disbursements
made for the same properties; that admittedly he did not
have even a list of the names of the lessees to the
properties under his administration, nor even a list of
those who owed back rentals, and although We certainly
agree with the probate Court in finding appellant guilty of
acts of maladministration, specifically in mixing the funds
of the estate under his administration with his personal
funds instead of keeping a current account for the Intestate
in his capacity as administrator, We are of the opinion that
despite these irregular practices for which he was held
already liable and made in some instances to reimburse
the Intestate for amounts that were not properly
accounted for, his claim for compensation as
administrators fees shall be as they are hereby allowed.
Recapitulation. Taking all the matters threshed herein

Page 25

together, the administrator is held liable to pay to the heirs

of Quintin de Borja the following:chanrob1es virtual 1aw
library

(RTC) of Lingayen, Pangasinan. The said Resolutions

dismissed petitioners complaint against private
respondents Aurora C. Romero and Vittorio C. Romero.

Under Paragraphs III and IV:chanrob1es virtual 1aw

library

Petitioners allege that upon their fathers death on 18

October 1974, their mother, respondent Aurora Romero,
was appointed as legal guardian who held several real and
personal properties in trust for her children.3 Since that
year until the present, she continues to be the
administrator of the properties, businesses, and
investments comprising the estate of her late husband.

(a)

P7,084.27

(b)

12,175.00

(c)

16,113.95

(d)

3,352.75

(e)

341.74

(f)

3,750.00

(g)

1.

532.50

2.

377.25

4.

366.28

5.

869.92

6.

505.87

7.

500.00

8-a.
b.

93.75

c.

10.00

d.

137.50

P46,210.78
In view of the foregoing, the decision appealed from is
modified by reducing the amount that the administrator
was sentenced to pay the oppositors to the sum of
P46,210.78 (instead of P83,337.31), plus legal interests on
this amount from the date of the decision appealed from,
which is hereby affirmed in all other respects. Without
pronouncement as to costs. It is so ordered.
G.R. No. 188921

April 18, 2012

LEO C. ROMERO and DAVID AMANDO C.

ROMERO, Petitioners,
vs.
HON. COURT OF APPEALS, AURORA C. ROMERO and
VITTORIO C. ROMERO, Respondents.
DECISION
SERENO, J.:
This is a Petition filed under Rule 45 of the 1997 Rules of
Civil Procedure, praying for the reversal of the Decision1of
the Court of Appeals dated 14 April 2009 and the
subsequent Resolution2 dated 21 July 2009.
The Court of Appeals (CA) dismissed the Petition for
Certiorari filed by petitioners which alleged grave abuse of
discretion in the Resolutions dated 14 December 2007 and
29 January 2008 issued by Judge Maria Susana T. Baua in
her capacity as presiding judge of the Regional Trial Court

Rule 73: Venue and Process

Sometime in 2006, petitioners Leo and Amando

discovered that several Deeds of Sale were registered over
parcels of land that are purportedly conjugal properties of
their parents. These included the following real and
personal properties:
1. A parcel of land identified as Lot 3-G of Subdivision Plan
Psd-67995 situated in Barrio Pogon-lomboy, Mangatarem,
Pangasinan, containing an area of one thousand square
meters under Declaration of Real Property No. 16142 and
Transfer Certificate of Title (TCT) No. 290013 in the name
of Vittorio C. Romero. A warehouse stands on the lot,
covered by Declaration of Real Property No. 16142.
2. A parcel of land identified as Lot 3-D of Subdivision Plan
Psd-67995 situated in Barrio Pogon-lomboy, Mangatarem,
Pangasinan, containing an area of one thousand square
meters under Declaration of Real Property No. 405, and
TCT No. 77223 in the name of Spouses Dante Y. Romero
and Aurora Cruz-Romero.
3. A parcel of land identified as Lot 3-E of Subdivision Plan
Psd-67995 situated in Barrio Pogon-lomboy, Mangatarem,
Pangasinan, containing an area of one thousand square
meters under Declaration of
Real Property No. 407 and TCT No. 77224 in the names of
Spouses Dante Y. Romero and Aurora Cruz-Romero.
4. A parcel of land identified as Lot 3-H of Subdivision Plan
Psd-67995 situated in Barrio Pogon-lomboy, Mangatarem,
Pangasinan, containing an area of one thousand square
meters under Declaration of Real Property No. 406, and
TCT No. 77225 in the name of Spouses Dante Y. Romero
and Aurora Cruz-Romero.
5. A parcel of land identified as Lot 3815-A of Subdivision
Plan Psd-227224 situated in Barrio Pogon-lomboy,
Mangatarem, Pangasinan, containing an area of four
hundred ninety-four square meters under TCT No. 113514
in the name of Aurora Cruz vda. de Romero.
6. A parcel of land located in Barangay Burgos,
Mangatarem, Pangasinan, containing an area of more or
less three hundred seventy-nine square meters under
Declaration of Real Property No. 16136. It is not yet
registered under Act 496 or the Old Spanish Mortgage
Law, but registrable under Act 3344 as amended. The
improvement thereon, a building classified as a
warehouse, is covered by Declaration of Real Property No.
16136 A.
7. A parcel of land located in Brgy. Burgos, Mangatarem,
Pangasinan, containing an area of more or less two
hundred four square meters under Declaration of Real
Property No. 16139. It is not yet registered under Act 496
or Act 3344 as amended. The improvement thereon is
covered by Declaration of Real Property No. 16140.

Page 26

8. A parcel of land located in Brgy. Pogon-lomboy,

Mangatarem, Pangasinan, containing an area of more or
less eleven thousand six hundred forty-six square meters
under Declaration of Real Property No. 724 and TCT No.
284241 in the name of Aurora P. Cruz vda. de Romero.
9. A parcel of land located in Brgy. Pogon-lomboy,
Mangatarem, Pangasinan, containing an area of more or
less one thousand two hundred fifty-six square meters
under Declaration of Real Property No. 725 and TCT No.
284242 in the name of Aurora P. Cruz vda. de Romero.4
Petitioners claim that sometime in August of 2005, their
brother Vittorio through fraud, misrepresentation and
duress succeeded in registering the above-mentioned
properties in his name through of Deeds of Sale executed
by their mother, Aurora.5 Vittorio allegedly employed force
and threat upon her, and even administered drugs that
rendered her weak and vulnerable. Thus, Aurora signed
the Deeds of Sale without reading or knowing their
contents.
On 18 December 2006, petitioners filed a Complaint for
Annulment of Sale, Nullification of Title, and Conveyance of
Title (Amended)6 against private respondents Aurora C.
Romero and Vittorio C. Romero. Respondents filed their
Answer, arguing that the properties in question were
acquired long after the death of their father, Judge Dante
Romero; hence, the properties cannot be considered
conjugal. They allege that the lots covered by TCT Nos.
290010, 290011, 113514, and Tax Declaration Nos. 16136
and 11639 were paraphernal properties of Aurora which
she had mortgaged. Vittorio purportedly had to shell out
substantial amounts in order to redeem them. The lots
covered by TCT Nos. 77223, 77224, and 77225 were sold
by Aurora herself as attorney-in-fact of her children on 23
November 2006, since her authority to do so had never
been revoked or modified.
On 14 December 2007, the RTC rendered its Resolution
dismissing petitioners complaint, stating thus:
xxx(T)he case under Special Proceedings No. 5185 remains
pending in that no distribution of the assets of the estate of
the late Dante Y. Romero, nor a partition, has been effected
among his compulsory heirs. Thus, the contending claims
of plaintiffs and defendants in this case could not be
adjudicated nor passed upon by this Court without first
getting a definitive pronouncement from the intestate
court as to the share of each of the heirs of the late Dante Y.
Romero in his estate.
Even the claim of defendant Aurora C. Romero that some
of the properties being claimed by plaintiffs in this case are
her own, the same being paraphernal, is an issue which
must be taken up and established in the intestate
proceedings.7 (Emphasis supplied.)
The RTC denied their Motion for Reconsideration, citing
Section 3, Rule 87 of the Rules of Court which bars an heir
or a devisee from maintaining an action to recover the title
or possession of lands until such lands have actually been
assigned. The court ruled that "plaintiffs must first cause
the termination of Special Proceedings No. 5185 to its
logical conclusion before this case could be entertained by
the Court."8
Alleging grave abuse of discretion on the part of the trial
court in rendering the said Resolutions, petitioners filed
for certiorari under Rule 65 with the CA. On 14 April 2009,
the CA rendered the assailed judgment dismissing the
Petition, ruling that the properties involved in this case are

Rule 73: Venue and Process

part of the estate left to the heirs of Judge Romero, the

partition of which is already subject of an intestate
proceeding filed on 6 January 1976 in the then Court of
First Instance (CFI).9 The CA based its judgment on the
findings of the RTC that the inventory of the estate of Judge
Romero submitted to the CFI included the same parties,
properties, rights and interests as in the case before it.
Petitioners now come to us on a Rule 45 Petition, arguing
that the probate court may rule on issues pertaining to
title over property only in a provisional capacity. They
assert that the CA erred in dismissing their appeal, just
because the intestate proceeding has not yet terminated.
Petitioners, as heirs, are purportedly allowed to exercise
their option of filing a separate civil action in order to
protect their interests.
Thus, the singular issue in the case at bar is whether or not
petitioners in this case may file a separate civil action for
annulment of sale and reconveyance of title, despite the
pendency of the settlement proceedings for the estate of
the late Judge Dante Y. Romero.
Ruling of the Court
The probate court has jurisdiction to determine the issues
in the present case
Petitioners assert that the jurisdiction of the RTC sitting as
a probate or intestate court relates only to matters having
to do with the settlement of the estate of deceased persons
or the appointment of executors, but does not extend to
the determination of questions of ownership that arise
during the proceedings.10 They cite Ongsingco v.
Tan,11 Baybayan v. Aquino12 and several cases which state
that when questions arise as to ownership of property
alleged to be part of the estate of a deceased person, but
claimed by some other person to be his property, not by
virtue of any right of inheritance from the deceased but by
title adverse to that of the deceased and his estate, the
intestate court has no jurisdiction to adjudicate these
questions. Petitioners conclude that the issue of ownership
of the properties enumerated in their Petition and
included in the inventory submitted by respondent Aurora
Romero to the intestate court, must be determined in a
separate civil action to resolve title.13
The rulings in Ongsingco and Baybayan are wholly
inapplicable, as they both arose out of facts different from
those in the case at bar. Baybayan involved a summary
settlement for the estate of the decedent, in which a parcel
of land representing the share of decedents nephews and
nieces was already covered by a TCT under the name of a
third party. To defeat the writ of partition issued by the
probate court, the third party, petitioners Baybayan et al.,
had to file a separate civil action for quieting of their title
and for damages. The issue before the Court then devolved
upon the propriety of the probate courts order to amend
the Complaint for quieting of title before the regular court.
More importantly, Baybayan pertained to a civil action
involving third parties who were not heirs, and not privy
to the intestate proceedings in the probate court. The
present action was instituted precisely by heirs of Judge
Romero, against their brother, who is also an heir, and
their mother, who is the administrator of the estate.
In Coca v. Borromeo,14 this Court allowed the probate
court to provisionally pass upon the issue of title, precisely
because the only interested parties are all heirs to the
estate, subject of the proceeding, viz:

Page 27

It should be clarified that whether a particular matter

should be resolved by the Court of First Instance in the
exercise of its general jurisdiction or of its limited probate
jurisdiction is in reality not a jurisdictional question. In
essence, it is a procedural question involving a mode of
practice "which may be waived."

There is also authority abroad that where the court is

without jurisdiction to determine questions of title, as for
example, as between the estate and persons claiming
adversely, its orders and judgments relating to the sale do
not render the issue of title res judicata.17 (Citations
omitted, emphasis supplied.)

As a general rule, the question as to title to property

should not be passed upon in the testate or intestate
proceeding. That question should be ventilated in a
separate action. That general rule has qualifications or
exceptions justified by expediency and convenience.

In any case, there is no merit to petitioners claim that the

issues raised in the case at bar pertain to title and
ownership and therefore need to be ventilated in a
separate civil action. The issue before the court is not
really one of title or ownership, but the determination of
which particular properties should be included in the
inventory of the estate. In Civil Case No. 18757, the RTC
has listed the properties alleged by petitioners to have
been conjugal properties of their parents and, therefore,
part of the estate that was illegally sold to the respondent.
Some of these real properties identified seem to be the
same real properties that form part of the inventory of the
estate in the intestate proceedings.18

Thus, the probate court may provisionally pass upon in an

intestate or testate proceeding the question of inclusion in,
or exclusion from, the inventory of a piece of property
without prejudice to its final determination in a separate
action.
Although generally, a probate court may not decide a
question of title or ownership, yet if the interested parties
are all heirs, or the question is one of collation or
advancement, or the parties consent to the assumption of
jurisdiction by the probate court and the rights of third
parties are not impaired, then the probate court is
competent to decide the question of ownership.
We hold that the instant case may be treated as an
exception to the general rule that questions of title should
be ventilated in a separate action.
Here, the probate court had already received evidence on
the ownership of the twelve-hectare portion during the
hearing of the motion for its exclusion from (the)
inventory. The only interested parties are the heirs who
have all appeared in the intestate proceeding.15 (Citations
omitted.)
While it is true that a probate courts determination of
ownership over properties which may form part of the
estate is not final or ultimate in nature, this rule is
applicable only as between the representatives of the
estate and strangers thereto. Indeed, as early as Bacquial v.
Amihan,16 the court stated thus:
xxx The rulings of this court have always been to the effect
that in the special proceeding for the settlement of the
estate of a deceased person, persons not heirs, intervening
therein to protect their interests are allowed to do so
protect the same, but not for a decision on their action. In
the case of In re Estate of the deceased Paulina Vasquez
Vda. de Garcia, Teresa Garcia vs. Luisa Garcia, et al., 67
Phil., 353, this court held:
A court which takes cognizance of testate or intestate
proceedings has power and jurisdiction to determine
whether or not the properties included therein or excluded
therefrom belong prima facie to the deceased, although
such a determination is not final or ultimate in nature, and
without prejudice to the right of interested parties, in a
proper action, to raise the question on the ownership or
existence of the right or credit.
To this same effect are rulings in various states of the
United States.
* * * That the probate court is without jurisdiction to try
the title to property as between the representatives of an
estate and strangers thereto is too well established by the
authorities to require argument.

Rule 73: Venue and Process

Not only do petitioners assert their legal interest as

compulsory heirs, they also seek to be the owners, pro
indiviso, of the said properties. To anchor their claim, they
argue that the properties are conjugal in nature and hence
form part of their inheritance. For his defense, Vittorio
contends that the lots are the paraphernal properties of
Aurora that she had mortgaged, and that Vittorio
subsequently redeemed.
In Bernardo v. Court of Appeals,19 the Supreme Court
declared that the determination of whether a property is
conjugal or paraphernal for purposes of inclusion in the
inventory of the estate rests with the probate court:
xxx (T)he jurisdiction to try controversies between heirs of
a deceased person regarding the ownership of properties
alleged to belong to his estate, has been recognized to be
vested in probate courts. This is so because the purpose of
an administration proceeding is the liquidation of the
estate and distribution of the residue among the heirs and
legatees. Liquidation means determination of all the assets
of the estate and payment of all the debts and
expenses. Thereafter, distribution is made of the
decedent's liquidated estate among the persons entitled to
succeed him. The proceeding is in the nature of an action
of partition, in which each party is required to bring into
the mass whatever community property he has in his
possession. To this end, and as a necessary corollary, the
interested parties may introduce proofs relative to the
ownership of the properties in dispute. All the heirs who
take part in the distribution of the decedent's estate are
before the court, and subject to the jurisdiction thereof, in
all matters and incidents necessary to the complete
settlement of such estate, so long as no interests of third
parties are affected.
In the case now before us, the matter in controversy is the
question of ownership of certain of the properties involved
whether they belong to the conjugal partnership or to
the husband exclusively. This is a matter properly within
the jurisdiction of the probate court which necessarily has
to liquidate the conjugal partnership in order to determine
the estate of the decedent which is to be distributed among
his heirs who are all parties to the proceedings.20 xxx
(Emphasis supplied.)
In the present case, petitioners assume that the properties
subject of the allegedly illegal sale are conjugal and
constitute part of their share in the estate. To date, there
has been no final inventory of the estate or final order

Page 28

adjudicating the shares of the heirs. Thus, only the probate

court can competently rule on whether the properties are
conjugal and form part of the estate. It is only the probate
court that can liquidate the conjugal partnership and
distribute the same to the heirs, after the debts of the
estate have been paid.
Section 3, Rule 87 bars petitioners from filing the present
action
Petitioners next contend that even if the probate court has
the power to rule on their Complaint, the submission of the
issues in this case to the probate court is merely optional,
and not mandatory upon them. Hence, they argue, they still
have the right to bring these issues in a separate civil
action, if they so choose. They argue further that Section 3,
Rule 87 of the Revised Rules of Court is not applicable to
the present case.

13. The purported transfers and sales executed by

Defendant Aurora C. Romero to and in favor of Defendant
Vittorio C. Romero are nullities since all were simulated,
entered into without the intent and volition of Defendant
Aurora C. Romero, attended by force, intimidation, duress
and fraud and not supported with any valid or sufficient
consideration and with the sole depraved intentions of
depriving the other compulsory heirs of the late Judge
Dante Y. Romero of their rightful share in the
estate.23 (Emphasis omitted.)

The said provision states that:

Indeed, implicit in the requirement for judicial approval of

sales of property under administration is the recognition
that the probate court has the power to rescind or nullify
the disposition of a property under administration that
was effected without its authority.24 That petitioners have
the prerogative of choosing where to file their action for
nullification whether with the probate court or the
regular court is erroneous. As held in Marcos, II v. Court
of Appeals:

Sec. 3. Heir may not sue until share assigned. When an

executor or administrator is appointed and assumes the
trust, no action to recover the title or possession of lands
or for damages done to such lands shall be maintained
against him by an heir or devisee until there is an order of
the court assigning such lands to such heir or devisee or
until the time allowed for paying debts has expired.

xxx (T)he authority of the Regional Trial Court, sitting,

albeit with limited jurisdiction, as a probate court over the
estate of deceased individual, is not a trifling thing. The
court's jurisdiction, once invoked, and made effective,
cannot be treated with indifference nor should it be
ignored with impunity by the very parties invoking its
authority.

Petitioners believe that the above rule is subject to certain

exceptions. They invoke the doctrine that while heirs have
no standing in court to sue for the recovery of property of
the estate represented by an administrator, these heirs
may maintain such action if the administrator is unwilling
to bring the suit, or has allegedly participated in the act
complained of.

In testament to this, it has been held that it is within the

jurisdiction of the probate court to approve the sale of
properties of a deceased person by his prospective heirs
before final adjudication; to determine who are the heirs of
the decedent; the recognition of a natural child; the status
of a woman claiming to be the legal wife of the decedent;
the legality of disinheritance of an heir by the testator; and
to pass upon the validity of a waiver of hereditary
rights.25 (Citations omitted.)

On this contention, petitioners theory must again fail.

There is nothing on the record that would prove that
Aurora defied the orders of the probate court or entered
into sale agreements in violation of her trust. In fact,
petitioners are really accusing a co-heir, their brother
Vittorio, of having acquired certain properties which they
allege to be properties of their parents.
Even if we assume the property to be conjugal and thus,
part of the estate, Aurora Romeros acts as the
administrator of the estate are subject to the sole
jurisdiction of the probate court. In Acebedo v.
Abesamis,21 the Court stated:
In the case of Dillena vs. Court of Appeals, this Court made a
pronouncement that it is within the jurisdiction of the
probate court to approve the sale of properties of a
deceased person by his prospective heirs before final
adjudication. Hence, it is error to say that this matter
should be threshed out in a separate action.
The Court further elaborated that although the Rules of
Court do not specifically state that the sale of an
immovable property belonging to an estate of a decedent,
in a special proceeding, should be made with the approval
of the court, this authority is necessarily included in its
capacity as a probate court.22
Again, petitioners do not pose issues pertaining to title or
ownership. They are, in effect, questioning the validity of
the sales made by the administrator, an issue that can only
be properly threshed out by the probate court. Paragraph
13 of petitioners Complaint alleges as follows:

Rule 73: Venue and Process

Thus, the validity of the sales made by Aurora, allegedly

orchestrated by petitioners co-heir, Vittorio, can only be
determined by the probate court, because it is the probate
court which is empowered to identify the nature of the
property, and that has jurisdiction over Auroras actions
and dispositions as administrator. In Peaverde v.
Peaverde,26 the Court even adjudged the petitioners
guilty of forum-shopping for filing a separate civil action
despite the pendency of the said petitioners own case
seeking that letters of administration be granted to them.
Similar to the case at bar, the petitioners in Peaverde also
sought the annulment of titles in the name of their co-heir:
The two cases filed by petitioners are: (1) Sp. Proc. No. Q94-19471, which seeks letters of administration for the
estate of Mariano Peaverde; and (2) Civil Case No. Q-9524711, which seeks the annulment of the Affidavit of SelfAdjudication executed by Mariano Peaverde and the
annulment of titles in his name as well as the reopening of
the distribution of his estate.
Evidently, in filing Sp. Proc. No. Q-94-19471, petitioners
sought to share in the estate of Mariano, specifically the
subject land previously owned in common by Mariano and
his wife, Victorina.This is also what they hoped to obtain in
filing Civil Case No. Q-95-24711.
Indeed, a petition for letters of administration has for its
object the ultimate distribution and partition of a
decedent's estate. This is also manifestly sought in Civil
Case No. Q-95-24711, which precisely calls for the
"Reopening of Distribution of Estate" of Mariano
Peaverde. In both cases, petitioners would have to prove

Page 29

their right to inherit from the estate of Mariano Peaverde,

albeit indirectly, as heirs of Mariano's wife,
Victorina.1wphi1
Under the circumstances, petitioners are indeed guilty of
forum-shopping.
xxx

xxx

xxx

In the case at bar, it cannot be denied that the parties to Sp.

Proc. No. Q-94-19471 and Civil Case No. Q-95-24711 are
identical. There is also no question that the rights asserted
by petitioners in both cases are identical, i.e., the right of
succession to the estate of their aunt, Victorina, wife of
Mariano. Likewise, the reliefs prayed for --- to obtain their
share in the estate of Mariano --- are the same, such relief
being founded on the same facts ---their relationship to
Mariano's deceased wife, Victorina.27
WHEREFORE, the instant Petition is DENIED. As the
properties herein are already subject of an intestate
proceeding filed on 6 January 1976, the 14 April 2009
judgment of the Court of Appeals in CA-G.R. SP No. 104025
finding no grave abuse of discretion on the part of the RTC
is AFFIRMED.
SO ORDERED.
G.R. No. L-770

April 27, 1948

ANGEL
T.
vs.
INTESTATE ESTATE OF
deceased, respondent.

LIMJOCO, petitioner,
PEDRO

O. FRAGRANTE,

Angel Limjoco, Jr. and Delfin L. Gonzales for petitioner.

Bienvenido A. Tan for respondent.
HILADO, J.:
Under date of May 21, 1946, the Public Service
Commission, through Deputy Commissioner Fidel Ibaez,
rendered its decision in case No. 4572 of Pedro O.
Fragante, as applicant for a certificate of public
convenience to install, maintain and operate an ice plant in
San Juan, Rizal, whereby said commission held that the
evidence therein showed that the public interest and
convenience will be promoted in a proper and suitable
manner "by authorizing the operation and maintenance of
another ice plant of two and one-half (2-) tons in the
municipality of San Juan; that the original applicant Pedro
O. Fragante was a Filipino Citizen at the time of his death;
and that his intestate estate is financially capable of
maintaining the proposed service". The commission,
therefore, overruled the opposition filed in the case and
ordered "that under the provisions of section 15 of
Commonwealth Act No. 146, as amended a certificate of
public convenience be issued to the Intestate Estate of the
deceased Pedro Fragante, authorizing said Intestate Estate
through its Special or Judicial Administrator, appointed by
the proper court of competent jurisdiction, to maintain and
operate an ice plant with a daily productive capacity of two
and one-half (2-1/2) tons in the Municipality of San Juan
and to sell the ice produced from said plant in the said
Municipality of San Juan and in the Municipality of
Mandaluyong, Rizal, and in Quezon City", subject to the
conditions therein set forth in detail (petitioner's brief, pp.
33-34).
Petitioner makes four assignments of error in his brief as
follows:

Rule 73: Venue and Process

1. The decision of the Public Service Commission is not in

accordance with law.
2. The decision of the Public Service Commission is not
reasonably supported by evidence.
3. The Public Service Commission erred in not giving
petitioner and the Ice and Cold Storage Industries of the
Philippines, Inc., as existing operators, a reasonable
opportunity to meet the increased demand.
4. The decision of the Public Service Commission is an
unwarranted departure from its announced policy with
respect to the establishment and operation of ice plant.
(Pp. 1-2, petitioner's brief.)
In his argument petitioner contends that it was error on
the part of the commission to allow the substitution of the
legal representative of the estate of Pedro O. Fragante for
the latter as party applicant in the case then pending
before the commission, and in subsequently granting to
said estate the certificate applied for, which is said to be in
contravention of law.
If Pedro O. Fragante had not died, there can be no question
that he would have had the right to prosecute his
application before the commission to its final conclusion.
No one would have denied him that right. As declared by
the commission in its decision, he had invested in the ice
plant in question P 35,000, and from what the commission
said regarding his other properties and business, he would
certainly have been financially able to maintain and
operate said plant had he not died. His transportation
business alone was netting him about P1,440 a month. He
was a Filipino citizen and continued to be such till his
demise. The commission declared in its decision, in view of
the evidence before it, that his estate was financially able
to maintain and operate the ice plant. The aforesaid right
of Pedro O. Fragante to prosecute said application to its
conclusion was one which by its nature did not lapse
through his death. Hence, it constitutes a part of the assets
of his estate, for which a right was property despite the
possibility that in the end the commission might have
denied application, although under the facts of the case,
the commission granted the application in view of the
financial ability of the estate to maintain and operate the
ice plant. Petitioner, in his memorandum of March 19,
1947, admits (page 3) that the certificate of public
convenience once granted "as a rule, should descend to his
estate as an asset". Such certificate would certainly be
property, and the right to acquire such a certificate, by
complying with the requisites of the law, belonged to the
decedent in his lifetime, and survived to his estate and
judicial administrator after his death.
If Pedro O. Fragrante had in his lifetime secured an option
to buy a piece of land and during the life of the option he
died, if the option had been given him in the ordinary
course of business and not out of special consideration for
his person, there would be no doubt that said option and
the right to exercise it would have survived to his estate
and legal representatives. In such a case there would also
be the possibility of failure to acquire the property should
he or his estate or legal representative fail to comply with
the conditions of the option. In the case at bar Pedro O.
Fragrante's undoubted right to apply for and acquire the
desired certificate of public convenience the evidence
established that the public needed the ice plant was
under the law conditioned only upon the requisite
citizenship and economic ability to maintain and operate
the service. Of course, such right to acquire or obtain such

Page 30

certificate of public convenience was subject to failure to

secure its objective through nonfulfillment of the legal
conditions, but the situation here is no different from the
legal standpoint from that of the option in the illustration
just given.
Rule 88, section 2, provides that the executor or
administrator may bring or defend actions, among other
cases, for the protection of the property or rights of the
deceased which survive, and it says that such actions may
be brought or defended "in the right of the deceased".
Rule 82, section 1, paragraph (a), mentions among the
duties of the executor or administrator, the making of an
inventory of all goods, chattels, rights, credits, and estate of
the deceased which shall come to his possession or
knowledge, or to the possession of any other person for
him.
In his commentaries on the Rules of Court (Volume II, 2nd
ed., pages 366, 367) the present chief Justice of this Court
draws the following conclusion from the decisions cited by
him:
Therefore, unless otherwise expressly provided by law,
any action affecting the property or rights(emphasis
supplied) of a deceased person which may be brought by
or against him if he were alive, may likewise be instituted
and prosecuted by or against the administrator, unless the
action is for recovery of money, debt or interest thereon,
or unless, by its very nature, it cannot survive, because
death extinguishes the right . . . .
It is true that a proceeding upon the application for a
certificate of public convenience before the Public Service
Commission is not an "action". But the foregoing
provisions and citations go to prove that the decedent's
rights which by their nature are not extinguished by death
go to make up a part and parcel of the assets of his estate
which, being placed under the control and management of
the executor or administrator, can not be exercised but by
him in representation of the estate for the benefit of the
creditors, devisees or legatees, if any, and the heirs of the
decedent. And if the right involved happens to consist in
the prosecution of an unfinished proceeding upon an
application for a certificate of public convenience of the
deceased before the Public Service Commission, it is but
logical that the legal representative be empowered and
entitled in behalf of the estate to make the right effective in
that proceeding.
Manresa (Vol. III, 6th ed., p. 11) says that No. 10 of article
334 and article 336 of the Civil Code, respectively, consider
as immovable and movable things rights which are not
material. The same eminent commentator says in the cited
volume (p. 45) that article 336 of the Civil Code has been
deficiently drafted in that it is not sufficiently expressive of
all incorporeal rights which are also property for juridical
purposes.
Corpus Juris (Vol. 50, p. 737) states that in the broad sense
of the term, property includes, among other things, "an
option", and "the certificate of the railroad commission
permitting the operation of a bus line", and on page 748 of
the same volume we read:
However, these terms (real property, as estate or interest)
have also been declared to include every species of
title, inchoate or complete, and embrace rights which lie in
contract, whether executory or executed. (Emphasis
supplied.)

Rule 73: Venue and Process

Another important question raised by petitioner is

whether the estate of Pedro O. Fragrante is a "person"
within the meaning of the Public Service Act.
Words and Phrases, First Series, (Vol. 6, p, 5325), states
the following doctrine in the jurisdiction of the State of
Indiana:
As the estate of the decedent is in law regarded as a
person, a forgery committed after the death of the man
whose name purports to be signed to the instrument may
be prosecuted as with the intent to defraud the estate.
Billings vs. State, 107 Ind., 54, 55, 6 N. E. 914, 7 N. E. 763,
57 Am. Rep. 77.
The Supreme Court of Indiana in the decision cited above
had before it a case of forgery committed after the death of
one Morgan for the purpose of defrauding his estate. The
objection was urged that the information did not aver that
the forgery was committed with the intent to defraud any
person. The Court, per Elliott, J., disposed of this objection
as follows:
. . . The reason advanced in support of this proposition is
that the law does not regard the estate of a decedent as a
person. This intention (contention) cannot prevail. The
estate of the decedent is a person in legal contemplation.
"The word "person" says Mr. Abbot, "in its legal
signification, is a generic term, and includes artificial as
well as natural persons," 2 Abb. Dict. 271; Douglas vs.
Pacific, etc. Co., 4 Cal. 304; Planters', etc., Bank vs. Andrews,
8 Port. (Ala.) 404. It said in another work that 'persons are
of two kinds: natural and artificial. A natural person is a
human being. Artificial persons include (1) a collection or
succession of natural persons forming a corporation; (2) a
collection of property to which the law attributes the
capacity of having rights and duties. The latter class of
artificial persons is recognized only to a limited extent in
our law. "Examples are the estate of a bankrupt or
deceased person." 2 Rapalje & L. Law Dict. 954. Our own
cases inferentially recognize the correctness of the
definition given by the authors from whom we have
quoted, for they declare that it is sufficient, in pleading a
claim against a decedent's estate, to designate the
defendant as the estate of the deceased person, naming
him. Ginn vs. Collins, 43 Ind. 271. Unless we accept this
definition as correct, there would be a failure of justice in
cases where, as here, the forgery is committed after the
death of a person whose name is forged; and this is a result
to be avoided if it can be done consistent with principle.
We perceive no difficulty in avoiding such a result; for, to
our minds, it seems reasonable that the estate of a
decedent should be regarded as an artificial person. It is
the creation of law for the purpose of enabling a
disposition of the assets to be properly made, and,
although natural persons as heirs, devises, or creditors,
have an interest in the property, the artificial creature is a
distinct legal entity. The interest which natural persons
have in it is not complete until there has been a due
administration; and one who forges the name of the
decedent to an instrument purporting to be a promissory
note must be regarded as having intended to defraud the
estate of the decedent, and not the natural persons having
diverse interests in it, since ha cannot be presumed to have
known who those persons were, or what was the nature of
their respective interest. The fraudulent intent is against
the artificial person, the estate and not the natural
persons who have direct or contingent interest in it. (107
Ind. 54, 55, 6 N.E. 914-915.)

