G.R. No.

L-54919 May 30, 1984

POLLY CAYETANO, petitioner,

vs.
HON. TOMAS T. LEONIDAS, in his capacity as the Presiding Judge of Branch XXXVIII, Court
of First Instance of Manila and NENITA CAMPOS PAGUIA, respondents.

Ermelo P. Guzman for petitioner.

Armando Z. Gonzales for private respondent.

GUTIERREZ, JR., J.:

This is a petition for review on certiorari, seeking to annul the order of the respondent judge of the
Court of First Instance of Manila, Branch XXXVIII, which admitted to and allowed the probate of the
last will and testament of Adoracion C. Campos, after an ex-parte presentation of evidence by herein
private respondent.

On January 31, 1977, Adoracion C. Campos died, leaving her father, petitioner Hermogenes
Campos and her sisters, private respondent Nenita C. Paguia, Remedios C. Lopez and Marieta C.
Medina as the surviving heirs. As Hermogenes Campos was the only compulsory heir, he executed
an Affidavit of Adjudication under Rule 74, Section I of the Rules of Court whereby he adjudicated
unto himself the ownership of the entire estate of the deceased Adoracion Campos.

Eleven months after, on November 25, 1977, Nenita C. Paguia filed a petition for the reprobate of a
will of the deceased, Adoracion Campos, which was allegedly executed in the United States and for
her appointment as administratrix of the estate of the deceased testatrix.

In her petition, Nenita alleged that the testatrix was an American citizen at the time of her death and
was a permanent resident of 4633 Ditman Street, Philadelphia, Pennsylvania, U.S.A.; that the
testatrix died in Manila on January 31, 1977 while temporarily residing with her sister at 2167
Leveriza, Malate, Manila; that during her lifetime, the testatrix made her last wig and testament on
July 10, 1975, according to the laws of Pennsylvania, U.S.A., nominating Wilfredo Barzaga of New
Jersey as executor; that after the testatrix death, her last will and testament was presented,
probated, allowed, and registered with the Registry of Wins at the County of Philadelphia, U.S.A.,
that Clement L. McLaughlin, the administrator who was appointed after Dr. Barzaga had declined
and waived his appointment as executor in favor of the former, is also a resident of Philadelphia,
U.S.A., and that therefore, there is an urgent need for the appointment of an administratrix to
administer and eventually distribute the properties of the estate located in the Philippines.

On January 11, 1978, an opposition to the reprobate of the will was filed by herein petitioner alleging
among other things, that he has every reason to believe that the will in question is a forgery; that the
intrinsic provisions of the will are null and void; and that even if pertinent American laws on intrinsic
provisions are invoked, the same could not apply inasmuch as they would work injustice and injury
to him.

On December 1, 1978, however, the petitioner through his counsel, Atty. Franco Loyola, filed a
Motion to Dismiss Opposition (With Waiver of Rights or Interests) stating that he "has been able to
verify the veracity thereof (of the will) and now confirms the same to be truly the probated will of his
daughter Adoracion." Hence, an ex-partepresentation of evidence for the reprobate of the
questioned will was made.

On January 10, 1979, the respondent judge issued an order, to wit:

At the hearing, it has been satisfactorily established that Adoracion C. Campos, in

her lifetime, was a citizen of the United States of America with a permanent
residence at 4633 Ditman Street, Philadelphia, PA 19124, (Exhibit D) that when
alive, Adoracion C. Campos executed a Last Will and Testament in the county of
Philadelphia, Pennsylvania, U.S.A., according to the laws thereat (Exhibits E-3 to E-
3-b) that while in temporary sojourn in the Philippines, Adoracion C. Campos died in
the City of Manila (Exhibit C) leaving property both in the Philippines and in the
United States of America; that the Last Will and Testament of the late Adoracion C.
Campos was admitted and granted probate by the Orphan's Court Division of the
Court of Common Pleas, the probate court of the Commonwealth of Pennsylvania,
County of Philadelphia, U.S.A., and letters of administration were issued in favor of
Clement J. McLaughlin all in accordance with the laws of the said foreign country on
procedure and allowance of wills (Exhibits E to E-10); and that the petitioner is not
suffering from any disqualification which would render her unfit as administratrix of
the estate in the Philippines of the late Adoracion C. Campos.

WHEREFORE, the Last Will and Testament of the late Adoracion C. Campos is
hereby admitted to and allowed probate in the Philippines, and Nenita Campos
Paguia is hereby appointed Administratrix of the estate of said decedent; let Letters
of Administration with the Will annexed issue in favor of said Administratrix upon her
filing of a bond in the amount of P5,000.00 conditioned under the provisions of
Section I, Rule 81 of the Rules of Court.

Another manifestation was filed by the petitioner on April 14, 1979, confirming the withdrawal of his
opposition, acknowledging the same to be his voluntary act and deed.

On May 25, 1979, Hermogenes Campos filed a petition for relief, praying that the order allowing the
will be set aside on the ground that the withdrawal of his opposition to the same was secured
through fraudulent means. According to him, the "Motion to Dismiss Opposition" was inserted among
the papers which he signed in connection with two Deeds of Conditional Sales which he executed
with the Construction and Development Corporation of the Philippines (CDCP). He also alleged that
the lawyer who filed the withdrawal of the opposition was not his counsel-of-record in the special
proceedings case.

