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.
TEEHANKEE, J.:
Petition for certiorari to review the decision of respondent Court of Appeals in CA-G.R. No. 34104-R, promulgated 21
November 1964, and its subsequent Resolution promulgated 8 July 1964 denying petitioner's Motion for Reconsideration.
The pertinent facts which gave rise to the herein petition follow:
On 25 February 1964 Senator Mariano Jesus Cuenco died at the Manila Doctors' Hospital, Manila. He was survived by
his widow, the herein petitioner, and their two (2) minor sons, Mariano Jesus, Jr. and Jesus Salvador, both surnamed
Cuenco, all residing at 69 Pi y Margal St., Sta. Mesa Heights, Quezon City, and by his children of the first marriage,
respondents herein, namely, Manuel Cuenco, Lourdes Cuenco, Concepcion Cuenco Manguera, Carmen Cuenco,
Consuelo Cuenco Reyes and Teresita Cuenco Gonzales, all of legal age and residing in Cebu.
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. Q-7898.
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.
Instead, respondents filed in the Quezon City court an Opposition and Motion to Dismiss, dated 10 April 1964, opposing
probate of the will and assailing the jurisdiction of the said Quezon City court to entertain petitioner's petition for probate
and for appointment as executrix in Sp. Proc. No. Q-7898 in view of the alleged exclusive jurisdiction vested by her
petition in the Cebu court in Sp. Proc. No. 2433-R. Said respondent prayed that Sp. Proc. No. Q-7898 be dismissed
for lack of jurisdiction and/or improper venue.
In its order of 11 April 1964, the Quezon City court denied the motion to dismiss, giving as a principal reason the
"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 respondents-oppositors had
opposed probate under their opposition and motion to dismiss on the following grounds:
(a) That the will was not executed and attested as required by law;
(b) That the will was procured by undue and improper pressure and influence on the part of the
beneficiary or some other persons for his benefit;
(c) That the testator's signature was procured by fraud and/or that the testator acted by mistake and did
not intend that the instrument he signed should be his will at the time he affixed his signature thereto. 6
The Quezon City court further noted that the requisite publication of the notice of the hearing had been duly complied with
and that all the heirs had been duly notified of the hearing, and after receiving the testimony of the three instrumental
witnesses to the decedent's last will, namely Atty. Florencio Albino, Dr. Guillermo A. Picache and Dr. Jose P. Ojeda, and of
the notary public, Atty. Braulio A. Arriola, Jr., who ratified the said last will, and the documentary evidence (such as the
decedent's residence certificates, income tax return, diplomatic passport, deed of donation) all indicating that the
decedent was a resident of 69 Pi y Margal St., Quezon City, as also affirmed by him in his last will, the Quezon City court
in its said order of 15 May 1964 admitted to probate the late senator's last will and testament as having been "freely and
voluntarily executed by the testator" and "with all formalities of the law" and appointed petitioner-widow as executrix of his
estate without bond "following the desire of the testator" in his will as probated.
Instead of appealing from the Quezon City court's said order admitting the will to probate and naming petitioner-widow 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 2433R), 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 and does not depend on the pronouncements of a trial judge.
The dispositive part of respondent appellate court's judgment provided as follows:
ACCORDINGLY, the writ of prohibition will issue, commanding and directing the respondent Court of First
Instance of Rizal, Branch IX, Quezon City, and the respondent Judge Damaso B. Tengco to refrain
perpetually from proceeding and taking any action in Special Proceeding Q-7898 pending before the said
respondent court. All orders heretofore issued and actions heretofore taken by said respondent court and
respondent Judge, therein and connected therewith, are hereby annulled. The writ of injunction heretofore
issued is hereby made permanent. No pronouncement as to costs.
Petitioner's motion for reconsideration was denied in a resolution of respondent Court of Appeals, dated 8 July 1965;
hence the herein petition for review on certiorari.
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 estate of a decedent, shall exercise jurisdiction to the exclusion of all other courts." The cited Rule
provides:
Section 1. Where estate of deceased persons settled. If the decedent is an inhabitant of the Philippines at
the time of his death, whether a citizen or an alien, his will shall be proved, or letters of administration
granted, and his estate settled, in the Court of First Instance in the Province in which he resides at the
time of his death, and if he is an inhabitant of a foreign country, the Court of First Instance of the province
in which he had estate. The court first taking cognizance of the settlement of the estate of a decedent,
shall exercise jurisdiction to the exclusion of all other courts. The jurisdiction assumed by a court, so far
as it depends on the place of residence, of the decedent, or of the location of his estate, shall not be
contested in a suit or proceeding, except in an appeal from that court, in the original case, or when
the want of jurisdiction appears on the record. (Rule 73) 8

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 subject-matter. But we decline to follow this
view because of its mischievous consequences. For instance, a probate case has been submitted in good
faith to the Court of First Instance of a province where the deceased had not resided. All the parties,
however, including all the creditors, have submitted themselves to the jurisdiction of the court and the
case is therein completely finished except for a claim of a creditor who also voluntarily filed it with said
court but on appeal from an adverse decision raises for the first time in this Court the question of
jurisdiction of the trial court for lack of residence of the deceased in the province. If we consider such
question of residence as one affecting the jurisdiction of the trial court over the subject-matter, the effect
shall be that the whole proceedings including all decisions on the different incidents which have arisen in
court will have to be annulled and the same case will have to be commenced anew before another court
of the same rank in another province. That this is 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 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, 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 subjectmatter but merely of venue. And it is upon this ground that in the new Rules of Court the province where
the estate of a deceased person shall be settled is properly called "venue".
It should be noted that the Rule on venue does not state that the court with whom the estate or intestate petition is first
filed acquires exclusive jurisdiction.
The Rule precisely and deliberately provides that "the court first taking cognizance of the settlement of the estateof a
decedent, shall exercise jurisdiction to the exclusion of all other courts."
A fair reading of the Rule since it deals with venue and comity between courts of equal and co-ordinate jurisdiction
indicates that the court with whom the petition is first filed, must also first take cognizance of the settlement of the estate in
order to exercise jurisdiction over it to the exclusion of all other courts.
Conversely, such court, may upon learning that a petition for probate of the decedent's last will has been presented in
another court where the decedent obviously had his conjugal domicile and resided with his surviving widow and their
minor children, and that the allegation of the intestate petition before it stating that the decedent died intestate may be
actually false, may decline to take cognizance of the petition and hold the petition before it in abeyance, and instead defer
to the second court which has before it the petition for probate of the decedent's alleged last will.
2. This exactly what the Cebu court did. Upon petitioner-widow's filing with it a motion to dismiss Lourdes' intestate
petition, it issued its order holding in abeyance its action on the dismissal motion and deferred to the Quezon City court,
awaiting its action on the petition for probate before that court. Implicit in the Cebu court's order was that if the will was
duly admitted to probate, by the Quezon City court, then it would definitely decline to take cognizance of
Lourdes' intestate petition which would thereby be shown to be false and improper, and leave the exercise of jurisdiction
to the Quezon City court, to the exclusion of all other courts. Likewise by its act of deference, the Cebu court left it to the
Quezon City court to resolve the question between the parties whether the decedent's residence at the time of his death
was in Quezon City where he had his conjugal domicile rather than in Cebu City as claimed by respondents. The Cebu
court thus indicated that it would decline to take cognizance of the intestate petition before it and instead defer to the
Quezon City court, unless the latter would make a negative finding as to the probate petition and the residence of the
decedent within its territory and venue.
3. Under these facts, the Cebu court could not be held to have acted without jurisdiction or with grave abuse of jurisdiction
in declining to take cognizance of the intestate petition and deferring to the Quezon City court.
Necessarily, neither could the Quezon City court be deemed to have acted without jurisdiction in taking cognizance of and
acting on the probate petition since under Rule 73, section 1, the Cebu court must first take cognizance over the estate of
the decedent and must exercise jurisdiction to exclude all other courts, which the Cebu court declined to do. Furthermore,

as is undisputed, said rule only lays down a rule of venue and the Quezon City court indisputably had at least equal and
coordinate jurisdiction over the estate.
Since the Quezon City court took cognizance over the probate petition before it and assumed jurisdiction over the estate,
with the consent and deference of the Cebu court, the Quezon City court should be left now, by the same rule of venue of
said Rule 73, to exercise jurisdiction to the exclusion of all other courts.
Under the facts of the case and where respondents submitted to the Quezon City court their opposition to probate of the
will, but failed to appear at the scheduled hearing despite due notice, the Quezon City court cannot be declared, as the
appellate court did, to have acted without jurisdiction in admitting to probate the decedent's will and appointing petitionerwidow 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
present case 13 is authority against respondent appellate court's questioned decision.

12

with facts analogous to the

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 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.
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."
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
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 petitioner-widow as administratrix without bond
in pursuance of the decedent's express will and all its orders and actions taken in the testate proceedings before it be
approved and authorized rather than to annul all such proceedings regularly had and to repeat and duplicate the same
proceedings before the Cebu court only to revert once more to the Quezon City court should the Cebu court find that
indeed and in fact, as already determined by the Quezon City court on the strength of incontrovertible documentary
evidence of record, Quezon City was the conjugal residence of the decedent.
ACCORDINGLY, judgment is hereby rendered reversing the appealed decision and resolution of the Court of Appeals and
the petition for certiorari and prohibition with preliminary injunction originally filed by respondents with the Court of Appeals
(CA-G.R. No. 34104-R) is ordered dismissed. No costs.
Makalintal, C.J., Zaldivar, Makasiar, Antonio and Esguerra, JJ., concur.

[G.R. Nos. L-21938-39. May 29, 1970.]

VICENTE URIARTE, Petitioner, v. 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.
SYLLABUS
1. REMEDIAL LAW; COURTS OF FIRST INSTANCE; ORIGINAL AND EXCLUSIVE JURISDICTION OVER "ALL
MATTERS OF PROBATE." 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.

2. ID.; SETTLEMENT OF ESTATE OF DECEASED PERSONS; VENUE; COURT OF FIRST INSTANCE OF PROVINCE
WHERE DECEDENT INHABITANT OF PHILIPPINES RESIDED AT TIME OF HIS DEATH OR WHERE INHABITANT OF
FOREIGN COUNTRY HAD ESTATE. The matter of venue, or the particular Court of First Instance where the special
proceeding should be commenced, is regulated by 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 of 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 decedent in the instant case 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.
3. ID.; ID.; TESTATE PROCEEDINGS TAKE PRECEDENCE OVER INTESTATE PROCEEDINGS. Testate proceedings
for the settlement of the estate of a deceased person take precedence over intestate proceedings for the same purpose.
Thus, 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 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. This is a clear indication that
proceedings for the probate of a will enjoy priority over intestate proceedings.
4. ID.; ID.; PROBATE OF WILL SHOULD BE FILED IN SAME COURT WHERE INTESTATE PROCEEDINGS HAD BEEN
COMMENCED. Where intestate proceedings had already been commenced before a court of first instance, as in the
case at bar, the probate of the will of the decedent should be submitted to the same court, either in a separate proceeding
or in an appropriate motion for said purpose in the intestate proceedings. 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. Furthermore, the party seeking the probate of the will in the instant case knew before filing the petition for
probate with another court of first instance of the pendency of the intestate proceedings .
5. ID.; ID.; VENUE; WRONG VENUE WAIVABLE; WAIVER BY LACHES; INSTANT CASE. It is well settled in this
jurisdiction that wrong venue is merely a waivable procedural defect. Petitioner, in the instant case, has waived the right to
raise such objection or is precluded from doing so by laches.
6. ID.; ID.; ID.; COURT NOT INCLINED TO ANNUL PROCEEDINGS REGULARLY HAD IN LOWER COURT ON THE
GROUND OF IMPROPER VENUE. 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 the same jurisdiction; more so in a case like the present where the objection against said proceedings is
raised too late.
7. CIVIL LAW; PATERNITY AND FILIATION; NATURAL CHILD: QUESTION OF ACKNOWLEDGMENT MAY BE
PRESENTED IN INDEPENDENT ACTION FOR COMPULSORY ACKNOWLEDGMENT OR IN PROBATE
PROCEEDINGS. A party claiming to be an acknowledged natural child of testator is entitled to submit for determination
the question of his acknowledgment as a natural child of said deceased testator in the proceeding instituted precisely for
his compulsory acknowledgment as such natural child, or intervene in proceedings for the probate of will of testator if it is
still open, or to ask for its re-opening, if it has already been closed, the probate having 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.
8. ID.; PETITION FOR MANDAMUS; DISMISSAL AS MOOT AND ACADEMIC; INSTANT CASE. The supplemental
petition for mandamus, in the case at bar, has become moot and academic for if the said 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 the said court dismissing Special
Proceeding No. 6344, and the second being an order denying petitioners motion for the reconsideration of said order of
dismissal. Said order being, as a result of what has been said heretofore, beyond petitioners 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.

DECISION
DIZON, J.:

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:jgc:chanrobles.com.ph
". . . 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 petitioners 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."cralaw virtua1aw library
Reasons in support of said petition are stated therein as follows:jgc:chanrobles.com.ph
"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."cralaw
virtua1aw library
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 petitioners 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 acknowledgment as such natural son. Upon petitioners 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.chanrobles.com : virtual law library
On December 19, 1961, Higinio Uriarte, one of the two private respondents herein, filed an opposition to the abovementioned 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 petitioners 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 the same
pursuant to Rule 75, Section 1 of the Rules of Court.
On April 19, 1963, the Negros Court sustained Juan Uriarte Zamaconas 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:jgc:chanrobles.com.ph
"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, v. 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 petitioners abandoning his appeal from this Court.cralawnad
"WHEREFORE, in order to give way to the certiorari, the record on appeal filed by the petitioner is hereby
disapproved."cralaw virtua1aw library
In view of the above-quoted order, petitioner filed the supplemental petition for mandamus mentioned heretofore.
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 Uriartes Omnibus Motion for Intervention, Dismissal of Petition and Annulment
of said proceedings.chanrobles.com.ph : virtual law library
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 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.chanroblesvirtual|awlibrary

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 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 Uriartes 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 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 petitioners 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 petitioners 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.chanrobles
law library
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."cralaw
virtua1aw library
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 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 v. Abaya, 13 Phil. 249; Severino v. Severino, 44 Phil. 343; Lopez v.
Lopez, 68 Phil. 227, and Jimoga-on v. 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 petitioners motion for the
reconsideration of said order of dismissal. Said orders being, as a result of what has been said heretofore, beyond
petitioners 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.chanrobles virtual lawlibrary
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.
Concepcion, C.J., Makalintal, Zaldivar, Barredo and Villamor, JJ., concur.