Page 31

In the instant case there would also be a failure of justice

unless the estate of Pedro O. Fragrante is considered a
"person", for quashing of the proceedings for no other
reason than his death would entail prejudicial results to
his investment amounting to P35,000.00 as found by the
commission, not counting the expenses and disbursements
which the proceeding can be presumed to have occasioned
him during his lifetime, let alone those defrayed by the
estate thereafter. In this jurisdiction there are ample
precedents to show that the estate of a deceased person is
also considered as having legal personality independent of
their heirs. Among the most recent cases may be
mentioned that of "Estate of Mota vs. Concepcion, 56 Phil.,
712, 717, wherein the principal plaintiff was the estate of
the deceased Lazaro Mota, and this Court gave judgment in
favor of said estate along with the other plaintiffs in these
words:
. . . the judgment appealed from must be affirmed so far as
it holds that defendants Concepcion and Whitaker are
indebted to he plaintiffs in the amount of P245,804.69 . . . .
Under the regime of the Civil Code and before the
enactment of the Code of Civil Procedure, the heirs of a
deceased person were considered in contemplation of law
as the continuation of his personality by virtue of the
provision of article 661 of the first Code that the heirs
succeed to all the rights and obligations of the decedent by
the mere fact of his death. It was so held by this Court
in Barrios vs. Dolor, 2 Phil., 44, 46. However, after the
enactment of the Code of Civil Procedure, article 661 of the
Civil Code was abrogated, as held in Suiliong & Co. vs. ChioTaysan, 12 Phil., 13, 22. In that case, as well as in many
others decided by this Court after the innovations
introduced by the Code of Civil Procedure in the matter of
estates of deceased persons, it has been the constant
doctrine that it is the estate or the mass of property, rights
and assets left by the decedent, instead of the heirs
directly, that becomes vested and charged with his rights
and obligations which survive after his demise.
The heirs were formerly considered as the continuation of
the decedent's personality simply by legal fiction, for they
might not have been flesh and blood the reason was one
in the nature of a legal exigency derived from the principle
that the heirs succeeded to the rights and obligations of
the decedent. Under the present legal system, such rights
and obligations as survive after death have to be exercised
and fulfilled only by the estate of the deceased. And if the
same legal fiction were not indulged, there would be no
juridical basis for the estate, represented by the executor
or administrator, to exercise those rights and to fulfill
those obligations of the deceased. The reason and purpose
for indulging the fiction is identical and the same in both
cases. This is why according to the Supreme Court of
Indiana in Billings vs. State, supra, citing 2 Rapalje & L.
Dictionary, 954, among the artificial persons recognized by
law figures "a collection of property to which the law
attributes the capacity of having rights and duties", as for
instance, the estate of a bankrupt or deceased person.
Petitioner raises the decisive question of whether or not
the estate of Pedro O. Fragrante can be considered a
"citizen of the Philippines" within the meaning of section
16 of the Public Service Act, as amended, particularly the
proviso thereof expressly and categorically limiting the
power of the commission to issue certificates of public
convenience or certificates of public convenience and
necessity "only to citizens of the Philippines or of the
United States or to corporations, copartnerships,
associations, or joint-stock companies constituted and

Rule 73: Venue and Process

organized under the laws of the Philippines", and the

further proviso that sixty per centum of the stock or paidup capital of such entities must belong entirely to citizens
of the Philippines or of the United States.
Within the Philosophy of the present legal system, the
underlying reason for the legal fiction by which, for certain
purposes, the estate of the deceased person is considered a
"person" is the avoidance of injustice or prejudice
resulting from the impossibility of exercising such legal
rights and fulfilling such legal obligations of the decedent
as survived after his death unless the fiction is indulged.
Substantially the same reason is assigned to support the
same rule in the jurisdiction of the State of Indiana, as
announced in Billings vs. State, supra, when the Supreme
Court of said State said:
. . . It seems reasonable that the estate of a decedent should
be regarded as an artificial person. it is the creation of law
for the purpose of enabling a disposition of the assets to be
properly made . . . .
Within the framework and principles of the constitution
itself, to cite just one example, under the bill of rights it
seems clear that while the civil rights guaranteed therein
in the majority of cases relate to natural persons, the term
"person" used in section 1 (1) and (2) must be deemed to
include artificial or juridical persons, for otherwise these
latter would be without the constitutional guarantee
against being deprived of property without due process of
law, or the immunity from unreasonable searches and
seizures. We take it that it was the intendment of the
framers to include artificial or juridical, no less than
natural, persons in these constitutional immunities and in
others of similar nature. Among these artificial or juridical
persons figure estates of deceased persons. Hence, we hold
that within the framework of the Constitution, the estate of
Pedro O. Fragrante should be considered an artificial or
juridical person for the purposes of the settlement and
distribution of his estate which, of course, include the
exercise during the judicial administration thereof of those
rights and the fulfillment of those obligations of his which
survived after his death. One of those rights was the one
involved in his pending application before the Public
Service Commission in the instant case, consisting in the
prosecution of said application to its final conclusion. As
stated above, an injustice would ensue from the opposite
course.
How about the point of citizenship? If by legal fiction his
personality is considered extended so that any debts or
obligations left by, and surviving, him may be paid, and any
surviving rights may be exercised for the benefit of his
creditors and heirs, respectively, we find no sound and
cogent reason for denying the application of the same
fiction to his citizenship, and for not considering it as
likewise extended for the purposes of the aforesaid
unfinished proceeding before the Public Service
Commission. The outcome of said proceeding, if successful,
would in the end inure to the benefit of the same creditors
and the heirs. Even in that event petitioner could not allege
any prejudice in the legal sense, any more than he could
have done if Fragrante had lived longer and obtained the
desired certificate. The fiction of such extension of his
citizenship is grounded upon the same principle, and
motivated by the same reason, as the fiction of the
extension of personality. The fiction is made necessary to
avoid the injustice of subjecting his estate, creditors and
heirs, solely by reason of his death to the loss of the
investment amounting to P35,000, which he has already
made in the ice plant, not counting the other expenses

Page 32

occasioned by the instant proceeding, from the Public

Service Commission of this Court.
We can perceive no valid reason for holding that within
the intent of the constitution (Article IV), its provisions on
Philippine citizenship exclude the legal principle of
extension above adverted to. If for reasons already stated
our law indulges the fiction of extension of personality, if
for such reasons the estate of Pedro O. Fragrante should be
considered an artificial or juridical person herein, we can
find no justification for refusing to declare a like fiction as
to the extension of his citizenship for the purposes of this
proceeding.
Pedro O. Fragrante was a Filipino citizen, and as such, if he
had lived, in view of the evidence of record, he would have
obtained from the commission the certificate for which he
was applying. The situation has suffered but one change,
and that is, his death. His estate was that of a Filipino
citizen. And its economic ability to appropriately and
adequately operate and maintain the service of an ice plant
was the same that it received from the decedent himself. In
the absence of a contrary showing, which does not exist
here, his heirs may be assumed to be also Filipino citizens;
and if they are not, there is the simple expedient of
revoking the certificate or enjoining them from inheriting
it.
Upon the whole, we are of the opinion that for the
purposes of the prosecution of said case No. 4572 of the
Public Service Commission to its final conclusion, both the
personality and citizenship of Pedro O. Fragrante must be
deemed extended, within the meaning and intent of the
Public Service Act, as amended, in harmony with the
constitution: it is so adjudged and decreed.
Decision affirmed, without costs. So ordered.
G.R. No. L-40502 November 29, 1976
VIRGINIA GARCIA FULE, and HONORABLE SEVERO A.
MALVAR, Presiding Judge, Court of First Instance of
Laguna,
Branch
Vl, petitioners,
vs.
THE HONORABLE COURT OF APPEALS, * PRECIOSA B.
GARCIA and AGUSTINA B. GARCIA, respondents.
G.R. No. L-42670 November 29, 1976
VIRGINIA
GARCIA
FULE,
petitioner,
vs.
HONORABLE ERNANI C. PAO, Presiding Judge of Court
of First Instance of Rizal, Quezon City, Branch XVIII,
and PRECIOSA B. GARCIA, respondents.
MARTIN, J.:
These two interrelated cases bring to Us the question of
what the word "resides" in Section 1, Rule 73 of the
Revised Rules Of Court, referring to the situs of the
settlement of the estate of deceased persons, means.
Additionally, the rule in the appointment of a special
administrator is sought to be reviewed.
On May 2, 1973, Virginia G. Fule filed with the Court of
First Instance of Laguna, at Calamba, presided over by
Judge Severo A. Malvar, a petition for letters of
administration, docketed as Sp. Proc. No. 27-C, alleging,
inter alia, "that on April 26, 1973, Amado G. Garcia, a
property owner of Calamba, Laguna, died intestate in the
City of Manila, leaving real estate and personal properties
in Calamba, Laguna, and in other places, within the

Rule 73: Venue and Process

jurisdiction of the Honorable Court." At the same time, she

moved
ex parte for her appointment as special administratrix over
the estate. On even date, May 2, 1973, Judge Malvar
granted the motion.
A motion for reconsideration was filed by Preciosa B.
Garcia on May 8, 1973, contending that the order
appointing Virginia G. Fule as special administratrix was
issued without jurisdiction, since no notice of the petition
for letters of administration has been served upon all
persons interested in the estate; there has been no delay or
cause for delay in the proceedings for the appointment of a
regular administrator as the surviving spouse of Amado G.
Garcia, she should be preferred in the appointment of a
special administratrix; and, Virginia G. Fule is a debtor of
the estate of Amado G. Garcia. Preciosa B. Garcia, therefore,
prayed that she be appointed special administratrix of the
estate, in lieu of Virginia G. Fule, and as regular
administratrix after due hearing.
While this reconsideration motion was pending resolution
before the Court, Preciosa B. Garcia filed on May 29, 1973 a
motion to remove Virginia G. Fule as special administratrix
alleging, besides the jurisdictional ground raised in the
motion for reconsideration of May 8, 1973 that her
appointment was obtained through erroneous, misleading
and/or incomplete misrepresentations; that Virginia G.
Fule has adverse interest against the estate; and that she
has shown herself unsuitable as administratrix and as
officer of the court.
In the meantime, the notice of hearing of the petition for
letters of administration filed by Virginia G. Fule with the
Court of First Instance of Calamba, Laguna, was published
on May 17, 24, and 31, 1973, in the Bayanihan, a weekly
publication of general circulation in Southern Luzon.
On June 6, 1973, Preciosa B. Garcia received a
"Supplemental Petition for the Appointment of Regular
Administrator ' filed by Virginia G. Fule. This supplemental
petition modified the original petition in four aspects: (1)
the allegation that during the lifetime of the deceased
Amado G. Garcia, he was elected as Constitutional Delegate
for the First District of Laguna and his last place of
residence was at Calamba, Laguna; (2) the deletion of the
names of Preciosa B. Garcia and Agustina Garcia as legal
heirs of Amado G. Garcia; (3) the allegation that Carolina
Carpio, who was simply listed as heir in the original
petition, is the surviving spouse of Amado G. Garcia and
that she has expressly renounced her preferential right to
the administration of the estate in favor of Virginia G. Fule;
and (4) that Virginia G. Fule be appointed as the regular
administratrix. The admission of this supplemental
petition was opposed by Preciosa B. Garcia for the reason,
among others, that it attempts to confer jurisdiction on the
Court of First Instance of Laguna, of which the court was
not possessed at the beginning because the original
petition was deficient.
On July 19, 1973, Preciosa B. Garcia filed an opposition to
the original and supplemental petitions for letters of
administration, raising the issues of jurisdiction, venue,
lack of interest of Virginia G. Fule in the estate of Amado G.
Garcia, and disqualification of Virginia G Fule as special
administratrix.
An omnibus motion was filed by Virginia G. Fule on August
20, 1973, praying for authority to take possession of
properties of the decedent allegedly in the hands of third
persons as well as to secure cash advances from the

Page 33

Calamba Sugar Planters Cooperative Marketing

Association, Inc. Preciosa B. Garcia opposed the motion,
calling attention to the limitation made by Judge Malvar on
the power of the special administratrix, viz., "to making an
inventory of the personal and real properties making up
the state of the deceased."
However, by July 2, 1973, Judge Malvar and already issued
an order, received by Preciosa B. Garcia only on July 31,
1973, denying the motion of Preciosa B. Garcia to
reconsider the order of May 2, 1973, appointing Virginia G.
Fule as special administratrix, and admitting the
supplementation petition of May 18,1973.
On August 31, 1973, Preciosa B. Garcia moved to dismiss
the petition, because (1) jurisdiction over the petition or
over the parties in interest has not been acquired by the
court; (2) venue was improperly laid; and (3) Virginia G.
Fule is not a party in interest as she is not entitled to
inherit from the deceased Amado G. Garcia.
On September 28, 1973, Preciosa B. Garcia filed a
supplemental motion to substitute Virginia G. Fule as
special administratrix, reasoning that the said Virginia G.
Fule admitted before before the court that she is a fullblooded sister of Pablo G. Alcalde, an illegitimate son of
Andrea Alcalde, with whom the deceased Amado G. Garcia
has no relation.
Three motions were filed by Preciosa B. Garcia on
November 14, 1973, one, to enjoin the special
administratrix from taking possession of properties in the
hands of third persons which have not been determined as
belonging to Amado G. Garcia; another, to remove the
special administratrix for acting outside her authority and
against the interest of the estate; and still another, filed in
behalf of the minor Agustina B. Garcia, to dismiss the
petition for want of cause of action, jurisdiction, and
improper venue.
On November 28, 1973, Judge Malvar resolved the pending
omnibus motion of Virgina G. Fule and the motion to
dismiss filed by Preciosa B. Garcia. Resolving the motion to
dismiss, Judge Malvar ruled that the powers of the special
administratrix are those provided for in Section 2, Rule 80
of the Rules of Court, 1 subject only to the previous
qualification made by the court that the administration of
the properties subject of the marketing agreement with
the Canlubang Sugar Planters Cooperative Marketing
Association should remain with the latter; and that the
special administratrix had already been authorized in a
previous order of August 20, 1973 to take custody and
possession of all papers and certificates of title and
personal effects of the decedent with the Canlubang Sugar
Planters Cooperative Marketing Association, Inc. Ramon
Mercado, of the Canlubang Sugar Planters Cooperative
Marketing Association, Inc., was ordered to deliver to
Preciosa B. Garcia all certificates of title in her name
without any qualifying words like "married to Amado
Garcia" does not appear. Regarding the motion to dismiss,
Judge Malvar ruled that the issue of jurisdiction had
already been resolved in the order of July 2, 1973, denying
Preciosa B. Garcia's motion to reconsider the appointment
of Virginia G. Fule and admitting the supplemental petition,
the failure of Virginia G. Fule to allege in her original
petition for letters of administration in the place of
residence of the decedent at the time of his death was
cured. Judge Malvar further held that Preciosa B. Garcia
had submitted to the jurisdiction of the court and had
waived her objections thereto by praying to be appointed
as special and regular administratrix of the estate.

Rule 73: Venue and Process

An omnibus motion was filed by Preciosa B. Garcia on

December 27, 1973 to clarify or reconsider the foregoing
order of Judge Malvar, in view of previous court order
limiting the authority of the special administratrix to the
making of an inventory. Preciosa B. Garcia also asked for
the resolution of her motion to dismiss the petitions for
lack of cause of action, and also that filed in behalf of
Agustina B. Garcia. Resolution of her motions to substitute
and remove the special administratrix was likewise prayed
for.
On December 19, 1973, Judge Malvar issued two separate
orders, the first, denying Preciosa B. Garcia's motions to
substitute and remove the special administratrix, and the
second, holding that the power allowed the special
administratrix enables her to conduct and submit an
inventory of the assets of the estate.
On January 7, 1974, Preciosa B. Garcia moved for
reconsideration of the foregoing orders of November 28,
1973 and December 19, 1973, insofar as they sustained or
failed to rule on the issues raised by her: (a) legal standing
(cause of action) of Virginia G. Fule; (b) venue; (c)
jurisdiction; (d) appointment, qualification and removal of
special administratrix; and (e) delivery to the special
administratrix of checks and papers and effects in the
office of the Calamba Sugar Planters Cooperative
Marketing Association, Inc.
On March 27, 1973, Judge Malvar issued the first
questioned order denying Preciosa B. Garcia's motion for
reconsideration of January 7, 1974. On July 19, 1974, Judge
Malvar issued the other three questioned orders: one,
directing Ramon Mercado, of the Calamba Sugar Planters
Cooperative Marketing Association, Inc., to furnish Virginia
G. Fule, as special administratrix, copy of the statement of
accounts and final liquidation of sugar pool, as well as to
deliver to her the corresponding amount due the estate;
another, directing Preciosa B. Garcia to deliver to Virginia
G. Fule two motor vehicles presumably belonging to the
estate; and another, directing Ramon Mercado to deliver to
the court all certificates of title in his possession in the
name of Preciosa B. Garcia, whether qualified with the
word "single" or "married to Amado Garcia."
During the hearing of the various incidents of this case (Sp.
Proc. 27-C) before Judge Malvar, 2 Virginia G. Fule
presented the death certificate of Amado G. Garcia showing
that his residence at the time of his death was Quezon City.
On her part, Preciosa B. Garcia presented the residence
certificate of the decedent for 1973 showing that three
months before his death his residence was in Quezon City.
Virginia G. Fule also testified that Amado G. Garcia was
residing in Calamba, Laguna at the time of his death, and
that he was a delegate to the 1971 Constitutional
Convention for the first district of Laguna.
On July 26, 1974, Preciosa B. Garcia and Agustina B. Garcia
commenced a special action for certiorari and/or
prohibition and preliminary injunction before the Court of
Appeals, docketed as CA-G.R. No. 03221-SP. primarily to
annul the proceedings before Judge Malvar in Sp. Proc. No.
27-C of the Court of First Instance of Laguna, or, in the
alternative, to vacate the questioned four orders of that
court, viz., one dated March 27, 1974, denying their motion
for reconsideration of the order denying their motion to
dismiss the criminal and supplemental petitions on the
issue, among others, of jurisdiction, and the three others,
all dated July 19, 1974, directing the delivery of certain
properties to the special administratrix, Virginia G. Fule,
and to the court.

Page 34

On January 30, 1975, the Court of Appeals rendered

judgment annulling the proceedings before Judge Severo A.
Malvar in Sp. Proc. 27-C of the Court of First Instance of
Calamba, Laguna, for lack of jurisdiction.
Denied of their motion for reconsideration on March 31,
1975, Virginia G. Fule forthwith elevated the matter to Us
on appeal by certiorari. The case was docketed as G.R. No.
L-40502.
However, even before Virginia G. Fule could receive the
decision of the Court of Appeals, Preciosa B. Garcia had
already filed on February 1, 1975 a petition for letters of
administration before the Court of First Instance of Rizal,
Quezon City Branch, docketed as Sp. Proc. No. Q-19738,
over the same intestate estate of Amado G. Garcia. On
February 10, 1975, Preciosa B. Garcia urgently moved for
her appointment as special administratrix of the estate.
Judge Vicente G. Ericta granted the motion and appointed
Preciosa B. Garcia as special administratrix upon a bond of
P30,000.00. Preciosa B. Garcia qualified and assumed the
office.
For the first time, on February 14, 1975, Preciosa B. Garcia
informed Judge Ericta of the pendency of Sp. Proc. No. 27-C
before Judge Malvar of the Court of First Instance of
Laguna, and the annulment of the proceedings therein by
the Court of Appeals on January 30, 1975. She manifested,
however, her willingness to withdraw Sp. Proc. Q-19738
should the decision of the Court of Appeals annulling the
proceedings before the Court of First Instance of Laguna in
Sp. Proc. No. 27-C have not yet become final, it being the
subject of a motion for reconsideration.
On March 10, 1973, Judge Ericta ordered the suspension of
the proceedings before his court until Preciosa B. Garcia
inform the court of the final outcome of the case pending
before the Court of Appeals. This notwithstanding,
Preciosa B. Garcia filed on December 11, 1975, an "Urgent
Petition for Authority to Pay Estate Obligations."
On December 13, 1975, Virginia G. Fule filed a "Special
Appearance to Question Venue and Jurisdiction"
reiterating the grounds stated in the previous special
appearance of March 3, 1975, and calling attention that the
decision of the Court of Appeals and its resolution denying
the motion for reconsideration had been appealed to this
Court; that the parties had already filed their respective
briefs; and that the case is still pending before the Court.
On December 17, 1975, Judge Ernani Cruz Pano, who
succeeded Judge Ericta, issued an order granting Preciosa
B. Garcia's "Urgent Petition for Authority to Pay Estate
Obligations" in that the payments were for the benefit of
the estate and that there hangs a cloud of doubt on the
validity of the proceedings in Sp. Proc. No. 27-C of the
Court of First Instance of Laguna.
A compliance of this Order was filed by Preciosa B. Garcia
on January 12,1976.
On February 4,1974, VIRGINIA G. FULE instituted G.R. No.
L-42670, a petition for certiorari with temporary
restraining order, to annul the proceedings in Sp. Proc. No.
Q-19738 and to restrain Judge Ernani Cruz Pao from
further acting in the case. A restraining order was issued
on February 9, 1976.
We dismiss the appeal in G.R. No. L-40502 and the petition
for certiorari in G.R. No. L-42670 for the reasons and
considerations hereinafter stated.

Rule 73: Venue and Process

1. Section 1, Rule 73 of the Revised Rules of Court

provides: "If the decedent is an inhabitant of the Philippines
at the time of his death, whether a citizen or an alien, his
will shall be proved, or letters of administration granted,
and his estate settled, in the Court of First Instance in the
province in which he resides at the time of his death, and if
he is an inhabitant of a foreign country, the Court of First
Instance of any province in which he had estate. The court
first taking cognizance of the settlement of the estate of a
decedent, shall exercise jurisdiction to the exclusion of all
other courts. The jurisdiction assumed by a court, so far as
it depends on the place of residence of the decedent, or of
the location of his estate, shall not be contested in a suit or
proceeding, except in an appeal from that court, in the
original case, or when the want of jurisdiction appears on
the record." With particular regard to letters of
administration, Section 2, Rule 79 of the Revised Rules of
Court demands that the petition therefor should
affirmatively show the existence of jurisdiction to make
the appointment sought, and should allege all the
necessary facts, such as death, the name and last
residence of the decedent, the existence, and situs if need
be, of assets, intestacy, where this is relied upon, and the
right of the person who seeks administration, as next of
kin, creditor, or otherwise, to be appointed. The fact of
death of the intestate and his last residence within the
country are foundation facts upon which all subsequent
proceedings in the administration of the estate rest, and
that if the intestate was not an inhabitant of the state at the
time of his death, and left no assets in the state, no
jurisdiction is conferred on the court to grant letters of
administration. 3
The aforequoted Section 1, Rule 73 (formerly Rule 75,
Section 1), specifically the clause "so far as it depends on
the place of residence of the decedent, or of the location of
the estate," is in reality a matter of venue, as the caption of
the Rule indicates: "Settlement of Estate of Deceased
Persons. Venue and Processes. 4 It could not have been
intended to define the jurisdiction over the subject matter,
because such legal provision is contained in a law of
procedure dealing merely with procedural matters.
Procedure is one thing; jurisdiction over the subject matter
is another. The power or authority of the court over the
subject matter "existed and was fixed before procedure in
a given cause began." That power or authority is not
altered or changed by procedure, which simply directs the
manner in which the power or authority shall be fully and
justly exercised. There are cases though that if the power is
not exercised conformably with the provisions of the
procedural law, purely, the court attempting to exercise it
loses the power to exercise it legally. However, this does
not amount to a loss of jurisdiction over the subject matter.
Rather, it means that the court may thereby lose
jurisdiction over the person or that the judgment may
thereby be rendered defective for lack of something
essential to sustain it. The appearance of this provision in
the procedural law at once raises a strong presumption
that it has nothing to do with the jurisdiction of the court
over the subject matter. In plain words, it is just a matter of
method, of convenience to the parties. 5
The Judiciary Act of 1948, as amended, confers upon
Courts of First Instance jurisdiction over all probate cases
independently of the place of residence of the deceased.
Because of the existence of numerous Courts of First
Instance in the country, the Rules of Court, however,
purposedly fixes the venue or the place where each case
shall be brought. A fortiori, the place of residence of the
deceased in settlement of estates, probate of will, and
issuance of letters of administration does not constitute an

Page 35

element of jurisdiction over the subject matter. It is merely

constitutive of venue. And it is upon this reason that the
Revised Rules of Court properly considers the province
where the estate of a deceased person shall be settled as
"venue." 6
2. But, the far-ranging question is this: What does the term
"resides" mean? Does it refer to the actual residence or
domicile of the decedent at the time of his death? We lay
down the doctrinal rule that the term "resides" connotes ex
vi termini "actual residence" as distinguished from "legal
residence or domicile." This term "resides," like, the terms
"residing" and "residence," is elastic and should be
interpreted in the light of the object or purpose of the
statute or rule in which it is employed. 7 In the application
of venue statutes and rules Section 1, Rule 73 of the
Revised Rules of Court is of such nature
residence rather than domicile is the significant factor.
Even where the statute uses the word "domicile" still it is
construed as meaning residence and not domicile in the
technical sense. Some cases make a distinction between
the terms "residence" and "domicile" but as generally used
in statutes fixing venue, the terms are synonymous, and
convey the same meaning as the term "inhabitant." 8 In
other words, "resides" should be viewed or understood in
its popular sense, meaning, the personal, actual or physical
habitation of a person, actual residence or place of abode.
It signifies physical presence in a place and actual stay
thereat. In this popular sense, the term means merely
residence, that is, personal residence, not legal residence
or domicile. 9 Residence simply requires bodily presence
as an inhabitant in a given place, while domicile requires
bodily presence in that place and also an intention to make
it one's domicile. 10 No particular length of time of
residence is required though; however, the residence must
be more than temporary. 11
3. Divergent claims are maintained by Virginia G. Fule and
Preciosa B. Garcia on the residence of the deceased Amado
G. Garcia at the time of his death. In her original petition
for letters of administration before the Court of First
Instance of Calamba, Laguna, Virginia G. Fule measely
stated "(t)hat on April 26,1973, Amado G. Garcia, a
property owner of Calamba, Laguna, died intestate in the
City of Manila, leaving real estate and personal properties
in Calamba, Laguna, and in other places within the
jurisdiction of this Honorable Court." Preciosa B. Garcia
assailed the petition for failure to satisfy the jurisdictional
requirement and improper laying of venue. For her, the
quoted statement avers no domicile or residence of the
deceased Amado G. Garcia. To say that as "property owner
of Calamba, Laguna," he also resides in Calamba, Laguna,
is, according to her, non sequitur. On the contrary, Preciosa
B. Garcia claims that, as appearing in his death certificate
presented by Virginia G. Fule herself before the Calamba
court and in other papers, the last residence of Amado G.
Garcia was at 11 Carmel Avenue, Carmel Subdivision,
Quezon City. Parenthetically, in her amended petition,
Virginia G. Fule categorically alleged that Amado G.
Garcia's "last place of residence was at Calamba, Laguna."
On this issue, We rule that the last place of residence of the
deceased Amado G. Garcia was at 11 Carmel Avenue,
Carmel Subdivision, Quezon City, and not at Calamba,
Laguna. A death certificate is admissible to prove the
residence of the decedent at the time of his death. 12 As it
is, the death certificate of Amado G. Garcia, which was
presented in evidence by Virginia G. Fule herself and also
by Preciosa B. Garcia, shows that his last place of residence
was at 11 Carmel Avenue, Carmel Subdivision, Quezon
City. Aside from this, the deceased's residence certificate

Rule 73: Venue and Process

for 1973 obtained three months before his death; the

Marketing Agreement and Power of Attorney dated
November 12, 1971 turning over the administration of his
two parcels of sugar land to the Calamba Sugar Planters
Cooperative Marketing Association, Inc.; the Deed of
Donation dated January 8, 1973, transferring part of his
interest in certain parcels of land in Calamba, Laguna to
Agustina B. Garcia; and certificates of titles covering
parcels of land in Calamba, Laguna, show in bold
documents that Amado G. Garcia's last place of residence
was at Quezon City. Withal, the conclusion becomes
imperative that the venue for Virginia C. Fule's petition for
letters of administration was improperly laid in the Court
of First Instance of Calamba, Laguna. Nevertheless, the
long-settled rule is that objection to improper venue is
subject to waiver. Section 4, Rule 4 of the Revised Rules of
Court states: "When improper venue is not objected to in a
motion to dismiss, it is deemed waived." In the case before
Us the Court of Appeals had reason to hold that in asking
to substitute Virginia G. Fule as special administratrix,
Preciosa B. Garcia did not necessarily waive her objection
to the jurisdiction or venue assumed by the Court of First
Instance of Calamba, Laguna, but availed of a mere
practical resort to alternative remedy to assert her rights
as surviving spouse, while insisting on the enforcement of
the Rule fixing the proper venue of the proceedings at the
last residence of the decedent.
4. Preciosa B. Garcia's challenge to Virginia G. Fule's
appointment as special administratrix is another issue of
perplexity. Preciosa B. Garcia claims preference to the
appointment as surviving spouse. Section 1 of Rule 80
provides that "(w)hen there is delay in granting letters
testamentary or of administration by any cause including
an appeal from the allowance or disallowance of a will, the
court may appoint a special administrator to take
possession and charge of the estate of the deceased until
the questions causing the delay are decided and executors
or administrators appointed. 13 Formerly, the appointment
of a special administrator was only proper when the
allowance or disallowance of a will is under appeal. The
new Rules, however, broadened the basis for appointment
and such appointment is now allowed when there is delay
in granting letters testamentary or administration by any
cause e.g.,
parties
cannot
agree
among
themselves. 14 Nevertheless, the discretion to appoint a
special administrator or not lies in the probate
court. 15That, however, is no authority for the judge to
become partial, or to make his personal likes and dislikes
prevail over, or his passions to rule, his judgment. Exercise
of that discretion must be based on reason, equity, justice
and legal principle. There is no reason why the same
fundamental and legal principles governing the choice of a
regular administrator should not be taken into account in
the appointment of a special administrator. 16 Nothing is
wrong for the judge to consider the order of preference in
the appointment of a regular administrator in appointing a
special administrator. After all, the consideration that
overrides all others in this respect is the beneficial
interest of the appointee in the estate of the
decedent. 17 Under the law, the widow would have the
right of succession over a portion of the exclusive property
of the decedent, besides her share in the conjugal
partnership. For such reason, she would have as such, if
not more, interest in administering the entire estate
correctly than any other next of kin. The good or bad
administration of a property may affect rather the fruits
than the naked ownership of a property. 18
Virginia G. Fule, however, disputes the status of Preciosa B.
Garcia as the widow of the late Amado G. Garcia. With

Page 36

equal force, Preciosa B. Garcia maintains that Virginia G.

Fule has no relation whatsoever with Amado G. Garcia, or
that, she is a mere illegitimate sister of the latter, incapable
of any successional rights. 19 On this point, We rule that
Preciosa B. Garcia is prima facie entitled to the
appointment of special administratrix. It needs be
emphasized that in the issuance of such appointment,
which is but temporary and subsists only until a regular
administrator is appointed, 20 the appointing court does
not determine who are entitled to share in the estate of the
decedent but who is entitled to the administration. The
issue of heirship is one to be determined in the decree of
distribution, and the findings of the court on the
relationship of the parties in the administration as to be
the basis of distribution. 21 The preference of Preciosa B.
Garcia is with sufficient reason. In a Donation Inter Vivos
executed by the deceased Amado G. Garcia on January 8,
1973 in favor of Agustina B. Garcia, he indicated therein
that he is married to Preciosa B. Garcia. 22 In his certificate
of candidacy for the office of Delegate to the Constitutional
Convention for the First District of Laguna filed on
September 1, 1970, he wrote therein the name of Preciosa
B. Banaticla as his spouse. 23 Faced with these documents
and the presumption that a man and a woman deporting
themselves as husband and wife have entered into a lawful
contract of marriage, Preciosa B. Garcia can be reasonably
believed to be the surviving spouse of the late Amado G.
Garcia. Semper praesumitur pro matrimonio. 24
5. Under these circumstances and the doctrine laid down
in Cuenco vs. Court of Appeals, 25 this Court under its
supervisory authority over all inferior courts may properly
decree that venue in the instant case was properly
assumed by and transferred to Quezon City and that it is in
the interest of justice and avoidance of needless delay that
the Quezon City court's exercise of jurisdiction over the
settlement of the estate of the deceased Amado G. Garcia
and the appointment of special administratrix over the
latter's estate be approved and authorized and the Court of
First Instance of Laguna be disauthorized from continuing
with the case and instead be required to transfer all the
records thereof to the Court of First Instance of Quezon
City for the continuation of the proceedings.
6. Accordingly, the Order of Judge Ernani Cruz Pano of
December 17, 1975, granting the "Urgent Petition for
Authority to Pay Estate Obligations" filed by Preciosa B.
Garcia in Sp. Proc. No. Q-19738, subject matter of G.R. No.
L-42670, and ordering the Canlubang Sugar Estate to
deliver to her as special administratrix the sum of
P48,874.70 for payment of the sum of estate obligations is
hereby upheld.
IN VIEW OF THE FOREGOING, the petitions of petitioner
Virginia Garcia Fule in G.R. No. L-40502 and in G.R. No.
L42670 are hereby denied, with costs against petitioner.
SO ORDERED.
G.R. No. L-21993

June 21, 1966

ANGELA RODRIGUEZ, MARIA RODRIGUEZ, ET

AL., petitioners,
vs.
HON. JUAN DE BORJA, as Judge of the Court of First
Instance
of
Bulacan,
Branch
III,
ANATOLIA
PANGILINAN
and
ADELAIDA
JACALAN, respondents.
Lorenzo
Somulong
Torres and Torres for respondents.

Rule 73: Venue and Process

for

petitioners.

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

Petitioners Angela, Maria, Abelardo and Antonio,
surnamed Rodriguez, petition this Court for a writ
of certiorariand prohibition to the Court of First Instance
of Bulacan, for its refusal to grant their motion to dismiss
its Special Proceeding No. 1331, which said Court is
alleged to have taken cognizance of without jurisdiction.
The facts and issues are succinctly narrated in the order of
the respondent court, dated June 13, 1963 (Petition, Annex
0), in this wise:
It is alleged in the motion to dismiss filed by Angela, Maria,
Abelardo and Antonio Rodriguez, through counsel, that
this Court "has no jurisdiction to try the above-entitled
case in view of the pendency of another action for the
settlement of the estate of the deceased Rev. Fr. Celestino
Rodriguez in the Court of First Instance of Rizal, namely,
Sp. Proceedings No. 3907 entitled 'In the matter of the
Intestate Estate of the deceased Rev. Fr. Celestino
Rodriguez which was filed ahead of the instant case".
The records show that Fr. Celestino Rodriguez died on
February 12, 1963 in the City of Manila; that on March 4,
1963, Apolonia Pangilinan and Adelaida Jacalan delivered
to the Clerk of Court of Bulacan a purported last will and
testament of Fr. Rodriguez; that on March 8, 1963, Maria
Rodriguez and Angela Rodriguez, through counsel filed a
petition for leave of court to allow them to examine the
alleged will; that on March 11, 1963 before the Court could
act on the petition, the same was withdrawn; that on
March 12, 1963, aforementioned petitioners filed before
the Court of First Instance of Rizal a petition for the
settlement of the intestate estate of Fr. Rodriguez alleging,
among other things, that Fr. Rodriguez was a resident of
Paraaque, Rizal, and died without leaving a will and
praying that Maria Rodriguez be appointed as Special
Administratrix of the estate; and that on March 12, 1963
Apolonia Pangilinan and Adelaida Jacalan filed a petition in
this Court for the probation of the will delivered by them
on March 4, 1963. It was stipulated by the parties that Fr.
Rodriguez was born in Paraaque, Rizal; that he was
Parish priest of the Catholic Church of Hagonoy, Bulacan,
from the year 1930 up to the time of his death in 1963;
that he was buried in Paraaque, and that he left real
properties in Rizal, Cavite, Quezon City and Bulacan.
The movants contend that since the intestate proceedings
in the Court of First Instance of Rizal was filed at 8:00 A.M.
on March 12, 1963 while the petition for probate was filed
in the Court of First Instance of Bulacan at 11:00 A.M. on
the same date, the latter Court has no jurisdiction to
entertain the petition for probate, citing as authority in
support thereof the case of Ongsingco Vda. de Borja vs. Tan
and De Borja, G.R. No. 7792, July 27, 1955.
The petitioners Pangilinan and Jacalan, on the other hand,
take the stand that the Court of First Instance of Bulacan
acquired jurisdiction over the case upon delivery by them
of the will to the Clerk of Court on March 4, 1963, and that
the case in this Court therefore has precedence over the
case filed in Rizal on March 12, 1963.
The Court of First Instance, as previously stated denied the
motion to dismiss on the ground that a difference of a few
hours did not entitle one proceeding to preference over
the other; that, as early as March 7, movants were aware of
the existence of the purported will of Father Rodriguez,
deposited in the Court of Bulacan, since they filed a
petition to examine the same, and that movants clearly
filed the intestate proceedings in Rizal "for no other

Page 37

purpose than to prevent this Court (of Bulacan) from

exercising jurisdiction over the probate proceedings".
Reconsideration having been denied, movants, now
petitioners, came to this Court, relying principally on Rule
73, section 1 of the Rules of Court, and invoking our ruling
in Ongsingco vs. Tan and De Borja, L-7792, July 27, 1955.
SECTION 1. Where estate of deceased persons settled. If
the decedent is an inhabitant of the Philippines at the time
of his death, whether a citizen or an alien, his will shall be
proved, or letters of administration granted, and his estate
settled, in the Court of First Instance in the province in
which he resides at the time of his death, and if he is an
inhabitant of a foreign country, the Court of First Instance
of any province which he had estate. The court first taking
cognizance of the settlement of the estate of a decedent,
shall exercise jurisdiction to the exclusion of all other
courts. The jurisdiction assumed by a court, as far as it
depends on the place of residence of the decedent, or of
the location of his estate, shall not be contested in a suit or
proceeding, except in an appeal from that court, in the
original case, or when the want of jurisdiction appears on
the record.
We find this recourse to be untenable. The jurisdiction of
the Court of First Instance of Bulacan became vested upon
the delivery thereto of the will of the late Father Rodriguez
on March 4, 1963, even if no petition for its allowance was
filed until later, because upon the will being deposited the
court could, motu proprio, have taken steps to fix the time
and place for proving the will, and issued the
corresponding notices conformably to what is prescribed
by section 3, Rule 76, of the Revised Rules of Court
(Section 3, Rule 77, of the old Rules):
SEC. 3. Court to appoint time for proving will. Notice thereof
to be published. When a will is delivered to, or a petition
for the allowance of a will is filed in, the Court having
jurisdiction, such Court shall fix a time and place for
proving the will when all concerned may appear to contest
the allowance thereof, and shall cause notice of such time
and place to be published three (3) weeks successively,
previous to the time appointed, in a newspaper of general
circulation in the province.
But no newspaper publication shall be made where the
petition for probate has been filed by the testator himself.
The use of the disjunctive in the words "when a will is
delivered to OR a petition for the allowance of a will is
filed" plainly indicates that the court may act upon the
mere deposit therein of a decedent's testament, even if no
petition for its allowance is as yet filed. Where the petition
for probate is made after the deposit of the will, the
petition is deemed to relate back to the time when the will
was delivered. Since the testament of Fr. Rodriguez was
submitted and delivered to the Court of Bulacan on March
4, while petitioners initiated intestate proceedings in the
Court of First Instance of Rizal only on March 12, eight
days later, the precedence and exclusive jurisdiction of the
Bulacan court is incontestable.1wph1.t
But, petitioners object, section 3 of revised Rule 76 (old
Rule 77) speaks of a will being delivered to "the Court
having jurisdiction," and in the case at bar the Bulacan
court did not have it because the decedent was domiciled
in Rizal province. We can not disregard Fr. Rodriguez's 33
years of residence as parish priest in Hagonoy, Bulacan
(1930-1963); but even if we do so, and consider that he
retained throughout some animus revertendi to the place of
his birth in Paraaque, Rizal, that detail would not imply

Rule 73: Venue and Process

that the Bulacan court lacked jurisdiction. As ruled in

previous decisions, the power to settle decedents' estates
is conferred by law upon all courts of first instance, and the
domicile of the testator only affects the venue but not the
jurisdiction of the Court (In re Kaw Singco, 74 Phil. 239;
Reyes vs. Diaz, 73 Phil. 484; Bernabe vs. Vergara, 73 Phil.
676). Neither party denies that the late Fr. Rodriguez is
deceased, or that he left personal property in Hagonoy,
province of Bulacan (t.s.n. p. 46, hearing of June 11, 1963,
Annex "H", Petition, Rec., p. 48). That is sufficient in the
case before us.
In the Kaw Singco case (ante) this Court ruled that:
"... If we consider such question of residence as one
affecting the jurisdiction of the trial court over the subjectmatter, the effect shall be that the whole proceedings
including all decisions on the different incidents which
have arisen in court will have to be annulled and the same
case will have to be commenced anew before another
court of the same rank in another province. That this is of
mischievous effect in the prompt administration of justice
is too obvious to require comment. (Cf. Tanunchuan vs. Dy
Buncio & Co., G.R. No. 48206, December 31, 1942).
Furthermore, section 600 of Act No. 190, providing that
the estate of a deceased person shall be settled in the
province where he had last resided, could not have been
intended as defining the jurisdiction of the probate court
over the subject matter, because such legal provision is
contained in a law of procedure dealing merely with
procedural matters, and, as we have said time and again,
procedure is one thing and jurisdiction over the subject
matter is another. (Attorney General vs. Manila Railroad
Company, 20 Phil. 523.) The law of jurisdiction Act No.
136, Section 56, No. 5 confers upon Courts of First
Instance jurisdiction over all probate cases independently
of the place of residence of the deceased.1 Since, however,
there are many Courts of First Instance in the Philippines,
the Law of Procedure, Act No. 190, section 600, fixes the
venue or the place where each case shall be brought. Thus,
the place of residence of the deceased is not an element of
jurisdiction over the subject matter but merely of venue.
And it is upon this ground that in the new Rules of Court
the province where the estate of a deceased person shall
be settled is properly called "venue" (Rule 75, section 1.)
Motion for reconsideration is denied.
The estate proceedings having been initiated in the
Bulacan Court of First Instance ahead of any other, that
court is entitled to assume jurisdiction to the exclusion of
all other courts, even if it were a case of wrong venue by
express provisions of Rule 73 (old Rule 75) of the Rules of
Court, since the same enjoins that:
The Court first taking cognizance of the settlement of the
estate of a decedent shall exercise jurisdiction to the
exclusion of all other courts. (Sec. 1)
This disposition presupposes that two or more courts have
been asked to take cognizance of the settlement of the
estate. Of them only one could be of proper venue, yet the
rule grants precedence to that Court whose jurisdiction is
first invoked, without taking venue into account.
There are two other reasons that militate against the
success of petitioners. One is that their commencing
intestate proceedings in Rizal, after they learned of the
delivery of the decedent's will to the Court of Bulacan, was
in bad faith, patently done with a view to divesting the
latter court of the precedence awarded it by the Rules.
Certainly the order of priority established in Rule 73 (old

Page 38

Rule 75) was not designed to convert the settlement of

decedent's estates into a race between applicants, with the
administration of the properties as the price for the
fleetest.
The other reason is that, in our system of civil law,
intestate succession is only subsidiary or subordinate to
the testate, since intestacy only takes place in the absence
of a valid operative will. Says Article 960 of the Civil Code
of the Philippines:
ART. 960. Legal or intestate succession takes place:
(1) If a person dies without a will, or with a void will, or
one which has subsequently lost its validity;
(2) When the will does not institute an heir to, or dispose
of all the property belonging to the testator. In such case,
legal succession shall take place only with respect to the
property in which the testator has not disposed;
(3) If the suspensive condition attached to the institution
of heir does not happen or is not fulfilled, or if the heir dies
before the testator, or repudiates the inheritance, there
being no substitution, and no right of accretion takes place;
(4) When the heir instituted is incapable of succeeding,
except in cases provided in this Code.
Therefore, as ruled in Castro, et al. vs. Martinez, 10 Phil.
307, "only after final decision as to the nullity of testate
succession could an intestate succession be instituted in
the form of pre-established action". The institution of
intestacy proceedings in Rizal may not thus proceed while
the probate of the purported will of Father Rodriguez is
pending.
We rule that the Bulacan Court of First Instance was
entitled to priority in the settlement of the estate in
question, and that in refusing to dismiss the probate.
proceedings, said court did not commit any abuse of
discretion. It is the proceedings in the Rizal Court that
should be discontinued.
Wherefore, the writ of certiorari applied for is denied.
Costs against petitioners Rodriguez.
G.R. No. L-8409

December 28, 1956

In the Matter of the Intestate of the deceased Andres

Eusebio.
EUGENIO
EUSEBIO, petitioner-appellee,
vs.
AMANDA EUSEBIO, JUAN EUSEBIO, DELFIN EUSEBIO,
VICENTE EUSEBIO, and CARLOS EUSEBIO,oppositorsappellants.
Francisco M. Ramos and Valeriano Silva for appellee.
Filemon Cajator for appellants.

CONCEPCION, J.:
This case instituted on November 16, 1953, when Eugenio
Eusebio filed with the Court of First Instance of Rizal, a
petition for his appointment as administrator of the estate
of his father, Andres Eusebio, who died on November 28,
1952, residing, according to said petition, in the City of
Quezon. On December 4, 1953, Amanda, Virginia, Juan,
Delfin, Vicente and Carlos, all surnamed Eusebio, objected
to said petition, stating that they are illegitimate children
of the deceased and that the latter was domiciled in San
Fernando, Pampanga, and praying, therefore, that the case

Rule 73: Venue and Process

be dismissed upon the ground that venue had been

improperly filed. By an order, dated March 10, 1954, said
court overruled this objection and granted said petition.
Hence, the case is before us on appeal taken, from said
order, by Amanda Eusebio, and her aforementioned sister
and brothers.
The appeal hinges on the situs of the residence of Andres
Eusebio on November 28, 1952, for Rule 75, section 1, of
the Rules of Court, provides:
Where estate of deceased persons settled. If the decedent
is an inhabitant of the Philippines at the time of his death,
whether a citizens or an alien, his will shall be proved, or
letters of administration granted, and his estate, in the
Court of First Instance in the province in which he resides
at the time of his death, and if he is an inhabitant of a
foreign country, the Court of First Instance of any province
in which he had estate. The court first taking cognizance of
the settlement of the estate of a decedent, shall exercise
jurisdiction to the exclusion of all other courts. The
jurisdiction assumed by a court, so far as it depends on the
place of residence of the decedent, or of the location of his
estate, shall not be contested in a suit or proceeding,
except in an appeal from that court, in the original case, or
when the want of jurisdiction appears on the record.
It is not disputed that up to, at least, October 29, 1952,
Andres Eusebio was, and had always been, domiciled in
San Fernando, Pampanga, where he had his home, as well
as some other properties. Inasmuch as his heart was in bad
condition and his son, Dr. Jesus Eusebio, who treated him,
resided at No. 41 P. Florentino St., Quezon City, on October
29, 1952, Andres Eusebio bought a house and lot at 889-A
Espaa Extention, in said City (Exhibit 2). While
transferring his belongings to this house, soon thereafter,
the decedent suffered a stroke (probably heart failure), for
which reason Dr. Eusebio took him to his (Dr. Eusebio's)
aforementioned residence, where the decedent remained
until he was brought to the UST Hospital, in the City of
Manila, sometimes before November 26, 1952. On this
date, he contracted marriage in articulo mortis with his
common law wife, Concepcion Villanueva, in said hospital.
Two (2) days later, he died therein of "acute left
ventricular failure secondary to hypertensive heart
disease", at the age of seventy-four (74) years (Exhibit A).
Consequently, he never stayed or even slept in said house
at Espaa Extention.
It being apparent from the foregoing that the domicile of
origin of the decedent was San Fernando, Pampanga,
where he resided for over seventy (70) years, the
presumption is that he retained such domicile, and, hence,
residence, in the absence of satisfactory proof to the
contrary, for it is well-settled that "a domicile once
acquired is retained until a new domicile is gained" (Minor,
Conflict of Laws, p.70; Restatement of the Law on Conflict
of Laws, p. 47; In re Estate of Johnson, 192 Iowa, 78).
Under the circumstances surrounding the case at bar, if
Andres Eusebio established another domicile, it must have
been one of choice, for which the following conditions are
essential, namely: (1) capacity to choose and freedom of
choice; (2) physical presence at the place chosen; and (3)
intention to stay therein permanently (Minor, Conflict of
Laws, pp. 109-110; Googrich, Conflict of Laws, p. 169;
Velilla vs. Posadas, 62 Phil., 624; Zuellig vs. Republic of the
Philippines, 46 Off. Gaz. Suppl. No. 11, p. 220). Admittedly,
the decedent was juridically capable of choosing a domicile
and had been in Quezon City several days prior to his
demise. Thus, the issue narrows down to whether he
intended to stay in that place permanently.

Page 39

There is no direct evidence of such intent. Neither does the

decedent appears to have manifested his wish to live
indefinitely in said city. His son, petitioner-appellee, who
took the witness stand, did not testify thereon, despite the
allegation, in his answer to the aforemention, opposition of
the appellants herein, that "the deceased (had) decided to
reside . . . for the rest of his life, in Quezon City". Moreover,
said appellee did not introduce the testimony of his
legitimate full brother and son of the decedent, Dr. Jesus
Eusebio, upon whose advice, presumably, the house and
lot at No. 889-A Espaa Extention was purchased, and
who, therefore, might have cast some light on his
(decedent's) purpose in buying said property. This
notwithstanding, the lower court held that the decedent's
intent to stay permanently in Quezon City is "manifest"
from the acquisition of said property and the transfer of
his
belonging
thereto.
This
conclusion
is
untenable.lawphil.net

Exihibits "1" and "2" are rejecting but the same may be
attached to the records for whatever action oppositors
may want to take later on because until now the
personality of the oppositors has not been established
whether or not they have a right to intervene in this case,
and the Court cannot pass upon this question as the
oppositors refuse to submit to the jurisdiction of this Court
and they maintain that these proceedings should be
dismissed. (P. 10, t. s. n.)

The aforementioned house and lot were bought by the

decedent because he had been adviced to do so "due to his
illness", in the very words of herein appellee. It is not
improbable in fact, its is very likely that said advice
was given and followed in order that the patient could be
near his doctor and have a more effective treatment. It is
well settled that "domicile is not commonly changed by
presence in a place merely for one's own health", even if
coupled with "knowledge that one will never again be able,
on account of illness, to return home." (The Conflict of
Laws, by Beale, Vol. I, pp. 172-173; see, also,
Shenton vs. Abbott, Md., 15., A. 2d. 906; U.S. vs. Knight, D. C.
Mont., 291 Fed. 129).

Your stand until now is to question the jurisdiction of this

Court, and it seems that you are now trying to prove the
status of your client; you are leading so that. The main
point here is your contention that the deceased was never
a resident of Quezon City and that is why I allowed you to
cross-examine. If you are trying to establish the status of
the oppositors, I will sustain the objection, unless you want
to submit to the jurisdiction of the Court. This is not yet the
time to declare who are persons who should inherit. (p. 1,
t. s. n.)

Again, the decedent did not part with, or alienate, his

house in San Fernando, Pampanga. Moreover, some of his
children, who used to live with him in San Fernando,
Pampanga, remained in that municipality. Then, again, in
the deed Exhibit 2, by virtue of which said property at No.
889-A Espaa Extention, Quezon City, was conveyed to
him, on October 29, 1952, or less than a month before his
death, the decedent gave San Fernando, Pampanga, as his
residence. Similarly, the "A" and "B" residence certificates
used by the decedent in aknowledging said Exhibit 2,
before a notary public, was issued in San Fernando,
Pampanga. Lastly, the marriage contract Exhibit 1, signed
by the deceased when he was married, in articulo mortis,
to Concepcion Villanueva, at the UST Hospital, on
November 26, 1952, or two (2) days prior to his demise,
stated that his residence is San Fernando, Pampanga. It is
worthy of notice that Alfonso Eusebio, one of the
legitimate full brothers of the herein appellee, was a
witness to said wedding, thus indicating that the children
of the deceased by his first marriage, including said
appellee, were represented on that occasion and would
have objected to said statement about his residence, if it
were false. Consequently, apart from appellee's failure to
prove satisfactory that the decedent had decided to
establish his home in Quezon City, the acts of the latter,
shortly and immediately before his death, prove the
contrary. At any rate, the presumption in favor of the
retention of the old domicile 1 which is particularly
strong when the domicile is one of the origin 2as San
Fernando, Pampanga, evidently was, as regards said
decedent has not been offset by the evidence of record.
The lower court, however, rejected said Exhibits 1 and 2,
upon being offered in evidence, and refused to entertain
the same in the order appealed from. The reason therefor
are deducible from its resolution in rejecting said
documents during the hearing of the incident at bar. The
court then held:

Rule 73: Venue and Process

In short, the lower court believed that said documents

should not be admitted in evidence before appellants had
established their "personality" to intervene in the case,
referring seemingly to their filiation. When appellants,
however, sought, during said hearing, to establish their
relation with the deceased, as his alleged illegitimate
children, His Honor, the trial Judge sustained appellee's
objection thereto stating:

Thus, the lower court refused to consider appellant's

evidence on the domicile of the decedent, because of their
alleged lack of "personality", but, when tried to establish
such "personality", they were barred from doing so on
account of the question of venue raised by him. We find
ourselves unable to sanction either the foregoing
procedure adopted by the lower court or the inference it
drew from the circumstances surrounding the case.
To begin with, His Honor, the trial Judge had taken
inconsistent positions. While, on the one hand, he declared
that appellants could not be permitted to introduce
evidence on the residence of the decedent, for
they contestedthe jurisdiction of court, on the other hand,
he held, in the order appealed from, that, by crossexamining the appellee, said appellants had submitted
themselves to the authority of the court.
What is more, this conclusion is refuted by the record. At
the beginning of the hearing, in the lower court, appellants'
counsel announced that he would take part therein "only to
question the jurisdiction, for the purpose of dismissing this
proceeding," (p. 2, t.s.n.). During the cross-examination of
petitioner herein, said counsel tried to elicit the relation
between the decedent and the appellants. As, the appellee
objected thereto, the court said, addressing appellants'
counsel: "Your stand until now is to question the jurisdiction
of the court. . . . It you are trying to establish the status of
the oppositors, I will sustain the objection, unless you want
to submit to the jurisdiction of the court" (p. 7, t.s.n.).
Thereupon, appellants' counsel refused to do so, stating: "I
will insist on my stand." Then, too, at the conclusion of the
hearing, the court rejected Exhibits 1 and 2, for the reason
that appellants "refuse to submit to the jurisdiction of this
court and they maintain that these proceedings should
be dismissed." Thus, appellants specially made of record
that they were not submitting themselves to the
jurisdiction
of
the
court,
except
for
the
purpose only of assailing the same, and the court felt that
appellants were not giving up their stand, which was, and
is, a fact.

Page 40

At any rate, appellants were entitled to establish facts

tending to prove, not only their right to object to appellee's
petition, but, also, that venue had been laid improperly.
Such facts were: (a) their alleged relationship with the
decedent, 3 which, if true, entitle them to proceed him
under the Civil Code of the Philippines; and (b) his alleged
residence is Pampanga. In other words, the lower court
should have admitted Exhibits 1 and 2 in evidence and
given thereto the proper effect, in connection with the
issue under consideration.
Appellee, however, asks: "What will happen if this case be
dismissed in the Court of First Instance of Quezon City on
the ground of lack of jurisdiction or improper venue?" In
this connection, it appears that on November 14, 1953, the
Clerk of the Court of First Instance of Pampanga received a
petition of appellants herein, dated November 4, 1953, for
the settlement of the "Intestate Estate of the late Don
Andres Eusebio". Attached to said petition was petition for
the docketing thereof free charge, pursuant to Rule 3,
section 22, of the Rules of Court. The latter petition was
granted by an order dated November 16, 1953, which was
received by the cashier of said court on November 17,
1953, on which date the case was docketed as Special
Proceedings No. 957. On December 14, 1953, Jesus,
Eugenio, Amando and Alfonso, all surnamed Eusebio (the
children of the decedent by first marriage, including
petitioner herein), moved for the dismissal of said
proceedings, owing to the pendency of the present case,
before the Court of First Instance of Rizal, since November
16, 1953. This motion was granted in an order dated
December 21, 1953, relying upon the above Rule 75,
section 1, of the Rules of Court, pursuant to which "the
court first taking cognizance of the settlement of the estate
of a decedent, shall exercise jurisdiction to the exclusion of
all other courts."
Although said order is now final, it cannot affect the
outcome of the case at bar. Said order did not pass upon
the question of domicile or residence of the decedent.
Moreover, in granting the court first taking cognizance of
the case exclusive jurisdiction over the same, said
provision of the Rules of Court evidently refers to cases
triable
before
two
or
more
courts
with concurrent jurisdiction. It could not possibly have
intended to deprive a competent court of the authority
vested therein by law, merely because a similar case had
been previously filed before a court to which jurisdiction is
denied by law, for the same would then be defeated by the
will of one of the parties. More specially, said provision
refers mainly to non-resident decedents who have
properties in several provinces in the Philippines, for the
settlement of their respective estates may undertaken
before the court of first instance of either one of said
provinces, not only because said courts then have
concurrent jurisdiction and, hence, the one first taking
cognizance of the case shall exclude the other courts
but, also, because the statement to this effect in said
section 1 of Rule 75 of the Rules of the Court immediately
follows the last part of the next preceding sentence, which
deals with non-resident decedents, whose estate may
settled the court of first instance of any province in which
they have properties.lawphil.net
In view, however, of the last sentence of said section,
providing that:
. . . The jurisdiction assumed by a court, so far as it depends
on the place of residence of the decedent, or of the location
of his estate, shall not be contested in a suit or
proceedings, except in an appeal from that court, in the

Rule 73: Venue and Process

original case, or when the want of jurisdiction appears on

the record.
if proceedings for the settlement of the estate of a
deceased resident are instituted in two or more courts,
and the question of venue is raised before the same, the
court in which the first case was filed shall have exclusive
jurisdiction to decide said issue, and we so held in the case
of Taciana Vda. De Borja vs. Tan, L-7792 (July 27, 1955).
Should it be decided, in the proceedings before the said
court, that venue had been improperly laid, the case
pending therein should be dismissed and the
corresponding proceedings may, thereafter, be initiated in
the proper court.
In conclusion, we find that the decedent was, at the time of
his death, domiciled in San Fernando, Pampanga; that the
Court of First Instance of Rizal had no authority, therefore,
to appoint an administrator of the estate of the deceased,
the venue having been laid improperly; and that it should,
accordingly, have sustained appellants' opposition and
dismissed appellee's petition.
Wherefore, the order appealed from is hereby reversed
and appellee's petition is dismissed, with costs against the
appellee. It is so ordered.
G.R. No. 133743

February 6, 2007

EDGAR
SAN
vs.
FELICIDAD SAN LUIS, Respondent.

LUIS, Petitioner,

x ---------------------------------------------------- x
G.R. No. 134029

February 6, 2007

RODOLFO
SAN
vs.
FELICIDAD SAGALONGOS
LUIS, Respondent.

LUIS, Petitioner,
alias

FELICIDAD

SAN

DECISION
YNARES-SANTIAGO, J.:
Before us are consolidated petitions for review assailing
the February 4, 1998 Decision 1 of the Court of Appeals in
CA-G.R. CV No. 52647, which reversed and set aside the
September 12, 1995 2 and January 31, 1996 3Resolutions of
the Regional Trial Court of Makati City, Branch 134 in SP.
Proc. No. M-3708; and its May 15, 1998
Resolution 4 denying
petitioners
motion
for
reconsideration.
The instant case involves the settlement of the estate of
Felicisimo T. San Luis (Felicisimo), who was the former
governor of the Province of Laguna. During his lifetime,
Felicisimo contracted three marriages. His first marriage
was with Virginia Sulit on March 17, 1942 out of which
were born six children, namely: Rodolfo, Mila, Edgar,
Linda, Emilita and Manuel. On August 11, 1963, Virginia
predeceased Felicisimo.
Five years later, on May 1, 1968, Felicisimo married Merry
Lee Corwin, with whom he had a son, Tobias. However, on
October 15, 1971, Merry Lee, an American citizen, filed a
Complaint for Divorce 5 before the Family Court of the
First Circuit, State of Hawaii, United States of America
(U.S.A.), which issued a Decree Granting Absolute Divorce
and Awarding Child Custody on December 14, 1973. 6

Page 41

On June 20, 1974, Felicisimo married respondent Felicidad

San Luis, then surnamed Sagalongos, before Rev. Fr.
William Meyer, Minister of the United Presbyterian at
Wilshire Boulevard, Los Angeles, California, U.S.A. 7 He had
no children with respondent but lived with her for 18
years from the time of their marriage up to his death on
December 18, 1992.
Thereafter, respondent sought the dissolution of their
conjugal partnership assets and the settlement of
Felicisimos estate. On December 17, 1993, she filed a
petition for letters of administration 8 before the Regional
Trial Court of Makati City, docketed as SP. Proc. No. M3708 which was raffled to Branch 146 thereof.
Respondent alleged that she is the widow of Felicisimo;
that, at the time of his death, the decedent was residing at
100 San Juanico Street, New Alabang Village, Alabang,
Metro Manila; that the decedents surviving heirs are
respondent as legal spouse, his six children by his first
marriage, and son by his second marriage; that the
decedent left real properties, both conjugal and exclusive,
valued at P30,304,178.00 more or less; that the decedent
does not have any unpaid debts. Respondent prayed that
the conjugal partnership assets be liquidated and that
letters of administration be issued to her.
On February 4, 1994, petitioner Rodolfo San Luis, one of
the children of Felicisimo by his first marriage, filed a
motion to dismiss 9 on the grounds of improper venue and
failure to state a cause of action. Rodolfo claimed that the
petition for letters of administration should have been
filed in the Province of Laguna because this was
Felicisimos place of residence prior to his death. He
further claimed that respondent has no legal personality to
file the petition because she was only a mistress of
Felicisimo since the latter, at the time of his death, was still
legally married to Merry Lee.
On February 15, 1994, Linda invoked the same grounds
and joined her brother Rodolfo in seeking the
dismissal10 of the petition. On February 28, 1994, the trial
court issued an Order 11 denying the two motions to
dismiss.

On October 24, 1994, the trial court issued an

Order 17 denying the motions for reconsideration. It ruled
that respondent, as widow of the decedent, possessed the
legal standing to file the petition and that venue was
properly laid. Meanwhile, the motion for disqualification
was deemed moot and academic 18 because then Acting
Presiding Judge Santos was substituted by Judge Salvador
S. Tensuan pending the resolution of said motion.
Mila filed a motion for inhibition 19 against Judge Tensuan
on November 16, 1994. On even date, Edgar also filed a
motion for reconsideration 20 from the Order denying their
motion for reconsideration arguing that it does not state
the facts and law on which it was based.
On November 25, 1994, Judge Tensuan issued an
Order 21 granting the motion for inhibition. The case was
re-raffled to Branch 134 presided by Judge Paul T.
Arcangel.
On April 24, 1995, 22 the trial court required the parties to
submit their respective position papers on the twin issues
of venue and legal capacity of respondent to file the
petition. On May 5, 1995, Edgar manifested 23 that he is
adopting the arguments and evidence set forth in his
previous motion for reconsideration as his position paper.
Respondent and Rodolfo filed their position papers on
June 14, 24 and June 20, 25 1995, respectively.
On September 12, 1995, the trial court dismissed the
petition for letters of administration. It held that, at the
time of his death, Felicisimo was the duly elected governor
and a resident of the Province of Laguna. Hence, the
petition should have been filed in Sta. Cruz, Laguna and not
in Makati City. It also ruled that respondent was without
legal capacity to file the petition for letters of
administration because her marriage with Felicisimo was
bigamous, thus, void ab initio. It found that the decree of
absolute divorce dissolving Felicisimos marriage to Merry
Lee was not valid in the Philippines and did not bind
Felicisimo who was a Filipino citizen. It also ruled that
paragraph 2, Article 26 of the Family Code cannot be
retroactively applied because it would impair the vested
rights of Felicisimos legitimate children.

Unaware of the denial of the motions to dismiss,

respondent
filed
on
March
5,
1994
her
opposition 12 thereto.
She
submitted
documentary
evidence showing that while Felicisimo exercised the
powers of his public office in Laguna, he regularly went
home to their house in New Alabang Village, Alabang,
Metro Manila which they bought sometime in 1982.
Further, she presented the decree of absolute divorce
issued by the Family Court of the First Circuit, State of
Hawaii to prove that the marriage of Felicisimo to Merry
Lee had already been dissolved. Thus, she claimed that
Felicisimo had the legal capacity to marry her by virtue of
paragraph 2, 13 Article 26 of the Family Code and the
doctrine laid down in Van Dorn v. Romillo, Jr. 14

Respondent moved for reconsideration 26 and for the

disqualification 27 of Judge Arcangel but said motions were
denied. 28

Thereafter, Linda, Rodolfo and herein petitioner Edgar San

Luis, separately filed motions for reconsideration from the
Order denying their motions to dismiss. 15 They asserted
that paragraph 2, Article 26 of the Family Code cannot be
given retroactive effect to validate respondents bigamous
marriage with Felicisimo because this would impair vested
rights in derogation of Article 256 16 of the Family Code.

The appellante court ruled that under Section 1, Rule 73 of

the Rules of Court, the term "place of residence" of the
decedent, for purposes of fixing the venue of the
settlement of his estate, refers to the personal, actual or
physical habitation, or actual residence or place of abode
of a person as distinguished from legal residence or
domicile. It noted that although Felicisimo discharged his
functions as governor in Laguna, he actually resided in
Alabang, Muntinlupa. Thus, the petition for letters of
administration was properly filed in Makati City.

On April 21, 1994, Mila, another daughter of Felicisimo

from his first marriage, filed a motion to disqualify Acting
Presiding Judge Anthony E. Santos from hearing the case.

Rule 73: Venue and Process

Respondent appealed to the Court of Appeals which

reversed and set aside the orders of the trial court in its
assailed Decision dated February 4, 1998, the dispositive
portion of which states:
WHEREFORE, the Orders dated September 12, 1995 and
January 31, 1996 are hereby REVERSED and SET ASIDE;
the Orders dated February 28 and October 24, 1994 are
REINSTATED; and the records of the case is REMANDED to
the trial court for further proceedings. 29

Page 42

The Court of Appeals also held that Felicisimo had legal

capacity to marry respondent by virtue of paragraph 2,
Article 26 of the Family Code and the rulings in Van Dorn v.
Romillo, Jr. 30 and Pilapil v. Ibay-Somera. 31 It found that
the marriage between Felicisimo and Merry Lee was
validly dissolved by virtue of the decree of absolute
divorce issued by the Family Court of the First Circuit,
State of Hawaii. As a result, under paragraph 2, Article 26,
Felicisimo was capacitated to contract a subsequent
marriage with respondent. Thus
With the well-known rule express mandate of paragraph
2, Article 26, of the Family Code of the Philippines, the
doctrines in Van Dorn, Pilapil, and the reason and
philosophy behind the enactment of E.O. No. 227, there
is no justiciable reason to sustain the individual view
sweeping statement of Judge Arc[h]angel, that "Article
26, par. 2 of the Family Code, contravenes the basic policy
of our state against divorce in any form whatsoever."
Indeed, courts cannot deny what the law grants. All that
the courts should do is to give force and effect to the
express mandate of the law. The foreign divorce having
been obtained by the Foreigner on December 14,
1992,32 the Filipino divorcee, "shall x x x have capacity to
remarry under Philippine laws". For this reason, the
marriage between the deceased and petitioner should not
be denominated as "a bigamous marriage.
Therefore, under Article 130 of the Family Code, the
petitioner as the surviving spouse can institute the judicial
proceeding for the settlement of the estate of the deceased.
x x x 33
Edgar, Linda, and Rodolfo filed separate motions for
reconsideration 34 which were denied by the Court of
Appeals.
On July 2, 1998, Edgar appealed to this Court via the
instant petition for review on certiorari. 35 Rodolfo later
filed a manifestation and motion to adopt the said petition
which was granted. 36
In the instant consolidated petitions, Edgar and Rodolfo
insist that the venue of the subject petition for letters of
administration was improperly laid because at the time of
his death, Felicisimo was a resident of Sta. Cruz, Laguna.
They contend that pursuant to our rulings in Nuval v.
Guray 37 and Romualdez v. RTC, Br. 7, Tacloban
City, 38 "residence" is synonymous with "domicile" which
denotes a fixed permanent residence to which when
absent, one intends to return. They claim that a person can
only have one domicile at any given time. Since Felicisimo
never changed his domicile, the petition for letters of
administration should have been filed in Sta. Cruz, Laguna.
Petitioners also contend that respondents marriage to
Felicisimo was void and bigamous because it was
performed during the subsistence of the latters marriage
to Merry Lee. They argue that paragraph 2, Article 26
cannot be retroactively applied because it would impair
vested rights and ratify the void bigamous marriage. As
such, respondent cannot be considered the surviving wife
of Felicisimo; hence, she has no legal capacity to file the
petition for letters of administration.
The issues for resolution: (1) whether venue was properly
laid, and (2) whether respondent has legal capacity to file
the subject petition for letters of administration.
The petition lacks merit.