[G.R. NO. 169454 : December 27, 2007]

THE HEIRS OF MARCELINO DORONIO, NAMELY: REGINA AND FLORA, BOTH SURNAMED
DORONIO, Petitioners, v. HEIRS OF FORTUNATO DORONIO, NAMELY: TRINIDAD ROSALINA DORONIO-BALMES,
MODING DORONIO, FLORENTINA DORONIO, AND ANICETA ALCANTARA-MANALO, Respondents.
DECISION
REYES, R.T., J.:
For Our review on certiorari is the Decision1 of the Court of Appeals (CA) reversing that2 of the Regional Trial Court (RTC),
Branch 45, Anonas, Urdaneta City, Pangasinan, in an action for reconveyance and damages. The CA declared
respondents as rightful owners of one-half of the subject property and directed petitioners to execute a registerable
document conveying the same to Respondents.
The Facts
Spouses Simeon Doronio and Cornelia Gante, now both deceased, were the registered owners of a parcel of land located
at Barangay Cabalitaan, Asingan, Pangasinan covered by Original Certificate of Title (OCT) No. 352. 3 The courts below
described it as follows:
Un terreno (Lote 1018), situada en el municipio de Asingan, Linda por el NE; con propriedad de Gabriel Bernardino; con
el SE con propriedad de Zacarias Najorda y Alejandro Najorda; por el SO con propriedad de Geminiano Mendoza y por el
NO con el camino para Villasis; midiendo una extension superficial mil ciento cincuenta y dos metros cuadrados. 4
The spouses had children but the records fail to disclose their number. It is clear, however, that Marcelino Doronio and
Fortunato Doronio, now both deceased, were among them and that the parties in this case are their heirs. Petitioners are
the heirs of Marcelino Doronio, while respondents are the heirs of Fortunato Doronio.
On April 24, 1919, a private deed of donation propter nuptias 5 was executed by spouses Simeon Doronio and Cornelia
Gante in favor of Marcelino Doronio and the latter's wife, Veronica Pico. One of the properties subject of said deed of
donation is the one that it described as follows:
Fourth - A piece of residential land located in the barrio of Cabalitian but we did not measure it, the area is bounded on the
north by Gabriel Bernardino; on the east by Fortunato Doronio; on the south by Geminiano Mendoza and on the west by a
road to Villasis. Constructed on said land is a house of light materials - also a part of the dowry. Value '200.00. 6
It appears that the property described in the deed of donation is the one covered by OCT No. 352. However, there is a
significant discrepancy with respect to the identity of the owner of adjacent property at the eastern side. Based on OCT
No. 352, the adjacent owners are Zacarias Najorda and Alejandro Najorda, whereas based on the deed of donation, the

owner of the adjacent property is Fortunato Doronio. Furthermore, said deed of donation remained a private document as
it was never notarized.7
Both parties have been occupying the subject land for several decades 8 although they have different theories regarding its
present ownership. According to petitioners, they are now the owners of the entire property in view of the private deed of
donation propter nuptias in favor of their predecessors, Marcelino Doronio and Veronica Pico.
Respondents, on the other hand, claim that only half of the property was actually incorporated in the said deed of donation
because it stated that Fortunato Doronio, instead of Zacarias Najorda and Alejandro Najorda, is the owner of the adjacent
property at the eastern side. Respondents posit that the donors respected and segregated the possession of Fortunato
Doronio of the eastern half of the land. They are the ones who have been possessing said land occupied by their
predecessor, Fortunato Doronio.
Eager to obtain the entire property, the heirs of Marcelino Doronio and Veronica Pico filed, on January 11, 1993, before
the RTC in Urdaneta, Pangasinan a petition "For the Registration of a Private Deed of Donation" 9 docketed as Petition
Case No. U-920. No respondents were named in the said petition 10 although notices of hearing were posted on the
bulletin boards of Barangay Cabalitaan, Municipalities of Asingan and Lingayen. 11
During the hearings, no one interposed an objection to the petition. 12 After the RTC ordered a general default,13 the
petition was eventually granted on September 22, 1993. This led to the registration of the deed of donation, cancellation of
OCT No. 352 and issuance of a new Transfer Certificate of Title (TCT) No. 44481 in the names of Marcelino Doronio and
Veronica Pico.14 Thus, the entire property was titled in the names of petitioners' predecessors.
On April 28, 1994, the heirs of Fortunato Doronio filed a pleading before the RTC in the form of a petition in the same
Petition Case No. U-920. The petition was for the reconsideration of the decision of the RTC that ordered the registration
of the subject deed of donation. It was prayed in the petition that an order be issued declaring null and void the
registration of the private deed of donation and that TCT No. 44481 be cancelled. However, the petition was dismissed on
May 13, 1994 on the ground that the decision in Petition Case No. U-920 had already become final as it was not
appealed.
Determined to remain in their possessed property, respondent heirs of Fortunato Doronio (as plaintiffs) filed an action for
reconveyance and damages with prayer for preliminary injunction 15 against petitioner heirs of Marcelino Doronio (as
defendants) before the RTC, Branch 45, Anonas, Urdaneta City, Pangasinan. Respondents contended, among others,
that the subject land is different from what was donated as the descriptions of the property under OCT No. 352 and under
the private deed of donation were different. They posited that spouses Simeon Doronio and Cornelia Gante intended to
donate only one-half of the property.
During the pre-trial conference, the parties stipulated, among others, that the property was originally covered by OCT No.
352 which was cancelled by TCT No. 44481. They also agreed that the issues are: (1) whether or not there was a
variation in the description of the property subject of the private deed of donation and OCT No. 352; (2) whether or not
respondents had acquired one-half of the property covered by OCT No. 352 by acquisitive prescription; (3) whether or not
the transfer of the whole property covered by OCT No. 352 on the basis of the registration of the private deed of donation
notwithstanding the discrepancy in the description is valid; (4) whether or not respondents are entitled to damages; and
(5) whether or not TCT No. 44481 is valid.16
RTC Decision
After due proceedings, the RTC ruled in favor of petitioner heirs of Marcelino Doronio (defendants). It concluded that the
parties admitted the identity of the land which they all occupy; 17 that a title once registered under the torrens system
cannot be defeated by adverse, open and notorious possession or by prescription; 18 that the deed of donation in
consideration of the marriage of the parents of petitioners is valid, hence, it led to the eventual issuance of TCT No. 44481
in the names of said parents;19 and that respondent heirs of Fortunato Doronio (plaintiffs) are not entitled to damages as
they are not the rightful owners of the portion of the property they are claiming. 20
The RTC disposed of the case, thus:
WHEREFORE, premises considered, the Court hereby renders judgment DISMISSING the herein Complaint filed by
plaintiffs against defendants.21
Disagreeing with the judgment of the RTC, respondents appealed to the CA. They argued that the trial court erred in not
finding that respondents' predecessor-in-interest acquired one-half of the property covered by OCT No. 352 by tradition
and/or intestate succession; that the deed of donation dated April 26, 1919 was null and void; that assuming that the deed
of donation was valid, only one-half of the property was actually donated to Marcelino Doronio and Veronica Pico; and that
respondents acquired ownership of the other half portion of the property by acquisitive prescription. 22

CA Disposition
In a Decision dated January 26, 2005, the CA reversed the RTC decision with the following disposition:
WHEREFORE, the assailed Decision dated June 28, 2002 is REVERSED and SET ASIDE. Declaring the appellants as
rightful owners of one-half of the property now covered by TCT No. 44481, the appellees are hereby directed to execute a
registerable document conveying the same to appellants.
SO ORDERED.23
The appellate court determined that "(t)he intention to donate half of the disputed property to appellees' predecessors can
be gleaned from the disparity of technical descriptions appearing in the title (OCT No. 352) of spouses Simeon Doronio
and Cornelia Gante and in the deed of donation propter nuptias executed on April 24, 1919 in favor of appellees'
predecessors."24
The CA based its conclusion on the disparity of the following technical descriptions of the property under OCT No. 352
and the deed of donation, to wit:
The court below described the property covered by OCT No. 352 as follows:
"Un terreno (Lote 1018), situada en el municipio de Asingan, Linda por el NE; con propriedad de Gabriel Bernardino; con
el SE con propriedad de Zacarias Najorda y Alejandro Najorda; por el SO con propriedad de Geminiano Mendoza y por el
NO con el camino para Villasis; midiendo una extension superficial mil ciento cincuenta y dos metros cuadrados."
On the other hand, the property donated to appellees' predecessors was described in the deed of donation as:
"Fourth - A piece of residential land located in the barrio of Cabalitian but we did not measure it, the area is bounded on
the north by Gabriel Bernardino; on the east by Fortunato Doronio; on the south by Geminiano Mendoza and on the west
by a road to Villasis. Constructed on said land is a house of light materials - also a part of the dowry. Value
'200.00."25 (Emphasis ours)
Taking note "that the boundaries of the lot donated to Marcelino Doronio and Veronica Pico differ from the boundaries of
the land owned by spouses Simeon Doronio and Cornelia Gante," the CA concluded that spouses Simeon Doronio and
Cornelia Gante donated only half of the property covered by OCT No. 352. 26
Regarding the allegation of petitioners that OCT No. 352 is inadmissible in evidence, the CA pointed out that, "while the
OCT is written in the Spanish language, this document already forms part of the records of this case for failure of
appellees to interpose a timely objection when it was offered as evidence in the proceedings a quo. It is a well-settled rule
that any objection to the admissibility of such evidence not raised will be considered waived and said evidence will have to
form part of the records of the case as competent and admitted evidence." 27
The CA likewise ruled that the donation of the entire property in favor of petitioners' predecessors is invalid on the ground
that it impairs the legitime of respondents' predecessor, Fortunato Doronio. On this aspect, the CA reasoned out:
Moreover, We find the donation of the entire property in favor of appellees' predecessors invalid as it impairs the legitime
of appellants' predecessor. Article 961 of the Civil Code is explicit. "In default of testamentary heirs, the law vests the
inheritance, x x x, in the legitimate x x x relatives of the deceased, x x x." As Spouses Simeon Doronio and Cornelia Gante
died intestate, their property shall pass to their lawful heirs, namely: Fortunato and Marcelino Doronio. Donating the entire
property to Marcelino Doronio and Veronica Pico and excluding another heir, Fortunato, tantamounts to divesting the latter
of his rightful share in his parents' inheritance. Besides, a person's prerogative to make donations is subject to certain
limitations, one of which is that he cannot give by donation more than what he can give by will (Article 752, Civil Code). If
he does, so much of what is donated as exceeds what he can give by will is deemed inofficious and the donation is
reducible to the extent of such excess.28
Petitioners were not pleased with the decision of the CA. Hence, this petition under Rule 45.
Issues
Petitioners now contend that the CA erred in:
1. DECLARING ADMISSIBILITY OF THE ORIGINAL CERTIFICATE OF TITLE NO. 352 DESPITE OF LACK OF
TRANSLATION THEREOF.

2. (RULING THAT) ONLY HALF OF THE DISPUTED PROPERTY WAS DONATED TO THE PREDECESSORS-ININTEREST OF THE HEREIN APPELLANTS.
3. (ITS) DECLARATION THAT THE DONATION PROPTER NUPTIAS IS INNOFICIOUS, IS PREMATURE, AND THUS IT
IS ILLEGAL AND UNPROCEDURAL.29
Our Ruling
OCT No. 352 in Spanish Although Not
Translated into English or Filipino Is
Admissible For Lack of Timely Objection
Petitioners fault the CA for admitting OCT No. 352 in evidence on the ground that it is written in Spanish language. They
posit that "(d)ocumentary evidence in an unofficial language shall not be admitted as evidence, unless accompanied with
a translation into English or Filipino."30
The argument is untenable. The requirement that documents written in an unofficial language must be accompanied with
a translation in English or Filipino as a prerequisite for its admission in evidence must be insisted upon by the parties at
the trial to enable the court, where a translation has been impugned as incorrect, to decide the issue. 31 Where such
document, not so accompanied with a translation in English or Filipino, is offered in evidence and not objected to, either
by the parties or the court, it must be presumed that the language in which the document is written is understood by all,
and the document is admissible in evidence.32
Moreover, Section 36, Rule 132 of the Revised Rules of Evidence provides:
SECTION 36. Objection. - Objection to evidence offered orally must be made immediately after the offer is made.
Objection to a question propounded in the course of the oral examination of a witness shall be made as soon as the
grounds therefor shall become reasonably apparent.
An offer of evidence in writing shall be objected to within three (3) days after notice of the offer unless a different period is
allowed by the court.
In any case, the grounds for the objections must be specified. (Emphasis ours)
Since petitioners did not object to the offer of said documentary evidence on time, it is now too late in the day for them to
question its admissibility. The rule is that evidence not objected may be deemed admitted and may be validly considered
by the court in arriving at its judgment.33 This is true even if by its nature, the evidence is inadmissible and would have
surely been rejected if it had been challenged at the proper time. 34
As a matter of fact, instead of objecting, petitioners admitted the contents of Exhibit "A," that is, OCT No. 352 in their
comment35 on respondents' formal offer of documentary evidence. In the said comment, petitioners alleged, among
others, that "Exhibits A, B, C, D, E, F and G, are admitted but not for the purpose they are offered because these exhibits
being public and official documents are the best evidence of that they contain and not for what a party would like it to
prove."36 Said evidence was admitted by the RTC.37 Once admitted without objection, even though not admissible under
an objection, We are not inclined now to reject it.38 Consequently, the evidence that was not objected to became property
of the case, and all parties to the case are considered amenable to any favorable or unfavorable effects resulting from the
said evidence.39
Issues on Impairment of Legitime
Should Be Threshed Out in a Special
Proceeding, Not in Civil Action for
Reconveyance and Damages
On the other hand, petitioners are correct in alleging that the issue regarding the impairment of legitime of Fortunato
Doronio must be resolved in an action for the settlement of estates of spouses Simeon Doronio and Cornelia Gante. It
may not be passed upon in an action for reconveyance and damages. A probate court, in the exercise of its limited
jurisdiction, is the best forum to ventilate and adjudge the issue of impairment of legitime as well as other related matters
involving the settlement of estate.40
An action for reconveyance with damages is a civil action, whereas matters relating to settlement of the estate of a
deceased person such as advancement of property made by the decedent, partake of the nature of a special proceeding.
Special proceedings require the application of specific rules as provided for in the Rules of Court. 41

As explained by the Court in Natcher v. Court of Appeals: 42

Section 3, Rule 1 of the 1997 Rules of Civil Procedure defines civil action and special proceedings, in this wise:
x x x a) A civil action is one by which a party sues another for the enforcement or protection of a right, or the prevention or
redress of a wrong.
A civil action may either be ordinary or special. Both are governed by the rules for ordinary civil actions, subject to specific
rules prescribed for a special civil action.
x

c) A special proceeding is a remedy by which a party seeks to establish a status, a right or a particular fact.
As could be gleaned from the foregoing, there lies a marked distinction between an action and a special proceeding. An
action is a formal demand of one's right in a court of justice in the manner prescribed by the court or by the law. It is the
method of applying legal remedies according to definite established rules. The term "special proceeding" may be defined
as an application or proceeding to establish the status or right of a party, or a particular fact. Usually, in special
proceedings, no formal pleadings are required unless the statute expressly so provides. In special proceedings, the
remedy is granted generally upon an application or motion.
Citing American Jurisprudence, a noted authority in Remedial Law expounds further:
It may accordingly be stated generally that actions include those proceedings which are instituted and prosecuted
according to the ordinary rules and provisions relating to actions at law or suits in equity, and that special proceedings
include those proceedings which are not ordinary in this sense, but is instituted and prosecuted according to some special
mode as in the case of proceedings commenced without summons and prosecuted without regular pleadings, which are
characteristics of ordinary actions x x x. A special proceeding must therefore be in the nature of a distinct and independent
proceeding for particular relief, such as may be instituted independently of a pending action, by petition or motion upon
notice.
Applying these principles, an action for reconveyance and annulment of title with damages is a civil action, whereas
matters relating to settlement of the estate of a deceased person such as advancement of property made by the
decedent, partake of the nature of a special proceeding, which concomitantly requires the application of specific rules as
provided for in the Rules of Court.
Clearly, matters which involve settlement and distribution of the estate of the decedent fall within the exclusive province of
the probate court in the exercise of its limited jurisdiction.
Thus, under Section 2, Rule 90 of the Rules of Court, questions as to advancement made or alleged to have been made
by the deceased to any 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.
While it may be true that the Rules used the word "may," it is nevertheless clear that the same provision contemplates a
probate court when it speaks of the "court having jurisdiction of the estate proceedings."
Corollarily, the Regional Trial Court in the instant case, acting in its general jurisdiction, is devoid of authority to render an
adjudication and resolve the issue of advancement of the real property in favor of herein petitioner Natcher, inasmuch as
Civil Case No. 71075 for reconveyance and annulment of title with damages is not, to our mind, the proper vehicle to
thresh out said question. Moreover, under the present circumstances, the RTC of Manila, Branch 55, was not properly
constituted as a probate court so as to validly pass upon the question of advancement made by the decedent Graciano
Del Rosario to his wife, herein petitioner Natcher.
We likewise find merit in petitioners' contention that before any conclusion about the legal share due to a compulsory heir
may be reached, it is necessary that certain steps be taken first. 43 The net estate of the decedent must be ascertained, by
deducting all payable obligations and charges from the value of the property owned by the deceased at the time of his
death; then, all donations subject to collation would be added to it. With the partible estate thus determined, the legitime of
the compulsory heir or heirs can be established; and only then can it be ascertained whether or not a donation had
prejudiced the legitimes.44
Declaration of Validity of Donation
Can Be Challenged by an Interested
Party Not Impleaded in Petition for
Quieting of Title or Declaratory Relief

or Where There is No Res Judicata.

Moreover, This Court Can Consider
a Factual Matter or Unassigned Error
in the Interest of Substantial Justice.
Nevertheless, petitioners cannot preclude the determination of validity of the deed of donation on the ground that (1) it has
been impliedly admitted by respondents; (2) it has already been determined with finality by the RTC in Petition Case No.
U-920; or (3) the only issue in an action for reconveyance is who has a better right over the land. 45
The validity of the private deed of donation propter nuptias in favor of petitioners' predecessors was one of the issues in
this case before the lower courts. The pre-trial order46 of the RTC stated that one of the issues before it is "(w)hether or
not the transfer of the whole property covered by OCT No. 352 on the basis of the private deed of donation
notwithstanding the discrepancy in the description is valid." Before the CA, one of the errors assigned by respondents is
that "THE TRIAL COURT ERRED IN NOT FINDING THAT THE PRIVATE DEED OF DONATION DATED APRIL 26, 1919
WAS NULL AND VOID."47
The issue of the validity of donation is likewise brought to Us by petitioners as they stated in their Memorandum 48 that one
of the issues to be resolved is regarding the alleged fact that "THE HONORABLE COURT OF APPEALS ERRED IN
FINDING THE DONATION INVALID." We are thus poised to inspect the deed of donation and to determine its validity.
We cannot agree with petitioners' contention that respondents may no longer question the validity of the deed of donation
on the ground that they already impliedly admitted it. Under the provisions of the Civil Code, a void contract is inexistent
from the beginning. The right to set up the defense of its illegality cannot be waived. 49 The right to set up the nullity of a
void or non-existent contract is not limited to the parties as in the case of annullable or voidable contracts; it is extended to
third persons who are directly affected by the contract. 50
Consequently, although respondents are not parties in the deed of donation, they can set up its nullity because they are
directly affected by the same.51 The subject of the deed being the land they are occupying, its enforcement will definitely
affect them.
Petitioners cannot also use the finality of the RTC decision in Petition Case No. U-920 52 as a shield against the verification
of the validity of the deed of donation. According to petitioners, the said final decision is one for quieting of title. 53 In other
words, it is a case for declaratory relief under Rule 64 (now Rule 63) of the Rules of Court, which provides:
SECTION 1. Who may file petition. - Any person interested under a deed, will, contract or other written instrument, or
whose rights are affected by a statute, executive order or regulation, or ordinance, may, before breach or violation thereof,
bring an action to determine any question of construction or validity arising under the instrument or statute and for a
declaration of his rights or duties thereunder.
An action for the reformation of an instrument, to quiet title to real property or remove clouds therefrom, or to consolidate
ownership under Article 1607 of the Civil Code, may be brought under this rule.
SECTION 2. Parties. - All persons shall be made parties who have or claim any interest which would be affected by the
declaration; and no declaration shall, except as otherwise provided in these rules, prejudice the rights of persons not
parties to the action. (Emphasis ours)
However, respondents were not made parties in the said Petition Case No. U-920.rbl r l l
lbrr
Worse, instead of issuing summons to interested parties, the RTC merely allowed the posting of notices on the bulletin
boards of Barangay Cabalitaan, Municipalities of Asingan and Lingayen, Pangasinan. As pointed out by the CA, citing the
ruling of the RTC:
x x x In the said case or Petition No. U-920, notices were posted on the bulletin boards of barangay Cabalitaan,
Municipalities of Asingan and Lingayen, Pangasinan, so that there was a notice to the whole world and during the initial
hearing and/or hearings, no one interposed objection thereto. 54
Suits to quiet title are not technically suits in rem, nor are they, strictly speaking, in personam, but being against the
person in respect of the res, these proceedings are characterized as quasi in rem. 55 The judgment in such proceedings is
conclusive only between the parties.56 Thus, respondents are not bound by the decision in Petition Case No. U-920 as
they were not made parties in the said case.
The rules on quieting of title57 expressly provide that any declaration in a suit to quiet title shall not prejudice persons who
are not parties to the action.

That respondents filed a subsequent pleading58 in the same Petition Case No. U-920 after the decision there had become
final did not change the fact that said decision became final without their being impleaded in the case. Said subsequent
pleading was dismissed on the ground of finality of the decision. 59
Thus, the RTC totally failed to give respondents their day in court. As a result, they cannot be bound by its orders.
Generally accepted is the principle that no man shall be affected by any proceeding to which he is a stranger, and
strangers to a case are not bound by judgment rendered by the court. 60
Moreover, for the principle of res judicata to apply, the following must be present: (1) a decision on the merits; (2) by a
court of competent jurisdiction; (3) the decision is final; and (4) the two actions involve identical parties, subject matter and
causes of action.61 The fourth element is not present in this case. The parties are not identical because respondents were
not impleaded in Petition Case No. U-920. While the subject matter may be the same property covered by OCT No. 352,
the causes of action are different. Petition Case No. U-920 is an action for declaratory relief while the case below is for
recovery of property.
We are not persuaded by petitioners' posture that the only issue in this action for reconveyance is who has a better right
over the land; and that the validity of the deed of donation is beside the point. 62 It is precisely the validity and enforceability
of the deed of donation that is the determining factor in resolving the issue of who has a better right over the property.
Moreover, notwithstanding procedural lapses as to the appropriateness of the remedies prayed for in the petition filed
before Us, this Court can brush aside the technicalities in the interest of justice. In some instances, this Court even
suspended its own rules and excepted a case from their operation whenever the higher interests of justice so
demanded.63
Moreover, although respondents did not directly raise the issue of validity of the deed of donation at the commencement
of the case before the trial court, it was stipulated 64 by the parties during the pre-trial conference. In any event, this Court
has authority to inquire into any question necessary in arriving at a just decision of a case before it. 65 Though not
specifically questioned by the parties, additional issues may also be included, if deemed important for substantial justice
to be rendered.66
Furthermore, this Court has held that although a factual issue is not squarely raised below, still in the interest of
substantial justice, this Court is not prevented from considering a pivotal factual matter. The Supreme Court is clothed with
ample authority to review palpable errors not assigned as such if it finds that their consideration is necessary in arriving at
a just decision.67
A rudimentary doctrine on appealed cases is that this Court is clothed with ample authority to review matters, even if they
are not assigned as errors on appeal, if it finds that their consideration is necessary at arriving at a just decision of the
case.68 Also, an unassigned error closely related to an error properly assigned or upon which the determination of the
question raised by the error properly assigned is dependent, will be considered by the appellate court notwithstanding the
failure to assign it as an error.69
Donation Propter Nuptias of Real
Property Made in a Private Instrument
Before the New Civil Code Took Effect
on August 30, 1950 is Void
We now focus on the crux of the petition, which is the validity of the deed of donation.chanrobles virtual law library It is
settled that only laws existing at the time of the execution of a contract are applicable to it and not the later statutes,
unless the latter are specifically intended to have retroactive effect. 70Accordingly, the Old Civil Code applies in this case as
the donation propter nuptias was executed in 1919, while the New Civil Code took effect only on August 30, 1950.
Under the Old Civil Code, donations propter nuptias must be made in a public instrument in which the property donated
must be specifically described.71 Article 1328 of the Old Civil Code provides that gifts propter nuptias are governed by the
rules established in Title 2 of Book 3 of the same Code. Article 633 of that title provides that the gift of real property, in
order to be valid, must appear in a public document. 72 It is settled that a donation of real estate propter nuptias is void
unless made by public instrument.73
In the instant case, the donation propter nuptias did not become valid. Neither did it create any right because it was not
made in a public instrument.74 Hence, it conveyed no title to the land in question to petitioners' predecessors.
Logically, then, the cancellation of OCT No. 352 and the issuance of a new TCT No. 44481 in favor of petitioners'
predecessors have no legal basis. The title to the subject property should, therefore, be restored to its original owners
under OCT No. 352.

Direct reconveyance to any of the parties is not possible as it has not yet been determined in a proper proceeding who
among the heirs of spouses Simeon Doronio and Cornelia Gante is entitled to it. It is still unproven whether or not the
parties are the only ones entitled to the properties of spouses Simeon Doronio and Cornelia Gante. As earlier intimated,
there are still things to be done before the legal share of all the heirs can be properly adjudicated. 75
Titled Property Cannot Be Acquired
By Another By Adverse Possession
or Extinctive Prescription
Likewise, the claim of respondents that they became owners of the property by acquisitive prescription has no merit. Truth
to tell, respondents cannot successfully invoke the argument of extinctive prescription. They cannot be deemed the
owners by acquisitive prescription of the portion of the property they have been possessing. The reason is that the
property was covered by OCT No. 352. A title once registered under the torrens system cannot be defeated even by
adverse, open and notorious possession; neither can it be defeated by prescription. 76 It is notice to the whole world and as
such all persons are bound by it and no one can plead ignorance of the registration. 77
The torrens system is intended to guarantee the integrity and conclusiveness of the certificate of registration, but it cannot
be used for the perpetration of fraud against the real owner of the registered land. 78 The system merely confirms
ownership and does not create it. Certainly, it cannot be used to divest the lawful owner of his title for the purpose of
transferring it to another who has not acquired it by any of the modes allowed or recognized by law. It cannot be used to
protect a usurper from the true owner, nor can it be used as a shield for the commission of fraud; neither does it permit
one to enrich himself at the expense of another.79 Where such an illegal transfer is made, as in the case at bar, the law
presumes that no registration has been made and so retains title in the real owner of the land. 80
Although We confirm here the invalidity of the deed of donation and of its resulting TCT No. 44481, the controversy
between the parties is yet to be fully settled. The issues as to who truly are the present owners of the property and what is
the extent of their ownership remain unresolved. The same may be properly threshed out in the settlement of the estates
of the registered owners of the property, namely: spouses Simeon Doronio and Cornelia Gante.
WHEREFORE, the appealed Decision is REVERSED AND SET ASIDE. A new one is entered:
(1) Declaring the private deed of donation propter nuptias in favor of petitioners' predecessors NULL AND VOID; and
(2) Ordering the Register of Deeds of Pangasinan to:
(a) CANCEL Transfer Certificate of Title No. 44481 in the names of Marcelino Doronio and Veronica Pico;
andcralawlibrary
(b) RESTORE Original Certificate of Title No. 352 in the names of its original owners, spouses Simeon Doronio and
Cornelia Gante.
SO ORDERED.

G.R. No. L-11156

February 23, 1961

PURA CARREON, ET AL., plaintiffs-appellants,

vs.
RUFO AGCAOILI and LOURDES SANTIAGO, defendants- appellees.
Domingo R. Maddumba for plaintiffs-appellants.
Meris, Moya, Revilla & Gaffud for defendant-appellee.
Nillo and Tiburcio for the other defendant-appellee.
BAUTISTA ANGELO, J.:
During the marriage of Bonifacio Carreon and Celerina Dauag the registered land subject of this case was acquired.
After the death of Carreon, his widow Celerina executed on September 24, 1946, an affidavit adjudicating to herself
alone the said land. She declared in said document that she was the only heiress of her husband. The original
certificate of title covering the land was cancelled and a transfer certificate was issued in her name. There was
however annotated on her certificate a lien to the effect that her title was subject to Section 4 of Rule 74 of the Rules
of Court.
On September 25, 1946, she borrowed P1,200.00 from the Philippine National Bank guaranteed by a mortgage on
one-half of the land. A memorandum of the mortgage was annotated on her transfer certificate. After the maturity of
the loan, she requested a certain Mr. Pintang to look for a buyer of the land for P3,000.00. One by the name of Rufo
Agcaoili was found. The latter made an advance payment of Pl,500.00 and the balance was paid in full on October
13, 1947. The loan from the bank was paid, the mortgage was released and the deed of absolute sale executed in
his favor was registered.1 A new transfer certificate of title was issued in the name of Agcaoili.
On February 19, 1955, the children of Celerina with the deceased husband filed a complaint against the spouses
Agcaoili seeking to have the deed of sale executed by their mother declared as one of mortgage and to recover one
half pro-indiviso of the land described in the complaint. Simultaneous with the filing of said complaint, Celerina filed
an action for intervention which was dismissed by the trial court.
Defendants filed a motion for summary judgment upon the plea that the main averments of the complaint even if
admitted do not constitute a cause of action and supported their plea with certain documentary evidence. Plaintiffs
filed an opposition on the ground that there was a genuine issue which could not be determined unless a trial is had.
The trial court, however, allowed the parties to submit evidence in support of their contentions and after a careful
analysis thereof found for defendants holding that plaintiffs, claim has no legal basis.
As may be gleaned from the appellants' assignments of error, the present appeal is predicated on the arguments
that appellees were buyers in bad faith; that there existed a trust relationship between them and appellants, and that
such being the case, the action against appellees is imprescriptible.
There is no clear proof that when Rufo Agcaoili bought the land he knew of any flaw in the title of Celerina Dauag.
The mere fact that he was a townmate of Celerina is not sufficient basis to conclude that he knew that she had
children by her first husband. It has been shown that since 1920 Rufo Agcaoili has been an enlisted man in the
Philippine constabulary and seldom come home to visit his relatives. A man of such a situation cannot be expected
to know the relatives and children of his vendor even if they are townmates,. Fraud cannot be presumed. It must be
established by clear and sufficient evidence. Here every indication is that Agcaoili bought the land in all good faith
oblivious of the source of its acquisition.
If fraud had been committed such was perpetrated by Celerina, appellants' mother. By her action she induced
Agcaoili to believe that she was the absolute owner of the land which bore a torrens title. In dealing with it he merely
relied on such title. He was not required to do more. He is only charged with notice of the burdens which are noted
on the face of said title. So, after he bought the land and a new title was issued in his name, he became a purchaser
thereof for value and a holder of a good and valid title.2
On the transfer certificate of title issued to Agcaoili there was annotated a statement that it was subject to Section 4,
Rule 74 of the Rules of Court. This was an annotation carried over from Celerina's transfer certificate. Section 4,
Rule 74, provides the following:
SEC. 4. Liability of distributees and estate. If it shall appear at any time within two years after the
settlement and distribution of an estate in accordance with the provisions of either of the first two sections of
this rule, that an heir or other person has been unduly deprived of his lawful participation in the estate, such
heir or such other person may compel the settlement of the estate in the courts in the manner hereinafter
provided for the purpose of satisfying such lawful participation. And if within the same time of two years, it
shall appear that there are debts outstanding against the estate which have not been paid, or that an heir or

other person has been unduly deprived of his lawful participation payable in money, the court having
jurisdiction of the estate may, by order for that purpose, after hearing, settle the amount of such debts or
lawful participation and order how much and in what manner each distributee shall contribute in the payment
thereof, and may issue execution, if circumstances require, against the bond provided in the preceding
section or against the real estate belonging to the deceased, or both. Such bond and such real estate shall
remain charged with a liability to creditors, heirs, or other persons for the full period of two years after such
distribution, notwithstanding any transfers of the real estate that may have been made.
The above lien is effective only for a period of two years. From September 28, 1946, when a transfer certificate of
title was issued to Celerina, to September 8, 1949 when the deed of sale in favor of Agcaoili was issued and
registered, more than two years had elapsed We sustain the lower court's opinion that thenceforth the right to have
such lien cancelled became vested on appellee Agcaoili and that the same had become functus oficio.3 And there
being no fraud in the transaction on the part of appellee, nor proof that he knew of any legal infirmity in the title of his
vendor, we find no reason to apply the proposition that he is deemed to be holding the land in trust for the children
of Celerina Dauag.
WHEREFORE, the decision appealed from is affirmed, without pronouncement as to costs.
Bengzon, Padilla, Labrador, Concepcion, Reyes, J.B.L., Barrera, Paredes and Dizon, JJ., concur.

G.R. No. L-273

March 29, 1947

CRESENCIA HERNANDEZ, plaintiff-appellee,

vs.
ZACARIAS ANDAL, defendant-appellant.
QUIRINO DIMASACAT, MARIA HERNANDEZ and AQUILINA HERNANDEZ, intervenors-appellants.
Pedro Paganiban y Tolentino for appellants.
Vicente Reyes Villavicencio for appellee.
TUASON, J.:
The plaintiff, Cresencia Hernandez, the intervenors, Maria and Aquilina Hernandez, and Pedro and Basilia
Hernandez who are not parties here, are brother and sisters. They acquired in common by descent from their father
a parcel of land of which he died seized and known as lot No. 120073 of the Batangas cadastral survey.
On January 23, 1944, the intervenors sold 1800 square meters of this parcel, a portion which is particularly
described in the deed of conveyance Exhibit A, to Zacarias Andal, the defendant, and Andal's wife in consideration
of P860. This portion purports to be the combined shares of the intervenors in the larger parcel, allotted to them in a
verbal partition alleged to have been made (time not stated) among the five brother and sisters.
After the sale, on a date as to which the evidence is in disagreement but which is not now important, the plaintiff
attempted to repurchase the land sold to Andal. According to her original complaint, dated February 3, 1944, she
offered the purchasers P150 as price of repurchase, this being, according to that complaint, the amount Andal had
paid for Maria Hernandez's and Aquilina Hernandez's shares, but Andal, it is alleged, refused to part with the
property.
On April 8, the plaintiff filed a supplemental complaint. She alleged that when the cause was called for trial on March
8, she announced in open court that she was willing to repurchase her sister's share from Andal for P860 and
reimburse Andal for his expense; that Andal asked for continuance until the 29th stating that he had made other
expenses; that on 29th she brought P860 to repurchase the land in question but the case was again postponed
because the plaintiff's sisters had intervened; and that meanwhile, on the 26th, Andal resold the land fictitiously to
the vendors for P970.
It results that on the date last mentioned Andal executed a deed of sale for P970 in favor of the intervenors, an
amount which included Andal's expenses as well as the normal sale price. The document of repurchase gave as
reason for the transaction the fact that it had been agreed that in the event trouble should arise the sellers should
return to the buyer what they had received and pay the latter his expenses.
On February 14, 1944, the defendant filed his answer alleging that Maria and Aquilina Hernandez had sold him their
respective portions of the inherited land for P860 and that he had no objection to disposing of those portions in favor
of the plaintiff for P860 plus the expenses he had incurred in the execution of the deed of sale amounting to P50, but
that he was unwilling to accept P150, which was all the plaintiff offered him besides his expenses.
On April 4, 1944, Maria and Aquilina Hernandez's answer in intervention was filed. The intervenors alleged that
there had been a partition among them and their brother and sisters "with the share of each delineated and marked,
and after partition and delineation everyone took exclusive, separate and independent possession of his portion in
the partition." They charged the plaintiff with bad faith in that "it was upon her request for chance that the sale to the
defendant, about to take place last November, was delayed till January of this year when she finally informed the
intervenors that they could sell to the defendant, or she could pay only P150 and could not raise the amount of P860
offered by the defendant."
Cresencia Hernandez, the plaintiff, was the only witness to testify on her own behalf. Substantially she reiterated the
allegations in her two complaints. Zacarias Andal, the defendant, also testified. He said that he was in possession of
the land in question until he returned it to the intervenors. He declared that the plaintiff offered to repurchase the
land from him long after he had bought it, that is, when she was about to file her action. He stated that after he came
from Candelaria, Tayabas, with the document of sale he showed it to the plaintiff: that was on the 23rd of January.
He was able to do this because he lived near Cresencia and passed by her house on his way home from
Candelaria. He said that Cresencia Hernandez upon being shown the document merely exclaimed, "Oh, so you
already have a document." When asked whether the land "described in the complaint of the herein plaintiff has been
the object of partition among the co-owners Pedro, Basilia, Cresencia, Maria and Aquilina surnamed Hernandez,"
counsel for the plaintiff objected on the ground that the best evidence was the document of partition, and the