Rule 73: Venue and Process

Under Section 1, 39 Rule 73 of the Rules of Court, the

petition for letters of administration of the estate of
Felicisimo should be filed in the Regional Trial Court of the
province "in which he resides at the time of his death." In
the case of Garcia Fule v. Court of Appeals, 40 we laid down
the doctrinal rule for determining the residence as
contradistinguished from domicile of the decedent for
purposes of fixing the venue of the settlement of his estate:
[T]he term "resides" connotes ex vi termini "actual
residence" as distinguished from "legal residence or
domicile." This term "resides," like the terms "residing"
and "residence," is elastic and should be interpreted in the
light of the object or purpose of the statute or rule in which
it is employed. In the application of venue statutes and
rules Section 1, Rule 73 of the Revised Rules of Court is of
such nature residence rather than domicile is the
significant factor. Even where the statute uses the word
"domicile" still it is construed as meaning residence and
not domicile in the technical sense. Some cases make a
distinction between the terms "residence" and "domicile"
but as generally used in statutes fixing venue, the terms
are synonymous, and convey the same meaning as the
term "inhabitant." In other words, "resides" should be
viewed or understood in its popular sense, meaning, the
personal, actual or physical habitation of a person, actual
residence or place of abode. It signifies physical presence
in a place and actual stay thereat. In this popular sense, the
term means merely residence, that is, personal residence,
not legal residence or domicile. Residence simply requires
bodily presence as an inhabitant in a given place, while
domicile requires bodily presence in that place and also an
intention to make it ones domicile. No particular length of
time of residence is required though; however, the
residence must be more than temporary. 41 (Emphasis
supplied)
It is incorrect for petitioners to argue that "residence," for
purposes of fixing the venue of the settlement of the estate
of Felicisimo, is synonymous with "domicile." The rulings
in Nuval and Romualdez are inapplicable to the instant
case because they involve election cases. Needless to say,
there is a distinction between "residence" for purposes of
election laws and "residence" for purposes of fixing the
venue of actions. In election cases, "residence" and
"domicile" are treated as synonymous terms, that is, the
fixed permanent residence to which when absent, one has
the intention of returning. 42 However, for purposes of
fixing venue under the Rules of Court, the "residence" of a
person is his personal, actual or physical habitation, or
actual residence or place of abode, which may not
necessarily be his legal residence or domicile provided he
resides therein with continuity and consistency. 43 Hence,
it is possible that a person may have his residence in one
place and domicile in another.
In the instant case, while petitioners established that
Felicisimo was domiciled in Sta. Cruz, Laguna, respondent
proved that he also maintained a residence in Alabang,
Muntinlupa from 1982 up to the time of his death.
Respondent submitted in evidence the Deed of Absolute
Sale 44 dated January 5, 1983 showing that the deceased
purchased the aforesaid property. She also presented
billing statements 45 from the Philippine Heart Center and
Chinese General Hospital for the period August to
December 1992 indicating the address of Felicisimo at
"100 San Juanico, Ayala Alabang, Muntinlupa." Respondent
also presented proof of membership of the deceased in the
Ayala Alabang Village Association 46 and Ayala Country
Club, Inc., 47 letter-envelopes 48from 1988 to 1990 sent by
the deceaseds children to him at his Alabang address, and

Page 43

the deceaseds calling cards 49 stating that his home/city

address is at "100 San Juanico, Ayala Alabang Village,
Muntinlupa" while his office/provincial address is in
"Provincial Capitol, Sta. Cruz, Laguna."
From the foregoing, we find that Felicisimo was a resident
of Alabang, Muntinlupa for purposes of fixing the venue of
the settlement of his estate. Consequently, the subject
petition for letters of administration was validly filed in
the Regional Trial Court 50 which has territorial
jurisdiction over Alabang, Muntinlupa. The subject petition
was filed on December 17, 1993. At that time, Muntinlupa
was still a municipality and the branches of the Regional
Trial Court of the National Capital Judicial Region which
had territorial jurisdiction over Muntinlupa were then
seated in Makati City as per Supreme Court Administrative
Order No. 3. 51 Thus, the subject petition was validly filed
before the Regional Trial Court of Makati City.
Anent the issue of respondent Felicidads legal personality
to file the petition for letters of administration, we must
first resolve the issue of whether a Filipino who is divorced
by his alien spouse abroad may validly remarry under the
Civil Code, considering that Felicidads marriage to
Felicisimo was solemnized on June 20, 1974, or before the
Family Code took effect on August 3, 1988. In resolving
this issue, we need not retroactively apply the provisions
of the Family Code, particularly Art. 26, par. (2)
considering that there is sufficient jurisprudential basis
allowing us to rule in the affirmative.
The case of Van Dorn v. Romillo, Jr. 52 involved a marriage
between a foreigner and his Filipino wife, which marriage
was subsequently dissolved through a divorce obtained
abroad by the latter. Claiming that the divorce was not
valid under Philippine law, the alien spouse alleged that
his interest in the properties from their conjugal
partnership should be protected. The Court, however,
recognized the validity of the divorce and held that the
alien spouse had no interest in the properties acquired by
the Filipino wife after the divorce. Thus:
In this case, the divorce in Nevada released private
respondent from the marriage from the standards of
American law, under which divorce dissolves the
marriage. As stated by the Federal Supreme Court of the
United States in Atherton vs. Atherton, 45 L. Ed. 794, 799:
"The purpose and effect of a decree of divorce from the
bond of matrimony by a competent jurisdiction are to
change the existing status or domestic relation of husband
and wife, and to free them both from the bond. The
marriage tie, when thus severed as to one party, ceases to
bind either. A husband without a wife, or a wife without a
husband, is unknown to the law. When the law provides, in
the nature of a penalty, that the guilty party shall not
marry again, that party, as well as the other, is still
absolutely freed from the bond of the former marriage."
Thus, pursuant to his national law, private respondent is
no longer the husband of petitioner. He would have no
standing to sue in the case below as petitioners husband
entitled to exercise control over conjugal assets. As he is
bound by the Decision of his own countrys Court, which
validly exercised jurisdiction over him, and whose decision
he does not repudiate, he is estopped by his own
representation before said Court from asserting his right
over the alleged conjugal property. 53
As to the effect of the divorce on the Filipino wife, the
Court ruled that she should no longer be considered
married to the alien spouse. Further, she should not be

Rule 73: Venue and Process

required to perform her marital duties and obligations. It

held:
To maintain, as private respondent does, that, under
our laws, petitioner has to be considered still
married to private respondent and still subject to a
wife's obligations under Article 109, et. seq. of the Civil
Code cannot be just. Petitioner should not be obliged to
live together with, observe respect and fidelity, and render
support to private respondent. The latter should not
continue to be one of her heirs with possible rights to
conjugal property. She should not be discriminated
against in her own country if the ends of justice are to
be served. 54 (Emphasis added)
This principle was thereafter applied in Pilapil v. IbaySomera 55 where the Court recognized the validity of a
divorce obtained abroad. In the said case, it was held that
the alien spouse is not a proper party in filing the adultery
suit against his Filipino wife. The Court stated that "the
severance of the marital bond had the effect of dissociating
the former spouses from each other, hence the actuations of
one would not affect or cast obloquy on the other." 56
Likewise, in Quita v. Court of Appeals, 57 the Court stated
that where a Filipino is divorced by his naturalized foreign
spouse, the ruling in Van Dorn applies. 58 Although decided
on December 22, 1998, the divorce in the said case was
obtained in 1954 when the Civil Code provisions were still
in effect.
The significance of the Van Dorn case to the development
of limited recognition of divorce in the Philippines cannot
be denied. The ruling has long been interpreted as
severing marital ties between parties in a mixed marriage
and capacitating the Filipino spouse to remarry as a
necessary consequence of upholding the validity of a
divorce obtained abroad by the alien spouse. In his
treatise, Dr. Arturo M. Tolentino cited Van Dorn stating
that "if the foreigner obtains a valid foreign divorce, the
Filipino spouse shall have capacity to remarry under
Philippine law." 59 In Garcia v. Recio, 60 the Court likewise
cited the aforementioned case in relation to Article 26. 61
In the recent case of Republic v. Orbecido III, 62 the
historical background and legislative intent behind
paragraph 2, Article 26 of the Family Code were discussed,
to wit:
Brief Historical Background
On July 6, 1987, then President Corazon Aquino signed into
law Executive Order No. 209, otherwise known as the
"Family Code," which took effect on August 3, 1988. Article
26 thereof states:
All marriages solemnized outside the Philippines in
accordance with the laws in force in the country where
they were solemnized, and valid there as such, shall also be
valid in this country, except those prohibited under
Articles 35, 37, and 38.
On July 17, 1987, shortly after the signing of the original
Family Code, Executive Order No. 227 was likewise signed
into law, amending Articles 26, 36, and 39 of the Family
Code. A second paragraph was added to Article 26. As so
amended, it now provides:
ART. 26. All marriages solemnized outside the Philippines
in accordance with the laws in force in the country where
they were solemnized, and valid there as such, shall also be

Page 44

valid in this country, except those prohibited under

Articles 35(1), (4), (5) and (6), 36, 37 and 38.
Where a marriage between a Filipino citizen and a foreigner
is validly celebrated and a divorce is thereafter validly
obtained abroad by the alien spouse capacitating him or her
to remarry, the Filipino spouse shall have capacity to
remarry under Philippine law. (Emphasis supplied)
x
Legislative Intent

Records of the proceedings of the Family Code

deliberations showed that the intent of Paragraph 2 of
Article 26, according to Judge Alicia Sempio-Diy, a member
of the Civil Code Revision Committee, is to avoid the
absurd situation where the Filipino spouse remains
married to the alien spouse who, after obtaining a divorce,
is no longer married to the Filipino spouse.
Interestingly, Paragraph 2 of Article 26 traces its
origin to the 1985 case of Van Dorn v. Romillo,
Jr. The Van Dorn case involved a marriage between a
Filipino citizen and a foreigner. The Court held therein
that a divorce decree validly obtained by the alien
spouse is valid in the Philippines, and consequently,
the Filipino spouse is capacitated to remarry under
Philippine law. 63 (Emphasis added)
As such, the Van Dorn case is sufficient basis in resolving a
situation where a divorce is validly obtained abroad by the
alien spouse. With the enactment of the Family Code and
paragraph 2, Article 26 thereof, our lawmakers codified
the
law
already
established
through
judicial
precedent.1awphi1.net
Indeed, when the object of a marriage is defeated by
rendering its continuance intolerable to one of the parties
and productive of no possible good to the community,
relief in some way should be obtainable. 64 Marriage, being
a mutual and shared commitment between two parties,
cannot possibly be productive of any good to the society
where one is considered released from the marital bond
while the other remains bound to it. Such is the state of
affairs where the alien spouse obtains a valid divorce
abroad against the Filipino spouse, as in this case.
Petitioners cite Articles 15 65 and 17 66 of the Civil Code in
stating that the divorce is void under Philippine law
insofar as Filipinos are concerned. However, in light of this
Courts rulings in the cases discussed above, the Filipino
spouse should not be discriminated against in his own
country if the ends of justice are to be served. 67 In Alonzo
v. Intermediate Appellate Court, 68 the Court stated:
But as has also been aptly observed, we test a law by its
results; and likewise, we may add, by its purposes. It is a
cardinal rule that, in seeking the meaning of the law, the
first concern of the judge should be to discover in its
provisions the intent of the lawmaker. Unquestionably, the
law should never be interpreted in such a way as to cause
injustice as this is never within the legislative intent. An
indispensable part of that intent, in fact, for we presume
the good motives of the legislature, is to render justice.
Thus, we interpret and apply the law not independently of
but in consonance with justice. Law and justice are
inseparable, and we must keep them so. To be sure, there
are some laws that, while generally valid, may seem
arbitrary when applied in a particular case because of its
peculiar circumstances. In such a situation, we are not
bound, because only of our nature and functions, to apply

Rule 73: Venue and Process

them just the same, in slavish obedience to their language.

What we do instead is find a balance between the word
and the will, that justice may be done even as the law is
obeyed.
As judges, we are not automatons. We do not and must not
unfeelingly apply the law as it is worded, yielding like
robots to the literal command without regard to its cause
and consequence. "Courts are apt to err by sticking too
closely to the words of a law," so we are warned, by Justice
Holmes again, "where these words import a policy that
goes beyond them."
xxxx
More than twenty centuries ago, Justinian defined justice
"as the constant and perpetual wish to render every one
his due." That wish continues to motivate this Court when
it assesses the facts and the law in every case brought to it
for decision. Justice is always an essential ingredient of its
decisions. Thus when the facts warrants, we interpret the
law in a way that will render justice, presuming that it was
the intention of the lawmaker, to begin with, that the law
be dispensed with justice. 69
Applying the above doctrine in the instant case, the
divorce decree allegedly obtained by Merry Lee which
absolutely allowed Felicisimo to remarry, would have
vested Felicidad with the legal personality to file the
present petition as Felicisimos surviving spouse. However,
the records show that there is insufficient evidence to
prove the validity of the divorce obtained by Merry Lee as
well as the marriage of respondent and Felicisimo under
the laws of the U.S.A. In Garcia v. Recio, 70 the Court laid
down the specific guidelines for pleading and proving
foreign law and divorce judgments. It held that
presentation solely of the divorce decree is insufficient and
that proof of its authenticity and due execution must be
presented. Under Sections 24 and 25 of Rule 132, a writing
or document may be proven as a public or official record of
a foreign country by either (1) an official publication or (2)
a copy thereof attested by the officer having legal custody
of the document. If the record is not kept in the
Philippines, such copy must be (a) accompanied by a
certificate issued by the proper diplomatic or consular
officer in the Philippine foreign service stationed in the
foreign country in which the record is kept and (b)
authenticated by the seal of his office. 71
With regard to respondents marriage to Felicisimo
allegedly solemnized in California, U.S.A., she submitted
photocopies of the Marriage Certificate and the annotated
text 72 of the Family Law Act of California which
purportedly show that their marriage was done in
accordance with the said law. As stated in Garcia, however,
the Court cannot take judicial notice of foreign laws as they
must be alleged and proved. 73
Therefore, this case should be remanded to the trial court
for further reception of evidence on the divorce decree
obtained by Merry Lee and the marriage of respondent and
Felicisimo.
Even assuming that Felicisimo was not capacitated to
marry respondent in 1974, nevertheless, we find that the
latter has the legal personality to file the subject petition
for letters of administration, as she may be considered the
co-owner of Felicisimo as regards the properties that were
acquired through their joint efforts during their
cohabitation.

Page 45

Section 6, 74 Rule 78 of the Rules of Court states that letters

of administration may be granted to the surviving spouse
of the decedent. However, Section 2, Rule 79 thereof also
provides in part:

the case, asserts an affirmative issue. Contentions must be

proved by competent evidence and reliance must be had
on the strength of the partys own evidence and not upon
the weakness of the opponents defense. x x x81

SEC. 2. Contents of petition for letters of administration.

A petition for letters of administration must be filed by an
interested person and must show, as far as known to the
petitioner: x x x.

In view of the foregoing, we find that respondents legal

capacity to file the subject petition for letters of
administration may arise from her status as the surviving
wife of Felicisimo or as his co-owner under Article 144 of
the Civil Code or Article 148 of the Family Code.

An "interested person" has been defined as one who would

be benefited by the estate, such as an heir, or one who has
a claim against the estate, such as a creditor. The interest
must be material and direct, and not merely indirect or
contingent. 75
In the instant case, respondent would qualify as an
interested person who has a direct interest in the estate of
Felicisimo by virtue of their cohabitation, the existence of
which was not denied by petitioners. If she proves the
validity of the divorce and Felicisimos capacity to remarry,
but fails to prove that her marriage with him was validly
performed under the laws of the U.S.A., then she may be
considered as a co-owner under Article 144 76 of the Civil
Code. This provision governs the property relations
between parties who live together as husband and wife
without the benefit of marriage, or their marriage is void
from the beginning. It provides that the property acquired
by either or both of them through their work or industry
or their wages and salaries shall be governed by the rules
on co-ownership. In a co-ownership, it is not necessary
that the property be acquired through their joint labor,
efforts and industry. Any property acquired during the
union is prima facie presumed to have been obtained
through their joint efforts. Hence, the portions belonging
to the co-owners shall be presumed equal, unless the
contrary is proven. 77
Meanwhile, if respondent fails to prove the validity of both
the divorce and the marriage, the applicable provision
would be Article 148 of the Family Code which has filled
the hiatus in Article 144 of the Civil Code by expressly
regulating the property relations of couples living together
as husband and wife but are incapacitated to
marry. 78In Saguid v. Court of Appeals, 79 we held that even
if the cohabitation or the acquisition of property occurred
before the Family Code took effect, Article 148
governs. 80 The Court described the property regime under
this provision as follows:
The regime of limited co-ownership of property governing
the union of parties who are not legally capacitated to
marry each other, but who nonetheless live together as
husband and wife, applies to properties acquired during
said cohabitation in proportion to their respective
contributions. Co-ownership will only be up to the extent
of the proven actual contribution of money, property or
industry. Absent proof of the extent thereof, their
contributions and corresponding shares shall be presumed
to be equal.
xxxx
In the cases of Agapay v. Palang, and Tumlos v. Fernandez,
which involved the issue of co-ownership of properties
acquired by the parties to a bigamous marriage and an
adulterous relationship, respectively, we ruled that proof
of actual contribution in the acquisition of the property is
essential. x x x
As in other civil cases, the burden of proof rests upon the
party who, as determined by the pleadings or the nature of

Rule 73: Venue and Process

WHEREFORE, the petition is DENIED. The Decision of the

Court of Appeals reinstating and affirming the February
28, 1994 Order of the Regional Trial Court which denied
petitioners motion to dismiss and its October 24, 1994
Order which dismissed petitioners motion for
reconsideration is AFFIRMED. Let this case be REMANDED
to the trial court for further proceedings.
SO ORDERED.
G.R. No. L-55509 April 27, 1984
ETHEL
GRIMM
ROBERTS, petitioner,
vs.
JUDGE TOMAS R. LEONIDAS, Branch 38, Court of First
Instance of Manila; MAXINE TATE-GRIMM, EDWARD
MILLER GRIMM II and LINDA GRIMM, respondents.
N. J. Quisumbing and Associates for petitioners.
Angara, Abello,
respondents.

Concepcion,

Regala

and

Cruz

for

AQUINO, J.:+.wph!1
The question in this case is whether a petition for
allowance of wills and to annul a partition, approved in
anintestate proceeding by Branch 20 of the Manila Court of
First Instance, can be entertained by its Branch 38 (after a
probate in the Utah district court).
Antecedents. Edward M. Grimm an American resident of
Manila, died at 78 in the Makati Medical Center on
November 27, 1977. He was survived by his second wife,
Maxine Tate Grimm and their two children, named Edward
Miller Grimm II (Pete) and Linda Grimm and by Juanita
Grimm Morris and Ethel Grimm Roberts (McFadden), his
two children by a first marriage which ended in divorce
(Sub-Annexes A and B. pp. 36-47, Rollo).
He executed on January 23, 1959 two wills in San
Francisco, California. One will disposed of his Philippine
estate which he described as conjugal property of himself
and his second wife. The second win disposed of his estate
outside the Philippines.
In both wills, the second wife and two children were
favored. The two children of the first marriage were given
their legitimes in the will disposing of the estate situated in
this country. In the will dealing with his property outside
this country, the testator said: t.hqw
I purposely have made no provision in this will for my
daughter, Juanita Grimm Morris, or my daughter, Elsa
Grimm McFadden (Ethel Grimm Roberts), because I have
provided for each of them in a separate will disposing of
my Philippine property. (First clause, pp. 43-47, Rollo).
The two wills and a codicil were presented for probate by
Maxine Tate Grimm and E. LaVar Tate on March 7, 1978 in

Page 46

Probate No. 3720 of the Third Judicial District Court of

Tooele County, Utah. Juanita Grimm Morris of Cupertino,
California and Mrs. Roberts of 15 C. Benitez Street,
Horseshoe Village, Quezon City were notified of the
probate proceeding (Sub-Annex C, pp. 48-55, Rollo).
Maxine admitted that she received notice of the intestate
petition filed in Manila by Ethel in January, 1978 (p. 53,
Rollo). In its order dated April 10, 1978, the Third Judicial
District Court admitted to probate the two wills and the
codicil It was issued upon consideration of the stipulation
dated April 4, 1978 "by and between the attorneys for
Maxine Tate Grimm, Linda Grimm, Edward Miller Grimm
II, E. LaVar Tate, Juanita Kegley Grimm (first wife), Juanita
Grimm Morris and Ethel Grimm Roberts" (Annex C, pp. 4851, Rollo).
Two weeks later, or on April 25, 1978, Maxine and her two
children Linda and Pete, as the first parties, and Ethel,
Juanita Grimm Morris and their mother Juanita Kegley
Grimm as the second parties, with knowledge of the
intestate proceeding in Manila, entered into a compromise
agreement in Utah regarding the estate. It was signed by
David E. Salisbury and Donald B. Holbrook, as lawyers of
the parties, by Pete and Linda and the attorney-in-fact of
Maxine and by the attorney-in-fact of Ethel, Juanita Grimm
Morris and Juanita Kegley Grimm.
In that agreement, it was stipulated that Maxine, Pete and
Ethel would be designated as personal representatives
(administrators) of Grimm's Philippine estate (par. 2). It
was also stipulated that Maxine's one-half conjugal share
in the estate should be reserved for her and that would not
be less than $1,500,000 plus the homes in Utah and Santa
Mesa, Manila (par. 4). The agreement indicated the
computation of the "net distributable estate". It recognized
that the estate was liable to pay the fees of the Angara law
firm (par. 5).
It was stipulated in paragraph 6 that the decedent's four
children "shall share equally in the Net Distributable
Estate" and that Ethel and Juanita Morris should each
receive at least 12-1/2% of the total of the net
distributable estate and marital share. A supplemental
memorandum also dated April 25, 1978 was executed by
the parties (Sub-Annex F, pp. 49-61, Annex, F-1, pp. 75-76,
Testate case).
Intestate proceeding No. 113024.-At this juncture, it should
be stated that forty- three days after Grimm's death, or
January 9, 1978, his daughter of the first marriage, Ethel,
49, through lawyers Deogracias T. Reyes and. Gerardo B.
Macaraeg, filed with Branch 20 of the Manila Court of First
Instance intestate proceeding No. 113024for the settlement
of his estate. She was named special administratrix.
On March 11, the second wife, Maxine, through the Angara
law office, filed an opposition and motion to dismiss the
intestate proceeding on the ground of the pendency of Utah
of a proceeding for the probate of Grimm's will. She also
moved that she be appointed special administratrix, She
submitted to the court a copy of Grimm's will disposing of
his Philippine estate. It is found in pages 58 to 64 of the
record.
The intestate court in its orders of May 23 and June 2
noted that Maxine, through a new lawyer, William C.
Limqueco (partner of Gerardo B. Macaraeg, p. 78, testate
case withdrew that opposition and motion to dismiss and,
at the behest of Maxine, Ethel and Pete, appointed them
joint administrators. Apparently, this was done pursuant

Rule 73: Venue and Process

to the aforementioned Utah compromise agreement. The

court ignored the will already found in the record.
The three administrators submitted an inventory. With the
authority and approval of the court, they sold for P75,000
on March 21, 1979 the so-called Palawan Pearl Project, a
business owned by the deceased. Linda and Juanita
allegedly conformed with the sale (pp. 120-129, Record). It
turned out that the buyer, Makiling Management Co., Inc.,
was incorporated by Ethel and her husband, Rex Roberts,
and by lawyer Limqueco (Annex L, p. 90, testate case).
Also with the court's approval and the consent of Linda
and Juanita, they sold for P1,546,136 to Joseph Server and
others 193,267 shares of RFM Corporation (p. 135,
Record).
Acting on the declaration of heirs and project of partition
signed and filed by lawyers Limqueco and Macaraeg (not
signed by Maxine and her two children), Judge Conrado M.
Molina in his order of July 27, 1979 adjudicated to Maxine
onehalf (4/8) of the decedent's Philippine estate and oneeighth (1/8) each to his four children or 12-1/2% (pp.
140-142, Record). No mention at all was made of the will
in that order.
Six days later, or on August 2, Maxine and her two
children replaced Limqueco with Octavio del Callar as their
lawyer who on August 9, moved to defer approval of the
project of partition. The court considered the motion moot
considering that it had already approved the declaration of
heirs and project of partition (p. 149, Record).
Lawyer Limqueco in a letter to Maxine dated August 2,
1979 alleged that he was no longer connected with
Makiling Management Co., Inc. when the Palawan Pearl
Project was sold: that it was Maxine's son Pete who
negotiated the sale with Rex Roberts and that he
(Limqueco) was going to sue Maxine for the lies she
imputed to him (Annex H, p. 78, testate case).
Ethel submitted to the court a certification of the Assistant
Commissioner of Internal Revenue dated October 2, 1979.
It was stated therein that Maxine paid P1,992,233.69 as
estate tax and penalties and that he interposed no
objection to the transfer of the estate to Grimm's heirs (p.
153, Record). The court noted the certification as in
conformity with its order of July 27, 1979.
After November, 1979 or for a period of more than five
months, there was no movement or activity in the intestate
case. On April 18, 1980 Juanita Grimm Morris, through
Ethel's lawyers, filed a motion for accounting "so that the
Estate properties can be partitioned among the heirs and
the present intestate estate be closed." Del Callar, Maxine's
lawyer was notified of that motion.
Before that motion could be heard, or on June 10, 1980, the
Angara law firm filed again its appearance in collaboration
with Del Callar as counsel for Maxine and her two children,
Linda and Pete. It should be recalled that the firm had
previously appeared in the case as Maxine's counsel on
March 11, 1978, when it filed a motion to dismiss the
intestate proceeding and furnished the court with a copy
of Grimm's will. As already noted, the firm was then
superseded by lawyer Limqueco.
Petition to annul partition and testate proceeding No.
134559. On September 8, 1980, Rogelio A. Vinluan of the
Angara law firm in behalf of Maxine, Pete and Linda, filed
in Branch 38 of the lower court a petition praying for the
probate of Grimm's two wills (already probated in Utah),

Page 47

that the 1979 partition approved by the intestate court be

set aside and the letters of administration revoked, that
Maxine be appointed executrix and that Ethel and Juanita
Morris be ordered to account for the properties received
by them and to return the same to Maxine (pp. 25-35,
Rollo).
Grimm's second wife and two children alleged that they
were defraud due to the machinations of the Roberts
spouses, that the 1978 Utah compromise agreement was
illegal, that the intestate proceeding is void because Grimm
died testate and that the partition was contrary to the
decedent's wills.
Ethel filed a motion to dismiss the petition. Judge Leonidas
denied it for lack of merit in his order of October 27, 1980.
Ethel then filed a petition for certiorari and prohibition in
this Court, praying that the testate proceeding be
dismissed, or. alternatively that the two proceedings be
consolidated and heard in Branch 20 and that the matter of
the annulment of the Utah compromise agreement be
heard prior to the petition for probate (pp. 22-23, Rollo).
Ruling. We hold that respondent judge did not commit
any grave abuse of discretion, amounting to lack of
jurisdiction, in denying Ethel's motion to dismiss.
A testate proceeding is proper in this case because Grimm
died with two wills and "no will shall pass either real or
personal property unless it is proved and allowed" (Art.
838, Civil Code; sec. 1, Rule 75, Rules of Court).
The probate of the will is mandatory (Guevara vs. Guevara,
74 Phil. 479 and 98 Phil. 249; Baluyot vs. Panio, L-42088,
May 7, 1976, 71 SCRA 86). It is anomalous that the estate
of a person who died testate should be settled in an
intestate proceeding. Therefore, the intestate case should
be consolidated with the testate proceeding and the judge
assigned to the testate proceeding should continue hearing
the two cases.
Ethel may file within twenty days from notice of the
finality of this judgment an opposition and answer to the
petition unless she considers her motion to dismiss and
other pleadings sufficient for the purpose. Juanita G.
Morris, who appeared in the intestate case, should be
served with copies of orders, notices and other papers in
the testate case.
WHEREFORE the petition is dismissed. The temporary
restraining order is dissolved. No costs.
SO ORDERED.1wph1.t
G.R. Nos. L-21938-39 May 29, 1970
VICENTE
URIARTE, petitioner,
vs.
THE COURT OF FIRST INSTANCE OF NEGROS
OCCIDENTAL (12th Judicial District) THE COURT OF
FIRST INSTANCE OF MANILA, BRANCH IV, JUAN
URIARTE
ZAMACONA
and
HIGINIO
URIARTE, respondents.
Norberto J. Quisumbing for petitioner.
Taada, Teehankee & Carreon for respondents.

DIZON, J.:

Rule 73: Venue and Process

On October 3, 1963 petitioner Vicente Uriarte filed an

original petition for certiorari docketed as G.R. L-21938
against the respondents Juan Uriarte Zamacona, Higinio
Uriarte, and the Courts of First Instance of Negros
Occidental and of Manila, Branch IV, who will be referred
to hereinafter as the Negros Court and the Manila Court,
respectively praying:
... that after due proceedings judgment be rendered
annulling the orders of 19 April 1963 (Annex 'H') and 11
July 1963 (Annex 'I') of respondent Negros court
dismissing the first instituted Special Proceeding No. 6344,
supra, and the order of 1 July 1963 (Annex 'K') of
respondent
Manila
court
denying
petitioner's omnibus motion to intervene and to dismiss
the later-instituted Special Proceeding No. 51396, supra,
both special proceedings pertaining to the settlement of
the same estate of the same deceased, and consequently
annulling all proceedings had in Special Proceeding No.
51396; supra, of the respondent Manila court as all taken
without jurisdiction.
For the preservation of the rights of the parties pending
these proceedings, petitioner prays for the issuance of a
writ of preliminary injunction enjoining respondents
Manila court, Juan Uriarte Zamacona and Higinio Uriarte
from proceeding with Special Proceeding No. 51396, supra,
until further orders of this Court.
Reasons in support of said petition are stated therein as
follows:
6. Respondent Negros court erred in dismissing its Special
Proceeding No. 6344, supra, and failing to declare itself
'the court first taking cognizance of the settlement of the
estate of' the deceased Don Juan Uriarte y Goite as
prescribed in Rule 75 section 1 of the Rules of Court.
Respondent Manila court erred in failing to dismiss its
Special Proceeding No. 51396, supra, notwithstanding
proof of prior filing of Special Proceeding No. 6344, supra,
in the Negros court.
The writ of preliminary injunction prayed for was granted
and issued by this Court on October 24, 1963.
On April 22, 1964 petitioner filed against the same
respondents a pleading entitled SUPPLEMENTAL
PETITION FOR MANDAMUS docketed in this Court as
G.R. No. L-21939 praying, for the reasons therein stated,
that judgment be rendered annulling the orders issued by
the Negros Court on December 7, 1963 and February 26,
1964, the first disapproving his record on appeal and the
second denying his motion for reconsideration, and
further commanding said court to approve his record on
appeal and to give due course to his appeal. On July 15,
1964 We issued a resolution deferring action on this
Supplemental Petition until the original action for
certiorari (G.R. L-21938) is taken up on the merits.
On October 21, 1963 the respondents in G.R. L-21938 filed
their answer traversing petitioner's contention that the
respondent courts had committed grave abuse of
discretion in relation to the matters alleged in the petition
for certiorari.
It appears that on November 6, 1961 petitioner filed with
the Negros Court a petition for the settlement of the estate
of the late Don Juan Uriarte y Goite (Special Proceeding No.
6344) alleging therein, inter alia, that, as a natural son of
the latter, he was his sole heir, and that, during the lifetime
of said decedent, petitioner had instituted Civil Case No.
6142 in the same Court for his compulsory

Page 48

acknowledgment as such natural son. Upon petitioner's

motion the Negros Court appointed the Philippine National
Bank as special administrator on November 13, 1961 and
two days later it set the date for the hearing of the petition
and ordered that the requisite notices be published in
accordance with law. The record discloses, however, that,
for one reason or another, the Philippine, National Bank
never actually qualified as special administrator.
On December 19, 1961, Higinio Uriarte, one of the two
private respondents herein, filed an opposition to the
above-mentioned petition alleging that he was a nephew of
the deceased Juan Uriarte y Goite who had "executed a Last
Will and Testament in Spain, a duly authenticated copy
whereof has been requested and which shall be submitted
to this Honorable Court upon receipt thereof," and further
questioning petitioner's capacity and interest to
commence the intestate proceeding.
On August 28, 1962, Juan Uriarte Zamacona, the other
private respondent, commenced Special Proceeding No.
51396 in the Manila Court for the probate of a document
alleged to be the last will of the deceased Juan Uriarte y
Goite, and on the same date he filed in Special Proceeding
No. 6344 of the Negros Court a motion to dismiss the same
on the following grounds: (1) that, as the deceased Juan
Uriarte y Goite had left a last will, there was no legal basis
to proceed with said intestate proceedings, and (2) that
petitioner Vicente Uriarte had no legal personality and
interest to initiate said intestate proceedings, he not being
an acknowledged natural son of the decedent. A copy of
the Petition for Probate and of the alleged Will were
attached to the Motion to Dismiss.
Petitioner opposed the aforesaid motion to dismiss
contending that, as the Negros Court was first to take
cognizance of the settlement of the estate of the deceased
Juan Uriarte y Goite, it had acquired exclusive jurisdiction
over same pursuant to Rule 75, Section 1 of the Rules of
Court.
On April 19, 1963, the Negros Court sustained Juan Uriarte
Zamacona's motion to dismiss and dismissed the Special
Proceeding No. 6344 pending before it. His motion for
reconsideration of said order having been denied on July
27, 1963, petitioner proceeded to file his notice of appeal,
appeal bond and record on appeal for the purpose of
appealing from said orders to this court on questions of
law. The administrator with the will annexed appointed by
the Manila Court in Special Proceeding No. 51396 objected
to the approval of the record on appeal, and under date of
December 7, 1963 the Negros Court issued the following
order:
Oppositor prays that the record on appeal filed by the
petitioner on July 27, 1963, be dismissed for having been
filed out of time and for being incomplete. In the
meantime, before the said record on appeal was approved
by this Court, the petitioner filed a petition for certiorari
before the Supreme Court entitled Vicente Uriarte,
Petitioner, vs. Court of First Instance of Negros Occidental, et
al., G.R. No. L-21938, bringing this case squarely before the
Supreme Court on questions of law which is tantamount to
petitioner's abandoning his appeal from this Court.
WHEREFORE, in order to give way to the certiorari, the
record on appeal filed by the petitioner is hereby
disapproved.
In view of the above-quoted order, petitioner filed the
supplemental petition for mandamus mentioned
heretofore.

Rule 73: Venue and Process

On April 15, 1963 Vicente Uriarte filed an Omnibus Motion

in Special Proceeding No. 51396 pending in the Manila
Court, asking for leave to intervene therein; for the
dismissal of the petition and the annulment of the
proceedings had in said special proceeding. This motion
was denied by said court in its order of July 1 of the same
year.
It is admitted that, as alleged in the basic petition filed in
Special Proceeding No. 6344 of the Negros Court, Vicente
Uriarte filed in the same court, during the lifetime of Juan
Uriarte y Goite, Civil Case No. 6142 to obtain judgment for
his compulsory acknowledgment as his natural child.
Clearly inferrable from this is that at the time he filed the
action, as well as when he commenced the aforesaid
special proceeding, he had not yet been acknowledged as
natural son of Juan Uriarte y Goite. Up to this time, no final
judgment to that effect appears to have been rendered.
The record further discloses that the special proceeding
before the Negros Court has not gone farther than the
appointment of a special administrator in the person of the
Philippine National Bank who, as stated heretofore, failed
to qualify.
On the other hand, it is not disputed that, after proper
proceedings were had in Special Proceeding No. 51396, the
Manila Court admitted to probate the document submitted
to, it as the last will of Juan Uriarte y Goite, the petition for
probate appearing not to have been contested. It appears
further that, as stated heretofore, the order issued by the
Manila Court on July 1, 1963 denied petitioner. Vicente
Uriarte's Omnibus Motion for Intervention, Dismissal of
Petition and Annulment of said proceedings.
Likewise, it is not denied that to the motion to dismiss the
special proceeding pending before the Negros Court filed
by Higinio Uriarte were attached a copy of the alleged last
will of Juan Uriarte y Goite and of the petition filed with the
Manila Court for its probate. It is clear, therefore, that
almost from the start of Special Proceeding No. 6344, the
Negros Court and petitioner Vicente Uriarte knew of the
existence of the aforesaid last will and of the proceedings
for its probate.
The principal legal questions raised in the petition for
certiorari are (a) whether or not the Negros Court erred in
dismissing Special Proceeding No. 6644, on the one hand,
and on the other, (b) whether the Manila Court similarly
erred in not dismissing Special Proceeding No. 51396
notwithstanding proof of the prior filing of Special
Proceeding No. 6344 in the Negros Court.
Under the Judiciary Act of 1948 [Section 44, paragraph
(e)], Courts of First Instance have original exclusive
jurisdiction over "all matters of probate," that is, over
special proceedings for the settlement of the estate of
deceased persons whether they died testate or
intestate. While their jurisdiction over such subject matter
is beyond question, the matter of venue, or the particular
Court of First Instance where the special proceeding
should be commenced, is regulated by former Rule 75,
Section 1 of the Rules of Court, now Section 1, Rule 73 of
the Revised Rules of Court, which provides that the estate
of a decedent inhabitant of the Philippines at the time of
his death, whether a citizen or an alien, shall be in the
court of first instance in the province in which he resided
at the time of his death, and if he is an inhabitant of a
foreign country, the court of first instance of any province in
which he had estate. Accordingly, when the estate to be
settled is that of a non-resident alien like the deceased

Page 49

Juan Uriarte y Goite the Courts of First Instance in

provinces where the deceased left any property have
concurrent jurisdiction to take cognizance of the proper
special proceeding for the settlement of his estate. In the
case before Us, these Courts of First Instance are the
Negros and the Manila Courts province and city where
the deceased Juan Uriarte y Goite left considerable
properties. From this premise petitioner argues that, as
the Negros Court had first taken cognizance of the special
proceeding for the settlement of the estate of said
decedent (Special Proceeding No. 6344), the Manila Court
no longer had jurisdiction to take cognizance of Special
Proceeding No. 51396 intended to settle the estate of the
same decedent in accordance with his alleged will, and that
consequently, the first court erred in dismissing Special
Proceeding No. 6344, while the second court similarly
erred in not dismissing Special Proceeding No. 51396.
It can not be denied that a special proceeding intended to
effect the distribution of the estate of a deceased person,
whether in accordance with the law on intestate
succession or in accordance with his will, is a "probate
matter" or a proceeding for the settlement of his estate. It
is equally true, however, that in accordance with settled
jurisprudence in this jurisdiction, testate proceedings, for
the settlement of the estate of a deceased person take
precedence over intestate proceedings for the same
purpose. Thus it has been held repeatedly that, if in the
course of intestate proceedings pending before a court of
first instance it is found it hat the decedent had left a last
will, proceedings for the probate of the latter should
replace the intestate proceedings even if at that stage an
administrator had already been appointed, the latter being
required to render final account and turn over the estate in
his possession to the executor subsequently appointed.
This, however, is understood to be without prejudice that
should the alleged last will be rejected or is disapproved,
the proceeding shall continue as an intestacy. As already
adverted to, this is a clear indication that proceedings for
the probate of a will enjoy priority over intestate
proceedings.
Upon the facts before Us the question arises as to whether
Juan Uriarte Zamacona should have filed the petition for
the probate of the last will of Juan Uriarte y Goite with the
Negros Court particularly in Special Proceeding No.
6344 or was entitled to commence the corresponding
separate proceedings, as he did, in the Manila Court.
The following considerations and the facts of record would
seem to support the view that he should have submitted
said will for probate to the Negros Court, either in a
separate special proceeding or in an appropriate motion
for said purpose filed in the already pending Special
Proceeding No. 6344. In the first place, it is not in accord
with public policy and the orderly and inexpensive
administration of justice to unnecessarily multiply
litigation, especially if several courts would be involved.
This, in effect, was the result of the submission of the will
aforesaid to the Manila Court. In the second place, when
respondent Higinio Uriarte filed an opposition to Vicente
Uriarte's petition for the issuance of letters of
administration, he had already informed the Negros Court
that the deceased Juan Uriarte y Goite had left a will in
Spain, of which a copy had been requested for submission
to said court; and when the other respondent, Juan Uriarte
Zamacona, filed his motion to dismiss Special Proceeding
No. 6344, he had submitted to the Negros Court a copy of
the alleged will of the decedent, from which fact it may be
inferred that, like Higinio Uriarte, he knew before filing the
petition for probate with the Manila Court that there was

Rule 73: Venue and Process

already a special proceeding pending in the Negros Court

for the settlement of the estate of the same deceased
person. As far as Higinio Uriarte is concerned, it seems
quite clear that in his opposition to petitioner's petition in
Special Proceeding No. 6344, he had expressly promised to
submit said will for probate to the Negros Court.
But the fact is that instead of the aforesaid will being
presented for probate to the Negros Court, Juan Uriarte
Zamacona filed the petition for the purpose with the
Manila Court. We can not accept petitioner's contention in
this regard that the latter court had no jurisdiction to
consider said petition, albeit we say that it was not
the proper venue therefor.
It is well settled in this jurisdiction that wrong venue is
merely a waiveable procedural defect, and, in the light of
the circumstances obtaining in the instant case, we are of
the opinion, and so hold, that petitioner has waived the
right to raise such objection or is precluded from doing so
by laches. It is enough to consider in this connection that
petitioner knew of the existence of a will executed by Juan
Uriarte y Goite since December 19, 1961 when Higinio
Uriarte filed his opposition to the initial petition filed in
Special Proceeding No. 6344; that petitioner likewise was
served with notice of the existence (presence) of the
alleged last will in the Philippines and of the filing of the
petition for its probate with the Manila Court since August
28, 1962 when Juan Uriarte Zamacona filed a motion for
the dismissal of Special Proceeding No. 6344. All these
notwithstanding, it was only on April 15, 1963 that he filed
with the Manila Court in Special Proceeding No. 51396 an
Omnibus motion asking for leave to intervene and for the
dismissal and annulment of all the proceedings had therein
up to that date; thus enabling the Manila Court not only to
appoint an administrator with the will annexed but also to
admit said will to probate more than five months earlier,
or more specifically, on October 31, 1962. To allow him
now to assail the exercise of jurisdiction over the probate
of the will by the Manila Court and the validity of all the
proceedings had in Special Proceeding No. 51396 would
put a premium on his negligence. Moreover, it must be
remembered that this Court is not inclined to annul
proceedings regularly had in a lower court even if the
latter was not the proper venue therefor, if the net result
would be to have the same proceedings repeated in some
other court of similar jurisdiction; more so in a case like
the present where the objection against said proceedings
is raised too late.
In his order of April 19, 1963 dismissing Special
Proceeding No. 6344, Judge Fernandez of the Negros Court
said that he was "not inclined to sustain the contention of
the petitioner that inasmuch as the herein petitioner has
instituted Civil Case No. 6142 for compulsory
acknowledgment by the decedent such action justifies the
institution by him of this proceedings. If the petitioner is to
be consistent with the authorities cited by him in support
of his contention, the proper thing for him to do would be
to intervene in the testate estate proceedings entitled
Special Proceedings No. 51396 in the Court of First
Instance of Manila instead of maintaining an independent
action, for indeed his supposed interest in the estate of the
decedent is of his doubtful character pending the final
decision of the action for compulsory acknowledgment."
We believe in connection with the above matter that
petitioner is entitled to prosecute Civil Case No. 6142 until
it is finally determined, or intervene in Special Proceeding
No. 51396 of the Manila Court, if it is still open, or to ask
for its reopening if it has already been closed, so as to be

Page 50

able to submit for determination the question of his

acknowledgment as natural child of the deceased testator,
said court having, in its capacity as a probate court,
jurisdiction to declare who are the heirs of the deceased
testator and whether or not a particular party is or should
be declared his acknowledged natural child (II Moran on
Rules of Court, 1957 Ed., p. 476; Conde vs. Abaya, 13 Phil.
249; Severino vs. Severino, 44 Phil. 343; Lopez vs. Lopez,
68 Phil. 227, and Jimoga-on vs. Belmonte, 47 O. G. 1119).
Coming
now
to
the
supplemental
petition
for mandamus (G.R. No. L-21939), We are of the opinion,
and so hold, that in view of the conclusions heretofore
stated, the same has become moot and academic. If the
said supplemental petition is successful, it will only result
in compelling the Negros Court to give due course to the
appeal that petitioner was taking from the orders of said
court dated December 7, 1963 and February 26, 1964, the
first being the order of said court dismissing Special
Proceeding No. 6344, and the second being an order
denying petitioner's motion for the reconsideration of said
order of dismissal. Said orders being, as a result of what
has been said heretofore beyond petitioner's power to
contest, the conclusion can not be other than that the
intended appeal would serve no useful purpose, or, worse
still, would enable petitioner to circumvent our ruling that
he can no longer question the validity of said orders.
IN VIEW OF THE FOREGOING CONSIDERATIONS,
judgment is hereby rendered denying the writs prayed for
and, as a result, the petition for certiorari filed in G.R. No.
L-21938, as well as the supplemental petition
for mandamus docketed as G.R. No. L-21939, are hereby
dismissed. The writ of preliminary injunction heretofore
issued is set aside. With costs against petitioner.
G.R. No. L-24742 October 26, 1973
ROSA
CAYETANO
CUENCO, petitioners,
vs.
THE HONORABLE COURT OF APPEALS, THIRD
DIVISION, MANUEL CUENCO, LOURDES CUENCO,
CONCEPCION CUENCO MANGUERRA, CARMEN CUENCO,
CONSUELO CUENCO REYES, and TERESITA CUENCO
GONZALEZ, respondents.

Consuelo Cuenco Reyes and Teresita Cuenco Gonzales, all

of legal age and residing in Cebu.
On 5 March 1964, (the 9th day after the death of the late
Senator) 1 respondent Lourdes Cuenco filed a Petition for
Letters of Administration with the court of first instance of
Cebu (Sp. Proc. No. 2433-R), alleging among other things,
that the late senator died intestate in Manila on 25
February 1964; that he was a resident of Cebu at the time
of his death; and that he left real and personal properties
in Cebu and Quezon City. On the same date, the Cebu court
issued an order setting the petition for hearing on 10 April
1964, directing that due notice be given to all the heirs and
interested persons, and ordering the requisite publication
thereof at LA PRENSA, a newspaper of general circulation
in the City and Province of Cebu.
The aforesaid order, however, was later suspended and
cancelled and a new and modified one released on 13
March 1964, in view of the fact that the petition was to be
heard at Branch II instead of Branch I of the said Cebu
court. On the same date, a third order was further issued
stating that respondent Lourdes Cuenco's petition for the
appointment of a special administrator dated 4 March
1964 was not yet ready for the consideration of the said
court, giving as reasons the following:
It will be premature for this Court to act thereon, it not
having yet regularly acquired jurisdiction to try this
proceeding, the requisite publication of the notice of
hearing not yet having been complied with. Moreover,
copies of the petition have not been served on all of the
heirs specified in the basic petition for the issuance of
letters of administration. 2
In the meantime, or specifically on 12 March 1964, (a week
after the filing of the Cebu petition) herein petitioner Rosa
Cayetano Cuenco filed a petition with the court of first
instance of Rizal (Quezon City) for the probate of the
deceased's last will and testament and for the issuance
of letters testamentary in her favor, as the surviving widow
and executrix in the said last will and testament. The said
proceeding was docketed as Special Proceeding No. Q7898.

The pertinent facts which gave rise to the herein petition

follow:

Having learned of the intestate proceeding in the Cebu

court, petitioner Rosa Cayetano Cuenco filed in said Cebu
court an Opposition and Motion to Dismiss, dated 30
March 1964, as well as an Opposition to Petition for
Appointment of Special Administrator, dated 8 April 1964.
On 10 April 1964, the Cebu court issued an order holding in
abeyance its resolution on petitioner's motion to dismiss
"until after the Court of First Instance of Quezon City shall
have acted on the petition for probate of that document
purporting to be the last will and testament of the
deceased Don Mariano Jesus Cuenco." 3 Such order of the
Cebu court deferring to the probateproceedings in the
Quezon City court was neither excepted to nor sought by
respondents to be reconsidered or set aside by the Cebu
court nor did they challenge the same by certiorari or
prohibition proceedings in the appellate courts.

On 25 February 1964 Senator Mariano Jesus Cuenco died at

the Manila Doctors' Hospital, Manila. He was survived by
his widow, the herein petitioner, and their two (2) minor
sons, Mariano Jesus, Jr. and Jesus Salvador, both surnamed
Cuenco, all residing at 69 Pi y Margal St., Sta. Mesa Heights,
Quezon City, and by his children of the first marriage,
respondents herein, namely, Manuel Cuenco, Lourdes
Cuenco, Concepcion Cuenco Manguera, Carmen Cuenco,

Instead, respondents filed in the Quezon City court an

Opposition and Motion to Dismiss, dated 10 April
1964, opposing probate of the will and assailing the
jurisdiction of the said Quezon City court to entertain
petitioner's petition for probate and for appointment as
executrix in Sp. Proc. No. Q-7898 in view of the alleged
exclusive jurisdiction vested by her petition in the Cebu
court in Sp. Proc. No. 2433-R. Said respondent prayed that

Ambrosio Padilla Law Office for petitioner.

Jalandoni and Jamir for respondents.

TEEHANKEE, J.:
Petition for certiorari to review the decision of respondent
Court of Appeals in CA-G.R. No. 34104-R, promulgated 21
November 1964, and its subsequent Resolution
promulgated 8 July 1964 denying petitioner's Motion for
Reconsideration.

Rule 73: Venue and Process

Page 51

Sp. Proc. No. Q-7898 be dismissed

jurisdiction and/or improper venue.

for lack

of

In its order of 11 April 1964, the Quezon City court denied

the motion to dismiss, giving as a principal reason the
"precedence of probate proceeding over an intestate
proceeding." 4 The said court further found in said order
that the residence of the late senator at the time of his
death was at No. 69 Pi y Margal, Sta. Mesa Heights, Quezon
City. The pertinent portion of said order follows:
On the question of residence of the decedent, paragraph 5
of the opposition and motion to dismiss reads as follows:
"that since the decedent Don Mariano Jesus Cuenco was a
resident of the City of Cebu at the time of his death, the
aforesaid petition filed by Rosa Cayetano Cuenco on 12
March 1964 was not filed with the proper Court (wrong
venue) in view of the provisions of Section 1 of Rule 73 of
the New Rules of Court ...". From the aforequoted
allegation, the Court is made to understand that the
oppositors do not mean to say that the decedent being a
resident of Cebu City when he died, the intestate
proceedings in Cebu City should prevail over the probate
proceedings in Quezon City, because as stated above the
probate of the will should take precedence, but that the
probate proceedings should be filed in the Cebu City Court
of First Instance. If the last proposition is the desire of the
oppositors as understood by this Court, that could not also
be entertained as proper because paragraph 1 of the
petition for the probate of the will indicates that Don
Mariano Jesus Cuenco at the time of his death was a resident
of Quezon City at 69 Pi y Margal. Annex A (Last Will and
Testament of Mariano Jesus Cuenco) of the petition for
probate of the will shows that the decedent at the time
when he executed his Last Will clearly stated that he is a
resident of 69 Pi y Margal, Sta. Mesa Heights, Quezon City,
and also of the City of Cebu. He made the former as his first
choice and the latter as his second choice of residence." If a
party has two residences, the one will be deemed or
presumed to his domicile which he himself selects or
considers to be his home or which appears to be the center
of his affairs. The petitioner, in thus filing the instant
petition before this Court, follows the first choice of
residence of the decedent and once this court acquires
jurisdiction of the probate proceeding it is to the exclusion
of all others. 5
Respondent Lourdes Cuenco's motion for reconsideration
of the Quezon City court's said order of 11 April 1964
asserting its exclusive jurisdiction over the probate
proceeding as deferred to by the Cebu court
was denied on 27 April 1964 and a second motion for
reconsideration dated 20 May 1964 was likewise denied.
On 11 May 1964, pursuant to its earlier order of 11 April
1964, the hearing for probate of the last will of the
decedent was called three times at half-hour intervals, but
notwithstanding due notification none of the oppositors
appeared and the Quezon City court proceeded at 9:00 a.m.
with the hearing in their absence.
As per the order issued by it subsequently on 15 May
1964, the Quezon City court noted that respondentsoppositors had opposed probate under their opposition
and motion to dismiss on the following grounds:
(a) That the will was not executed and attested as required
by law;
(b) That the will was procured by undue and improper
pressure and influence on the part of the beneficiary or
some other persons for his benefit;

Rule 73: Venue and Process

(c) That the testator's signature was procured by fraud

and/or that the testator acted by mistake and did not
intend that the instrument he signed should be his will at
the time he affixed his signature thereto. 6
The Quezon City court further noted that the requisite
publication of the notice of the hearing had been duly
complied with and that all the heirs had been duly notified
of the hearing, and after receiving the testimony of the
three instrumental witnesses to the decedent's last will,
namely Atty. Florencio Albino, Dr. Guillermo A. Picache and
Dr. Jose P. Ojeda, and of the notary public, Atty. Braulio A.
Arriola, Jr., who ratified the said last will, and the
documentary evidence (such as the decedent's residence
certificates, income tax return, diplomatic passport, deed
of donation) all indicating that the decedent was a resident
of 69 Pi y Margal St., Quezon City, as also affirmed by him
in his last will, the Quezon City court in its said order of 15
May 1964 admitted to probate the late senator's last will
and testament as having been "freely and voluntarily
executed by the testator" and "with all formalities of the
law" and appointed petitioner-widow as executrix of his
estate without bond "following the desire of the testator"
in his will as probated.
Instead of appealing from the Quezon City court's said
order admitting the will to probate and naming petitionerwidow as executrix thereof, respondents filed a special
civil action of certiorari and prohibition with preliminary
injunction with respondent Court of Appeals (docketed as
case CA-G.R. No. 34104-R) to bar the Rizal court from
proceeding with case No. Q-7898.
On 21 November 1964, the Court of Appeals rendered a
decision in favor of respondents (petitioners therein) and
against the herein petitioner, holding that:
Section 1, Rule 73, which fixes the venue in proceedings for
the settlement of the estate of a deceased person,
covers both testate and intestate proceedings. Sp. Proc.
2433-R of the Cebu CFI having been filed ahead, it is that
court whose jurisdiction was first invoked and which first
attached. It is that court which can properly and
exclusively pass upon the factual issues of (1) whether the
decedent left or did not leave a valid will, and (2) whether
or not the decedent was a resident of Cebu at the time of
his death.
Considering therefore that the first proceeding was
instituted in the Cebu CFI (Special Proceeding 2433-R), it
follows that the said court must exercise jurisdiction to the
exclusion of the Rizal CFI, in which the petition for probate
was filed by the respondent Rosa Cayetano Cuenco
(Special Proceeding Q-7898). The said respondent should
assert her rights within the framework of the proceeding
in the Cebu CFI, instead of invoking the jurisdiction of
another court.
The respondents try to make capital of the fact that on
March 13, 1964, Judge Amador Gomez of the Cebu CFI,
acting in Sp. Proc. 2433-R, stated that the petition for
appointment of special administrator was "not yet ready
for the consideration of the Court today. It would be
premature for this Court to act thereon, it not having yet
regularly acquired jurisdiction to try this proceeding ... . " It
is sufficient to state in this connection that the said judge
was certainly not referring to the court's jurisdiction over
the res, not to jurisdiction itself which is acquired from the
moment a petition is filed, but only to the exercise of
jurisdiction in relation to the stage of the proceedings. At
all events, jurisdiction is conferred and determined by law

Page 52

and does not depend on the pronouncements of a trial

judge.

estate of a decedent, shall exercise jurisdiction to the

exclusion of all other courts." The cited Rule provides:

The dispositive part of respondent appellate court's

judgment provided as follows:

Section 1. Where estate of deceased persons settled. If the

decedent is an inhabitant of the Philippines at the time of
his death, whether a citizen or an alien, his will shall be
proved, or letters of administration granted, and his estate
settled, in the Court of First Instance in the Province in which
he resides at the time of his death, and if he is an inhabitant
of a foreign country, the Court of First Instance of the
province in which he had estate. The court first taking
cognizance of the settlement of the estate of a decedent,
shall exercise jurisdiction to the exclusion of all other
courts. The jurisdiction assumed by a court, so far as it
depends on the place of residence, of the decedent, or of the
location of his estate, shall not be contested in a suit or
proceeding, except in an appeal from that court, in the
original case, or when the want of jurisdiction appears on
the record. (Rule 73) 8

ACCORDINGLY, the writ of prohibition will issue,

commanding and directing the respondent Court of First
Instance of Rizal, Branch IX, Quezon City, and the
respondent Judge Damaso B. Tengco to refrain perpetually
from proceeding and taking any action in Special
Proceeding Q-7898 pending before the said respondent
court. All orders heretofore issued and actions heretofore
taken by said respondent court and respondent Judge,
therein and connected therewith, are hereby annulled. The
writ of injunction heretofore issued is hereby made
permanent. No pronouncement as to costs.
Petitioner's motion for reconsideration was denied in a
resolution of respondent Court of Appeals, dated 8 July
1965; hence the herein petition for review on certiorari.
The principal and decisive issue at bar is, theretofore,
whether the appellate court erred in law in issuing the writ
of prohibition against the Quezon City court ordering it to
refrain
perpetually
from
proceeding
with
the testateproceedings and annulling and setting aside all
its orders and actions, particularly its admission to probate
of the decedent's last will and testament and appointing
petitioner-widow as executrix thereof without bond in
compliance with the testator's express wish in his
testament. This issue is tied up with the issue submitted to
the appellate court, to wit, whether the Quezon City court
acted without jurisdiction or with grave abuse of
discretion in taking cognizance and assuming exclusive
jurisdiction over the probate proceedings filed with it, in
pursuance of the Cebu court's order of 10 April 1964
expressly consenting in deference to the precedence of
probate over intestate proceedings that it (the Quezon City
court) should first act "on the petition for probate of the
document purporting to be the last will and testament of
the deceased Don Mariano Jesus Cuenco" - which order of
the Cebu court respondents never questioned nor
challenged by prohibition or certiorari proceedings and
thus enabled the Quezon City court to proceed without any
impediment or obstruction, once it denied respondent
Lourdes Cuenco's motion to dismiss the probate
proceeding for alleged lack of jurisdiction or improper
venue, toproceed with the hearing of the petition and
to admit the will to probate upon having been satisfied as
to its due execution and authenticity.
The Court finds under the above-cited facts that the
appellate court erred in law in issuing the writ of
prohibition against the Quezon City court from proceeding
with the testate proceedings and annulling and setting
aside all its orders and actions, particularly its admission
to probate of the deceased's last will and testament and
appointing petitioner-widow as executrix thereof without
bond pursuant to the deceased testator's express wish, for
the following considerations:
1.
The
Judiciary
Act 7 concededly
confers
original jurisdiction upon all Courts of First Instance over
"all matter of probate, both of testate and intestate
estates." On the other hand, Rule 73, section of the Rules of
Court lays down the rule of venue, as the very caption of
the Rule indicates, and in order to prevent conflict among
the different courts which otherwise may properly assume
jurisdiction from doing so, the Rule specifies that "the
court first taking cognizance of the settlement of the

Rule 73: Venue and Process

It is equally conceded that the residence of the deceased or

the location of his estate is not an element of jurisdiction
over the subject matter but merely of venue. This was
lucidly stated by the late Chief Justice Moran in Sy Oa vs. Co
Ho 9 as follows:
We are not unaware of existing decisions to the effect that
in probate cases the place of residence of the deceased is
regarded as a question of jurisdiction over the subjectmatter. But we decline to follow this view because of its
mischievous consequences. For instance, a probate case
has been submitted in good faith to the Court of First
Instance of a province where the deceased had not resided.
All the parties, however, including all the creditors, have
submitted themselves to the jurisdiction of the court and
the case is therein completely finished except for a claim of
a creditor who also voluntarily filed it with said court but
on appeal from an adverse decision raises for the first time
in this Court the question of jurisdiction of the trial court
for lack of residence of the deceased in the province. If we
consider such question of residence as one affecting the
jurisdiction of the trial court over the subject-matter, the
effect shall be that the whole proceedings including all
decisions on the different incidents which have arisen in
court will have to be annulled and the same case will have
to be commenced anew before another court of the same
rank in another province. That this is of mischievous
effect in the prompt administration of justice is too obvious
to require comment. (Cf. Tanunchuan vs. Dy Buncio & Co.,
G.R. No. 48206, December 31, 1942) Furthermore, section
600 of Act No. 190, 10 providing that the estate of a
deceased person shall be settled in the province where he
had last resided, could not have been intended as defining
the jurisdiction of the probate court over the subjectmatter, because such legal provision is contained in a law
of procedure dealing merely with procedural matters, and,
as we have said time and again, procedure is one thing and
jurisdiction over the subject matter is another. (AttorneyGeneral vs. Manila Railroad Company, 20 Phil. 523.) The
law of jurisdiction Act No. 136, 11 Section 56, No. 5
confers upon Courts of First Instance jurisdiction over all
probate cases independently of the place of residence of
the deceased. Since, however, there are many courts of
First Instance in the Philippines, the Law of Procedure, Act
No. 190, section 600, fixes the venue or the place where
each case shall be brought. Thus, the place of residence of
the deceased is not an element of jurisdiction over the
subject-matter but merely of venue. And it is upon this
ground that in the new Rules of Court the province where
the estate of a deceased person shall be settled is properly
called "venue".

Page 53

It should be noted that the Rule on venue does not state

that the court with whom the estate or intestate petition
is first filed acquires exclusive jurisdiction.
The Rule precisely and deliberately provides that "the
court first taking cognizance of the settlement of the
estateof a decedent, shall exercise jurisdiction to the
exclusion of all other courts."
A fair reading of the Rule since it deals with venue and
comity between courts of equal and co-ordinate
jurisdiction indicates that the court with whom the
petition is first filed, must also first take cognizance of the
settlement of the estate in order to exercise jurisdiction over
it to the exclusion of all other courts.
Conversely, such court, may upon learning that a petition
for probate of the decedent's last will has been presented
in another court where the decedent obviously had his
conjugal domicile and resided with his surviving widow
and their minor children, and that the allegation of
the intestate petition before it stating that the decedent
died intestate may be actually false, may decline to take
cognizance of the petition and hold the petition before it in
abeyance, and instead defer to the second court which has
before it the petition for probate of the decedent's alleged
last will.
2. This exactly what the Cebu court did. Upon petitionerwidow's filing with it a motion to dismiss Lourdes'
intestate petition, it issued its order holding in abeyance
its action on the dismissal motion and deferred to the
Quezon City court, awaiting its action on the petition
for probate before that court. Implicit in the Cebu court's
order was that if the will was duly admitted to probate, by
the Quezon City court, then it would definitely decline to
take cognizance of Lourdes' intestate petition which would
thereby be shown to be false and improper, and leave
the exercise of jurisdiction to the Quezon City court, to the
exclusion of all other courts. Likewise by its act of
deference, the Cebu court left it to the Quezon City court to
resolve the question between the parties whether the
decedent's residence at the time of his death was in Quezon
City where he had his conjugal domicile rather than in
Cebu City as claimed by respondents. The Cebu court thus
indicated that it would decline to take cognizance of
the intestate petition before it and instead defer to the
Quezon City court, unless the latter would make a negative
finding as to the probate petition and the residence of the
decedent within its territory and venue.
3. Under these facts, the Cebu court could not be held to
have acted without jurisdiction or with grave abuse of
jurisdiction in declining to take cognizance of
the intestate petition and deferring to the Quezon City
court.
Necessarily, neither could the Quezon City court be
deemed to have acted without jurisdiction in taking
cognizance of and acting on the probate petition since
under Rule 73, section 1, the Cebu court must first take
cognizance over the estate of the decedent and
must exercise jurisdiction to exclude all other courts, which
the Cebu court declined to do. Furthermore, as is
undisputed, said rule only lays down a rule of venue and
the Quezon City court indisputably had at least equal and
coordinate jurisdiction over the estate.
Since the Quezon City court took cognizance over
the probate petition before it and assumed jurisdiction over
the estate, with the consent and deference of the Cebu
court, the Quezon City court should be left now, by the

Rule 73: Venue and Process

same rule of venue of said Rule 73, to exercise jurisdiction

to the exclusion of all other courts.
Under the facts of the case and where respondents
submitted to the Quezon City court their opposition to
probate of the will, but failed to appear at the scheduled
hearing despite due notice, the Quezon City court cannot be
declared, as the appellate court did, to have acted without
jurisdiction in admitting to probate the decedent's will and
appointing petitioner-widow as executrix thereof in
accordance with the testator's testamentary disposition.
4. The relatively recent case of Uriarte vs. Court of First
Instance of Negros Occidental 12 with facts analogous to the
present case 13 is authority against respondent appellate
court's questioned decision.
In said case, the Court upheld the doctrine of precedence of
probate proceedings over intestate proceedings in this
wise:
It can not be denied that a special proceeding intended to
effect the distribution of the estate of a deceased person,
whether in accordance with the law on intestate
succession or in accordance with his will, is a "probate
matter" or a proceeding for the settlement of his estate. It
is equally true, however, that in accordance with settled
jurisprudence in this jurisdiction, testate proceedings for the
settlement of the estate of a deceased person take
precedence over intestate proceedings for the same purpose.
Thus it has been held repeatedly that, if in the course of
intestate proceedings pending before a court of first instance
it is found that the decedent had left a last will, proceedings
for the probate of the latter should replace the intestate
proceedings even if at that state an administrator had
already been appointed, the latter being required to
render final account and turn over the estate in his
possession to the executor subsequently appointed. This
however, is understood to be without prejudice that should
the alleged last will be rejected or is disapproved, the
proceeding shall continue as an intestacy. As already
adverted to, this is a clear indication that proceedings for
the probate of a will enjoy priority over intestate
proceedings. 14
The Court likewise therein upheld the jurisdiction of
the second court, (in this case, the Quezon City court)
although opining that certain considerations therein
"would seem to support the view that [therein respondent]
should have submitted said will for probate to the Negros
Court, [in this case, the Cebu court] either in a separate
special proceeding or in an appropriate motion for said
purpose filed in the already pending Special Proceeding
No. 6344," 15 thus:
But the fact is that instead of the aforesaid will being
presented for probate to the Negros Court, Juan Uriarte
Zamacona filed the petition for the purpose with the
Manila Court. We can not accept petitioner's contention in
this regard that the latter court had no jurisdiction to
consider said petition, albeit we say that it was not
the proper venue therefor.
It is well settled in this jurisdiction that wrong venue is
merely a waivable procedural defect, and, in the light of the
circumstances obtaining in the instant case, we are of the
opinion, and so hold, that petitioner has waived the right
to raise such objection or is precluded from doing so by
laches. It is enough to consider in this connection that
petitioner knew of the existence of a will executed by Juan
Uriarte y Goite since December 19, 1961 when Higinio
Uriarte filed his opposition to the initial petition filed in

Page 54

Special Proceeding No. 6344; that petitioner likewise was

served with notice of the existence (presence) of the
alleged last will in the Philippines and of the filing of the
petition for its probate with the Manila Court since August
28, 1962 when Juan Uriarte Zamacona filed a motion for
the dismissal of Special Proceeding No. 6344. All these
notwithstanding, it was only on April 15, 1963 that he filed
with the Manila Court in Special Proceeding No. 51396 an
Omnibus motion asking for leave to intervene and for the
dismissal and annulment of all the proceedings had therein
up to that date; thus enabling the Manila Court not only to
appoint an administrator with the will annexed but also to
admit said will to probate more than five months earlier,
or more specifically, on October 31, 1962. To allow him
now to assail the exercise of jurisdiction over the probate
of the will by the Manila Court and the validity of all the
proceedings had in Special Proceeding No. 51396 would
put a premium on his negligence. Moreover, it must be
remembered that this Court is not inclined to annul
proceedings regularly had in a lower court even if the
latter was not the proper venue therefor, if the net result
would be to have the same proceedings repeated in some
other court of similar jurisdiction; more so in a case like
the present where the objection against said proceedings
is raised too late. 16
5. Under Rule 73, section 1 itself, the Quezon City
court's assumption of jurisdiction over
the
decedent's
estate on the basis of the will duly presented for probate
by petitioner-widow and finding that Quezon City was the
first choice of residence of the decedent, who had his
conjugal home and domicile therein with the deference
in comity duly given by the Cebu court could not be
contested except by appeal from said court in the original
case. The last paragraph of said Rule expressly provides:
... The jurisdiction assumed by a court, so far as it depends
on the place of residence of the decedent, or of the location
of his estate, shall not be contested in a suit or
proceeding, except in an appeal from that court, in the
original case, or when the want of jurisdiction appears on
the record. (Rule 73)
The exception therein given, viz, "when the want of
jurisdiction appears on the record" could probably be
properly invoked, had such deference in comity of the Cebu
court to the Quezon City court not appeared in the record,
or had the record otherwise shown that the Cebu court
had taken cognizance of the petition before it and assumed
jurisdiction.
6. On the question that Quezon City established to be the
residence of the late senator, the appellate court while
recognizing that "the issue is a legitimate one" held in
reliance on Borja vs. Tan 17 that.
... The issue of residence comes within the competence of
whichever court is considered to prevail in the exercise
jurisdiction - in this case, the Court of First Instance of
Cebu as held by this Court. Parenthetically, we note that
the question of the residence of the deceased is a serious
one, requiring both factual and legal resolution on the
basis of ample evidence to be submitted in the ordinary
course of procedure in the first instance, particularly in
view of the fact that the deceased was better known as the
Senator from Cebu and the will purporting to be his also
gives Cebu, besides Quezon City, as his residence. We
reiterate that this matter requires airing in the proper
court, as so indicated in the leading and controlling case
of Borja vs. Hon. Bienvenido Tan, et al., G.R. L-7792, July 27,
1955.