objection was sustained. The same objection and the same ruling were made on the same ground when the witness
was queried how it was that the land he had bought from Maria and Aquilina Hernandez had been specified in the
deed of sale, Exhibit A.
In consequence of this ruling, counsel for the defendant and intervenors did not call any more witnesses but only
announced that he had witnesses ready to prove that a parol partition among the five brother and sisters had been
made, mentioning the names of six such witnesses. Counsel for the plaintiff again objected asserting that "under the
Rules of Court agreement affecting real estate may not be proved except by means of writing subscribed by the
person against whom the proof is offered. "Upon this objection, the court ruled that under Rules 74 and 123 of the
Rules of Court (Statute of Frauds) as well as under article 1248 of the Civil Code, parol evidence of partition was
inadmissible, adding that to decide the case it had enough with the testimony and evidence offered by the parties.
Thereafter the court handed down its decision declaring that the resale of the land by Zacarias Andal in favor of
Maria and Aquilina Hernandez was illegal and in bad faith. It, however, did not seem to have found as a fact the
allegation that the resale was simulated. The court then made this judgment:
(a) declarando y sin valor alguno el documento de reventaotorgado por el demandado Zacarias Andal en 26
de marzo de 1944, a favor de Maria y Aquilina Hernandez sobre el terrenocuestionado que se presento
como Exhibito 2 de dichodemandado, y consiguientemente se anulan tambien todas lastransacciones
posteriores que las mencionadas Maria y Aquilina Hernandez hayan hecho sobre el terreno cuestionado
despuesdel 26 de marzo de 1944, asi como tambien cualquiera anotacionen la Oficiana del Registrador de
Titulos de Batangas que hayaanotado dicha reventa por el demandado Zacarias Andal a favorde las
terceristas Maria y Aquilina Hernandez en el citado dia 26 de marzo de 1944; y
(b) se ordena al aqui demandado Zacarias Andal, que otorgue unaescritura de reventa a favor de la aqui
demandante Cresencia Hernandez, de las participaciones de las terceristas en el terrenodescrito en la
demanda suplementaria previo pago de P860 mas lacantidad de P50 como gastos de documentacion. Se
absuelve al demandado de los daos y perjuicios que reclama la demandante. Se absuelve tambien a la
demandante de la contra-demanda de lasterceristas.
Sin especial pronunciamento en cuanto a las costas.
The defendant and the intervenors are appealing from the foregoing decision and in their joint brief made one
assignment of error:
The lower court erred in refusing to admit oral evidence for proving a contract of partition among the heirs on
the ground that it was not admissible.
Before proceeding with a discussion of the questions raised we are tempted to point up some seeming incongruities
in the above-quoted judgment. Although Zacarias Andal is no longer interested in the case, as far as the land is
concerned, and even though the intervenors have become again the absolute owners and are now in full
possession of the property, while Andal has already gotten his money back, the judgment would have Andal execute
a deed of resale in favor of the plaintiff and received from her the price of repurchase. The judgment is silent as to
the intervenors with reference to the execution of the deed of sale or the receipt of the sale price. And the lower
court made no finding and expressed no opinion as to whether the offer of P150 instead of P860, not to mention
Andal's expenses, by the plaintiff as price of repurchase was sufficient compliance with article 1067 of the Civil Code
on which the court rested the plaintiff's cause of action.
However, in this decision we are concerned mainly with the application of section 21 of Rule 123 and section 1 of
Rule 74 both of the Rules of Court. Article 1248 of the Civil Code has no bearing on the case.
There is a conflict of authority as to whether an agreement of partition is such a contract as is required to be in
writing under the statute of frauds. One line of authorities holds the affirmative view; other authorities say no. The
reason for the rule that excludes partition from the operation of the statute of frauds is that partition is not a
conveyance but simply a separation and designation of that part of the land which belongs to each tenant in
common. (27 C.J., 206.) The differences in the conclusions reached are "due perhaps to varied phraseology of the
statutes" in the several states. (40 Amer. Jur., 15.) However the case may be, as enacted in the Philippines, first in
section 335 of the former Code of Civil Procedure, and now in Rule 123, section 21, of the Rules of Court, the law
has been uniformly interpreted in a long line of cases to be applicable to executory and not to completed or
executed contracts. (27 C.J., 206.) In this jurisdiction performance of the contract takes it out of the operation of the
statute. (Gomez vs. Salcedo, 26 Phil., 485; Almirol and Cario vs. Monserrat, 48 Phil., 67.) The statute of frauds
does not declare the contracts therein enumerated void and of no legal effect, but only makes ineffective the action
for specific performance. (Almirol and Cario vs. Monserrat, supra.) In the United States, even in those states where
the affirmative view of the question has been followed, "the weight of authority upholds the rule that an oral partition
is effective when several possession is taken under it by the respective parties to the agreement." (27 C.J., 206.)
On general principle, independent and in spite of the statute of frauds, courts of equity have enforced oral partition
when it has been completely or partly performed.

Regardless of whether a parol partition or agreement to partition is valid and enforceable at law, equity will in
proper cases, where the parol partition has actually been consummated by the taking of possession in
severalty and the exercise of ownership by the parties of the respective portions set off to each, recognize
and enforce such parol partition and the rights of the parties thereunder. Thus, it has been held or stated in a
number of cases involving an oral partition under which the parties went into possession, exercised acts of
ownership, or otherwise partly performed the partition agreement, that equity will confirm such partition and
in a proper case decree title in accordance with the possession in severalty.
In numerous cases it has been held or stated that parol partitions may be sustained on the ground of
estoppel of the parties to assert the rights of a tenant in common as to parts of the land divided by parol
partition as to which possession in severalty was taken and acts of individual ownership were exercised. And
a court of equity will recognize the agreement and decree it to be valid and effectual for the purpose of
concluding the right of the parties as between each other to hold their respective parts in severalty.
A parol partition may also be sustained on the ground that the parties thereto have acquiesced in and ratified
the partition by taking possession in severalty, exercising acts of ownership with respect thereto, or
otherwise recognizing the existence of the partition.
A number of cases have specifically applied the doctrine of part performance, or have stated that a part
performance is necessary, to take a parol partition out of the operation of the statute of frauds. It has been
held that where there was a partition in fact between tenants in common, and a part performance, a court of
equity would have regard to and enforce such partition agreed to by the parties. (40 Amer. Jur., 15-18.)
It is on the effects of Rule 74, section 1, of the Rules of Court on a parol partition that there are sharp divergences of
opinion among the members of this Court. This section reads:
If the decedent left no debts and the heirs and legatees are all of age, or the minors are represented by their
judicial guardians, the parties may, without securing letters of administration, divide the estate among
themselves as they see fit by means of a public instrument file in the office of the register of deeds, and
should they disagree, they may do so in an ordinary action of partition. If there is only one heir or one
legatee, he may adjudicate to himself the entire estate by means of an affidavit filed in the office of the
register of deeds. It shall be presumed that the decedent left no debts if no creditor files a petition for letters
of administration within two years after the death of the decedent.
It is contended that under this rule a verbal partition is entirely void and cannot be validated by any acts of the
parties short of the execution of a public document and its registration.
As a general proposition, transactions, so far as they affect the parties, are required to be reduced to writing either
as a condition of jural validity or as a means of providing evidence to prove the transactions. Written form exacted
by the statute of frauds, for example, "is for evidential purposes only." (Domalagan vs. Bolifer, 33 Phil., 471.) The
decisions of this Court which we have noticed were predicated on this assumption. The Civil Code, too, requires the
accomplishment of acts or contracts in a public instrument, not in order to validate the act or contract but only to
insure its efficacy so that after the existence of the acts or contracts has been admitted, the party bound may be
compelled to execute the document. (Hawaiian Philippine Co. vs .Hernaez, 45 Phil., 746.)
Is section 1 of Rule 74 constitutive and not merely evidential of partition? In other words, is writing the act that
confers legal validity upon the agreement? There are no indications in the phraseology of this rule which justify an
affirmative answer to these questions. It must be noted that where the law intends a writing or other formality to be
the essential requisite to the validity of the transactions it says so in clear and unequivocal terms. Thus, the statute
of frauds as originally enacted in England and as enacted in some of the states, uses the words "utterly void" with
statute transactions required to be in writing are absolutely void and not merely voidable if not made in the manner
indicated. Again article 633 of the Civil Code says that donation may be valid only when made in a public document.
Article 146 of the Mortgage Law makes known its intention to have the execution of a public instrument and its
registration in the registry indispensable to the validity of the contract by using this phrase: "in order that voluntary
mortgages may be legally created in a valid manner." Article 1765 of the Civil Code also employs for the same
purpose similar expression with reference to the execution of a public document: "in order that mortgage may be
validly constituted." And with respect to the formalities of last wills and testaments, section 618 of Act No. 190
makes this emphatic statement: "No will shall be valid to pass upon any estate real or personal nor change or affect
the same, unless it be written etc." Other examples might be mentioned.
Section 1 of Rule 74 contains no such express or clear declaration that the required public instruments is to be
constitutive of a contract of partition or an inherent element of its effectiveness as between the parties. And this
Court had no apparent reason, in adopting this rule, to make the efficacy of a partition as between the parties
dependent on the execution of a public instrument and its registration. On the other hand, the opposite theory is not
without reasonable support. We can think of possible factors against the proposition that a public document and its
registration were contemplated as necessary ingredients to give life to a contract of partition so that without them no
oral partition can bind the parties.

1. In the first place, the Rules of Court of which the rule under consideration forms a part were promulgated by the
Judicial Department under authority to deal with matters of procedure exclusively. For this court to prescribe what is
to be a binding agreement between co-heirs in the settlement of their private affairs which in no way affect the rights
of third parties would be to transcends its rule-making power. We bring out this limitation upon the authority of this
court to make rules, as an aid to interpretation, as a method of arriving at the conclusion that section 1 of Rule 74
was meant to be remedial and not a rule of substantive law of far-reaching importance and serious juridical and
practical implications. It is to be presumed that the framers of the Rules of Court realized the bounds of this court's
functions and did not intend to trespass on purely substantive rights of the parties to the partition. To the extent the
execution and registration of a notarized instrument are made essential elements to validity to protect innocent third
parties, the rule is legitimate and necessary; legitimate because decedent's estate are placed under the jurisdiction
of the courts to administer and distribute. The interests of third parties eliminated, the rule loses its character as one
of procedure and practice and invades the realm of substantive law.
Section 596 of Act No. 190, which is the precursor of section 1 Rule 74, is enlightening and instructive. The former
after stating that heirs may apportion and divide the estate among themselves as they may see fit by agreement
duly executed in writing by all of them, adds the words "and not otherwise." These words, in our opinion, were
expressive of an intention to make the written formality inherent element of the validity of a parol partition. But what
is far more to the point is that by logical process of deduction the elimination from the new rule of the words "and not
otherwise" imports the casting away from the prescribed public document of its jural character which the document
enjoyed in the former code. At the same time, the inclusion of the aforesaid words in the old provision serves to
emphasize the necessity of a positive and clear language if a given contractual formality is to be the exclusive basis
of the contract's binding effect on the parties. It is of course unnecessary to say that the attaching of jural character
to the prescribed public instrument in section 596 of Act No. 190 is no argument for contending that such document
must be clothed with the same raiment in the new Rules. Act No. 190 was a mixture of procedural and substantive
provisions, having been enacted by the legislative body itself which, unlike this court, was unhampered and
untrammelled, except by the fundamental law, in the choice of its subjects of legislation.
2. The civil law looks upon the role of public instruments in acts and contracts with greater liberality with a view to
better adaptation to human frailties and idiosyncracies. In their blind faith in friends and relatives, in their lack of
experience and foresight, and their ignorance, men, in spite of laws, will make and continue to make verbal
contracts. The advantages of an air-tight policy concerning such contracts fall far short of compensating for the
resulting damage, injustice, inconveniences and confusion. So even though articles 1278, 1279 and 1280 of the
Civil Code have made provisions for public instrument for all transactions and contracts whose object is the
creation, modification or extinction of real rights in immovables, it has been recognized and held that verbal
contracts may be effective between the parties. A leading case on this subject is Thunga Chui vs. Que Bentec (2
Phil., 561), Mr. Justice Williard writing the decision. It was said in that case that when the essential requisites for the
existence of a contract are present, the contract is binding upon the parties, and, although required to be in writing
by article 1280 of the Civil Code, the plaintiff can maintain an action under article 1279 to compel the execution of a
written instrument. It says that "article 1279 does not impose an obligation, but confers a privilege upon both
contracting parties, and the fact that the plaintiff has not made use of same does not bar his action." It further says
that article 1279, far from making the enforceability of the contract dependent upon any special intrinsic form,
recognizes its enforceability by the mere act of granting the contracting parties an adequate remedy whereby to
compel the execution of public writing or any other special form whenever such form is necessary in order that
contract may produce the effect which is desired according to whatever its object. This doctrine was iterated and
reiterated in a series of decisions perhaps longer than that on any other legal topic. And it has been extended even
to verbal contracts involving land registered under the Torrens Act. Do the Rules of Court adhere to this salutary
principle? We can perceive no sufficient ground for the new Rules to depart from it. No considerations of public
policy enter into a partition of hereditary estate among co-heirs greater than those involved in a contract between
strangers which operates to create, transmit, modify or extinguish property rights in land. If as between strangers the
creation, transmission, modification or extinction of real rights may be lawfully effected by parol agreement
notwithstanding the requirement that it be put in writing, the new rule could not be more intransigent when the
transaction is between co-heirs and there is no change of ownership but simply designation and segregation of that
part which belongs to each heir.
The requirement that a partition be put in a public document and registered has, in our opinion, for its purpose the
protection of creditors and at the same time the protection of the heirs themselves against tardy claims. Note that
the last sentence of the section speaks of debts and creditors. The object of registration is to serve as constructive
notice, and this means notice to others. It must follow that the intrinsic validity of partition not executed with the
prescribed formalities does not come into play when, as in this case, there are no creditors or the rights of creditors
are not affected. No rights of creditors being involved, it is competent for the heirs of an estate to enter into an
agreement for distribution in a manner and upon a plan different from those provided by law.
It is said that the findings, conclusions and judgment in the appealed decision are not assigned as errors and that
for this reason the appeal should be dismissed. We do not think that the premise of this objection is exactly correct.
The evidence on parol partition tendered by the defendant and intervenors was ruled out and they specifically
complain of this exclusion as error. In this manner the assignment of error squarely meets and attacks the opinion
and judgment of the trial court. A superficial analysis of the case will show that on the validity of the alleged partition
hangs the result of the entire litigation, and on that validity depends in turn the competence of the excluded
evidence. These two interrelated points are the core of the whole case. All other points are incidental to and revolve
around them. If a completed oral partition may be enforced, as the defendant and the intervenors contend and as

we opine, their evidence should be allowed, and if allowed and it establishes their allegation, the plaintiff's cause of
action vanishes.
If the appellant's assignment of error be not considered a direct challenge to the decision of the court below, we still
believe that the objection takes a narrow view of practice and procedure contrary to the liberal spirit which pervades
the Rules of Court. The first injunction of the new Rules (Rule 1, section 2) is that they "shall be liberally construed in
order to promote their object and to assist the parties in obtaining just, speedy, and inexpensive determination of
every action and proceeding." In line with the modern trends of procedure, we are told that, "while an assignment of
error which is required by law or rule of court has been held essential to appellate review, and only those assigned
will be considered, there are a number of cases which appear to accord to the appellate court a broad discretionary
power to waive the lack of proper assignment of errors and consider errors not assigned. And an unassigned error
closely related to an error properly assigned, or upon which the determination of the question raised by the error
properly assigned is dependent, will be considered by the appellate court notwithstanding the failure to assign it as
error." (4 C.J.S., 1734; 3 C.J., 1341, footnote 77.) At the least, the assignment of error, viewed in this light,
authorizes us to examine and pass upon the decision of the court below.
The judgment is reversed and the case is remanded to the court of origin for further proceeding and a new decision
not incompatible with this decision, with costs of this appeal against the appellee.
Moran, C.J., Pablo, Hilado, Bengzon, Briones, Hontiveros, and Padilla, JJ., concur.

[G.R. No. 32636. March 17, 1930. ]

In the matter of the Estate of Edward Randolph Hix, deceased. A. W. FLUEMER, Petitioner-Appellant, v. ANNIE
COUSINS HIX, Oppositor-Appellee.
SYLLABUS
1. WILLS; EXECUTORS AND ADMINISTRATORS; CODE OF CIVIL PROCEDURE, SECTION 781, AS AMENDED,
APPLIED; RIGHT OF SPECIAL ADMINISTRATOR TO APPEAL FROM DISALLOWANCE OF A WILL. The special
administrator of an estate is a "person interested in the allowance or disallowance of a will by a Court of First Instance,"
within the meaning of section 781, as amended, of the Code of Civil Procedure, and so may be permitted to appeal to the
Supreme Court from the disallowance of a will.
2. ID.; ID.; CONFLICT OF LAWS; CODE OF CIVIL PROCEDURE, SECTIONS 300 AND 301, APPLIED. The laws of a
foreign jurisdiction do not prove themselves in our courts. The courts of the Philippine Islands are not authorized to take
judicial notice of the laws of the various States of the American Union. Such laws must be proved as facts. The
requirements of sections 300 and 301 of the Code of Civil Procedure must be met.
3. ID.; ID.; ID.; CODE OF CIVIL PROCEDURE, SECTION 633, APPLIED. The due execution of a will alleged to have
been executed in another jurisdiction must be established. Where the witnesses to the will reside without the Philippine
Islands, it is the duty of the petitioner to prove execution by some other means.
4. ID.; ID.; ID.; DOMICILE. Where it is desired to establish the execution of a will in another jurisdiction, it is necessary
to prove that the testator had his domicile in that jurisdiction and not in the Philippine Islands.
5. ID.; ID.; ID.; CODE OF CIVIL PROCEDURE, SECTIONS 637, 638, AND 639, APPLIED. Where it is desired to prove
the probate of a will in another jurisdiction and the appointment in that jurisdiction of an administrator for the estate of the
deceased, the moving party must comply with the provisions of sections 637, 638, and 639 of the Code of Civil Procedure
by requesting a hearing on the question of the allowance of a will said to have been proved and allowed in another
jurisdiction.
DECISION
MALCOLM, J.:
The special administrator of the estate of Edward Randolph Hix appeals from a decision of Judge of First Instance Tuason
denying the probate of the document alleged to be the last will and testament of the deceased. Appellee contends that the
appellant as a mere special administrator is not authorized to carry on this appeal. We think, however, that the appellant,
who appears to have been the moving party in these proceedings, was a "person interested in the allowance or
disallowance of a will by a Court of First Instance," and so should be permitted to appeal to the Supreme Court from the
disallowance of the will (Code of Civil Procedure, sec. 781, as amended; Villanueva v. De Leon [1925], 47 Phil., 780).
It is the theory of the petitioner that the alleged will was executed in Elkins, West Virginia, on November 3, 1925, by Hix
who had his residence in that jurisdiction, and that the laws of West Virginia govern. To this end, there was submitted a
copy of section 3868 of Acts 1882, c. 84 as found in West Virginia Code, Annotated, by Hogg, Charles E., vol. 2, 1914, p.
1690, and as certified to by the Director of the National Library. But this was far from a compliance with the law. The laws
of a foreign jurisdiction do not prove themselves in our courts. The courts of the Philippine Islands are not authorized to
take judicial notice of the laws of the various States of the American Union. Such laws must be proved as facts. (In re
Estate of Johnson [1918], 39 Phil., 156.) Here the requirements of the law were not met. There was no showing that the
book from which an extract was taken was printed or published under the authority of the State of West Virginia, as

provided in section 300 of the Code of Civil Procedure. Nor was the extract from the law attested by the certificate of the
officer having charge of the original, under the seal of the State of West Virginia, as provided in section 301 of the Code of
Civil Procedure. No evidence was introduced to show that the extract from the laws of West Virginia was in force at the
time the alleged will was executed.
In addition, the due execution of the will was not established. The only evidence on this point is to be found in the
testimony of the petitioner. Aside from this, there was nothing to indicate that the will was acknowledged by the testator in
the presence of two competent witnesses, or that these witnesses subscribed the will in the presence of the testator and
of each other as the law of West Virginia seems to require. On the supposition that the witnesses to the will reside without
the Philippine Islands, it would then be the duty of the petitioner to prove execution by some other means (Code of Civil
Procedure, sec. 633).
It was also necessary for the petitioner to prove that the testator had his domicile in West Virginia and not in the Philippine
Islands. The only evidence introduced to establish this fact consisted of the recitals in the alleged will and the testimony of
the petitioner. Also in beginning administration proceedings originally in the Philippine Islands, the petitioner violated his
own theory by attempting to have the principal administration in the Philippine Islands.
While the appeal was pending submission in this court, the attorney for the appellant presented an unverified petition
asking the court to accept as part of the evidence the documents attached to the petition. One of these documents
discloses that a paper writing purporting to be the last will and testament of Edward Randolph Hix, deceased, was
presented for probate on June 8, 1929, to the clerk of Randolph County, State of West Virginia, in vacation, and was duly
proven by the oaths of Dana Wamsley and Joseph L. Madden, the subscribing witnesses thereto, and ordered to be
recorded and filed. It was shown by another document that, in vacation, on June 8, 1929, the clerk of court of Randolph
County, West Virginia, appointed Claude W. Maxwell as administrator, cum testamento annexo, of the estate of Edward
Randolph Hix, deceased. In this connection, it is to be noted that the application for the probate of the will in the
Philippines was filed on February 20, 1929, while the proceedings in West Virginia appear to have been initiated on June
8, 1929. These facts are strongly indicative of an intention to make the Philippines the principal administration and West
Virginia the ancillary administration. However this may be, no attempt has been made to comply with the provisions of
sections 637, 638, and 639 of the Code of Civil Procedure, for no hearing on the question of the allowance of a will said to
have been proved and allowed in West Virginia has been requested. There is no showing that the deceased left any
property at any place other than the Philippine Islands and no contention that he left any in West Virginia.
Reference has been made by the parties to a divorce purported to have been awarded Edward Randolph Hix from Annie
Cousins Hix on October 8, 1925, in the State of West Virginia. The present proceedings do not call for any specific
pronouncements on the validity or invalidity of this alleged divorce.
For all of the foregoing, the judgment appealed from will be affirmed, with the costs of this instance against the Appellant.
Villamor, Ostrand, Johns, Romualdez and Villa-Real, JJ., concur.

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

In the Matter of the Petition to Approve the Will of Leodegaria Julian. FELIX BALANAY, JR., Petitioner, v. HON.
ANTONIO M. MARTINEZ, Judge of the Court of First Instance of Davao Branch VI; AVELINA B. ANTONIO and
DELIA B. LANABAN, Respondents.
SYNOPSIS
Leodegaria Julian, in her will, partitioned her paraphernal as well as all the conjugal properties as if they were all owned
by her, disposing of her husbands one-half share, and providing that the properties should not be divided during her
husbands lifetime but should remain intact and that the legitimes should be paid in cash to be satisfied out of the fruits of
the properties. Felix Balanay, Jr. filed a petition for the approval of his mothers will which was opposed by the husband
and some of her children. During the pendency of the probate proceedings petitioner submitted to the court a document
showing his fathers conformity to the testamentary distribution, renouncing his hereditary rights in favor of his children in
deference to the memory of his wife. The Court denied the opposition, set for hearing the probate of the will and gave
effect to the affidavit and conformity of the surviving spouse.
Meanwhile, a certain Atty. David Montaa, Sr. allegedly, in behalf of the petitioner, moved to dismiss the probate
proceedings and requested authority to proceed by intestate proceedings on the ground that the will was void, which
motion was granted by the probate court. The Court, however, did not abrogate its prior orders to proceed with the probate
proceedings. Subsequently, the court appointed the branch clerk as special administrator, and notice to creditors was
issued and published in the Davao Star.
Petitioner impugned the order of dismissal claiming that Atty. Montaa had no authority to ask for the dismissal of the
petition for allowance of will and that the court erred in declaring the will void before resolving the question of its formal
validity.
The Supreme Court set aside the order dismissing the petition for probate of the will directed the lower court to proceed
with the hearing of the case with costs against private respondents.
SYLLABUS
1. WILLS; PROBATE; COURTS MAY PASS UPON THE INTRINSIC VALIDITY BEFORE ALLOWANCE OF WILL.
Where the will contains unusual provisions which are of dubious legality and a motion to withdrew the petition for probate

presumably with petitioners authorization has been filed, the trial court can pass upon the wills intrinsic validity even
before its formal validity had been established. When practical considerations demand that intrinsic validity be passed
upon even before the will is probated, the court should do so, since the probate of a will probated, the court should do so,
since the probate of a will might become an idle ceremony if on its face the will is intrinsically void.
2. ID.; ID.; PROBATE MANDATORY; EXCEPTION. Generally, the probate of a will is mandatory and it is the duty of the
court to pass first upon its formal validity except in extreme cases where the will is on its face intrinsically void.
3. ID.; ID.; ID.; EFFECT OF ILLEGAL PROVISIONS IN A WILL. A will is not rendered null and void by reason of the
existence of some illegal or void provisions since the invalidity of one of several dispositions contained in a will does not
result in the invalidity of the other dispositions unless it is to be presumed that the testator would not have made such
other dispositions if the first invalid disposition had not been made; and where some provisions are valid and others
invalid, the valid provisions shall be upheld if they can be separated from the invalid provisions without defeating the
intention of the testator or interfering with the general testamentary scheme or doing injustice to the beneficiaries.
4. ID.; ID.; ILLEGAL DECLARATION MAY BE DISREGARDED. The statement of the testatrix in her will that she owned
the "southern half" of the conjugal lands is contrary to the law, because although she was a co-owner thereof, her share
was inchoate and pro indiviso; but the illegal declaration does not nullify the entire will, and said statement may be
disregarded.
5. ID.; ID.; ESTATE MAY REMAIN UNDIVIDED ONLY FOR A PERIOD OF 20 YEARS. Under Article 083 of the Civil
Code, the estate may remain undivided only for a period of twenty years; so that the provision in the testatrixs will that the
estate should not be divided during her husbands lifetime would at most be effective only for 20 years from the date of her
death unless there are compelling reasons for terminating the co-ownership.
6. ID.; ID.; TESTATRIX MAY NOT REQUIRE PAYMENT OF LEGITIMATES TO BE PAID IN CASH IF WHOLE ESTATE IS
NOT ASSIGNED TO ONE OR MORE CHILDREN. The testatrix has no right to require that the legitimes be paid in
cash, contrary to Article 080 of the Civil Code if in her will she partitioned the entire conjugal estate among her children
(her husband had renounced his hereditary rights and his one-half conjugal share, and did not assign the whole estate to
one or more children as envisaged in said article.
7. ID.; ID.; RENUNCIATION; EFFECT OF RENUNCIATION OF HEREDITARY RIGHTS. The surviving spouse can
validly renounce his heredity rights; but insofar as such renunciation partakes of a donation of the hereditary rights and his
share in the conjugal properties, it should be subject to the limitations prescribed in Article 750 and 752 of the Civil Code
on inofficious donations; and a portion of the estate should be adjudicated for his maintenance or at least his legitime
respected.
8. ID.; ID.; ID.; INVALID DISPOSITION BY WILL OF ENTIRE CONJUGAL PARTNERSHIP CURED BY SURVIVING
SPOUSES CONFORMITY THERETO. Although under Article 70 of the Civil Code the testatrix could dispose of by will
only her half of the conjugal state, the conformity of the husband, made after the dissolution of the conjugal partnership by
the death of the testatrix, has the effect of validating the testamentary partition of the conjugal estate, without prejudice, of
course, to the rights of creditors and legitimes of the compulsory heirs.
9. ID.; FUTURE PROPERTIES; BEQUEST OF FUTURE PROPERTIES. Under Article 793 of the Civil Code, property
acquired after the making of the will shall only pass thereby, as if the testator had possessed it at the time of making the
will, should it expressly appear by the will that such was his intention; while under Article 930 of said Code, the legacy or
devise of a thing belonging to another is void, if he erroneously believed that the pertained to him; but if the thing
bequeathed though not belonging to the testator when he made the will afterwards becomes his by whatever title, the
disposition shall take effect.
10. ID; PRETERITION; OMISSION OF THE LEGAL HEIRS INVALIDATES THE WILL.Under Article 854 of the Civil
Code, the preterition of the compulsory heir in the direct line, whether living at the time of the execution of the will or born
after the death of the testator, shall annul the institution of heir; but the devises and legacies shall be valid insofar as they
are not inofficious. Thus, the preterition of the parents annuls the institution of the sister of the testatrix, and renders the
will intrinsically void; and if there are no legacies and devices, total intestacy results. But the preterition of the surviving
spouse does not produce intestacy nor render the will intrinsically void, especially if the preterited spouse signified his
conformity to his wifes will and renounced his hereditary rights.
11. ID.; INTENTIONS; COURTS SHOULD STRIVE TO GIVE EFFECT TO THE WISHES OF THE TESTATOR. To give
effect to the intention and wishes of the testatrix is the first and principal law on the matter of the testaments, and such
desires should be given effect independently of the attitude of the parties affected thereby and an interpretation that will
render a testamentary disposition operative takes precedence over a construction that will nullify it.
12. ID.; ID.; ID.; TESTACY; DOUBTS SHOULD BE RESOLVED IN FAVOR OF TESTACY. Doubts are resolved in favor
of testacy especially where the will evinces an intention on the part of the testator to dispose of practically the whole

estate. So compelling is the principle that intestacy should be avoided and that the wishes of the testator should prevail
that sometimes the language of the will can be varied for the purpose of giving it effect, because whatever disposition
therein made is better than what the law can make.
13. ID.; EXECUTORS; NOTICE TO CREDITORS CANNOT BE ISSUED BEFORE REGULAR EXECUTOR IS
APPOINTED; REASONS. The issuance of notice to creditors after a special executor or administrator had been
appointed but before the appointment of a regular executor or administrator is erroneous being contrary to the rules of
court aside from the fact that it is the regular executor or administrator who is supposed to oppose the claims against the
estate or pay such claims if allowed.
14. ID.; ID.; JUDICIAL OFFICERS SHOULD REFRAIN FROM BEING APPOINTED EXECUTORS. The appointment of
the branch Clerk of Court as special administrator is not a salutary practice because it might engender the suspicion that
the probate court and his clerk are in cahoots in milking the decedents estate, and if he commits any abuse or devastavit
in the course of his administration, the probate judge might find it difficult to hold him to a strict accountability. A court
employee should devote his official time to his duties and should not have as a sideline the administration of a
decendents estate.
DECISION
AQUINO, J.:
Felix Balanay, Jr. appealed by certiorari from the order of the Court of First Instance of Davao dated February 28, 974,
declaring illegal and void the will of his mother, Leodegaria Julian, converting the testate proceeding into an intestate
proceeding and ordering the issuance of the corresponding notice to creditors (Special Case No.808). The antecedents of
the appeal are as follows:chanrob1es virtual 1aw library
Leodegaria Julian, a native of Sta. Maria, Ilocos Sur, died on February 2, 973 in Davao City at the age of sixty-seven.
She was survived by her husband, Felix Balanay, Sr., and by their six legitimate children named Felix Balanay, Jr., Avelina
B. Antonio, Beatriz B. Solamo, Carolina B. Manguiob, Delia B. Lanaban and Emilia B. Pabaonon.
Felix J. Balanay, Jr. filed in the lower court a petition dated February 27, 973 for the probate of his mothers notarial will
dated September 5, 970 which is written in English. In that will Leodegaria Julian declared (a) that she was the owner of
the "southern half" of nine conjugal lots (par. II); (b) that she was the absolute owner of two parcels of land which she
inherited from her father (par. III), and (c) that it was her desire that her properties should not be divided among her heirs
during her husbands lifetime and that their legitimes should be satisfied out of the fruits of her properties (Par. IV).
Then, in paragraph V of the will she stated that after her husbands death (he was eighty-two years old in 973) her
paraphernal lands and all the conjugal lands (which she described as "my properties") should be divided and distributed in
the manner set forth in that part of her will. She devised and partitioned the conjugal lands as if they were all owned by
her. She disposed of in the will her husbands one-half share of the conjugal assets. *
Felix Balanay, Sr. and Avelina B. Antonio opposed the probate of the will on the grounds of lack of testamentary capacity,
undue influence, preterition of the husband and alleged improper partition of the conjugal estate. The oppositors claimed
that Felix Balanay, Jr. should collate certain properties which he had received from the testatrix.
Felix Balanay, Jr., in his reply to the opposition, attached thereto an affidavit of Felix Balanay, Sr. dated April 8, 973
wherein he withdrew his opposition to the probate of the will and affirmed that he was interested in its probate. On the
same date Felix Balanay, Sr. signed an instrument captioned "Conformation (sic) of Division and Renunciation of
Hereditary Rights" wherein he manifested that out of respect for his wifes will he "waived and renounced" his hereditary
rights in her estate in favor of their six children. In that same instrument he confirmed the agreement, which he and his
wife had perfected before her death, that their conjugal properties would be partitioned in the manner indicated in her will.
Avelina B. Antonio, an oppositor, in her rejoinder contended that the affidavit and "conformation" of Felix Balanay, Sr. were
void. The lower court in its order of June 8, 973 "denied" the opposition and reset for hearing the probate of the will. It
gave effect to the affidavit and conformity of Felix Balanay, Sr. In an order dated August 28, 973 it appointed its branch
clerk of court as special administrator of the decedents estate.
Mrs. Antonio moved for the reconsideration of the lower courts order of June 8, 973 on the grounds (a) that the testatrix
illegally claimed that she was the owner of the southern half of the conjugal lots and (b) that she could not partition the
conjugal estate by allocating portions of the nine lots to her children. Felix Balanay, Jr., through his counsel, Hermenegildo
Cabreros, opposed that motion. The lower court denied it in its order of October 5, 973.
In the meanwhile, another lawyer appeared in the case. David O. Montaa, Sr., claiming to be the lawyer of petitioner
Felix Balanay, Jr. (his counsel of record was Atty. Cabreros), filed a motion dated September 25, 973 for "leave of court to
withdraw probate of alleged will of Leodegaria Julian and requesting authority to proceed by intestate estate proceeding."