Rule 73: Venue and Process

In the case at bar, however, the Cebu court declined to take

cognizance of the intestate petition first filed with it and
deferred to the testate proceedings filed with the Quezon
City court and in effect asked the Quezon City court to
determine the residence of the decedent and whether he
did leave a last will and testament upon which would
depend the proper venue of the estate proceedings, Cebu
or Quezon City. The Quezon City court having thus
determined in effect for both courts at the
behest and with the deference and consent of the Cebu
court that Quezon City was the actual residence of the
decedent who died testate and therefore the proper venue,
the Borja ruling would seem to have no applicability. It
would not serve the practical ends of justice to still require
the Cebu court, if the Borja ruling is to be held applicable
and as indicated in the decision under review, to
determine for itself the actual residence of the decedent
(when the Quezon City court had already so determined
Quezon City as the actual residence at the Cebu court's
behest and respondents have not seriously questioned this
factual finding based on documentary evidence) and if the
Cebu court should likewise determine Quezon City as the
actual residence, or its contrary finding reversed on
appeal, only then to allow petitioner-widow after years of
waiting and inaction to institute the corresponding
proceedings in Quezon City.
7. With more reason should the Quezon City proceedings
be upheld when it is taken into consideration that Rule 76,
section 2 requires that the petition for allowance of a will
must
show:
"(a)
the jurisdictional facts."
Such
"jurisdictional facts" in probate proceedings, as held by the
Court in Fernando vs. Crisostomo 18 " are the death of the
decedent, his residence at the time of his death in the
province where the probate court is sitting, or if he is an
inhabitant of a foreign country, his having left his estate in
such province."
This tallies with the established legal concept as restated
by Moran that "(T)he probate of a will is a proceeding in
rem. The notice by publication as a pre-requisite to the
allowance of a will, is a constructive notice to the whole
world, and when probate is granted, the judgment of the
court is binding upon everybody, even against the
State. The probate of a will by a court having jurisdiction
thereof is conclusive as to its due execution and
validity." 19 The Quezon City court acted regularly within its
jurisdiction (even if it were to be conceded that Quezon
City was not the proper venue notwithstanding the Cebu
court's giving way and deferring to it,) in admitting the
decedent's last will to probate and naming petitionerwidow as executrix thereof. Hence, the Quezon city court's
action should not be set aside by a writ of prohibition for
supposed lack of jurisdiction as per the appellate court's
appealed decision, and should instead be sustained in line
with Uriarte, supra, where the Court, in dismissing
the certiorari petition challenging the Manila court's action
admitting the decedent's will to probate and distributing
the
estate
in
accordance
therewith
in
the second proceeding, held that "it must be remembered
that this Court is not inclined to annul proceedings
regularly had in a lower court even if the latter was not the
proper venue therefor, if the net result would be to have the
same proceedings repeated in some other court of similar
jurisdiction." As stressed by Chief Justice Moran in Sy Oa,
supra, "the mischievous effect in the administration of
justice" of considering the question of residence as
affecting the jurisdiction of the trial court and annulling
the whole proceedings only to start all over again the same
proceedings before another court of the same rank in
another province "is too obvious to require comment."

Page 55

8. If the question of jurisdiction were to be made to depend

only on who of the decedent's relatives gets first to file a
petition for settlement of the decedent's estate, then the
established jurisprudence of the Court that Rule 73,
section 1 provides only a rule of venue in order to preclude
different
courts
which
may
properly
assume jurisdiction from doing so and creating conflicts
between them to the detriment of the administration of
justice, and that venue is waivable, would be set at naught.
As between relatives who unfortunately do not see eye to
eye, it would be converted into a race as to who can file the
petition faster in the court of his/her choice regardless of
whether the decedent is still in cuerpo presente and in
disregard of the decedent's actual last domicile, the fact
that he left a last will and testament and the right of his
surviving widow named as executrix thereof. Such dire
consequences were certainly not intended by the Rule nor
would they be in consonance with public policy and the
orderly administration of justice.
9. It would finally be unjust and inequitable that
petitioner-widow, who under all the applicable rules
of venue, and despite the fact that the Cebu court (where
respondent Lourdes Cuenco had filed an intestate petition
in the Cebu court earlier by a week's time on 5 March
1964) deferred to the Quezon City court where petitioner
had within fifteen days (on March 12, 1964) after the
decedent's death (on February 25, 1964) timely filed the
decedent's last will and petitioned for letters testamentary
and is admittedly entitled to preference in the
administration of her husband's estate, 20 would be
compelled under the appealed decision to have to go all
the way to Cebu and submit anew the decedent's will there
for probate either in a new proceeding or by asking that
the
intestate
proceedings
be converted into
a testate proceeding when under the Rules, the
proper venue for the testate proceedings, as per the facts of
record and as already affirmed by the Quezon City court is
Quezon City, where the decedent and petitioner-widow
had their conjugal domicile.
It would be an unfair imposition upon petitioner as the one
named and entitled to be executrix of the decedent's last
will and settle his estate in accordance therewith, and a
disregard of her rights under the rule on venue and the law
on jurisdiction to require her to spend much more time,
money and effort to have to go from Quezon City to the
Cebu court everytime she has an important matter of the
estate to take up with the probate court.
It would doubly be an unfair imposition when it is
considered that under Rule 73, section 2, 21 since
petitioner's marriage has been dissolved with the death of
her husband, their community property and conjugal
estate have to be administered and liquidated in the estate
proceedings of the deceased spouse. Under the appealed
decision, notwithstanding that petitioner resides in
Quezon
City,
and
the
proper
venue
of
the testate proceeding was in Quezon City and the Quezon
City court properly took cognizance and exercised
exclusive jurisdiction with the deference in comity and
consent of the Cebu court, such proper exercise of
jurisdiction would be nullified and petitioner would have
to continually leave her residence in Quezon City and go to
Cebu to settle and liquidate even her own community
property and conjugal estate with the decedent.
10. The Court therefore holds under the facts of record
that the Cebu court did not act without jurisdiction nor with
grave abuse of discretion in declining to take cognizance of
the intestate petition
and
instead deferring to

Rule 73: Venue and Process

the testate proceedings filed just a week later by petitioner

as surviving widow and designated executrix of the
decedent's last will, since the record before it (the
petitioner's opposition and motion to dismiss) showed
the falsityof the allegation in the intestate petition that the
decedent had died without a will. It is noteworthy that
respondents never challenged by certiorari or prohibition
proceedings the Cebu court's order of 10 April 1964
deferring to the probate proceedings before the Quezon
City court, thus leaving the latter free (pursuant to the
Cebu
court's
order
of
deference)
to exercise
jurisdiction and admit the decedent's will to probate.
For the same reasons, neither could the Quezon City court
be held to have acted without jurisdiction nor with grave
abuse of discretion in admitting the decedent's will to
probate and appointing petitioner as executrix in
accordance with its testamentary disposition, in the light
of the settled doctrine that the provisions of Rule 73,
section 1 lay down only a rule of venue, not of jurisdiction.
Since respondents undisputedly failed to appeal from the
Quezon City court's order of May 15, 1964 admitting the
will to probate and appointing petitioner as executrix
thereof, and said court concededly has jurisdiction to issue
said order, the said order of probate has long since become
final and can not be overturned in a special civic action of
prohibition.
11. Finally, it should be noted that in the Supreme Court's
exercise of its supervisory authority over all inferior
courts, 22 it may properly determine, as it has done in the
case at bar, that venue was properly assumed by
and transferredto the Quezon City court and that it is the
interest of justice and in avoidance of needless delay that
the Quezon City court's exercise of jurisdiction over the
testate estate of the decedent (with the due deference and
consent of the Cebu court) and its admission to probate of
his last will and testament and appointment of petitionerwidow as administratrix without bond in pursuance of the
decedent's express will and all its orders and actions taken
in the testate proceedings before it be approved and
authorized rather than to annul all such proceedings
regularly had and to repeat and duplicate the same
proceedings before the Cebu court only to revert once
more to the Quezon City court should the Cebu court find
that indeed and in fact, as already determined by the
Quezon City court on the strength of incontrovertible
documentary evidence of record, Quezon City was the
conjugal residence of the decedent.
ACCORDINGLY, judgment is hereby rendered reversing the
appealed decision and resolution of the Court of Appeals
and the petition for certiorari and prohibition with
preliminary injunction originally filed by respondents with
the Court of Appeals (CA-G.R. No. 34104-R) is ordered
dismissed. No costs.
[G.R. No. 134100. September 29, 2000]
PURITA ALIPIO, petitioner, vs. COURT OF APPEALS and
ROMEO G. JARING, represented by his Attorney-In-Fact
RAMON G. JARING, respondents.
DECISION
MENDOZA, J.:
The question for decision in this case is whether a creditor
can sue the surviving spouse for the collection of a debt
which is owed by the conjugal partnership of gains, or
whether such claim must be filed in proceedings for the

Page 56

settlement of the estate of the decedent. The trial court and

the Court of Appeals ruled in the affirmative. We reverse.

the action should be maintained. This is the teaching

of Climaco v. Siy Uy, wherein the Supreme Court held:

The facts are as follows:

Upon the facts alleged in the complaint, it is clear that

Climaco had a cause of action against the persons named
as defendants therein. It was, however, a cause of action
for the recovery of damages, that is, a sum of money, and
the corresponding action is, unfortunately, one that does
not survive upon the death of the defendant, in accordance
with the provisions of Section 21, Rule 3 of the Rules of
Court.

Respondent Romeo Jaring[1] was the lessee of a 14.5

hectare fishpond in Barito, Mabuco, Hermosa, Bataan. The
lease was for a period of five years ending on September
12, 1990.On June 19, 1987, he subleased the fishpond, for
the remaining period of his lease, to the spouses Placido
and Purita Alipio and the spouses Bienvenido and
Remedios Manuel. The stipulated amount of rent
was P485,600.00,
payable
in
two
installments
of P300,000.00 and P185,600.00, with the second
installment falling due on June 30, 1989. Each of the four
sublessees signed the contract.
The first installment was duly paid, but of the second
installment, the sublessees only satisfied a portion thereof,
leaving an unpaid balance of P50,600.00. Despite due
demand, the sublessees failed to comply with their
obligation, so that, on October 13, 1989, private
respondent sued the Alipio and Manuel spouses for the
collection of the said amount before the Regional Trial
Court, Branch 5, Dinalupihan, Bataan. In the alternative, he
prayed for the rescission of the sublease contract
should the defendants fail to pay the balance.
Petitioner Purita Alipio moved to dismiss the case on the
ground that her husband, Placido Alipio, had passed away
on December 1, 1988.[2] She based her action on Rule 3, 21
of the 1964 Rules of Court which then provided that "when
the action is for recovery of money, debt or interest
thereon, and the defendant dies before final judgment in
the Court of First Instance, it shall be dismissed to be
prosecuted in the manner especially provided in these
rules." This provision has been amended so that now Rule
3, 20 of the 1997 Rules of Civil Procedure provides:
When the action is for the recovery of money arising from
contract, express or implied, and the defendant dies before
entry of final judgment in the court in which the action was
pending at the time of such death, it shall not be dismissed
but shall instead be allowed to continue until entry of final
judgment. A favorable judgment obtained by the plaintiff
therein shall be enforced in the manner especially
provided in these Rules for prosecuting claims against the
estate of a deceased person.
The trial court denied petitioner's motion on the ground
that since petitioner was herself a party to the sublease
contract, she could be independently impleaded in the suit
together with the Manuel spouses and that the death of her
husband merely resulted in his exclusion from the
case.[3] The Manuel spouses failed to file their answer. For
this reason, they were declared in default.
On February 26, 1991, the lower court rendered judgment
after trial, ordering petitioner and the Manuel spouses to
pay private respondent the unpaid balance of P50,600.00
plus attorney's fees in the amount of P10,000.00 and the
costs of the suit.
Petitioner appealed to the Court of Appeals on the ground
that the trial court erred in denying her motion to
dismiss. In its decision[4] rendered on July 10, 1997, the
appellate court dismissed her appeal. It held:
The rule that an action for recovery of money, debt or
interest thereon must be dismissed when the defendant
dies before final judgment in the regional trial court, does
not apply where there are other defendants against whom

Rule 73: Venue and Process

xxxxxxxxx
However, the deceased Siy Uy was not the only defendant,
Manuel Co was also named defendant in the
complaint. Obviously, therefore, the order appealed from is
erroneous insofar as it dismissed the case against
Co. (Underlining added)
Moreover, it is noted that all the defendants, including the
deceased, were signatories to the contract of sub-lease.
The remaining defendants cannot avoid the action by
claiming that the death of one of the parties to the contract
has totally extinguished their obligation as held in Imperial
Insurance, Inc. v. David:
We find no merit in this appeal. Under the law and well
settled jurisprudence, when the obligation is a solidary
one, the creditor may bring his action in toto against any of
the debtors obligated in solidum.Thus, if husband and wife
bound themselves jointly and severally, in case of his
death, her liability is independent of and separate from her
husband's; she may be sued for the whole debt and it
would be error to hold that the claim against her as well as
the claim against her husband should be made in the
decedent's estate. (Agcaoili vs. Vda. de Agcaoili, 90 Phil.
97).[5]
Petitioner filed a motion for reconsideration, but it was
denied on June 4, 1998.[6] Hence this petition based on the
following assignment of errors:
A. THE
RESPONDENT
COURT
COMMITTED
REVERSIBLE ERROR IN APPLYING CLIMACO v. SIY UY, 19
SCRA 858, IN SPITE OF THE FACT THAT THE PETITIONER
WAS NOT SEEKING THE DISMISSAL OF THE CASE
AGAINST REMAINING DEFENDANTS BUT ONLY WITH
RESPECT TO THE CLAIM FOR PAYMENT AGAINST HER
AND HER HUSBAND WHICH SHOULD BE PROSECUTED AS
A MONEY CLAIM.
B. THE RESPONDENT COURT COMMITTED REVERSIBLE
ERROR IN APPLYING IMPERIAL INSURANCE INC. v.
DAVID, 133 SCRA 317, WHICH IS NOT APPLICABLE
BECAUSE THE SPOUSES IN THIS CASE DID NOT BIND
THEMSELVES JOINTLY AND SEVERALLY IN FAVOR OF
RESPONDENT JARING.[7]
The petition is meritorious. We hold that a creditor cannot
sue the surviving spouse of a decedent in an ordinary
proceeding for the collection of a sum of money chargeable
against the conjugal partnership and that the proper
remedy is for him to file a claim in the settlement of estate
of the decedent.
First. Petitioner's husband died on December 1, 1988,
more than ten months before private respondent filed the
collection suit in the trial court on October 13, 1989. This
case thus falls outside of the ambit of Rule 3, 21 which
deals with dismissals of collection suits because of the
death of the defendant during the pendency of the case

Page 57

and the subsequent procedure to be undertaken by the

plaintiff, i.e., the filing of claim in the proceeding for the
settlement of the decedent's estate. As already noted, Rule
3, 20 of the 1997 Rules of Civil Procedure now provides
that the case will be allowed to continue until entry of final
judgment. A favorable judgment obtained by the plaintiff
therein will then be enforced in the manner especially
provided in the Rules for prosecuting claims against the
estate of a deceased person. The issue to be resolved is
whether private respondent can, in the first place, file this
case against petitioner.

preclude the plaintiff from filing an ordinary collection suit

against her. On appeal, the Court reversed, holding that

Petitioner and her late husband, together with the Manuel

spouses, signed the sublease contract binding themselves
to pay the amount of stipulated rent. Under the law, the
Alipios' obligation (and also that of the Manuels) is one
which
is
chargeable
against
their
conjugal
partnership. Under Art. 161(1) of the Civil Code, the
conjugal partnership is liable for

In many cases as in the instant one, even after the death of

one of the spouses, there is no liquidation of the conjugal
partnership. This does not mean, however, that the
conjugal partnership continues. And private respondent
cannot be said to have no remedy. Under Sec. 6, Rule 78 of
the Revised Rules of Court, he may apply in court for
letters of administration in his capacity as a principal
creditor of the deceased . . . if after thirty (30) days from
his death, petitioner failed to apply for administration or
request that administration be granted to some other
person.[14]

All debts and obligations contracted by the husband for the

benefit of the conjugal partnership, and those contracted
by the wife, also for the same purpose, in the cases where
she may legally bind the partnership.[8]
When petitioner's husband died, their conjugal
partnership was automatically dissolved[9] and debts
chargeable against it are to be paid in the settlement of
estate proceedings in accordance with Rule 73, 2 which
states:
Where estate settled upon dissolution of marriage. When
the marriage is dissolved by the death of the husband or
wife, the community property shall be inventoried,
administered, and liquidated, and the debts thereof paid, in
the testate or intestate proceedings of the deceased
spouse. If both spouses have died, the conjugal partnership
shall be liquidated in the testate or intestate proceedings
of either.
As held in Calma v. Taedo,[10] after the death of either of the
spouses, no complaint for the collection of indebtedness
chargeable against the conjugal partnership can be
brought against the surviving spouse. Instead, the claim
must be made in the proceedings for the liquidation and
settlement of the conjugal property. The reason for this is
that upon the death of one spouse, the powers of
administration of the surviving spouse ceases and is
passed to the administrator appointed by the court having
jurisdiction
over
the
settlement
of
estate
proceedings.[11] Indeed, the surviving spouse is not even
a de facto administrator such that conveyances made by
him of any property belonging to the partnership prior to
the liquidation of the mass of conjugal partnership
property is void.[12]
The ruling in Calma v. Taedo was reaffirmed in the recent
case of Ventura v. Militante.[13] In that case, the surviving
wife was sued in an amended complaint for a sum of
money based on an obligation allegedly contracted by her
and her late husband. The defendant, who had earlier
moved to dismiss the case, opposed the admission of the
amended complaint on the ground that the death of her
husband terminated their conjugal partnership and that
the plaintiff's claim, which was chargeable against the
partnership, should be made in the proceedings for the
settlement of his estate. The trial court nevertheless
admitted the complaint and ruled, as the Court of Appeals
did in this case, that since the defendant was also a party
to the obligation, the death of her husband did not

Rule 73: Venue and Process

as correctly argued by petitioner, the conjugal partnership

terminates upon the death of either spouse. . . . Where a
complaint is brought against the surviving spouse for the
recovery of an indebtedness chargeable against said
conjugal [partnership], any judgment obtained thereby is
void. The proper action should be in the form of a claim to
be filed in the testate or intestate proceedings of the
deceased spouse.

The cases relied upon by the Court of Appeals in support of

its ruling, namely, Climaco v. Siy Uy[15] and Imperial
Insurance, Inc. v. David,[16] are based on different sets of
facts. In Climaco, the defendants, Carlos Siy Uy and Manuel
Co,
were
sued
for
damages
for
malicious
prosecution. Thus, apart from the fact the claim was not
against any conjugal partnership, it was one which does
not survive the death of defendant Uy, which merely
resulted in the dismissal of the case as to him but not as to
the remaining defendant Manuel Co.
With regard to the case of Imperial, the spouses therein
jointly and severally executed an indemnity agreement
which became the basis of a collection suit filed against the
wife after her husband had died. For this reason, the Court
ruled that since the spouses' liability was solidary, the
surviving spouse could be independently sued in an
ordinary action for the enforcement of the entire
obligation.
It must be noted that for marriages governed by the rules
of conjugal partnership of gains, an obligation entered into
by the husband and wife is chargeable against their
conjugal partnership and it is the partnership which is
primarily bound for its repayment.[17] Thus, when the
spouses are sued for the enforcement of an obligation
entered into by them, they are being impleaded in their
capacity as representatives of the conjugal partnership and
not as independent debtors such that the concept of joint
or solidary liability, as between them, does not apply. But
even assuming the contrary to be true, the nature of the
obligation involved in this case, as will be discussed later,
is
not
solidary
but
rather
merely
joint,
making Imperial still inapplicable to this case.
From the foregoing, it is clear that private respondent
cannot maintain the present suit against petitioner. Rather,
his remedy is to file a claim against the Alipios in the
proceeding for the settlement of the estate of petitioner's
husband or, if none has been commenced, he can file a
petition either for the issuance of letters of
administration[18] or for the allowance of will,[19]depending
on whether petitioner's husband died intestate or
testate. Private respondent cannot short-circuit this
procedure by lumping his claim against the Alipios with
those against the Manuels considering that, aside from
petitioner's lack of authority to represent their conjugal

Page 58

estate, the inventory of the Alipios' conjugal property is

necessary before any claim chargeable against it can be
paid. Needless to say, such power exclusively pertains to
the court having jurisdiction over the settlement of the
decedent's estate and not to any other court.
Second. The trial court ordered petitioner and the Manuel
spouses to pay private respondent the unpaid balance of
the agreed rent in the amount of P50,600.00 without
specifying whether the amount is to be paid by them
jointly or solidarily. In connection with this, Art. 1207 of
the Civil Code provides:
The concurrence of two or more creditors or of two or
more debtors in one and the same obligation does not
imply that each one of the former has a right to demand, or
that each one of the latter is bound to render, entire
compliance with the prestations. There is a solidary
liability only when the obligation expressly so estates, or
when the law or the nature of the obligation requires
solidarity.
Indeed, if from the law or the nature or the wording of the
obligation the contrary does not appear, an obligation is
presumed to be only joint, i.e., the debt is divided into as
many equal shares as there are debtors, each debt being
considered distinct from one another.[20]
Private respondent does not cite any provision of law
which provides that when there are two or more lessees,
or in this case, sublessees, the latter's obligation to pay the
rent is solidary. To be sure, should the lessees or
sublessees refuse to vacate the leased property after the
expiration of the lease period and despite due demands by
the lessor, they can be held jointly and severally liable to
pay for the use of the property. The basis of their solidary
liability is not the contract of lease or sublease but the fact
that they have become joint tortfeasors.[21]In the case at
bar, there is no allegation that the sublessees refused to
vacate the fishpond after the expiration of the term of the
sublease. Indeed, the unpaid balance sought to be collected
by private respondent in his collection suit became due on
June 30, 1989, long before the sublease expired on
September 12, 1990.

WHEREFORE, the petition is GRANTED. Bienvenido

Manuel and Remedios Manuel are ordered to pay the
amount of P25,300.00, the attorney's fees in the amount
of P10,000.00 and the costs of the suit. The complaint
against petitioner is dismissed without prejudice to the
filing of a claim by private respondent in the proceedings
for the settlement of estate of Placido Alipio for the
collection of the share of the Alipio spouses in the unpaid
balance of the rent in the amount of P25,300.00.
SO ORDERED.
G.R. No. L-39532 July 20, 1979
Testate Estate of Jose M. Valero, FLORA VALERO VDA.
DE
RODRIGUEZ
and
ROSIE
VALERO
DE
GUTIERREZ, petitioners-appellants,
vs.
COURT OF APPEALS and CARMEN VALERORUSTIA, respondents-appellees.
Amboriso Padilla Law Office and Iglesia & Associates for
appellants.
Angel P. Purisima for appellees.

AQUINO, J.:1wph1.t
This is supposedly a case about collation. As factual
background, it should be stated that the spouses, Beatriz
Bautista and Jose M. Valero, did not beget any child during
their marriage In 1951 Beatriz adopted Carmen
(Carmencita) Bautista. Jose wanted also to adopt her but
because, by his first marriage, he had two children named
Flora Valero Vda. de Rodriguez and Rosie Valero Gutierrez.
he was disqualified to adopt Carmen. Jose manifested in
the adoption proceeding that he consented to the use by
Carmen of his surname Valero. (See Civil Case No. 12475,
Manila CFI; Art. 338[1], Civil Code and art. 28, Child and
Youth Welfare Code.)

Neither does petitioner contend that it is the nature of

lease that when there are more than two lessees or
sublessees their liability is solidary. On the other hand, the
pertinent portion of the contract involved in this case
reads:[22]

On September 18, 1964, Jose M. Valero donated to Carmen

B. Valero (who was already married to Doctor Sergio
Rustia) his one-half proindiviso share (apparently his
inchoate share) in two conjugal lots, with the
improvements thereon, located at San Lorenzo Village,
Makati, Rizal, with an area of 1,500 square meters. His
wife, Beatriz, consented to the donation. However, the
deed of donation was not registered.

2. That the total lease rental for the sub-leased fishpond

for the entire period of three (3) years and two (2) months
is FOUR HUNDRED EIGHT-FIVE THOUSAND SIX HUNDRED
(P485,600.00) PESOS, including all the improvements,
prawns, milkfishes, crabs and related species thereon as
well all fishing equipment, paraphernalia and
accessories. The said amount shall be paid to the SubLessor by the Sub-Lessees in the following manner, to wit:

On January 13, 1966, Jose M. Valero, who was then

seventy-three years old, executed his last will and
testament wherein he enumerated the conjugal properties
of himself and his wife, including the two San Lorenzo
Village lots. In that will, he did not mention the donation.
He devised to his wife properties sufficient to constitute
her legitime and bequeathed the remainder to his two
children, Mrs. Rodriguez and Mrs. Gutierrez.

A. Three hundred thousand (P300,000.00) Pesos upon

signing this contract; and

About a month later, or on February 15, 1966, the Valero

spouses, by means of a deed of absolute sale, conveyed the
San Lorenzo Village lots and the improvements thereon to
Carmen B. Valero-Rustia for the sum of one hundred
twenty thousand pesos. The sale was registered on the
following day. Transfer Certificates of Title Nos. 163270
and 163271 were issued to the vendee, Mrs. Rustia.

B. One Hundred Eight-Five Thousand Six-Hundred

(P185,6000.00) Pesos to be paid on June 30, 1989.
Clearly, the liability of the sublessees is merely joint. Since
the obligation of the Manuel and Alipio spouses is
chargeable against their respective conjugal partnerships,
the unpaid balance of P50,600.00 should be divided into
two so that each couple is liable to pay the amount
of P25,300.00.

Rule 73: Venue and Process

On December 4, 1967 she mortgaged the two lots to the

Quezon City Development Bank as security for a loan of
fifty thousand pesos (page 204, Rollo).

Page 59

Beatriz B. Valero died intestate on September 12, 1972,

survived by her husband and her adopted child. Her estate
is pending settlement in Special Proceeding No. 88896 of
the Court of First Instance of Manila. Mrs. Rustia was
named administratrix of her adopted mother's estate.

The probate court denied the motion for reconsideration.

Mrs. Rodriguez and Mrs. Gutierrez, in their petition for
certiorari in the Court of Appeals, assailed the probate
court's order declaring that the two lots were not subject
to collation.

More than a month later, or on October 18, 1972, Jose M.

Valero died testate, survived by his two children, Mrs.
Rodriguez and Mrs. Gutierrez. His will was duly probated
in Special Proceeding No. 88677, also of the Court of First
Instance of Manila. Lawyer Celso F. Unson, the executor,
submitted an inventory wherein, following the list of
conjugal assets in the testator's will, the two San Lorenzo
Village lots were included as part of the testate estate.

The Court of Appeals held that the order of exclusion dated

August 9, 1973 was interlocutory and that it could be
changed or Modified at anytime during the course of the
administration proceedings.

That inclusion provoked Mrs. Rustia, the adopted child of

Mrs. Valero, and Mrs. Rodriguez and Mrs. Gutierrez, the
legitimate children of the testator, Jose M. Valero, to file
(through Mrs. Rustia's lawyer) in the testate proceeding a
motion for the exclusion of the two San Lorenzo Village
lots from the testator's inventoried estate.
Adduced as reason for the exclusion is the fact that since
February 16, 1966 Mrs. Rustia has been the registered
owner of the lots as shown by two Torrens titles, copies of
which were attached to the motion.
The executor opposed the motion on the ground that the
two lots were donated to Mrs. Rustia and the donation
would allegedly involve collation and the donee's title to
the lots. The executor revealed that he was informed by
Mrs. Gutierrez and Mrs. Rodriguez (supposed movants)
that the two lots should be included in the inventory. Thus,
the issue of collation was prematurely raised.
The probate court in its order of August 9, 1973 excluded
the two lots from the inventory of the testator's estate but
with the understanding "that the same are subject to
collation".
On December 4, 1973 or one hundred twelve days after
Mrs. Rustia was served with a copy of that order, she filed
a motion for its reconsideration. She insisted that she is
the owner of the two San Lorenzo Village lots as indicated
in the Torrens titles. No one opposed that motion. At the
hearing of that motion, Mrs. Rustia's lawyer apprised the
court that the executor informed him over the phone that
he was not opposing the motion.
The probate court in its order of December 14, 1973 ruled
that the two lots were unconditionally excluded from the
inventory of Jose M. Valero's estate, meaning "that they are
not subject to collation". That order is the bone of
contention in this case.
Mrs. Rodriguez (without being joined by her sister, Mrs.
Gutierrez) filed a motion for the reconsideration of the
order of December 14, 1973. She alleged that the two San
Lorenzo Village lots were really conveyed to Mrs. Rustia by
way of donation because the consideration for the sale was
allegedly only one-fifth of the true value of the lots. Mrs.
Rodriguez further contended that the order of August 9,
1973 was final in character.
In reply, Mrs. Rustia countered that the prior order was
interlocutory and that in 1966 the true value of the two
lots was around P120,000 and that their value increased
considerably in 1973 or 1974. Moreover, the relatively low
price of the sale could be attributed to the fact that Mrs.
Rustia and her husband lived with the Valeros and were
taking care of them.

Rule 73: Venue and Process

It further held that it was immaterial whether the two lots

were donated or sold to Mrs. Rustia as "a mere subterfuge
to avoid payment of the donor's and donee's taxes".
According to the Appellate Court, it was immaterial
because under article 1061 of the Civil Code, only
compulsory heirs are required to make collation for the
determination of their legitimes and, under section 2, Rule
90 of the Rules of Court, only heirs are involved in
questions as to advancement and Mrs. Rustia is not an heir
of the testator, Jose M. Valero (Vda. de Rodriguez vs. Valero
Rustia, CA-G. R. No. SP- 02944, August 28, 1974, per G. S.
Santos, Gaviola, Jr. and De Castro, JJ.).
From that decision, an appeal was made to this Court. The
appeal was not given due course. However, upon motion
for reconsideration and over Mrs. Rustia's opposition, the
appeal was later allowed.
The appellants' only assignment of error is that the Court
of Appeals should have held that the probate court's order
of exclusion dated August 9, 1973 was not interlocutory
but was a final and appealable order valid that the order of
December 14, 1973 modifying the order of August 3 is
void.
We hold that the order of exclusion dated August 9, 1973
was not a final order. It was interlocutory in the sense that
it did not settle once and for all the title to the San Lorenzo
Village lots. The probate court in the exclusion incident
could not determine the question of title.
The prevailing rule is that for the purpose of determining
whether a certain property should or should not be
included in the inventory, the probate court may pass
upon the title thereto but such determination is not
conclusive and is subject to the final decision in a separate
action regarding ownership which may be instituted by the
parties (3 Moran's Comments on the Rules of Court, 1970
Edition, pages 448-9 and 473; Lachenal vs. Salas, L-42257,
June 14, 1976, 71 SCRA 262, 266).
We hold further that the dictum of the Court of Appeals
and the probate court that the two disputed lots are not
subject to collation was a supererogation and was not
necessary to the disposition of the case which merely
involved the issue of inclusion in, or exclusion from, the
inventory of the testator's estate. The issue of collation
was not yet justifiable at that early stage of the testate
proceeding. It is not necessary to mention in the order of
exclusion the controversial matter of collation.
Whether collation may exist with respect to the two lots
and whether Mrs. Rustia's Torrens titles thereto are
indefeasible are matters that may be raised later or may
not be raised at all. How those issues should be resolved, if
and when they are raised, need not be touched upon in the
adjudication of this appeal.
The intestate and testate proceedings for the settlement of
the estates of the deceased Valero spouses were
consolidated, as ordered by the lower court on November

Page 60

21, 1974, so that the conjugal estate of the deceased

spouses may be properly liquidated, as contemplated in
section 2, Rule 73 of the Rules of Court and Act No. 3176
(Pages 223 and 235-6, Rollo).
We have examined the expedientes of the two cases. We
found that the proceedings have not yet reached the stage
when the question of collation or advancement to an heir
may be raised and decided. The numerous debts of the
decedents are still being paid. The net remainder
(remanente liquido) of their conjugal estate has not yet
been determined. On the other hand, up to this time, no
separate action has been brought by the appellants to
nullify Mrs. Rustia's Torrens titles to the disputed lots or to
show that the sale was in reality a donation.
In this appeal, it is not proper to pass upon the question of
collation and to decide whether Mrs. Rustia's titles to the
disputed lots are questionable. The proceedings below
have not reached the stage of partition and distribution
when the legitimes of the compulsory heirs have to be
determined.
WHEREFORE, we affirm the decision of the Court of
Appeals and the orders of the, lower court dated August 9
and December 14, 1973, excluding from the inventory of
Jose M. Valeros estate the two San Lorenzo Village lots now
registered in the name of Carmen B. Valero-Rustia, but we
delete from that decision and the two orders any ruling
regarding collation which is a matter that may be passed
upon by the probate court at the time when it is
seasonably raised by the interested parties, if it is ever
raised at all. 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.
Pelaez, Pelaez, & Pelaez Law Office for petitioners.
Ceniza, Rama & Associates for private 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,

Rule 73: Venue and Process

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

Page 61

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. SP11373-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

Rule 73: Venue and Process

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

Page 62

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.

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?

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.

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.

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.

Upon the foregoing premises, this Court rules on and

resolves some of the problems and issues presented in
these proceedings, as follows:

III. DISCUSSION:

(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.

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.
(Philippine-American 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

Rule 73: Venue and Process

Then came what purports to be the dispositive portion:

(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.

Page 63

2. To administer and to continue to put to prolific

utilization of the properties of the decedent;

resolution on the issue of whether or not to allow and

approve the aforestated will. "

3. To keep and maintain the houses and other structures

and belonging to the estate, since the forced heirs are
residing in 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;

(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) 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.

(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.

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

Rule 73: Venue and Process

(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."

Page 64

(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])
(d) The assailed order of execution was unauthorized,
having been issued purportedly under Rule 88, Section 6 of
the Rules of Court which reads:
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

Rule 73: Venue and Process

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 dispositive part of the latter, there are
circumstances in the instant case which justify the remedy
applied for.
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 copetitioner 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

Page 65

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.
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. L-81147 June 20, 1989
VICTORIA
BRINGAS
PEREIRA, petitioner,
vs.
THE HONORABLE COURT OF APPEALS and RITA
PEREIRA NAGAC, respondents.
Benjamin J. Quitoriano for petitioner.
Linzag-Arcilla & Associates Law Offices for private
respondent.