In that motion Montaa claimed to be the lawyer not only of the petitioner but also of Felix Balanay, Sr., Beatriz B. Solamo,
Carolina B. Manguiob and Emilia B. Pabaonon.
Montaa in his motion assailed the provision of the will which partitioned the conjugal assets or allegedly effected a
compromise of future legitimes. He prayed that the probate of the will be withdrawn and that the proceeding be converted
into an intestate proceeding. In another motion of the same date he asked that the corresponding notice to creditors be
issued.
Avelina B. Antonio and Delia B. Lanaban, through Atty. Jose B. Guyo, in their comments dated October 5, 973
manifested their conformity with the motion for the issuance of a notice to creditors. They prayed that the will be declared
void for being contrary to law and that an intestacy be declared.
The lower court, acting on the motions of Atty. Montaa, assumed that the issuance of a notice to creditors was in order
since the parties had agreed on that point. It adopted the view of Attys. Montaa and Guyo that the will was void. So, in its
order of February 28, 974 it dismissed the petition for the probate, converted the testate proceeding into an intestate
proceeding, ordered the issuance of a notice to creditors and set the intestate proceeding for hearing on April and 2,
974. The lower court did not abrogate its prior orders of June 8 and October 5, 973. The notice to creditors was issued
on April , 974 and published on May 2, 9 and 6 in the Davao Star in spite of petitioners motion of April 7, 974 that its
publication be held in abeyance.
Felix Balanay, Jr., through a new counsel, Roberto M. Sarenas, in a verified motion dated April 5, 974, asked for the
reconsideration of the lower courts order of February 28, 974 on the ground that Atty. Montaa had no authority to
withdraw the petition for the allowance of the will. Attached to the motion was a copy of a letter dated March 27, 974
addressed to Atty. Montaa and signed by Felix Balanay, Jr., Beatriz V. Solamo, Carolina B. Manguiob and Emilia B.
Pabaonon, wherein they terminated Montanas services and informed him that his withdrawal of the petition for the
probate of the will was without their consent and was contrary to their repeated reminder to him that their mothers will
was "very sacred to them.
Avelina B. Antonio and Delia B. Lanaban opposed the motion for reconsideration. The lower court denied the motion in its
order of June 29, 974. It clarified that it declared the will void on the basis of its own independent assessment of its
provisions and not because of Atty. Montaas arguments.
The basic issue is whether the probate court erred in passing upon the intrinsic validity of the will, before ruling on its
allowance or formal validity, and in declaring it void.
We are of the opinion that in view of certain unusual provisions of the will, which are of dubious legality, and because of
the motion to withdraw the petition for probate (which the lower court assumed to have been filed with the petitioners
authorization), the trial court acted correctly in passing upon the wills intrinsic validity even before its formal validity had
been established. The probate of a will might become an idle ceremony if on its face it appears to be intrinsically void.
Where practical considerations demand that the intrinsic validity of the will be passed upon, even before it is probated, the
court should meet the issue (Nuguid v. Nuguid, 64 O.G.527, 7 SCRA 449. Compare with Sumilang v. Ramagosa, L2335, December 26, 967, 2 SCRA 369; Cacho v. Udan, L-9996, April 30, 965, 3 SCRA 693).
But the probate court erred in declaring in its order of February 28, 974 that the will was void and in converting the testate
proceeding into an intestate proceeding notwithstanding the fact that in its order of June 8, 973 it gave effect to the
surviving husbands conformity to the will and to his renunciation of his hereditary rights which presumably included his
one-half share of the conjugal estate.
The rule is that "the invalidity of one of several dispositions contained in a will does not result in the invalidity of the other
dispositions, unless it is to be presumed that the testator would not have made such other dispositions if the first invalid
disposition had not been made" (Art. 792, Civil Code). "Where some of the provisions of a will are valid and others invalid,
the valid parts will be upheld if they can be separated from the invalid without defeating the intention of the testator or
interfering with the general testamentary scheme, or doing injustice to the beneficiaries" (95 C.J.S. 873).
The statement of the testatrix that she owned the "southern half" of the conjugal lands is contrary to law because,
although she was a coowner thereof, her share was inchoate and proindiviso (Art.43, Civil Code; Madrigal and Paterno v.
Rafferty and Concepcion, 38 Phil. 44). But that illegal declaration does not nullify the entire will. It may be disregarded.
The provision of the will that the properties of the testatrix should not be divided among her heirs during her husbands
lifetime but should be kept intact and that the legitimes should be paid in cash is contrary to article 080 of the Civil Code
which reads:jgc:chanrobles.com.ph
"ART.080. Should a person make a partition of his estate by an act inter vivos, or by will, such partition shall be
respected, insofar as it does not prejudice the legitime of the compulsory heirs.

"A parent who, in the interest of his or her family, desires to keep any agricultural, industrial, or manufacturing enterprise
intact, may avail himself of the right granted him in this article, by ordering that the legitime of the other children to whom
the property is not assigned, be paid in cash. (056a)"
The testatrix in her will made a partition of the entire conjugal estate among her six children (her husband had renounced
his hereditary rights and his one-half conjugal share). She did not assign the whole estate to one or more children as
envisaged in article 080. Hence, she had no right to require that the legitimes be paid in cash. On the other hand, her
estate may remain undivided only for a period of twenty years. So, the provision that the estate should not be divided
during her husbands lifetime would at most be effective only for twenty years from the date of her death unless there are
compelling reasons for terminating the coownership (Art.083, Civil Code).
Felix Balanay, Sr. could validly renounce his hereditary rights and his one-half share of the conjugal partnership (Arts.79[]
and 04, Civil Code) but insofar as said renunciation partakes of a donation of his hereditary rights and his one-half share
in the conjugal estate (Art.050[] Civil Code), it should be subject to the limitations prescribed in articles 750 and 752 of
the Civil Code. A portion of the estate should be adjudicated to the widower for his support and maintenance. Or at least
his legitime should be respected.
Subject to the foregoing observations and the rules on collation, the will is intrinsically valid and the partition therein may
be given effect if it does not prejudice the creditors and impair the legitimes. The distribution and partition would become
effective upon the death of Felix Balanay, Sr. In the meantime, the net income should be equitably divided among the
children and the surviving spouse.
It should be stressed that by reason of the surviving husbands conformity to his wifes will and his renunciation of his
hereditary rights, his one-half conjugal share be a part of his deceased wifes estate. His conformity had the effect of
validating the partition made in paragraph V of the will without prejudice, of course, to the rights of the creditors and the
legitimes of the compulsory heirs.
Article 793 of the Civil Code provides that "property acquired after the making of a will shall only pass thereby, as if the
testator had possessed it at the time of making the will, should it expressly appear by the will that such was his intention."
Under article 930 of the Civil Code "the legacy or devise of a thing belonging to another person is void, if the testator
erroneously believed that the thing pertained to him. But if the thing bequeathed, though not belonging to the testator
when he made the will, afterwards becomes his, by whatever title, the disposition shall take effect."cralaw virtua1aw
library
In the instant case there is no doubt that the testatrix and her husband intended to partition the conjugal estate in the
manner set forth in paragraph V of her will. It is true that she could dispose of by will only her half of the conjugal estate
(Art.70, Civil Code) but since the husband, after the dissolution of the conjugal partnership, had assented to her
testamentary partition of the conjugal estate, such partition has become valid, assuming that the will may be probated.
The instant case is different from the Nuguid case, supra, where the testatrix instituted as heir her sister and preterited her
parents. Her will was intrinsically void because it preterited her compulsory heirs in the direct line. Article 854 of the Civil
Code provides that "the preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living
at the time of the execution of the will or born after the death of the testator, shall annul the institution of heir; but the
devises and legacies shall be valid insofar as they are not inofficious." Since the preterition of the parents annulled the
institution of the sister of the testatrix and there were no legacies and devises, total intestacy resulted (Art. 960[2], Civil
Code).
In the instant case, the preterited heir was the surviving spouse. His preterition did not produce intestacy. Moreover, he
signified his conformity to his wifes will and renounced his hereditary rights.
It results that the lower court erred in not proceeding with the probate of the will as contemplated in its uncancelled order
of June 8, 973. Save in an extreme case where the will on its face is intrinsically void, it is the probate courts duty to
pass first upon the formal validity of the will. Generally, the probate of the will is mandatory (Art. 838, Civil Code; Guevara
v. Guevara, 74 Phil. 479 and 98 Phil. 249; Fernandez v. Dimagiba, L-23638, October 2, 967, 2 SCRA 428).
As aptly stated by Mr. Justice Barredo, "the very existence of a purported testament is in itself prima facie proof that the
supposed testator has willed that his estate should be distributed in the manner therein provided, and it is incumbent upon
the state that, if legally tenable, such desire be given effect independent of the attitude of the parties affected thereby"
(Resolution, Vda. de Precilla v. Narciso, L-27200, August 8, 972, 46 SCRA 538, 565).
To give effect to the intention and wishes of the testatrix is the first and principal law in the matter of testaments (DizonRivera v. Dizon, L-2456, June 30, 970, 33 SCRA 554, 56). Testacy is preferable to intestacy. An interpretation that will
render a testamentary disposition operative takes precedence over a construction that will nullify a provision of the will
(Arts. 788 and 79, Civil Code).

Testacy is favored. Doubts are resolved in favor of testacy especially where the will evinces an intention on the part of the
testator to dispose of practically his whole estate. So compelling is the principle that intestacy should be avoided and that
the wishes of the testator should prevail that sometimes the language of the will can be varied for the purpose of giving it
effect (Austria v. Reyes, L-23079, February 27, 970, 3 SCRA 754, 762).
As far as is legally possible, the expressed desire of the testator must be followed and the dispositions of the properties in
his will should be upheld (Estorque v. Estorque, L-9573, June 30, 970, 33 SCRA 540, 546).
The law has a tender regard for the wishes of the testator as expressed in his will because any disposition therein is better
than that which the law can make (Castro v. Bustos, L-2593, February 28, 969, 27 SCRA 327, 34).
Two other errors of the lower court may be noticed. It erred in issuing a notice to creditors although no executor or regular
administrator has been appointed. The record reveals that it appointed a special administrator. A notice to creditors is not
in order if only a special administrator has been appointed. Section , Rule 86 of the Rules of Court, in providing that
"immediately after granting letters of testamentary or of administration, the court shall issue a notice requiring all persons
having money claims against the decedent to file them in the office of the clerk of said court" clearly contemplates the
appointment of an executor or regular administrator and not that of a special administrator.
It is the executor or regular administrator who is supposed to oppose the claims against the estate and to pay such claims
when duly allowed (Sec.0, Rule 86 and sec., Rule 88, Rules of Court).
We also take this occasion to point out that the probate courts appointment of its branch clerk of court as special
administrator (p. 30, Rollo) is not a salutary practice because it might engender the suspicion that the probate Judge and
his clerk of court are in cahoots in milking the decedents estate. Should the branch clerk of court commit any abuse or
devastavit in the course of his administration, the probate Judge might find it difficult to hold him to a strict accountability. A
court employee should devote his official time to his official duties and should not have as a sideline the administration of
a decedents estate.
WHEREFORE, the lower courts orders of February 28, and June 29, 974 are set aside and its order of June 8, 973,
setting for hearing the petition for probate, is affirmed. The lower court is directed to conduct further proceedings in
Special Case No.808 in consonance with this opinion. Costs, against the private respondents.
SO ORDERED.
Fernando (Chairman), Barredo, Antonio and Concepcion, Jr., JJ., concur.

[G.R. No. L-58509. December 7, 1982.]

IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF RICARDO B. BONILLA, deceased, MARCELA
RODELAS, Petitioner-Appellant, v. AMPARO ARANZA, ET AL., oppositors-appellees, ATTY. LORENZO
SUMULONG, intervenor.
SYNOPSIS
The probate court ordered the dismissal of appellants petition for the allowance of the holographic will of deceased
Ricardo B. Bonilla on the ground that the alleged photostatic copy of the will which was presented for probate, cannot
stand in lieu of the lost original, for the law regards the document itself as the material proof of the authenticity of the said
will, citing the case of Gan v. Yap, 104 Phil. 509, 522. On appeal, the only question is whether a holographic will which
was lost or cannot be found can be proved by means of a photostatic copy.
The Supreme Court, in setting aside the lower courts order of dismissal, held that a photostatic or xerox copy of a lost or
destroyed holographic will may be admitted because the authenticity of the handwriting of the deceased can he
determined by the probate court, as comparison can be made with the standard writings of the testator.
Assailed order of dismissal, set aside.
SYLLABUS
1. CIVIL LAW; SUCCESSION; HOLOGRAPHIC WILLS; PROBATE THEREOF; DEFINITION. Pursuant to Article 811 of
the Civil Code, probate of holographic wills is the allowance of the will by the Court after its due execution has been
proved.
2. ID.; ID.; ID.; ID.; NUMBER OF WITNESSES REQUIRED. The probate of holographic wills may be uncontested or
not. If uncontested, at least one identifying witness is required and, if no witness is available, experts may be resorted to.
If contested, at least three identifying witnesses are required.
3. ID.; ID.; ID.; ID.; NOT POSSIBLE WHERE ORIGINAL WILL HAS BEEN LOST OR DESTROYED AND NO OTHER
COPY IS AVAILABLE; REASON. If the holographic will has been lost or destroyed and no other copy is available, the
will cannot be probated because the best and only evidence is the handwriting of the testator in said will. It is necessary
that there be a comparison between sample handwritten statements of the testator and the handwritten will.
4. ID.; ID.; ID.; ID.; ID.; PHOTOSTATIC COPY OR XEROX COPY MAY BE ALLOWED; CASE AT BAR. A photostatic
copy or xerox copy of the holographic will may be allowed because comparison can be made with the standard writings of
the testator. In the case of Gan v. Yap, 104 Phil. 509, the Court ruled that "the execution and the contents of a lost or
destroyed holographic will may not be proved by the bare testimony of witnesses who have seen and/or read such will.
The will itself must be presented; otherwise, it shall produce no effect. The law regards the document itself as material
proof of authenticity." But, in Footnote 8 of said decision, it says that "Perhaps it may be proved by a photographic or
photostatic copy. Even a mimeographed or carbon copy; or by other similar means, if any, whereby the authenticity of the
handwriting of the deceased may be exhibited and tested before the probate court." Evidently, the photostatic or xerox
copy of the lost or destroyed holographic will may be admitted because then the authenticity of the handwriting of the
deceased can be determined by the probate court.
DECISION
RELOVA, J.:
This case was certified to this Tribunal by the Court of Appeals for final determination pursuant to Section 3, Rule 50 of the
Rules of Court.
As found by the Court of Appeals:jgc:chanrobles.com.ph

". . . On January 11, 1977, appellant filed a petition with the Court of First Instance of Rizal for the probate of the
holographic will of Ricardo B. Bonilla and the issuance of letters testamentary in her favor. The petition, docketed as Sp.
Proc. No. 8432, was opposed by the appellees Amparo Aranza Bonilla, Wilferine Bonilla Treyes, Expedita Bonilla Frias
and Ephraim Bonilla on the following grounds:jgc:chanrobles.com.ph
"(1) Appellant was estopped from claiming that the deceased left a will by failing to produce the will within twenty days of
the death of the testator as required by Rule 75, section 2 of the Rules of Court:jgc:chanrobles.com.ph
"(2) The alleged copy of the alleged holographic will did not contain a disposition of property after death and was not
intended to take effect after death, and therefore it was not a will;
"(3) The alleged holographic will itself, and not an alleged copy thereof, must be produced, otherwise it would produce no
effect, as held in Gan v. Yap, 104 Phil. 509; and
"(4) The deceased did not leave any will, holographic or otherwise, executed and attested as required by law.
"The appellees likewise moved for the consolidation of the case with another case (Sp. Proc. No. 8275). Their motion was
granted by the court in an order dated April 4, 1977.
"On November 13, 1978, following the consolidation of the cases, the appellees moved again to dismiss the petition for
the probate of the will. They argued that:jgc:chanrobles.com.ph
"(1) The alleged holographic was not a last will but merely an instruction as to the management and improvement of the
schools and colleges founded by decedent Ricardo B. Bonilla; and
"(2) Lost or destroyed holographic wills cannot be proved by secondary evidence unlike ordinary wills.
"Upon opposition of the appellant, the motion to dismiss was denied by the court in its order of February 23, 1979.
"The appellees then filed a motion for reconsideration on the ground that the order was contrary to law and settled
pronouncements and rulings of the Supreme Court, to which the appellant in turn filed an opposition. On July 23, 1979,
the court set aside its order of February 23, 1979 and dismissed the petition for the probate of the will of Ricardo B.
Bonilla. The court said:chanrob1es virtual 1aw library
. . . It is our considered opinion that once the original copy of the holographic will is lost, a copy thereof cannot stand in
lieu of the original.
In the case of Gan v. Yap, 104 Phil. 509, 522, the Supreme Court held that in the matter of holographic wills the law, it is
reasonable to suppose, regards the document itself as the material proof of authenticity of said wills.
MOREOVER, this Court notes that the alleged holographic will was executed on January 25, 1962 while Ricardo B.
Bonilla died on May 13, 1976. In view of the lapse of more than 14 years from the time of the execution of the will to the
death of the decedent, the fact that the original of the will could not be located shows to our mind that the decedent had
discarded before his death his allegedly missing Holographic Will.
Appellants motion for reconsideration was denied. Hence, an appeal to the Court of Appeals in which it is contended that
the dismissal of appellants petition is contrary to law and well-settled jurisprudence.
On July 7, 1980, appellees moved to forward the case to this Court on the ground that the appeal does not involve
question of fact and alleged that the trial court committed the following assigned errors:jgc:chanrobles.com.ph
"I. THE LOWER COURT ERRED IN HOLDING THAT A LOST HOLOGRAPHIC WILL MAY NOT BE PROVED BY A COPY
THEREOF;
"II. THE LOWER COURT ERRED IN HOLDING THAT THE DECEDENT HAS DISCARDED BEFORE HIS DEATH THE
MISSING HOLOGRAPHIC WILL;
"III. THE LOWER COURT ERRED IN DISMISSING APPELLANTS WILL."cralaw virtua1aw library
The only question here is whether a holographic will which was lost or can not be found can be proved by means of a
photostatic copy. Pursuant to Article 811 of the Civil Code, probate of holographic wills is the allowance of the will by the
court after its due execution has been proved. The probate may be uncontested or not. If uncontested, at least one
identifying witness is required and, if no witness is available, experts may be resorted to. If contested, at least three
identifying witnesses are required. However, if the holographic will has been lost or destroyed and no other copy is

available, the will can not be probated because the best and only evidence is the handwriting of the testator in said will. It
is necessary that there be a comparison between sample handwritten statements of the testator and the handwritten will.
But, a photostatic copy or xerox copy of the holographic will may be allowed because comparison can be made with the
standard writings of the testator. In the case of Gan v. Yap, 104 Phil. 509, the Court ruled that "the execution and the
contents of a lost or destroyed holographic will may not be proved by the bare testimony of witnesses who have seen
and/or read such will. The will itself must be presented; otherwise, it shall produce no effect. The law regards the
document itself as material proof of authenticity." But, in Footnote 8 of said decision, it says that "Perhaps it may be
proved by a photographic or photostatic copy. Even a mimeographed or carbon copy; or by other similar means, if any,
whereby the authenticity of the handwriting of the deceased may be exhibited and tested before the probate court."
Evidently, the photostatic or xerox copy of the lost or destroyed holographic will may be admitted because then the
authenticity of the handwriting of the deceased can be determined by the probate court.
WHEREFORE, the order of the lower court dated October 3, 1979, denying appellants motion for reconsideration dated
August 9, 1979, of the Order dated July 23, 1979, dismissing her petition to approve the will of the late Ricardo B. Bonilla,
is hereby SET ASIDE.
SO ORDERED.

G.R. No. L-62952 October 9, 1985

SOFIA J. NEPOMUCENO, petitioner,
vs.
THE HONORABLE COURT OF APPEALS, RUFINA GOMEZ, OSCAR JUGO ANG, CARMELITA JUGO,respondents.
GUTIERREZ, JR., J.:
This is a petition for certiorari to set aside that portion of the decision of the respondent Court of Appeals (now
intermediate Appellate Court) dated June 3, 1982, as amended by the resolution dated August 10, 1982, declaring as null
and void the devise in favor of the petitioner and the resolution dated December 28, 1982 denying petitioner's motion for
reconsideration.
Martin Jugo died on July 16, 1974 in Malabon, Rizal. He left a last Will and Testament duly signed by him at the end of the
Will on page three and on the left margin of pages 1, 2 and 4 thereof in the presence of Celestina Alejandro, Myrna C.
Cortez, and Leandro Leano, who in turn, affixed their signatures below the attestation clause and on the left margin of
pages 1, 2 and 4 of the Will in the presence of the testator and of each other and the Notary Public. The Will was
acknowledged before the Notary Public Romeo Escareal by the testator and his three attesting witnesses.
In the said Will, the testator named and appointed herein petitioner Sofia J. Nepomuceno as his sole and only executor of
his estate. It is clearly stated in the Will that the testator was legally married to a certain Rufina Gomez by whom he had
two legitimate children, Oscar and Carmelita, but since 1952, he had been estranged from his lawfully wedded wife and
had been living with petitioner as husband and wife. In fact, on December 5, 1952, the testator Martin Jugo and the
petitioner herein, Sofia J. Nepomuceno were married in Victoria, Tarlac before the Justice of the Peace. The testator
devised to his forced heirs, namely, his legal wife Rufina Gomez and his children Oscar and Carmelita his entire estate
and the free portion thereof to herein petitioner. The Will reads in part:
Art. III. That I have the following legal heirs, namely: my aforementioned legal wife, Rufina Gomez, and our son, Oscar,
and daughter Carmelita, both surnamed Jugo, whom I declare and admit to be legally and properly entitled to inherit from
me; that while I have been estranged from my above-named wife for so many years, I cannot deny that I was legally
married to her or that we have been separated up to the present for reasons and justifications known fully well by them:
Art. IV. That since 1952, 1 have been living, as man and wife with one Sofia J. Nepomuceno, whom I declare and avow to
be entitled to my love and affection, for all the things which she has done for me, now and in the past; that while Sofia J.
Nepomuceno has with my full knowledge and consent, did comport and represent myself as her own husband, in truth

and in fact, as well as in the eyes of the law, I could not bind her to me in the holy bonds of matrimony because of my
aforementioned previous marriage;
On August 21, 1974, the petitioner filed a petition for the probate of the last Will and Testament of the deceased Martin
Jugo in the Court of First Instance of Rizal, Branch XXXIV, Caloocan City and asked for the issuance to her of letters
testamentary.
On May 13, 1975, the legal wife of the testator, Rufina Gomez and her children filed an opposition alleging inter alia that
the execution of the Will was procured by undue and improper influence on the part of the petitioner; that at the time of the
execution of the Will, the testator was already very sick and that petitioner having admitted her living in concubinage with
the testator, she is wanting in integrity and thus, letters testamentary should not be issued to her.
On January 6, 1976, the lower court denied the probate of the Will on the ground that as the testator admitted in his Will to
cohabiting with the petitioner from December 1952 until his death on July 16, 1974, the Will's admission to probate will be
an Idle exercise because on the face of the Will, the invalidity of its intrinsic provisions is evident.
The petitioner appealed to the respondent-appellate court.
On June 2, 1982, the respondent court set aside the decision of the Court of First Instance of Rizal denying the probate of
the will. The respondent court declared the Will to be valid except that the devise in favor of the petitioner is null and void
pursuant to Article 739 in relation with Article 1028 of the Civil Code of the Philippines. The dispositive portion of the
decision reads:
WHEREFORE, the decision a quo is hereby set aside, the will in question declared valid except the devise in favor of the
appellant which is declared null and void. The properties so devised are instead passed on in intestacy to the appellant in
equal shares, without pronouncement as to cost.
On June 15, 1982, oppositors Rufina Gomez and her children filed a "Motion for Correction of Clerical Error" praying that
the word "appellant" in the last sentence of the dispositive portion of the decision be changed to "appellees" so as to read:
"The properties so devised are instead passed on intestacy to the appellees in equal shares, without pronouncement as to
costs." The motion was granted by the respondent court on August 10, 1982.
On August 23, 1982, the petitioner filed a motion for reconsideration. This was denied by the respondent court in a
resolution dated December 28, 1982.
The main issue raised by the petitioner is whether or not the respondent court acted in excess of its jurisdiction when after
declaring the last Will and Testament of the deceased Martin Jugo validly drawn, it went on to pass upon the intrinsic
validity of the testamentary provision in favor of herein petitioner.
The petitioner submits that the validity of the testamentary provision in her favor cannot be passed upon and decided in
the probate proceedings but in some other proceedings because the only purpose of the probate of a Will is to establish
conclusively as against everyone that a Will was executed with the formalities required by law and that the testator has the
mental capacity to execute the same. The petitioner further contends that even if the provisions of paragraph 1 of Article
739 of the Civil Code of the Philippines were applicable, the declaration of its nullity could only be made by the proper
court in a separate action brought by the legal wife for the specific purpose of obtaining a declaration of the nullity of the
testamentary provision in the Will in favor of the person with whom the testator was allegedly guilty of adultery or
concubinage.
The respondents on the other hand contend that the fact that the last Will and Testament itself expressly admits
indubitably on its face the meretricious relationship between the testator and the petitioner and the fact that petitioner
herself initiated the presentation of evidence on her alleged ignorance of the true civil status of the testator, which led
private respondents to present contrary evidence, merits the application of the doctrine enunciated in Nuguid v. Felix
Nuguid, et al. (17 SCRA 449) and Felix Balanay, Jr. v. Hon. Antonio Martinez, et al.(G.R. No. L- 39247, June 27, 1975).
Respondents also submit that the admission of the testator of the illicit relationship between him and the petitioner put in
issue the legality of the devise. We agree with the respondents.
The respondent court acted within its jurisdiction when after declaring the Will to be validly drawn, it went on to pass upon
the intrinsic validity of the Will and declared the devise in favor of the petitioner null and void.
The general rule is that in probate proceedings, the court's area of inquiry is limited to an examination and resolution of
the extrinsic validity of the Will. The rule is expressed thus:
xxx xxx xxx

... It is elementary that a probate decree finally and definitively settles all questions concerning capacity of the testator and
the proper execution and witnessing of his last Will and testament, irrespective of whether its provisions are valid and
enforceable or otherwise. (Fernandez v. Dimagiba, 21 SCRA 428)
The petition below being for the probate of a Will, the court's area of inquiry is limited to the extrinsic validity thereof. The
testators testamentary capacity and the compliance with the formal requisites or solemnities prescribed by law are the
only questions presented for the resolution of the court. Any inquiry into the intrinsic validity or efficacy of the provisions of
the will or the legality of any devise or legacy is premature.
xxx xxx xxx
True or not, the alleged sale is no ground for the dismissal of the petition for probate. Probate is one thing; the validity of
the testamentary provisions is another. The first decides the execution of the document and the testamentary capacity of
the testator; the second relates to descent and distribution (Sumilang v. Ramagosa, 21 SCRA 1369)
xxx xxx xxx
To establish conclusively as against everyone, and once for all, the facts that a will was executed with the formalities
required by law and that the testator was in a condition to make a will, is the only purpose of the proceedings under the
new code for the probate of a will. (Sec. 625). The judgment in such proceedings determines and can determine nothing
more. In them the court has no power to pass upon the validity of any provisions made in the will. It can not decide, for
example, that a certain legacy is void and another one valid. ... (Castaneda v. Alemany, 3 Phil. 426)
The rule, however, is not inflexible and absolute. Given exceptional circumstances, the probate court is not powerless to
do what the situation constrains it to do and pass upon certain provisions of the Will.
In Nuguid v. Nuguid (17 SCRA 449) cited by the trial court, the testator instituted the petitioner as universal heir and
completely preterited her surviving forced heirs. A will of this nature, no matter how valid it may appear extrinsically, would
be null and void. Separate or latter proceedings to determine the intrinsic validity of the testamentary provisions would be
superfluous.
Even before establishing the formal validity of the will, the Court in Balanay .Jr. v. Martinez (64 SCRA 452) passed upon
the validity of its intrinsic provisions.
Invoking "practical considerations", we stated:
The basic issue is whether the probate court erred in passing upon the intrinsic validity of the will, before ruling on its
allowance or formal validity, and in declaring it void.
We are of the opinion that in view of certain unusual provisions of the will, which are of dubious legality, and because of
the motion to withdraw the petition for probate (which the lower court assumed to have been filed with the petitioner's
authorization) the trial court acted correctly in passing upon the will's intrinsic validity even before its formal validity had
been established. The probate of a will might become an Idle ceremony if on its face it appears to be intrinsically void.
Where practical considerations demand that the intrinsic validity of the will be passed upon, even before it is probated, the
court should meet the issue (Nuguid v. Nuguid, 64 O.G. 1527, 17 SCRA 449. Compare with Sumilang vs. Ramagosa L23135, December 26, 1967, 21 SCRA 1369; Cacho v. Udan L-19996, April 30, 1965, 13 SCRA 693).
There appears to be no more dispute at this time over the extrinsic validity of the Will. Both parties are agreed that the Will
of Martin Jugo was executed with all the formalities required by law and that the testator had the mental capacity to
execute his Will. The petitioner states that she completely agrees with the respondent court when in resolving the question
of whether or not the probate court correctly denied the probate of Martin Jugo's last Will and Testament, it ruled:
This being so, the will is declared validly drawn. (Page 4, Decision, Annex A of Petition.)
On the other hand the respondents pray for the affirmance of the Court of Appeals' decision in toto.
The only issue, therefore, is the jurisdiction of the respondent court to declare the testamentary provision in favor of the
petitioner as null and void.
We sustain the respondent court's jurisdiction. As stated in Nuguid v. Nuguid, (supra):
We pause to reflect. If the case were to be remanded for probate of the will, nothing will be gained. On the contrary, this
litigation will be protracted. And for aught that appears in the record, in the record, in the event of probate or if the court
rejects the will, probability exists that the case will come up once again before us on the same issue of the intrinsic validity

or nullity of the will. Result, waste of time, effort, expense, plus added anxiety. These are the practical considerations that
induce us to a belief that we might as well meet head-on the issue of the validity of the provisions of the will in question.
(Section 2, Rule 1, Rules of Court. Case, et al. v. Jugo, et al., 77 Phil. 517, 522). After all, there exists a justiciable
controversy crying for solution.
We see no useful purpose that would be served if we remand the nullified provision to the proper court in a separate
action for that purpose simply because, in the probate of a will, the court does not ordinarily look into the intrinsic validity
of its provisions.
Article 739 of the Civil Code provides:
The following donations shall be void:
(1) Those made between persons who were guilty of adultery or concubinage at the time of the donation;
(2) Those made between persons found guilty of the same criminal offense, in consideration thereof;
(3) Those made to a public officer or his wife, descendants and ascendants, by reason of his office.
In the case referred to in No. 1, the action for declaration of nullity may be brought by the spouse of the donor or donee;
and the guilt of the donor and donee may be proved by preponderance of evidence in the same action.
Article 1028 of the Civil Code provides:
The prohibitions mentioned in Article 739, concerning donations inter vivos shall apply to testamentary provisions.
In Article III of the disputed Will, executed on August 15, 1968, or almost six years before the testator's death on July 16,
1974, Martin Jugo stated that respondent Rufina Gomez was his legal wife from whom he had been estranged "for so
many years." He also declared that respondents Carmelita Jugo and Oscar Jugo were his legitimate children. In Article IV,
he stated that he had been living as man and wife with the petitioner since 1952. Testator Jugo declared that the petitioner
was entitled to his love and affection. He stated that Nepomuceno represented Jugo as her own husband but "in truth and
in fact, as well as in the eyes of the law, I could not bind her to me in the holy bonds of matrimony because of my
aforementioned previous marriage.
There is no question from the records about the fact of a prior existing marriage when Martin Jugo executed his Will.
There is also no dispute that the petitioner and Mr. Jugo lived together in an ostensible marital relationship for 22 years
until his death.
It is also a fact that on December 2, 1952, Martin Jugo and Sofia J. Nepomuceno contracted a marriage before the Justice
of the Peace of Victoria, Tarlac. The man was then 51 years old while the woman was 48. Nepomuceno now contends
that she acted in good faith for 22 years in the belief that she was legally married to the testator.
The records do not sustain a finding of innocence or good faith. As argued by the private respondents:
First. The last will and testament itself expressly admits indubitably on its face the meretricious relationship between the
testator and petitioner, the devisee.
Second. Petitioner herself initiated the presentation of evidence on her alleged ignorance of the true civil status of the
testator, which led private respondents to present contrary evidence.
In short, the parties themselves dueled on the intrinsic validity of the legacy given in the will to petitioner by the deceased
testator at the start of the proceedings.
Whether or not petitioner knew that testator Martin Jugo, the man he had lived with as man and wife, as already married,
was an important and specific issue brought by the parties before the trial court, and passed upon by the Court of
Appeals.
Instead of limiting herself to proving the extrinsic validity of the will, it was petitioner who opted to present evidence on her
alleged good faith in marrying the testator. (Testimony of Petitioner, TSN of August 1, 1982, pp. 56-57 and pp. 62-64).
Private respondents, naturally, presented evidence that would refute the testimony of petitioner on the point.
Sebastian Jugo, younger brother of the deceased testator, testified at length on the meretricious relationship of his brother
and petitioner. (TSN of August 18,1975).