GANCAYCO, J.:
Is a judicial administration proceeding necessary when the
decedent dies intestate without leaving any debts? May the
probate court appoint the surviving sister of the deceased
as the administratrix of the estate of the deceased instead
of the surviving spouse? These are the main questions
which need to be resolved in this case.
Andres de Guzman Pereira, an employee of the Philippine
Air Lines, passed away on January 3, 1983 at Bacoor,
Cavite without a will. He was survived by his legitimate
spouse of ten months, the herein petitioner Victoria
Bringas Pereira, and his sister Rita Pereira Nagac, the
herein private respondent.
On March 1, 1983, private respondent instituted before
Branch 19 of the Regional Trial Court of Bacoor, Cavite,
Special Proceeding No. RTC-BSP-83-4 for the issuance of
letters of administration in her favor pertaining to the
estate of the deceased Andres de Guzman Pereira. 1 In her
verified petition, private respondent alleged the following:
that she and Victoria Bringas Pereira are the only surviving
heirs of the deceased; that the deceased left no will; that
there are no creditors of the deceased; that the deceased
left several properties, namely: death benefits from the

Rule 73: Venue and Process

Philippine Air Lines (PAL), the PAL Employees Association

(PALEA), the PAL Employees Savings and Loan
Association, Inc. (PESALA) and the Social Security System
(SSS), as well as savings deposits with the Philippine
National Bank (PNB) and the Philippine Commercial and
Industrial Bank (PCIB), and a 300 square meter lot located
at Barangay Pamplona, Las Pinas, Rizal and finally, that the
spouse of the deceased (herein petitioner) had been
working in London as an auxiliary nurse and as such onehalf of her salary forms part of the estate of the deceased.
On March 23,1983, petitioner filed her opposition and
motion
to
dismiss
the
petition
of
private
respondent 2alleging that there exists no estate of the
deceased for purposes of administration and praying in
the alternative, that if an estate does exist, the letters of
administration relating to the said estate be issued in her
favor as the surviving spouse.
In its resolution dated March 28, 1985, the Regional Trial
Court, appointed private respondent Rita Pereira Nagac
administratrix of the intestate estate of Andres de Guzman
Pereira upon a bond posted by her in the amount of
Pl,000.00. The trial court ordered her to take custody of all
the real and personal properties of the deceased and to file
an inventory thereof within three months after receipt of
the order. 3
Not satisfied with the resolution of the lower court,
petitioner brought the case to the Court of Appeals. The
appellate court affirmed the appointment of private
respondent as administratrix in its decision dated
December 15, 1987. 4
Hence, this petition for review on certiorari where
petitioner raises the following issues: (1) Whether or not
there exists an estate of the deceased Andres de Guzman
Pereira for purposes of administration; (2) Whether or not
a judicial administration proceeding is necessary where
there are no debts left by the decedent; and, (3) Who has
the better right to be appointed as administratrix of the
estate of the deceased, the surviving spouse Victoria
Bringas Pereira or the surviving sister Rita Pereira Nagac?
Anent the first issue, petitioner contends that there exists
no estate of the deceased for purposes of administration
for the following reasons: firstly, the death benefits from
PAL, PALEA, PESALA and the SSS belong exclusively to her,
being the sole beneficiary and in support of this claim she
submitted letter-replies from these institutions showing
that she is the exclusive beneficiary of said death benefits;
secondly, the savings deposits in the name of her deceased
husband with the PNB and the PCIB had been used to
defray the funeral expenses as supported by several
receipts; and, finally, the only real property of the
deceased has been extrajudicially settled between the
petitioner and the private respondent as the only surviving
heirs of the deceased.
Private respondent, on the other hand, argues that it is not
for petitioner to decide what properties form part of the
estate of the deceased and to appropriate them for herself.
She points out that this function is vested in the court in
charge of the intestate proceedings.
Petitioner asks this Court to declare that the properties
specified do not belong to the estate of the deceased on the
basis of her bare allegations as aforestated and a handful
of documents. Inasmuch as this Court is not a trier of facts,
We cannot order an unqualified and final exclusion or nonexclusion of the property involved from the estate of the
deceased. 5

Page 66

The resolution of this issue is better left to the probate

court before which the administration proceedings are
pending. The trial court is in the best position to receive
evidence on the discordant contentions of the parties as to
the assets of the decedent's estate, the valuations thereof
and the rights of the transferees of some of the assets, if
any. 6 The function of resolving whether or not a certain
property should be included in the inventory or list of
properties to be administered by the administrator is one
clearly within the competence of the probate court.
However, the court's determination is only provisional in
character, not conclusive, and is subject to the final
decision in a separate action which may be instituted by
the parties. 7
Assuming, however, that there exist assets of the deceased
Andres de Guzman Pereira for purposes of administration,
We nonetheless find the administration proceedings
instituted by private respondent to be unnecessary as
contended by petitioner for the reasons herein below
discussed.
The general rule is that when a person dies leaving
property, the same should be judicially administered and
the competent court should appoint a qualified
administrator, in the order established in Section 6, Rule
78, in case the deceased left no will, or in case he had left
one, should he fail to name an executor therein. 8 An
exception to this rule is established in Section 1 of Rule
74. 9 Under this exception, when all the heirs are of lawful
age and there are no debts due from the estate, they may
agree in writing to partition the property without
instituting the judicial administration or applying for the
appointment of an administrator.
Section 1, Rule 74 of the Revised Rules of Court, however,
does not preclude the heirs from instituting administration
proceedings, even if the estate has no debts or obligations,
if they do not desire to resort for good reasons to an
ordinary action for partition. While Section 1 allows the
heirs to divide the estate among themselves as they may
see fit, or to resort to an ordinary action for partition, the
said provision does not compel them to do so if they have
good reasons to take a different course of action. 10 It
should be noted that recourse to an administration
proceeding even if the estate has no debts is sanctioned
only if the heirs have good reasons for not resorting to an
action for partition. Where partition is possible, either in
or out of court, the estate should not be burdened with an
administration proceeding without good and compelling
reasons. 11
Thus, it has been repeatedly held that when a person dies
without leaving pending obligations to be paid, his heirs,
whether of age or not, are not bound to submit the
property to a judicial administration, which is always long
and costly, or to apply for the appointment of an
administrator by the Court. It has been uniformly held that
in such case the judicial administration and the
appointment of an administrator are superfluous and
unnecessary proceedings . 12
Now, what constitutes "good reason" to warrant a judicial
administration of the estate of a deceased when the heirs
are all of legal age and there are no creditors will depend
on the circumstances of each case.
In one case, 13 We said:
Again the petitioner argues that only when the heirs do not
have any dispute as to the bulk of the hereditary estate but
only in the manner of partition does section 1, Rule 74 of

Rule 73: Venue and Process

the Rules of Court apply and that in this case the parties
are at loggerheads as to the corpus of the hereditary estate
because respondents succeeded in sequestering some
assets of the intestate. The argument is unconvincing,
because, as the respondent judge has indicated, questions
as to what property belonged to the deceased (and
therefore to the heirs) may properly be ventilated in the
partition proceedings, especially where such property is in
the hands of one heir.
In another case, We held that if the reason for seeking an
appointment as administrator is merely to avoid a
multiplicity of suits since the heir seeking such
appointment wants to ask for the annulment of certain
transfers of property, that same objective could be
achieved in an action for partition and the trial court is not
justified in issuing letters of administration. 14 In still
another case, We did not find so powerful a reason the
argument that the appointment of the husband, a
usufructuary forced heir of his deceased wife, as judicial
administrator is necessary in order for him to have legal
capacity to appear in the intestate proceedings of his wife's
deceased mother, since he may just adduce proof of his
being a forced heir in the intestate proceedings of the
latter. 15
We see no reason not to apply this doctrine to the case at
bar. There are only two surviving heirs, a wife of ten
months and a sister, both of age. The parties admit that
there are no debts of the deceased to be paid. What is at
once apparent is that these two heirs are not in good
terms. The only conceivable reason why private
respondent seeks appointment as administratrix is for her
to obtain possession of the alleged properties of the
deceased for her own purposes, since these properties are
presently in the hands of petitioner who supposedly
disposed of them fraudulently. We are of the opinion that
this is not a compelling reason which will necessitate a
judicial administration of the estate of the deceased. To
subject the estate of Andres de Guzman Pereira, which
does not appear to be substantial especially since the only
real property left has been extrajudicially settled, to an
administration proceeding for no useful purpose would
only unnecessarily expose it to the risk of being wasted or
squandered. In most instances of a similar nature, 16 the
claims of both parties as to the properties left by the
deceased may be properly ventilated in simple partition
proceedings where the creditors, should there be any, are
protected in any event.
We, therefore, hold that the court below before which the
administration proceedings are pending was not justified
in issuing letters of administration, there being no good
reason for burdening the estate of the deceased Andres de
Guzman Pereira with the costs and expenses of an
administration proceeding.
With the foregoing ruling, it is unnecessary for us to delve
into the issue of who, as between the surviving spouse
Victoria Bringas Pereira and the sister Rita Pereira Nagac,
should be preferred to be appointed as administratrix.
WHEREFORE, the letters of administration issued by the
Regional Trial Court of Bacoor to Rita Pereira Nagac are
hereby revoked and the administration proceeding
dismissed without prejudice to the right of private
respondent to commence a new action for partition of the
property left by Andres de Guzman Pereira. No costs.
SO ORDERED.
G.R. No. L-27082 January 31, 1978

Page 67

Intestate Estate of the Spouses Juan C. Pangilinan and

Teresa Magtuba. FILOMENO COCA, Administrator,
PRIMA PANGILINAN, and HEIRS OF CONCEPCION
PANGILINAN-YAMUTA, namely, MARIA P. YAMUTA DE
ATAY, EUSEBIO P. YAMUTA, and APOLINAR P.
YAMUTA, petitioners-appellants,
vs.
GUADALUPE PIZARRAS VDA. DE PANGILINAN, HEIRS
OF FRANCISCO PANGILINAN, namely, FRANCIS,
ALGERIAN, BENJAMIN, PERLA and FRANCISCO, JR., all
surnamed
PANGILINAN,
and
CRISPIN
BORROMEO, oppositors-appellees.
G.R. No. L-29545 January 31, 1978
FILOMENO
COCA, administrator-appellant,
vs.
CRISPIN BORROMEO and GUADALUPE PIZARRAS VDA.
DE PANGILINAN and her Children, claimants-appellees.
Casiano U. Laput and Lorenzo D. de Guzman for appellants.
Paulino A. Conol and Felicidario M. Batoy for appellees.

AQUINO, J.:
These two cases involve the question of whether the
ownership of a parcel of land, whether belonging to the
deceased spouses or to their heirs, should be decided in
the intestate proceeding or in a separate action. Also in
issue in these two cases is the liability of the decedents'
estate for the litigation expenses allegedly incurred in a
case regarding that same land.
Being related cases, their adjudication in a single decision
was allowed in this Court's resolution of August 13, 1969.
The spouses Juan Pan and Teresa Magtuba died intestate
in 1943 and 1948, respectively. They possession a
homestead, consisting of two parcels of land, located at
Barrio Bunawan or Mauswagon, Calamba, Misamis
Occidental.
One parcel is Identified as Lot No. 1927. It has an area of
3.9791 hectares. It was covered by Original Certificate of
Title (OCT) No. 10 of the registry of deeds of Oriental
Misamis in the name of Juan Pangilinan issued in 1927. It is
now covered by Transfer Certificate of Title No. 86 (T-10)
of the registry of deeds of Misamis Occidental (p. 7,
Appellees' brief in L-27082).
The other parcel is Identified as Lot No. 1112. It has an
area of 18.0291 hectares. It is covered by OCT No. P-8419
issued on November 21, 1961 in the name of the Heirs of
Juan Pan , represented by Concepcion Pan de Yamuta (p.
73,
Record
on
Appeal
in
L-27082).
According to Guadalupe Pizarras and her children, a third
parcel, Lot No. 1920, with an area of eight hectares which
was surveyed in the name of Concepcion Pan and which
adjoins Lots Nos. 1927 and 1112, also forms part of the
estate of the deceased Pangilinan spouses (pp. 61-64,
Record on Appeal).
The Pangilinan spouses were survived by the following
heirs: (1) Prima Pangilinan, (2) Maria, Eusebio and
Apolinar all surnamed Yamuta, the children of Concepcion
Pangilinan Yamuta who died in 1961, and (3) Francis, A
Benjamin Perla and Francisco, Jr., all surnamed Pan the

Rule 73: Venue and Process

children of Francisco Pan who died in 1948 and who was

also survived by his widow, Guadalupe Pizarras. (It is not
clear whether Roseller, Demosthenes and Eliza, all
surnamed Japay, were the children of the deceased Helen
Pangilinan, presumably a daughter of Francisco Pangilinan
and Teresa Magtuba. See pages 81-82, Record on Appeal).
Special Proceeding No. 508 of the Court of First Instance of
Misamis Occidental was instituted on September 5, 1963
for the settlement of the estate of the deceased spouses,
Juan C. Pangilinan and Teresa Magtuba.
On September 25, 1965 the administrator presented a
project of partition wherein the combined areas of Lots
Nos. 1112 and 1927, or 22.0082 hectares, were partitioned
as follows:
(a) To Crispin Borromeo as payment of his attorney's fees
in Civil Case No. 560 or CA-G.R. No. 6721-R, February 27,
1952, Crispin Labaria vs. Juan C. Pangilinan, in accordance
with the lower court's decision dated July 19, 1965 in Civil
Case No. 2440. Borromeo vs. Coca (p. 11, Appellees' brief
in L-27082), three hectares which should be taken from Lot
No. 1112 and designated as Lot No. 1112-A;
(b) To the heirs of Francisco Pangilinan (Mrs. Pizarras and
children), 5.3361 hectares taken from Lot No. 1112 and
designated as Lot No. 1112-B;
(c) To Prima Pangilinan, 6.3361 hectares, taken from Lot
No. 1112 and designated as Lot No. 1112-C, and
presumably a daughter of Francisco Pan 81-82, Record on
Appeal).
(d) To the heirs of Concepcion Pangilinan, 7.3360 hectares,
consisting of Lot No. 1927 and the remainder of Lot No.
1112, which remainder is designated as Lot No. 1112-D.
It was also provided in the project of partition that the sum
of P5,088.50, as the alleged debt of the estate to
Concepcion Pan should be divided equally among the three
sets of heirs, or P1,696.16 for each set of heirs, and that
Prima Pangilinan and the heirs of Francisco Pangilinan
should pay that amount to the heirs of Concepcion
Pangilinan.
The heirs of Francisco Pangilinan (Guadalupe Pizarras, et
al.) opposed that project of partition. They contended that
the proposed partition contravened the lower court's
order of December 6, 1963 which recognized the right of
the heirs of Francisco Pan to a twelve-hectare portion of
Lot No. 1112; that Prima Pangilinan, who sold her share to
Francisco Pan should be excluded from the partition; that
the total share of the heirs of Francisco Pangilinan in Lot
No. 1112 is 12.6720 hectares, while that of the heirs of
Concepcion Pangilinan is 6.3360 hectares, and that the
claim of the heirs of Concepcion Pangilinan for 115,088.50
had not been properly allowed.
The lower court in its order of October 2, 1965 directed
the administrator to pay the debt of the estate to the heirs
of Concepcion Pangilinan. It deferred action on the project
of partition until the ownership of the twelve hectares,
which were claimed by the heirs of Francisco Pan and the
six hectares, which were claimed by Crispen Borromeo
(eighteen hectares in all which were excluded from the
inventory in the court's order of December 6, 1963) is
determined in an ordinary action.
On may 14,1966 the heirs of Francisco Pangilinan filed a
supplemental opposition wherein they asked that Lot No.

Page 68

1920, with an area of eight hectares, which lot was

surveyed at should be included in the project of partition.
On August 31, 1966 the lower court, apparently acting on
its own volition, tackled once more the project of partition.
After noting that no separate action had been filed to
determine the ownership of the twelve hectares, it issued
an order approving the project of partition but excluding
the twelve hectares claimed by the heirs of Francisco
Pangilinan.
That order on its face appears to be incomplete because,
after excluding the twelve hectares, the lower court did not
bother to decide how the remainder should be partitioned
and whether Prima Pangilinan had a share in that
remainder.
That is the order under appeal in L-27082 by Filomeno
Coca as administrator, Prima Pangilinan and the heirs of
Concepcion Pangilinan. However, the said appellants in
their brief also assail the lower court's order of December
6, 1963, excluding eighteen hectares from the inventory,
which order was sustained by the Court of Appeals in its
decision in Atay vs. Catolico, CA-G.R. Nos. 33165-R, and
3426-R, May 14,1964, 5 CAR 1200. This Court refused to
review that decision in its resolution of July 29, 1964, in
L-23088-89, Atay vs. Court of Appeals.
The other incident involves the lower court's order of May
11, 1968 which directed that the claim of the heirs of
Francisco Pangilinan for reimbursement of litigation
expenses (apart from the sum of P1,459.49, as the value of
the produce of the twelve hectares already mentioned,
which was appropriated by the special administrator), be
referred to the clerk of court for reception of the evidence.
In another order, also dated May 11, 1968, the lower court
reiterated its order of October 2, 1965 that the
administrator should pay the heirs of Concepcion Pan the.
amount to be reimbursed to her estate. The court further
directed the administrator to account for the income of the
estate, to recover any amount due from the special
administrator, and to pay the claim of Crispin Borromeo
and the amount due to the heirs of Concepcion Pangilinan
as directed in its order of August 31, 1966 and in its
approval of the accounting of the special administrator.
The administrator, Filomeno Coca, Prima Pangilinan and
the heirs of Concepcion Pan also appealed from those two
orders dated May 11, 1968 (L-29545).
The appellant contend that the lower court, as a probate
court, has no jurisdiction to decide the ownership of the
twelve-hectare portion of Lot No. 1112. On the other hand,
the appellees" or the heirs of Francisco Pangilinan counter
that the lower court did not decide the ownership of the
twelve hectares when it ordered their exclusion from the
project of partition. So, the problem is how the title to the
twelve hectares should be decided, whether in a separate
action or in the intestate. proceeding.
It should be clarified that whether a particular matter
should be resolved by the Court of First Instance in the
exercise of its general jurisdiction or of its limited probate
jurisdiction is in reality not a jurisdictional question. In
essence, it is a procedural question involving a mode of
practice "which may be waived" (Cunanan vs. Amparo, 80
Phil. 227, 232. Cf. Reyes vs. Diaz, 73 Phil. 484 re
jurisdiction over the issue).
As a general rule, the question as to title to property
should not be passed upon in the estate or intestate

Rule 73: Venue and Process

proceeding. That question should be ventilated in a

separate action. (Lachenal vs. Salas, L-42257, June 14,
1976, 71 SCRA 262, 266). That general rule has
qualifications or exceptions justified by expediency and
convenience.
Thus, the probate court may provisionally pass upon in an
intestate or testate proceeding the question of inclusion in,
or exclusion from, the inventory of a piece of property
without prejudice to its final determination in a separate
action Lachenal vs. Salas, supra).
Although generally, a probate court may not decide a
question of title or ownership, yet if the interested parties
are all heirs or the question is one of collation or
advancement, or the parties consent to the assumption of
jurisdiction by the probate court and the rights of 'third
parties are not impaired, then the probate court is
competent to decide the question of ownership (Pascual
vs. Pascual 73 Phil. 561; Alvarez vs. Espiritu, L-18833,
August 14, 1965, 14 SCRA 892; Cunanan vs.
Amparo, supra; 3 Morans Comments on the Rules of Court,
1970 Ed., p. 4731).
We hold that the instant case may be treated as an
exception to the general rule that questions of title should
be ventilated in a separate action.
Here, the probate court had already received evidence on
the ownership of the twelve-hectare portion during the
hearing of the motion for its exclusion from title inventory
The only interested parties are the heirs who have all
appeared in the intestate proceeding.
As pointed out by the appellees, they belong to the poor
stratum of society. They should not be forced to incur
additional expenses (such as filing fees) by bringing a
separate action to determine the ownership of the twelvehectare portion.
The just, expeditious and inexpensive solution is to require
the heirs of Francisco Pangilinan to the in the intestate,
proceeding, Special Proceeding No. 568, a motion in the
form of a complaint wherein they should set forth their
claim for the twelve hectares in question, stating the
ultimate facts in support of their claim, such as the
partition made by Juan C. Pangilinan, their acquisition of
the share of Prima Pangilinan and the usufructuary rights
of their parents, their long possession of the said portion,
their claim for the produce of the land, the expenses
incurred by them in Civil Case No. 560, Labaria vs.
Pangilinan, and their contention that Lot No. 1920 forms
part of the estate of the Pangilinan spouses.
Copies of that motion should be serves upon the
administrator and upon Prima Pangilinan and the heirs of
Concepcion Pangilinan (who are all represented by the
same lawyers). They should answer the motion within
fifteen days from service. In their answer the appellants
should set forth the ultimate facts and the defenses (such
as the violation of section 118 of the Public Land Law) to
support their theory that Lot No. 1112 still forms part of
the estate of the spouses Juan C. Pangilinan and Teresa
Magtuba and that the heirs of Francisco Pangilinan should
bear one-third of the expenses incurred by Concepcion Pan
in Civil Case No. 560.
After the issues have been joined and in case no amicable
settlement has been reached, the probate court should
receive evidence or, as indicated by the Court of Appeals
in Atay vs. Catolico, supra a full-dress hearing should be
held.

Page 69

Crispin Borromeo may set forth also his claim for the three
hectares but only for the purpose of deciding what portion
of the estate should be given to him in satisfaction of his
share. His claim for the sum of P416 had already been
adjudicated by the lower court in its order of August 31,
1966 (pp. 26- 27, Record on Appeal in L-29545). No appeal
was interposed from that adjudication.
After trial the lower court's decision on the issues as to
what constitutes the estate of the Pangilinan spouses
should include the partition thereof and should indicate
what portion of the estate should be allocated to Crispen
Borromeo. If necessary, the validity of the donation or
partition of Lot No. 1112, made by Juan C. Pangilinan
during his lifetime, should be passed upon.
Considering that the respective claims of the heirs of
Francisco Pangilinan . and the heirs of Concepcion
Pangilinan for reimbursement of the litigation expenses
allegedly incurred in Civil Case No. 560 will be included in
the trial, the two orders of the trial court dated May 11,
1968 regarding those matters (L-29545) should not be
enforced. They should be set aside.
WHEREFORE, (1) the lower court's amended order of
August 31, 1966, excluding twelve hectares from the
partition of the estate of the deceased Pan spouses (L27082) and (2) the two orders dated May 11, 1968,
regarding the claim of Guadalupe Pizarras and her children
and the debt of the estate to Concepcion Pangilinan (L29545) are reversed and set aside.
A new trial should be held on those matters after the filing
of the proper pleadings and in case no amicable settlement
is reached. The heirs of Francisco Pangilinan should file
their motion within thirty days from notice of the entry of
judgment in this case.
The case is remanded to the lower court for further
proceedings in accordance with the guidelines already set
forth. No costs.
SO ORDERED.
G.R. No. 75579 September 30, 1991
TOMAS
TRINIDAD, petitioner,
vs.
THE COURT OF APPEALS, respondent.
Tomas Trinidad for himself.

PARAS, J.:p
This is a petition for review on certiorari seeking the
reversal of 1) the decision * dated February 14, 1986 of the
then Intermediate Appellate Court (now Court of Appeals)
in AC-G.R. N 01483 entitled: "People of the Philippines vs.
Atty. Tom Trinidad," affirming the decision of the Regional
Trial Court Manila dated January 5, 1984, which convicted
herein petitioner of violation of Section 25 in relation to
Section 39 of P 957 sentencing him to pay a fine of
P20,000.00 and to suffer the accessory penalties provided
by law and to pay the costs, and the resolution of said
appellate court dated May 9, 1986, denying the motion for
reconsideration of herein petitioner.
In an information that was filed in the then Court of First
Instance of Manila (now Regional Trial Court), herein
petitioner, Atty. Tomas Trinidad, was charged with

Rule 73: Venue and Process

violation of P.D. 957 for non-delivery of title allegedly

committed in this manner:
That on or about February 20, 1978 and continuously up
to the present, in Manila, Philippines, and within the
jurisdiction of this Honorable Court, the said accused,
being the administrator of the estate of the late NICOLAI
DREPIN, President and General Manager of the Mother
Earth Realty Development Corporation, owner-developer
of the Munting Baguio Village Subdivision, located at
Antipolo, Rizal, and having knowledge of the sale of Lot No.
19, Block No. 51 of the said Subdivision to FRANCISCA T.
DIMABUYO for the purchase price of P14,000,00, did then
and there wilfully, unlawfully and feloniously fail to deliver
the title of said subdivision lot to the said lot buyer upon
full payment thereof in violation of the aforementioned
P.D. No. 957. (Rollo, p. 25)
After the accused had been arraigned, pleading not guilty,
the prosecution presented only one witness namely
Francisca T. Dimabuyu, who is 49 years old, married,
public school teacher, residing at 311 Poblacion,
Mabalacat, Pampanga. In her direct and cross examination
she testified to the following: that she filed a case against
the accused Tomas Trinidad with the Task Force of the
Ministry (now Department) of Justice for Violation of P.D.
No. 957 for non-delivery of title and she executed an
affidavit in support of her complaint before the Task Force
of the Ministry (now Department) of Justice. She identified
the Affidavit, Exhibit A in her complaint. She filed this
complaint against Tomas Trinidad for the non-issuance of
title wherein there was a contract executed by her with the
Mother Earth Realty Development Corporation, and that
the accused Tomas Trinidad was the administrator of the
estate of the late Nicolai Drepin. She identified the contract
executed by her presented and marked as Exhibit B and
the total price of the lot bought by her was FOUR
THOUSAND PESOS (P4,000.00). She was paying Thirty
Eight Pesos and Sixty Bight Centavos (P38.68) monthly
until she made the full payment. She was given receipts
and entered in her booklet presented and marked as
Exhibit C. She was able to pay SEVEN THOUSAND
(P7,000.00) PESOS including amortization, and this lot
which she bought is located at Antipolo, Rizal. She had
visited the place before she bought the same. She
identified Exhibit D, which is the certification of the
secretary of the accused. She has also receipts to prove her
payments to the Mother Earth Realty Development
Corporation, of which the accused is the President and
General Manager and owner developer of the Munting
Baguio Village Subdivision located at Antipolo, Rizal. She
identified these receipts of payment paid by her. Exhibits
E, E-1 to E-3 inclusive. She also identified a passbook
wherein the payment made by her were posted by the
employee of the said corporation, Exhibits F to F-1. She
further stated that she never me the accused in his office.
She called him by phone and he promised her to deliver
the title after she had made the full payment. She waited
for several months but no title was issue to her. She
dropped in the office of the accused and she never saw him
there, only a clerk told her that he is busy. Two month
after she paid the last payment she made inquiries of her
title. She was able to talk with the accused in 1978, and the
accused told her that she should be patient for her title
would arrive. She went to the office of the accused for so
many, many times and inquired about her title and the
office of the accused in situated at Escolta, Regina Building,
Manila. She was able to talk with the accused two times
using the telephone in his office and the accused told her
that she must not worry for her title would be
forthcoming. Her son was able to talk with the accused but

Page 70

the accused told her son that her title was coming. She wen
to the National Housing Authority and inquired if the
corporation of the accused is fake. Atty. Lagunsag of the
National Housing Authority set a hearing between her and
the accused but the accused did not appear. She received
the notification ("marked as Exhibit G) from the National
Housing Authority about the hearing. The hearing was
about the title she was claiming from the accused. A
hearing. was also held at the Ministry (now Department) of
Justice on March 7, 1981 but the accused did not appear.
The Ministry (now Department) of Justice handled the case
to help her and it was Fiscal Rodrigo Cosico, state
Prosecutor of the Ministry (now Department) of Justice
who handled the case. There was a resolution of the
Ministry (now Department) of Justice in her favor, marked
an presented as Exhibit H and H-1. She did not approach
an lawyer for she could not afford to pay a lawyer.
Whenever she comes to Manila to claim her title and
confront Tomas Trinidad she used to spend FIFTY PESOS
(P50.00) per day. She felt frustrated and was mad with the
accused.
In the cross-examination of this witness she said she had
been teaching Grade IV at Pampanga for 20 years then. She
admitted that she is a signatory to the contract, Exhibit B.
admitted that she did not pay the real estate taxes of this
land. She admitted that she did not go to the Probate Court.
In the re-direct, she said that she has not paid the taxes
because she was not notified about the demand of
payment. She paid the installment as evidenced by receipts
Exhibits E, E-I E-30 of Lots Nos. 19 and 51 of said
subdivision managed by the accused. She said that the
accused was the administrator of land wherein the portion
was bought by her.
After the testimony of the complainant Francesca
Dimabuyu, the prosecution rested its case and offered
Exhibits A, B, C, D, E, E-I to E-30, inclusive, F, F-I to F-5,
inclusive, and H, and H-1, which were all admitted by the
court. (Ibid., pp. 27-29).
On the other hand, herein petitioner, in his direct
testimony and cross, testified to the fact that in the
Intestate Proceedings of the estate of the late Nicolai
Drepin, he became the Judicial Administrator appointed in
the year 1976, and he presented his appointment and
marked as Exhibit 3. He testified that he took hold of the
property of the deceased including the Mother Earth
Realty Development Corporation, and also the
unregistered property situated at Antipolo, Rizal. The
whole lot is titled in the name of testator. He admitted that
he is the administrator of the Mother Earth Realty
Development Corporation, and that said corporation has
lots for sale. He continued to receive payments of lots for
sale in installment. In 1978 the National Housing Authority
stopped the sale of lots, and his corporation was told to
stop operating the property now the place being under
control of the Ministry of Human Settlements. According to
him the complainant (Ms. Francesca T. Dimabuyu) had not
complied with all the requirements for the complainant
had not paid the taxes. He asked the Probate Court as
administrator to allow him to execute a Deed of Sale to his
lot buyers and he was allowed in November 1982, the
authority was presented and marked as Exhibit 5. The
Mother Earth Realty Development Corporation, according
to him, is not in business now, and he is not the
administrator. He was appointed by the Court as
administrator in place of Atty. Guico, and he has letters of
administration presented and marked as Exhibit 3. His

Rule 73: Venue and Process

duties as administrator are with the full authority to take

possession of all properties of the deceased.
In the cross examination of this witness he admitted that
he was not able to deliver any title to the complainant for
according to him the complainant had not actually paid all
her obligations because there is no adjustment considering
the value of the peso which has declined these days. The
complainant has not even paid the taxes of the land so that
the contract has not been duly complied with.
On January 5, 1984, the Regional Trial Court of Manila
rendered judgment, the dispositive portion of which reads:
WHEREFORE
IN
VIEW
OF
THE
FOREGOING
CONSIDERATION, the guilt of the accused having been
proven beyond reasonable doubt for violation of Sec. 25 in
relation to Section 39 of P.D. 957 hereby sentences him to
pay a fine of TWENTY THOUSAND PESOS (P20,000.) and
to suffer the accessory penalties provided by law and to
pay the costs. (Ibid., P. 62)
Not satisfied with the foregoing decision, herein petitioner
elevated the case to the then Intermediate Appellate Court,
which rendered judgment, the dispositive portion of which
reads:
WHEREFORE, the decision appealed from is AFFIRMED in
toto with costs against accused-appellant. (Ibid., p. 34)
The motion for reconsideration having been denied (Ibid.,
p. 39), herein petitioner filed the instant petition, raising
the following issues:
I
IT IS AN ABUSE OF JUDICIAL DISCRETION AMOUNTING
TO LACK OF JURISDICTION TO EXPAND THE TERM IN A
PENAL PROVISION OF PD 957 TO INCLUDE THAT WHICH
IS NOT SPECIFICALLY PROVIDED FOR THEREIN. (Ibid., p.
10)
II
THE CONCLUSION OF THE I.A.C. THAT THE
ADMINISTRATOR OF THE MOTHER REALTY DEV. CORP.
(sic) FINDS NO SANCTION IN REASON AND LOGIC AND A
GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF
JURISDICTION. (Ibid., 13)
III
IT IS A SERIOUS ERROR OF THE IAC. NOT TO
COUNTENANCE THE SPECIFIC PROVISION OF LAW ON
THE EXCLUSIVE JURISDICTION OF THE PROBATE COURT
IN REFERENCE TO THE SETTLEMENT OF THE ESTATE OF
A DECEDENT OF WHICH A DELIVERY OF TITLE TO A LOT
IS ONE SUCH. (Ibid., p. 15)
IV
ENFORCING PD 957 TO RETROACT TO A CONTRACT
LONG BEFORE ESTABLISHED VALID AND LEGAL THEN,
VIOLATES THE BILL OF RIGHTS IN THE 1973
CONSTITUTION, HENCE IT IS REVERSIBLE ERROR. (Ibid.,
p. 17)
V
YOUR PETITIONER, JUDICIAL ADMINISTRATOR OF THE
ESTATE OF NICOLAI DREPIN IS CAUGHT IN THE HORNS
OF A DILEMMA AND A NO WIN POSITION AT THAT. (Ibid.,
p. 18)

Page 71

Under the first two assigned errors, herein petitioner

assails the judgment of the respondent appellate court for
having expanded the term in a penal provision of PD 957,
i.e., Section 39, to include that which is not specifically
provided for therein. Moreover, he assails respondent
appellate court's finding that he is also the administrator
of Mother Earth Realty Development Corporation as non
sequitur.
The contentions are without merit.
Sections 25 and 39 of Presidential Decree 957 provide,
thus:
Sec. 25. Issuance of Title. The owner or developer shall
deliver the title of the lot or unit to the buyer upon full
payment of the lot or unit. No fee, except those required
for the registration of the deed of sale in the Registry of
Deeds, shall be collected for the issuance of such title. In
the event a mortgage over the lot or unit is outstanding at
the time of the issuance of the title to the buyer, the owner
or developer shall redeem the mortgage or the
corresponding portion thereof within six months from
such issuance in order that the title over fully paid lo or
unit may be secured and delivered to the buyer in
accordance herewith.
Sec. 39. Penalties. Any person who shall violate any of th
provision of this decree and/or any rule or regulation that
may be issued pursuant to this Decree shall upon
conviction, be punished by fine of not more than twenty
thousand (P20,000.00) pesos and/or imprisonment of not
more than ten years: Provided, that in the case of
corporations, partnerships, cooperatives, or associations,
the President, Manager or Administrator or the person
who has charge with the administration of the business
shall be criminally responsible for any violation of this
Decree and/or the rules and regulations promulgated
pursuant thereto.
From the foregoing, it is clear that any person who violate
Section 25 thereof by non-delivery of the title upon full
payment of the lot or in case of a corporation, partnership,
cooperative, or association, the president, manager or
administrator or the person who has charge of the
administration of the business shall be criminally
responsible.
In the case at bar, Mother Earth Realty Development
Corporation is the developer of the property in question
which belongs to the deceased, Nicolai Drepin. As
administrator of the estate of the said decedent, herein
petitioner took over the administration of all the
properties of said deceased including the property in
question. Thus undeniably he is also the administrator of
the Mother Earth Realty Development Corporation which
is handling the development and disposition of said
property. This is demonstrated by the fact that when said
corporation was sued by Ms. Dimabuyu before the Nation
Housing Authority (NHA) for non-issuance of title, herein
petitioner appeared as the administrator of said
corporation an appealed to the Minister (now Secretary) of
Justice from resolution of the Task Force Division of said
Ministry (no Department) in the same capacity. In his
appeal he did not deny that he is the administrator of the
said corporation and property in behalf of the deceased.
What he claims is that the title was not issued due to the
failure of the proper government agency to approve the
technical description of the lot preparatory to the issuance
of the corresponding torrens title and that PD 957 cannot
be given retroactive effect to apply to contracts entered