Clearly, the good faith of petitioner was by option of the parties made a decisive issue right at the inception of the case.
Confronted by the situation, the trial court had to make a ruling on the question.
When the court a quo held that the testator Martin Jugo and petitioner 'were deemed guilty of adultery or concubinage', it
was a finding that petitioner was not the innocent woman she pretended to be.
xxx xxx xxx
3. If a review of the evidence must be made nonetheless, then private respondents respectfully offer the following
analysis:
FIRST: The secrecy of the marriage of petitioner with the deceased testator in a town in Tarlac where neither she nor the
testator ever resided. If there was nothing to hide from, why the concealment' ? Of course, it maybe argued that the
marriage of the deceased with private respondent Rufina Gomez was likewise done in secrecy. But it should be
remembered that Rufina Gomez was already in the family way at that time and it would seem that the parents of Martin
Jugo were not in favor of the marriage so much so that an action in court was brought concerning the marriage.
(Testimony of Sebastian Jugo, TSN of August 18, 1975, pp. 29-30)
SECOND: Petitioner was a sweetheart of the deceased testator when they were still both single. That would be in 1922 as
Martin Jugo married respondent Rufina Gomez on November 29, 1923 (Exh. 3). Petitioner married the testator only on
December 5, 1952. There was a space of about 30 years in between. During those 30 years, could it be believed that she
did not even wonder why Martin Jugo did not marry her nor contact her anymore after November, 1923 - facts that should
impel her to ask her groom before she married him in secrecy, especially so when she was already about 50 years old at
the time of marriage.
THIRD: The fact that petitioner broke off from Martin Jugo in 1923 is by itself conclusive demonstration that she new that
the man she had openly lived for 22 years as man and wife was a married man with already two children.
FOURTH: Having admitted that she knew the children of respondent Rufina Gomez, is it possible that she would not have
asked Martin Jugo whether or not they were his illegitimate or legitimate children and by whom? That is un-Filipino.
FIFTH: Having often gone to Pasig to the residence of the parents of the deceased testator, is it possible that she would
not have known that the mother of private respondent Oscar Jugo and Carmelita Jugo was respondent Rufina Gomez,
considering that the houses of the parents of Martin Jugo (where he had lived for many years) and that of respondent
Rufina Gomez were just a few meters away?
Such pretentions of petitioner Sofia Nepomuceno are unbelievable. They are, to say the least, inherently improbable, for
they are against the experience in common life and the ordinary instincts and promptings of human nature that a woman
would not bother at all to ask the man she was going to marry whether or not he was already married to another, knowing
that her groom had children. It would be a story that would strain human credulity to the limit if petitioner did not know that
Martin Jugo was already a married man in view of the irrefutable fact that it was precisely his marriage to respondent
Rufina Gomez that led petitioner to break off with the deceased during their younger years.
Moreover, the prohibition in Article 739 of the Civil Code is against the making of a donation between persons who are
living in adultery or concubinage. It is the donation which becomes void. The giver cannot give even assuming that the
recipient may receive. The very wordings of the Will invalidate the legacy because the testator admitted he was disposing
the properties to a person with whom he had been living in concubinage.
WHEREFORE, the petition is DISMISSED for lack of merit. The decision of the Court of Appeals, now Intermediate
Appellate Court, is AFFIRMED. No costs.
SO ORDERED.
[G.R. NO. 175720 : September 11, 2007]
CRESENCIANA TUBO RODRIGUEZ (now deceased), substituted by SUSANA A.
LLAGAS, Petitioner, v. EVANGELINE RODRIGUEZ, BELEN RODRIGUEZ and BUENAVENTURA
RODRIGUEZ, Respondents.
DECISION
YNARES-SANTIAGO, J.:

This Petition for Review on Certiorari assails the Decision1 of the Court of Appeals in CA-G.R. SP No. 91442 dated June
27, 2006, which set aside the Decision of the Regional Trial Court (RTC) of Makati City, Branch 134, in Civil Case No. 03517, and reinstated the Decision of the Metropolitan Trial Court (MTC) of Makati City, Branch 63, in Civil Case No. 75717,
dismissing the complaint for ejectment; as well as the Resolution denying the motion for reconsideration.
Juanito Rodriguez owned a five-door apartment located at San Jose Street, Guadalupe Nuevo, Makati City, and covered
by TCT No. 144865.2 On October 27, 1983, Juanito executed a "Huling Habilin at Testamento" giving petitioner
Cresenciana Tubo Rodriguez, his live-in partner, apartments D and E, and his children Benjamin Rodriguez (the deceased
husband of respondent Evangeline Rodriguez), apartment A, respondent Buenaventura Rodriguez, apartment B, and
respondent Belen Rodriguez, apartment C.3
However, on June 14, 1984, Juanito executed a Deed of Absolute Sale over the property in favor of petitioner. 4 Thus, TCT
No. 144865 was cancelled and a new TCT No. 150431 was issued in the name of the petitioner. 5
The case arose when petitioner filed on September 20, 2001 a complaint for unlawful detainer against the respondents,
alleging that she is the lawful and registered owner of the property; and that in 1984, she allowed respondents
Evangeline, Buenaventura and Belen, out of kindness and tolerance, to personally occupy units A, B and D, respectively.
However, without her knowledge and consent, respondents separately leased the units to Montano Magpantay, Mel
Navarro and Socorro Escota, who despite repeated demands, failed and refused to vacate the premises and to pay the
rentals thereof.6
In their Answer, respondents claimed ownership over the subject property by succession. They alleged that while
petitioner is the registered owner of the property, however, she is not the lawful owner thereof because the June 14, 1984
Deed of Absolute Sale was simulated and void. As in Civil Case No. 01-1641 now pending before the RTC of Makati City,
Branch 141, which they filed to assail the validity of the said sale, respondents maintain that petitioner exerted undue
influence over their father, who at that time was seriously ill, to agree to the sale of the property for only P20,000.00 after
knowing that only two apartments were given to her in the Huling Habilin at Testamento. Further, she had no cause of
action against them for being a party to the August 23, 1990 Partition Agreement wherein they recognized each other as
co-owners and partitioned the property in accordance with the provision of the last will and testament. 7
On February 26, 2002, the MTC rendered a judgment in favor of the respondents and held that the deed of sale was
simulated otherwise petitioner would not have entered into the Partition Agreement, which legally conferred upon each
heir exclusive ownership over their respective shares, thus:
WHEREFORE, the Complaint is DISMISSED. Plaintiff is ordered to pay attorney's fees of P10,000.00 and the costs of suit
in favor of defendants.
SO ORDERED.8
On appeal, the RTC reversed the decision of the MTC. It held that petitioner's certificate of title is a conclusive evidence of
ownership of the land described therein; and that unless and until said title has been annulled by a court of competent
jurisdiction, such title is existing and valid. This is true also with respect to the deed of sale. The present action, which
involves only the issue of physical or material possession, is not the proper action to challenge it. Further, the MTC erred
when it relied heavily on the "Huling Habilin at Testamento," which was not probated hence has no effect and no right can
be claimed therein. The Partition Agreement which was allegedly entered into pursuant to the Huling Habilin at
Testamento should not also be considered. Thus:
WHEREFORE, premises considered, the decision rendered by the Metropolitan Trial Court, Branch 63, Makati City, is
hereby ordered REVERSED AND SET ASIDE. Consequently, judgment is hereby rendered ordering the defendants and
all persons claiming rights under them to vacate the premises and surrender the possession thereof to the plaintiff.
Defendants are likewise ordered to pay jointly and severally the plaintiff an amount of P5,000.00 a month per unit
beginning 13 August 2001 until they finally vacate the premises and the costs of this suit.
SO ORDERED.9
Aggrieved, respondents filed a Petition for Review before the Court of Appeals which reversed and set aside the decision
of the RTC and reinstated the decision of the MTC. It held that the MTC correctly received evidence on ownership since
the question of possession could not be resolved without deciding the issue of ownership. Further, the Huling Habilin at
Testamento transmitted ownership of the specific apartments not only to the respondents but also to the petitioner; and
pursuant thereto, the parties executed the Partition Agreement in accordance with the wishes of the testator, thus:
WHEREFORE, this Court resolves to REVERSE and SET ASIDE the Decision of the Regional Trial Court. The decision
dated February 26, 2002 of the Metropolitan Trial Court, Branch 63, Makati City in Civil Case No. 75717 dismissing the
complaint for ejectment is hereby REINSTATED.

SO ORDERED.10
The motion for reconsideration was denied hence, petitioner filed the present Petition for Review raising the following
errors:
I.
THE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR OF LAW AND GRAVE ABUSE OF DISCRETION IN
REVERSING AND SETTING ASIDE THE DECISION OF THE REGIONAL TRIAL COURT AND REINSTATING THE
DECISION OF THE METROPOLITAN TRIAL COURT DISMISSING PETITIONER'S COMPLAINT FOR UNLAWFUL
DETAINER.
II.
THE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR OF LAW AND GRAVE ABUSE OF DISCRETION IN
DECLARING THAT THE PROPERTY, A PARCEL OF LAND UPON WHICH A FIVE-UNIT APARTMENT STANDS,
BECAME THE SUBJECT OF JUANITO RODRIGUEZ'S HULING HABILIN AT TESTAMENTO WHEREIN THE
PROPERTY WAS DISTRIBUTED TO HIS HEIRS (HEREIN RESPONDENTS) INCLUDING THE RESPONDENT
(PETITIONER HEREIN).11
Petitioner alleges that as the registered owner of the subject property, she enjoys the right of possession thereof and that
question of ownership cannot be raised in an ejectment case unless it is intertwined with the issue of possession. While
the court may look into the evidence of title or ownership and possession de jure to determine the nature of possession, it
cannot resolve the issue of ownership because the resolution of said issue would effect an adjudication on ownership
which is not proper in the summary action for unlawful detainer. Petitioner insists that the Court of Appeals erred in ruling
that the Huling Habilin at Testamento transmitted ownership of the specific apartments disregarding the fact that the same
is not probated yet and that the testator changed or revoked his will by selling the property to petitioner prior to his death.
Contrarily, respondents pray that the instant Petition for Review be dismissed since the resolution of the question of
ownership by the MTC and the Court of Appeals was provisional only to resolve the issue of possession. Petitioner can
always avail of legal remedies to have the issue of ownership passed upon by the proper court. Aware of the provisional
nature of the resolution on ownership in ejectment cases, respondents filed Civil Case No. 01-1641 to assail the validity of
the deed of sale of the property and the registration thereof in petitioner's name.
The petition has merit.
An action for unlawful detainer exists when a person unlawfully withholds possession of any land or building against or
from a lessor, vendor, vendee or other persons, after the expiration or termination of the right to hold possession, by virtue
of any contract, express or implied.12 The sole issue to be resolved is the question as to who is entitled to the physical or
material possession of the premises or possession de facto. 13 Being a summary proceeding intended to provide an
expeditious means of protecting actual possession or right to possession of property, the question of title is not
involved14 and should be raised by the affected party in an appropriate action in the proper court. 15
However, when the issue of ownership is raised the court is not ousted of its jurisdiction. Section 16 of Rule 70 of the
Rules of Court provides:
SEC 16. Resolving defense of ownership. - When the defendant raises the defense of ownership in his pleadings and the
question of possession cannot be resolved without deciding the issue of ownership, the issue of ownership shall be
resolved only to determine the issue of possession.
Thus, all that the trial court can do is to make an initial determination of who is the owner of the property so that it can
resolve who is entitled to its possession absent other evidence to resolve ownership. 16 But this adjudication is only
provisional and does not bar or prejudice an action between the same parties involving title to the property. 17
In the case at bar, petitioner's cause of action for unlawful detainer was based on her alleged ownership of land covered
by TCT No. 150431 and that she merely tolerated respondents' stay thereat. However, when respondents leased the
apartments to other persons without her consent, their possession as well as those persons claiming right under them
became unlawful upon their refusal to vacate the premises and to pay the rent. On the other hand, respondents assailed
petitioner's title by claiming that the deed of sale upon which it was based was simulated and void. They insisted that they
were co-owners thus, they have the right to possess the said property. To prove their claim, they presented the Huling
Habilin at Testamento of Juanito Rodriguez and the Partition Agreement.
The lower courts considered the following documentary evidence in arriving at their respective decisions, albeit the RTC
decision contradicts that of the MTC and Court of Appeals: 1) Huling Habilin at Testamento executed by Juanito Rodriguez

on October 27, 1983; 2) Deed of Sale of the property executed by Juanito Rodriguez and the petitioner on June 14, 1984;
3) TCT No. 150431 in the name of the petitioner; and 4) the August 23, 1990 Partition Agreement executed by both the
respondents and the petitioner.
Based on the foregoing documentary evidence, we find that there is preponderance of evidence in favor of the petitioner's
claim. Respondents failed to prove their right of possession, as the Huling Habilin at Testamento and the Partition
Agreement have no legal effect since the will has not been probated. Before any will can have force or validity it must be
probated. This cannot be dispensed with and is a matter of public policy.18 Article 838 of the Civil Code mandates that
"[n]o will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court."
As the will was not probated, the Partition Agreement which was executed pursuant thereto can not be given effect. Thus,
the fact that petitioner was a party to said agreement becomes immaterial in the determination of the issue of possession.
Moreover, at the time the deed of sale was executed in favor of the petitioner, Juanito Rodriguez remained the owner
thereof since ownership would only pass to his heirs at the time of his death. Thus, as owner of the property, he had the
absolute right to dispose of it during his lifetime. Now, whether or not the disposition was valid is an issue that can be
resolved only in Civil Case No. 01-1641, an action instituted by the respondents for that purpose.
We are, thus, left with the deed of sale and the certificate of title over the property to consider.
We agree with the RTC that a certificate of title is a conclusive evidence of ownership of the land described therein; the
validity of which shall not be subject to a collateral attack, especially in an ejectment case which is summary in nature.
In Ross Rica Sales Center, Inc. v. Ong,19 the Court held that:
The long settled rule is that the issue of ownership cannot be subject of a collateral attack.
In Apostol v. Court of Appeals, this Court had the occasion to clarify this:
. . . Under Section 48 of Presidential Decree No. 1529, a certificate of title shall not be subject to collateral attack. It
cannot be altered, modified or cancelled, except in a direct proceeding for that purpose in accordance with law. The issue
of the validity of the title of the respondents can only be assailed in an action expressly instituted for that purpose.
Whether or not the petitioners have the right to claim ownership over the property is beyond the power of the court a quo
to determine in an action for unlawful detainer.
Further, in Co v. Militar,20 it was held that:
[T]he Torrens System was adopted in this country because it was believed to be the most effective measure to guarantee
the integrity of land titles and to protect their indefeasibility once the claim of ownership is established and recognized.
It is settled that a Torrens Certificate of title is indefeasible and binding upon the whole world unless and until it has been
nullified by a court of competent jurisdiction. Under existing statutory and decisional law, the power to pass upon the
validity of such certificate of title at the first instance properly belongs to the Regional Trial Courts in a direct proceeding
for cancellation of title.rbl r l l lbrr
As the registered owner, petitioner had a right to the possession of the property, which is one of the attributes of
ownership. x x x
We emphasize, however, that our ruling on the issue of ownership is only provisional to determine who between the
parties has the better right of possession. It is, therefore, not conclusive as to the issue of ownership, which is the subject
matter of Civil Case No. 01-1641. Our ruling that petitioner has a better right of possession was arrived at on the basis of
evidence without prejudice to the eventual outcome of the annulment case, where the issue as to who has title to the
property in question is fully threshed out. As the law now stands, in an ejectment suit, the question of ownership may be
provisionally ruled upon for the sole purpose of determining who is entitled to possession de facto.
WHEREFORE, in view of the foregoing, the Decision of the Court of Appeals in CA-G.R. SP No. 91442 dated June 27,
2006 is REVERSED and SET ASIDE. The Decision of the Regional Trial Court of Makati City, Branch 134, in Civil Case
No. 03-517, reversing the Decision of the Metropolitan Trial Court (MTC) of Makati City, Branch 63, in Civil Case No.
75717, is REINSTATED.
SO ORDERED.