Rule 73: Venue and Process

into ten years before its passage. Again, in his letter of

December 7, 1982 to Ms. Dimabuyu delineating the
procedure to secure the title of ownership of the property
in question, herein petitioner signed as administrator not
only of the testate estate of Nicolai Drepin but also of the
Mother Earth Realty Development Corporation. (Ibid., pp.
31-32).
Under the third assigned error, herein petitioner contends
that the trial court and the respondent appellate court had
exceeded their jurisdiction by totally disregarding the law
and penalizing an act when the law shows the manner of
performing the same.
The contention is without merit.
Section 41 of Presidential Decree 957 provides, thus:
Section 41. Other Remedies. The rights and remedies
provided in this Decree shall be in addition to any and all
other rights and remedies that may be available under
existing laws.
From the foregoing, it is apparent that whatever rights or
remedies accruing to a lot buyer, Ms. Dimabuyu in this
case, under other laws do not foreclose the application of
PD 957.
In the case at bar, it is uncontroverted that Ms. Dimabuyu
has fully paid in monthly installments the agreed purchase
price for the lot. Notwithstanding full payment, herein
petitioner has failed and refused to deliver to Ms.
Dimabuyu the certificate of title corresponding to the lot
despite numerous demands.
Under the fourth assigned error, herein petitioner
maintains that PD 957 impairs the obligations of the
vendee (Ms. Dimabuyu) in the contract to sell and that it is
an ex post facto law as the provision thereof provides
retroactive effect.
The contention is likewise without merit.
Quoting the Solicitor General, the respondent appellate
court aptly rebutted this argument, thus:
Under P.D. 957, after the complainant had fully paid for the
lo in question, appellant (herein petitioner) as
administrator of t Mother Earth Realty Development
Corporation, was legally bound cause the issuance of the
corresponding transfer certificate of title in the name of
the buyer. The failure of appellant (herein petitioner) to do
so is punishable under the penal provisions of Section 39
of said decree.
Likewise, under P.D. 957, it is not required that the buyer
should pay the taxes. The buyer is only required to pay for
the registration of the Deed of Sale with the Register of
Deeds for the issuance of the title but it does not mention
the payment of taxes. With respect to th alleged
devaluation of the peso, suffice it to state that at the time
thde contract was executed, the full price of the lot was
already agreed upon by the complainant and the
corporation.
Lastly, appellant (herein petitioner) asserts that P.D. 957 is
an ex post facto law as the penal provision thereof provides
retroactive effect.
P.D. 957 cannot be assailed as an ex post facto law. The act
made punishable thereunder is the failure of the ownerdeveloper or administrator to deliver the title of the lot or

Page 72

unit to the buyer upon full payment, not the execution of a

deed of sale or contract to sell over such lot or unit before
the passage of the law. In the instant case although the
contract to sell was executed long before the enactment of
P.D. 957, the failure of appellant (herein petitioner) to
deliver the title over the lot upon full payment transpired
when the decree was already in effect. Such law is not ex
post facto for the simple reason that what is being
punished is the failure to deliver such title after the
enactment of the Decree on July 12, 1976. (Ibid., pp. 33-34)
We however find that the fifth or last issue to be
meritorious and the same deserves Our careful
consideration.
In said issue, herein petitioner maintains that to proceed
execute the deed of absolute sale without the go-signal of
th Probate Court is to be recreant to his sworn duty as
administrator, as well as to render void his actuations
done without the permission of the Probate Court.
This contention is correct and is impressed with merit.
Inasmuch as the owner-seller of the property was already
deceased and there were proceedings in the Probate Court,
it was incumbent for the Probate Court to first give
authorization to administrator of the estate to deliver titles
of lots which had previously been sold. The decedent after
all, might be considered the alter ego of the Mother Earth
Realty Development Corporation. The private complainant
had been duly instructs by the accused herein to file the
proper petition or motion wit the Probate Court for
delivery of said title but said complainant for one reason
or another, disregarded said instructions. If at anybody
should be blamed, it should be private complainant herself
for her failure to obtain the needed authorization fro the
court. Indeed, questions of title to any property apparent
still belonging to estate of the deceased may be passed
upon in the Probate Court, with consent of all the parties,
without prejudice to third persons such as the herein
private complainant. In fact, third persons may even
intervene in the testate or intestate proceedings to protect
their interest [See Cunanan vs. Amparo, 45 O.G. (No. 9),
3796]. Just as ordinary claimant against the estate of the
deceased are duty bound to present claim before the
Probate Court so was private complainant herein required
to file her claim for redress in said Probate Court. This is so
because in the ascertainment of claims against the estate of
the decedent, the Probate Court must weigh the extent of
the liability of the estate when compared vis-a-vis it
solvency. We uphold petitioner's contention therefore that
if he had proceeded to immediately cause the delivery of
the title of private complainant herein, he could have been
held liable for a blatant disregard of the jurisdiction and
function of the Probate Court. Truly, he was caught
between the horns of a dilemma which was not of his own
making. We therefore see no criminal intent whatsoever
on his part and accordingly the judgment of the appellate
court is hereby REVERSED and SET ASIDE, with costs de
officio.
If the probate proceedings referred to in this case are still
going on, the proper remedy of the private complainant
herein is to file before said Probate Court her claim for the
delivery of the title of the lot she has purchased. If on the
other hand, said probate proceedings are already closed
and terminated, the Mother Earth Realty Development
Corporation through its present President or General
Manager is hereby ordered to cause the delivery of said
title to Ms. Dimabuyu, within the shortest possible time, as
soon as all the requirements therefore have been complied

Rule 73: Venue and Process

with. We are giving this remedy to prevent Ms. Dimabuyu

from being prejudiced.
SO ORDERED.
G.R. No. 83484 February 12, 1990
CELEDONIA
SOLIVIO, petitioner,
vs.
THE HONORABLE COURT OF APPEALS and CONCORDIA
JAVELLANA VILLANUEVA, respondents.
Rex Suiza Castillon for petitioner.
Salas & Villareal for private respondent.
MEDIALDEA, J.:
This is a petition for review of the decision dated January
26, 1988 of the Court of Appeals in CA GR CV No. 09010
(Concordia Villanueva v. Celedonia Solivio) affirming the
decision of the trial court in Civil Case No. 13207 for
partition, reconveyance of ownership and possession and
damages, the dispositive portion of which reads as follows:
WHEREFORE, judgment is hereby rendered for the
plaintiff and against defendant:
a) Ordering that the estate of the late Esteban Javellana, Jr.
be divided into two (2) shares: one-half for the plaintiff
and one-half for defendant. From both shares shall be
equally deducted the expenses for the burial, mausoleum
and related expenditures. Against the share of defendants
shall be charged the expenses for scholarship, awards,
donations and the 'Salustia Solivio Vda. de Javellana
Memorial Foundation;'
b) Directing the defendant to submit an inventory of the
entire estate property, including but not limited to, specific
items already mentioned in this decision and to render an
accounting of the property of the estate, within thirty (30)
days from receipt of this judgment; one-half (1/2) of this
produce shall belong to plaintiff;
c) Ordering defendant to pay plaintiff P5,000.00 as
expenses of litigation; P10,000.00 for and as attorney's
fees plus costs.
SO ORDERED. (pp. 42-43, Rollo)
This case involves the estate of the late novelist, Esteban
Javellana, Jr., author of the first post-war Filipino novel
"Without Seeing the Dawn," who died a bachelor, without
descendants, ascendants, brothers, sisters, nephews or
nieces. His only surviving relatives are: (1) his maternal
aunt, petitioner Celedonia Solivio, the spinster half-sister
of his mother, Salustia Solivio; and (2) the private
respondent, Concordia Javellana-Villanueva, sister of his
deceased father, Esteban Javellana, Sr.
He was a posthumous child. His father died barely ten (10)
months after his marriage in December, 1916 to Salustia
Solivio and four months before Esteban, Jr. was born.
Salustia and her sister, Celedonia (daughter of Engracio
Solivio and his second wife Josefa Fernandez), a teacher in
the Iloilo Provincial High School, brought up Esteban, Jr.
Salustia brought to her marriage paraphernal properties
(various parcels of land in Calinog, Iloilo covered by 24
titles) which she had inherited from her mother, Gregoria
Celo, Engracio Solivio's first wife (p. 325, Record), but no

Page 73

conjugal property was acquired during her short-lived

marriage to Esteban, Sr.
On October 11, 1959, Salustia died, leaving all her
properties to her only child, Esteban, Jr., including a house
and lot in La Paz, Iloilo City, where she, her son, and her
sister lived. In due time, the titles of all these properties
were transferred in the name of Esteban, Jr.
During his lifetime, Esteban, Jr. had, more than once,
expressed to his aunt Celedonia and some close friends his
plan to place his estate in a foundation to honor his mother
and to help poor but deserving students obtain a college
education. Unfortunately, he died of a heart attack on
February 26,1977 without having set up the foundation.
Two weeks after his funeral, Concordia and Celedonia
talked about what to do with Esteban's properties.
Celedonia told Concordia about Esteban's desire to place
his estate in a foundation to be named after his mother,
from whom his properties came, for the purpose of helping
indigent students in their schooling. Concordia agreed to
carry out the plan of the deceased. This fact was admitted
by her in her "Motion to Reopen and/or Reconsider the
Order dated April 3, 1978" which she filed on July 27, 1978
in Special Proceeding No. 2540, where she stated:
4. That petitioner knew all along the narrated facts in the
immediately preceding paragraph [that herein movant is
also the relative of the deceased within the third degree,
she being the younger sister of the late Esteban Javellana,
father of the decedent herein], because prior to the filing of
the petition they (petitioner Celedonia Solivio and movant
Concordia Javellana) have agreed to make the estate of the
decedent a foundation, besides they have closely known
each other due to their filiation to the decedent and they
have been visiting each other's house which are not far
away for (sic) each other. (p. 234, Record; Emphasis
supplied.)
Pursuant to their agreement that Celedonia would take
care of the proceedings leading to the formation of the
foundation, Celedonia in good faith and upon the advice of
her counsel, filed on March 8, 1977 Spl. Proceeding No.
2540 for her appointment as special administratrix of the
estate of Esteban Javellana, Jr. (Exh. 2). Later, she filed an
amended petition (Exh. 5) praying that letters of
administration be issued to her; that she be declared sole
heir of the deceased; and that after payment of all claims
and rendition of inventory and accounting, the estate be
adjudicated to her (p. 115, Rollo).
After due publication and hearing of her petition, as well as
her amended petition, she was declared sole heir of the
estate of Esteban Javellana, Jr. She explained that this was
done for three reasons: (1) because the properties of the
estate had come from her sister, Salustia Solivio; (2) that
she is the decedent's nearest relative on his mother's side;
and (3) with her as sole heir, the disposition of the
properties of the estate to fund the foundation would be
facilitated.
On April 3, 1978, the court (Branch II, CFI, now Branch 23,
RTC) declared her the sole heir of Esteban, Jr. Thereafter,
she sold properties of the estate to pay the taxes and other
obligations of the deceased and proceeded to set up
the "SALUSTIA
SOLIVIO
VDA.
DE
JAVELLANA
FOUNDATION" which she caused to be registered in the
Securities and Exchange Commission on July 17,1981
under Reg. No. 0100027 (p. 98, Rollo).

Rule 73: Venue and Process

Four months later, or on August 7, 1978, Concordia

Javellana Villanueva filed a motion for reconsideration of
the court's order declaring Celedonia as "sole heir" of
Esteban, Jr., because she too was an heir of the deceased.
On October 27, 1978, her motion was denied by the court
for tardiness (pp. 80-81, Record). Instead of appealing the
denial, Concordia filed on January 7, 1980 (or one year and
two months later), Civil Case No. 13207 in the Regional
Trial Court of Iloilo, Branch 26, entitled "Concordia
Javellana- Villanueva v. Celedonia Solivio" for partition,
recovery of possession, ownership and damages.
On September 3, 1984, the said trial court rendered
judgment in Civil Case No. 13207, in favor of Concordia
Javellana-Villanueva.
On Concordia's motion, the trial court ordered the
execution of its judgment pending appeal and required
Celedonia to submit an inventory and accounting of the
estate. In her motions for reconsideration of those orders,
Celedonia averred that the properties of the deceased had
already been transferred to, and were in the possession of,
the 'Salustia Solivio Vda. de Javellana Foundation." The
trial court denied her motions for reconsideration.
In the meantime, Celedonia perfected an appeal to the
Court of Appeals (CA GR CV No. 09010). On January 26,
1988, the Court of Appeals, Eleventh Division, rendered
judgment affirming the decision of the trial court in
toto.Hence, this petition for review wherein she raised the
following legal issues:
1. whether Branch 26 of the RTC of Iloilo had jurisdiction
to entertain Civil Case No. 13207 for partition and
recovery of Concordia Villanueva's share of the estate of
Esteban Javellana, Jr. even while the probate proceedings
(Spl. Proc. No. 2540) were still pending in Branch 23 of the
same court;
2. whether Concordia Villanueva was prevented from
intervening in Spl. Proc. No. 2540 through extrinsic fraud;
3. whether the decedent's properties were subject
to reserva troncal in favor of Celedonia, his relative within
the third degree on his mother's side from whom he had
inherited them; and
4. whether Concordia may recover her share of the estate
after she had agreed to place the same in the Salustia
Solivio Vda. de Javellana Foundation, and notwithstanding
the fact that conformably with said agreement, the
Foundation has been formed and properties of the estate
have already been transferred to it.
I. The question of jurisdiction
After a careful review of the records, we find merit in the
petitioner's contention that the Regional Trial Court,
Branch 26, lacked jurisdiction to entertain Concordia
Villanueva's action for partition and recovery of her share
of the estate of Esteban Javellana, Jr. while the probate
proceedings (Spl, Proc. No. 2540) for the settlement of said
estate are still pending in Branch 23 of the same court,
there being as yet no orders for the submission and
approval of the administratix's inventory and accounting,
distributing the residue of the estate to the heir, and
terminating the proceedings (p. 31, Record).
It is the order of distribution directing the delivery of the
residue of the estate to the persons entitled thereto that
brings to a close the intestate proceedings, puts an end to
the administration and thus far relieves the administrator

Page 74

from his duties (Santiesteban v. Santiesteban, 68 Phil. 367,

Philippine Commercial and Industrial Bank v. Escolin, et
al., L-27860, March 29, 1974, 56 SCRA 266).
The assailed order of Judge Adil in Spl. Proc. No. 2540
declaring Celedonia as the sole heir of the estate of Esteban
Javellana, Jr. did not toll the end of the proceedings. As a
matter of fact, the last paragraph of the order directed the
administratrix to "hurry up the settlement of the estate."
The pertinent portions of the order are quoted below:
2. As regards the second incident [Motion for Declaration
of Miss Celedonia Solivio as Sole Heir, dated March 7,
1978], it appears from the record that despite the notices
posted and the publication of these proceedings as
required by law, no other heirs came out to interpose any
opposition to the instant proceeding. It further appears
that herein Administratrix is the only claimant-heir to the
estate of the late Esteban Javellana who died on February
26, 1977.
During the hearing of the motion for declaration as heir on
March 17, 1978, it was established that the late Esteban
Javellana died single, without any known issue, and
without any surviving parents. His nearest relative is the
herein Administratrix, an elder [sic] sister of his late
mother who reared him and with whom he had always
been living with [sic] during his lifetime.
xxxxxxxxx
2. Miss Celedonia Solivio, Administratrix of this estate, is
hereby declared as the sole and legal heir of the late
Esteban S. Javellana, who died intestate on February 26,
1977 at La Paz, Iloilo City.
The Administratrix is hereby instructed to hurry up with
the settlement of this estate so that it can be terminated.
(pp, 14-16, Record)
In view of the pendency of the probate proceedings in
Branch 11 of the Court of First Instance (now RTC, Branch
23), Concordia's motion to set aside the order declaring
Celedonia as sole heir of Esteban, and to have herself
(Concordia) declared as co-heir and recover her share of
the properties of the deceased, was properly filed by her in
Spl. Proc. No. 2540. Her remedy when the court denied her
motion, was to elevate the denial to the Court of Appeals
for review on certiorari. However, instead of availing of
that remedy, she filed more than one year later, a separate
action for the same purpose in Branch 26 of the court. We
hold that the separate action was improperly filed for it is
the probate court that has exclusive jurisdiction to make a
just and legal distribution of the estate.
In the interest of orderly procedure and to avoid confusing
and conflicting dispositions of a decedent's estate, a court
should not interfere with probate proceedings pending in a
co-equal court. Thus, did we rule in Guilas v. Judge of the
Court of First Instance of Pampanga, L-26695, January 31,
1972, 43 SCRA 111, 117, where a daughter filed a separate
action to annul a project of partition executed between her
and her father in the proceedings for the settlement of the
estate of her mother:
The probate court loses jurisdiction of an estate under
administration only after the payment of all the debts and
the remaining estate delivered to the heirs entitled to
receive the same. The finality of the approval of the project
of The probate court, in the exercise of its jurisdiction to
make distribution, has power to determine the proportion
or parts to which each distributed is entitled. ... The power

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to determine the legality or illegality of the testamentary

provision is inherent in the jurisdiction of the court
making a just and legal distribution of the inheritance. ... To
hold that a separate and independent action is necessary
to that effect, would be contrary to the general tendency of
the jurisprudence of avoiding multiplicity of suits; and is
further, expensive, dilatory, and impractical. (Marcelino v.
Antonio, 70 Phil. 388)
A judicial declaration that a certain person is the only heir
of the decedent is exclusively within the range of the
administratrix proceedings and can not properly be made
an independent action. (Litam v. Espiritu, 100 Phil. 364)
A separate action for the declaration of heirs is not proper.
(Pimentel v. Palanca, 5 Phil. 436)
partition by itself alone does not terminate the probate
proceeding (Timbol v. Cano, 1 SCRA 1271, 1276, L-15445,
April 29, 1961; Siguiong v. Tecson, 89 Phil. pp. 28, 30). As
long as the order of the distribution of the estate has not
been complied with, the probate proceedings cannot be
deemed closed and terminated Siguiong v. Tecson, supra);
because a judicial partition is not final and conclusive and
does not prevent the heirs from bringing an action to
obtain his share, provided the prescriptive period
therefore has not elapsed (Mari v. Bonilia, 83 Phil.
137). The better practice, however, for the heir who has not
received his share, is to demand his share through a proper
motion in the same probate or administration proceedings,
or for reopening of the probate or administrative
proceedings if it had already been closed, and not through
an independent action,which would be tried by another
court or Judge which may thus reverse a decision or order
of the probate or intestate court already final and executed
and re-shuffle properties long ago distributed and
disposed of. (Ramos v. Ortuzar, 89 Phil. 730, 741-742;
Timbol v. Cano, supra; Jingco v. Daluz, L-5107, April 24,
1953, 92 Phil. 1082; Roman Catholic v. Agustines, L-14710,
March 29, 1960, 107 Phil. 455, 460-461; Emphasis
supplied)
In Litam et al., v. Rivera, 100 Phil. 364, where despite the
pendency of the special proceedings for the settlement of
the intestate estate of the deceased Rafael Litam the
plaintiffs-appellants filed a civil action in which they
claimed that they were the children by a previous
marriage of the deceased to a Chinese woman, hence,
entitled to inherit his one-half share of the conjugal
properties acquired during his marriage to Marcosa
Rivera, the trial court in the civil case declared that the
plaintiffs-appellants were not children of the deceased,
that the properties in question were paraphernal
properties of his wife, Marcosa Rivera, and that the latter
was his only heir. On appeal to this Court, we ruled that
"such declarations (that Marcosa Rivera was the only heir
of the decedent) is improper, in Civil Case No. 2071, it
being within the exclusive competence of the court in Special
Proceedings No. 1537, in which it is not as yet, in issue, and,
will not be, ordinarily, in issue until the presentation of the
project of partition. (p. 378).
However, in the Guilas case, supra, since the estate
proceedings had been closed and terminated for over
three years, the action for annulment of the project of
partition was allowed to continue. Considering that in the
instant case, the estate proceedings are still pending, but
nonetheless, Concordia had lost her right to have herself
declared as co-heir in said proceedings, We have opted
likewise to proceed to discuss the merits of her claim in
the interest of justice.

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The orders of the Regional Trial Court, Branch 26, in Civil

Case No. 13207 setting aside the probate proceedings in
Branch 23 (formerly Branch 11) on the ground of extrinsic
fraud, and declaring Concordia Villanueva to be a co-heir
of Celedonia to the estate of Esteban, Jr., ordering the
partition of the estate, and requiring the administratrix,
Celedonia, to submit an inventory and accounting of the
estate, were improper and officious, to say the least, for
these matters he within the exclusive competence of the
probate court.

agreed to partition the estate, for their agreement was to

place the estate in a foundation.] (p. 2, Record; emphasis
supplied)

II. The question of extrinsic fraud

2. The probate proceedings are proceedings in rem. Notice

of the time and place of hearing of the petition is required
to be published (Sec. 3, Rule 76 in relation to Sec. 3, Rule
79, Rules of Court). Notice of the hearing of Celedonia's
original petition was published in the "Visayan Tribune"
on April 25, May 2 and 9, 1977 (Exh 4, p. 197, Record).
Similarly, notice of the hearing of her amended petition of
May 26, 1977 for the settlement of the estate was, by order
of the court, published in "Bagong Kasanag" (New Light)
issues of May 27, June 3 and 10, 1977 (pp. 182-305,
Record). The publication of the notice of the proceedings
was constructive notice to the whole world. Concordia was
not deprived of her right to intervene in the proceedings
for she had actual, as well as constructive notice of the
same. As pointed out by the probate court in its order of
October 27, 1978:

Was Concordia prevented from intervening in the intestate

proceedings by extrinsic fraud employed by Celedonia? It is
noteworthy that extrinsic fraud was not alleged in
Concordia's original complaint in Civil Case No. 13207. It
was only in her amended complaint of March 6, 1980, that
extrinsic fraud was alleged for the first time.
Extrinsic fraud, as a ground for annulment of judgment, is
any act or conduct of the prevailing party which prevented
a fair submission of the controversy (Francisco v. David, 38
O.G. 714). A fraud 'which prevents a party from having a
trial or presenting all of his case to the court, or one which
operates upon matters pertaining, not to the judgment
itself, but to the manner by which such judgment was
procured so much so that there was no fair submission of
the controversy. For instance, if through fraudulent
machination by one [his adversary], a litigant was induced
to withdraw his defense or was prevented from presenting
an available defense or cause of action in the case wherein
the judgment was obtained, such that the aggrieved party
was deprived of his day in court through no fault of his
own, the equitable relief against such judgment may be
availed of. (Yatco v. Sumagui, 44623-R, July 31, 1971).
(cited in Philippine Law Dictionary, 1972 Ed. by Moreno;
Varela v. Villanueva, et al., 96 Phil. 248)
A judgment may be annulled on the ground of extrinsic or
collateral fraud, as distinguished from intrinsic fraud,
which connotes any fraudulent scheme executed by a
prevailing litigant 'outside the trial of a case against the
defeated party, or his agents, attorneys or witnesses,
whereby said defeated party is prevented from presenting
fully and fairly his side of the case. ... The overriding
consideration is that the fraudulent scheme of the
prevailing litigant prevented a party from having his day in
court or from presenting his case. The fraud, therefore, is
one that affects and goes into the jurisdiction of the court.
(Libudan v. Gil, L-21163, May 17, 1972, 45 SCRA 17, 27-29;
Sterling Investment Corp. v. Ruiz, L-30694, October 31,
1969, 30 SCRA 318, 323)
The charge of extrinsic fraud is, however, unwarranted for
the following reasons:
1. Concordia was not unaware of the special proceeding
intended to be filed by Celedonia. She admitted in her
complaint that she and Celedonia had agreed that the
latter would "initiate the necessary proceeding" and pay
the taxes and obligations of the estate. Thus paragraph 6 of
her complaint alleged:
6. ... for the purpose of facilitating the settlement of the
estate of the late Esteban Javellana, Jr. at the lowest
possible cost and the least effort, the plaintiff and the
defendant agreed that the defendant shall initiate the
necessary proceeding, cause the payment of taxes and other
obligations, and to do everything else required by law, and
thereafter, secure the partition of the estate between her
and the plaintiff, [although Celedonia denied that they

Rule 73: Venue and Process

Evidently, Concordia was not prevented from intervening

in the proceedings. She stayed away by choice. Besides, she
knew that the estate came exclusively from Esteban's
mother, Salustia Solivio, and she had agreed with
Celedonia to place it in a foundation as the deceased had
planned to do.

... . The move of Concordia Javellana, however, was filed

about five months after Celedonia Solivio was declared as
the sole heir. ... .
Considering that this proceeding is one in rem and had
been duly published as required by law, despite which the
present movant only came to court now, then she is guilty
of laches for sleeping on her alleged right. (p. 22, Record)
The court noted that Concordia's motion did not comply
with the requisites of a petition for relief from judgment
nor a motion for new trial.
The rule is stated in 49 Corpus Juris Secundum 8030 as
follows:
Where petition was sufficient to invoke statutory
jurisdiction of probate court and proceeding was in rem no
subsequent errors or irregularities are available on
collateral attack. (Bedwell v. Dean 132 So. 20)
Celedonia's allegation in her petition that she was the sole
heir of Esteban within the third degree on his mother's
side was not false. Moreover, it was made in good faith and
in the honest belief that because the properties of Esteban
had come from his mother, not his father, she, as Esteban's
nearest surviving relative on his mother's side, is the
rightful heir to them. It would have been self-defeating and
inconsistent with her claim of sole heirshipif she stated in
her petition that Concordia was her co-heir. Her omission
to so state did not constitute extrinsic fraud.
Failure to disclose to the adversary, or to the court,
matters which would defeat one's own claim or defense is
not such extrinsic fraud as will justify or require vacation
of the judgment. (49 C.J.S. 489, citing Young v. Young, 2 SE
2d 622; First National Bank & Trust Co. of King City v.
Bowman, 15 SW 2d 842; Price v. Smith, 109 SW 2d 1144,
1149)
It should be remembered that a petition for administration
of a decedent's estate may be filed by any "interested
person" (Sec. 2, Rule 79, Rules of Court). The filing of

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Celedonia's petition did not preclude Concordia from filing

her own.
III. On the question of reserva troncal
We find no merit in the petitioner's argument that the
estate of the deceased was subject to reserva troncal and
that it pertains to her as his only relative within the third
degree on his mother's side. The reserva troncalprovision
of the Civil Code is found in Article 891 which reads as
follows:
ART. 891. The ascendant who inherits from his descendant
any property which the latter may have acquired by
gratuitous title from another ascendant, or a brother or
sister, is obliged to reserve such property as he may have
acquired by operation of law for the benefit of relatives
who are within the third degree and who belong to the line
from which said property came.
The persons involved in reserva troncal are:
1.
The person obliged
to
reserve is
the
reservor (reservista)the ascendant who inherits by
operation of law property from his descendants.
2. The persons for whom the property is reserved are the
reservees (reservatarios)relatives within the third
degree counted from the descendant (propositus), and
belonging to the line from which the property came.
3. The propositusthe descendant who received by
gratuitous title and died without issue, making his other
ascendant inherit by operation of law. (p. 692, Civil Law by
Padilla, Vol. II, 1956 Ed.)
Clearly, the property of the deceased, Esteban Javellana, Jr.,
is not reservable property, for Esteban, Jr. was not an
ascendant, but the descendant of his mother, Salustia
Solivio, from whom he inherited the properties in
question. Therefore, he did not hold his inheritance subject
to a reservation in favor of his aunt, Celedonia Solivio, who
is his relative within the third degree on his mother's side.
The reserva troncal applies to properties inherited by an
ascendant from a descendant who inherited it from
another ascendant or 9 brother or sister. It does not apply
to property inherited by a descendant from his ascendant,
the reverse of the situation covered by Article 891.
Since the deceased, Esteban Javellana, Jr., died without
descendants, ascendants, illegitimate children, surviving
spouse, brothers, sisters, nephews or nieces, what should
apply in the distribution of his estate are Articles 1003 and
1009 of the Civil Code which provide:
ART. 1003. If there are no descendants, ascendants,
illegitimate children, or a surviving spouse, the collateral
relatives shall succeed to the entire estate of the deceased
in accordance with the following articles.
ART. 1009. Should there be neither brothers nor sisters,
nor children of brothers or sisters, the other collateral
relatives shall succeed to the estate.
The latter shall succeed without distinction of lines or
preference among them by reason of relationship by the
whole blood.
Therefore, the Court of Appeals correctly held that:
Both plaintiff-appellee and defendant-appellant being
relatives of the decedent within the third degree in the
collateral line, each, therefore, shall succeed to the subject

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estate 'without distinction of line or preference among

them by reason of relationship by the whole blood,' and is
entitled one-half (1/2) share and share alike of the estate.
(p. 57, Rollo)
IV. The question of Concordia's one-half share
However, inasmuch as Concordia had agreed to deliver the
estate of the deceased to the foundation in honor of his
mother, Salustia Solivio Vda. de Javellana (from whom the
estate came), an agreement which she ratified and
confirmed in her "Motion to Reopen and/or Reconsider
Order dated April 3, 1978" which she filed in Spl.
Proceeding No. 2540:
4. That ... prior to the filing of the petition they (petitioner
Celedonia Solivio and movant Concordia Javellana) have
agreed to make the estate of the decedent a
foundation, besides they have closely known each other
due to their filiation to the decedent and they have been
visiting each other's house which are not far away for (sic)
each other. (p. 234, Record; Emphasis supplied)
she is bound by that agreement. It is true that by that
agreement, she did not waive her inheritance in favor of
Celedonia, but she did agree to place all of Esteban's estate
in the "Salustia Solivio Vda. de Javellana Foundation"
which Esteban, Jr., during his lifetime, planned to set up to
honor his mother and to finance the education of indigent
but deserving students as well.
Her admission may not be taken lightly as the lower court
did. Being a judicial admission, it is conclusive and no
evidence need be presented to prove the agreement
(Cunanan v. Amparo, 80 Phil. 227; Granada v. Philippine
National Bank, L-20745, Sept. 2, 1966, 18 SCRA 1; Sta. Ana
v. Maliwat, L-23023, Aug. 31, 1968, 24 SCRA 1018; People
v. Encipido, G.R.70091, Dec. 29, 1986, 146 SCRA 478; and
Rodillas v. Sandiganbayan, G.R. 58652, May 20, 1988, 161
SCRA 347).
The admission was never withdrawn or impugned by
Concordia who, significantly, did not even testify in the
case, although she could have done so by deposition if she
were supposedly indisposed to attend the trial. Only her
husband, Narciso, and son-in-law, Juanito Domin, actively
participated in the trial. Her husband confirmed the
agreement between his wife and Celedonia, but he
endeavored to dilute it by alleging that his wife did not
intend to give all, but only one-half, of her share to the
foundation (p. 323, Record).
The records show that the "Salustia Solivio Vda. de
Javellana Foundation" was established and duly registered
in the Securities and Exchange Commission under Reg. No.
0100027 for the following principal purposes:
1. To provide for the establishment and/or setting up of
scholarships for such deserving students as the Board of
Trustees of the Foundation may decide of at least one
scholar each to study at West Visayas State College, and
the University of the Philippines in the Visayas both
located in Iloilo City.
2. To provide a scholarship for at least one scholar for St.
Clements Redemptorist Community for a deserving
student who has the religious vocation to become a priest.
3. To foster, develop, and encourage activities that will
promote the advancement and enrichment of the various
fields of educational endeavors, especially in literary arts.
Scholarships provided for by this foundation may be

Page 77

named after its benevolent benefactors as a token of

gratitude for their contributions.
4. To direct or undertake surveys and studies in the
community to determine community needs and be able to
alleviate partially or totally said needs.
5. To maintain and provide the necessary activities for the
proper care of the Solivio-Javellana mausoleum at Christ
the King Memorial Park, Jaro, Iloilo City, and the Javellana
Memorial at the West Visayas State College, as a token of
appreciation for the contribution of the estate of the late
Esteban S. Javellana which has made this foundation
possible. Also, in perpetuation of his Roman Catholic
beliefs and those of his mother, Gregorian masses or their
equivalents will be offered every February and October,
and Requiem masses every February 25th and October
llth, their death anniversaries, as part of this provision.
6. To receive gifts, legacies, donations, contributions,
endowments and financial aids or loans from whatever
source, to invest and reinvest the funds, collect the income
thereof and pay or apply only the income or such part
thereof as shall be determined by the Trustees for such
endeavors as may be necessary to carry out the objectives
of the Foundation.

Having agreed to contribute her share of the decedent's

estate to the Foundation, Concordia is obligated to honor
her commitment as Celedonia has honored hers.
WHEREFORE, the petition for review is granted. The
decision of the trial court and the Court of Appeals are
hereby SET ASIDE. Concordia J. Villanueva is declared an
heir of the late Esteban Javellana, Jr. entitled to one-half of
his estate. However, comformably with the agreement
between her and her co-heir, Celedonia Solivio, the entire
estate of the deceased should be conveyed to the "Salustia
Solivio Vda. de Javallana Foundation," of which both the
petitioner and the private respondent shall be trustees,
and each shall be entitled to nominate an equal number of
trustees to constitute the Board of Trustees of the
Foundation which shall administer the same for the
purposes set forth in its charter. The petitioner, as
administratrix of the estate, shall submit to the probate
court an inventory and accounting of the estate of the
deceased preparatory to terminating the proceedings
therein.
SO ORDERED.

7. To acquire, purchase, own, hold, operate, develop, lease,

mortgage, pledge, exchange, sell, transfer, or otherwise,
invest, trade, or deal, in any manner permitted by law, in
real and personal property of every kind and description
or any interest herein.
8. To do and perform all acts and things necessary, suitable
or proper for the accomplishments of any of the purposes
herein enumerated or which shall at any time appear
conducive to the protection or benefit of the corporation,
including the exercise of the powers, authorities and
attributes concerned upon the corporation organized
under the laws of the Philippines in general, and upon
domestic corporation of like nature in particular. (pp. 9-10,
Rollo)
As alleged without contradiction in the petition' for
review:
The Foundation began to function in June, 1982, and three
(3) of its eight Esteban Javellana scholars graduated in
1986, one (1) from UPV graduated Cum Laude and two (2)
from WVSU graduated with honors; one was a Cum Laude
and the other was a recipient of Lagos Lopez award for
teaching for being the most outstanding student teacher.
The Foundation has four (4) high school scholars in Guiso
Barangay High School, the site of which was donated by
the Foundation. The School has been selected as the Pilot
Barangay High School for Region VI.
The Foundation has a special scholar, Fr. Elbert Vasquez,
who would be ordained this year. He studied at St. Francis
Xavier Major Regional Seminary at Davao City. The
Foundation likewise is a member of the Redemptorist
Association that gives yearly donations to help poor
students who want to become Redemptorist priests or
brothers. It gives yearly awards for Creative writing
known as the Esteban Javellana Award.
Further, the Foundation had constructed the Esteban S.
Javellana Multi-purpose Center at the West Visayas State
University for teachers' and students' use, and has likewise
contributed to religious civic and cultural fund-raising
drives, amongst other's. (p. 10, Rollo)

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