The petition for relief was set for hearing but the petitioner failed to appear. He made several
motions for postponement until the hearing was set on May 29, 1980.

On May 18, 1980, petitioner filed another motion entitled "Motion to Vacate and/or Set Aside the
Order of January 10, 1979, and/or dismiss the case for lack of jurisdiction. In this motion, the notice
of hearing provided:

Please include this motion in your calendar for hearing on May 29, 1980 at 8:30 in
the morning for submission for reconsideration and resolution of the Honorable
Court. Until this Motion is resolved, may I also request for the future setting of the
case for hearing on the Oppositor's motion to set aside previously filed.
The hearing of May 29, 1980 was re-set by the court for June 19, 1980. When the case was called
for hearing on this date, the counsel for petitioner tried to argue his motion to vacate instead of
adducing evidence in support of the petition for relief. Thus, the respondent judge issued an order
dismissing the petition for relief for failure to present evidence in support thereof. Petitioner filed a
motion for reconsideration but the same was denied. In the same order, respondent judge also
denied the motion to vacate for lack of merit. Hence, this petition.

Meanwhile, on June 6,1982, petitioner Hermogenes Campos died and left a will, which, incidentally
has been questioned by the respondent, his children and forced heirs as, on its face, patently null
and void, and a fabrication, appointing Polly Cayetano as the executrix of his last will and testament.
Cayetano, therefore, filed a motion to substitute herself as petitioner in the instant case which was
granted by the court on September 13, 1982.

A motion to dismiss the petition on the ground that the rights of the petitioner Hermogenes Campos
merged upon his death with the rights of the respondent and her sisters, only remaining children and
forced heirs was denied on September 12, 1983.

Petitioner Cayetano persists with the allegations that the respondent judge acted without or in
excess of his jurisdiction when:

1) He ruled the petitioner lost his standing in court deprived the Right to Notice (sic)
upon the filing of the Motion to Dismiss opposition with waiver of rights or interests
against the estate of deceased Adoracion C. Campos, thus, paving the way for the
hearing ex-parte of the petition for the probate of decedent will.

2) He ruled that petitioner can waive, renounce or repudiate (not made in a public or
authenticated instrument), or by way of a petition presented to the court but by way
of a motion presented prior to an order for the distribution of the estate-the law
especially providing that repudiation of an inheritance must be presented, within 30
days after it has issued an order for the distribution of the estate in accordance with
the rules of Court.

3) He ruled that the right of a forced heir to his legitime can be divested by a decree
admitting a will to probate in which no provision is made for the forced heir in
complete disregard of Law of Succession

4) He denied petitioner's petition for Relief on the ground that no evidence was
adduced to support the Petition for Relief when no Notice nor hearing was set to
afford petitioner to prove the merit of his petition a denial of the due process and a
grave abuse of discretion amounting to lack of jurisdiction.

5) He acquired no jurisdiction over the testate case, the fact that the Testator at the
time of death was a usual resident of Dasmarias, Cavite, consequently Cavite Court
of First Instance has exclusive jurisdiction over the case (De Borja vs. Tan, G.R. No.
L-7792, July 1955).

The first two issues raised by the petitioner are anchored on the allegation that the respondent judge
acted with grave abuse of discretion when he allowed the withdrawal of the petitioner's opposition to
the reprobate of the will.

We find no grave abuse of discretion on the part of the respondent judge. No proof was adduced to
support petitioner's contention that the motion to withdraw was secured through fraudulent means
and that Atty. Franco Loyola was not his counsel of record. The records show that after the firing of
the contested motion, the petitioner at a later date, filed a manifestation wherein he confirmed that
the Motion to Dismiss Opposition was his voluntary act and deed. Moreover, at the time the motion
was filed, the petitioner's former counsel, Atty. Jose P. Lagrosa had long withdrawn from the case
and had been substituted by Atty. Franco Loyola who in turn filed the motion. The present petitioner
cannot, therefore, maintain that the old man's attorney of record was Atty. Lagrosa at the time of
filing the motion. Since the withdrawal was in order, the respondent judge acted correctly in hearing
the probate of the will ex-parte, there being no other opposition to the same.

The third issue raised deals with the validity of the provisions of the will. As a general rule, the
probate court's authority is limited only to the extrinsic validity of the will, the due execution thereof,
the testatrix's testamentary capacity and the compliance with the requisites or solemnities prescribed
by law. The intrinsic validity of the will normally comes only after the court has declared that the will
has been duly authenticated. However, 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.
(Maninang vs. Court of Appeals, 114 SCRA 478).

In the case at bar, the petitioner maintains that since the respondent judge allowed the reprobate of
Adoracion's will, Hermogenes C. Campos was divested of his legitime which was reserved by the
law for him.

This contention is without merit.

Although on its face, the will appeared to have preterited the petitioner and thus, the respondent
judge should have denied its reprobate outright, the private respondents have sufficiently
established that Adoracion was, at the time of her death, an American citizen and a permanent
resident of Philadelphia, Pennsylvania, U.S.A. Therefore, under Article 16 par. (2) and 1039 of the
Civil Code which respectively provide:

Art. 16 par. (2).

xxx xxx xxx

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

Art. 1039.

Capacity to succeed is governed by the law of the nation of the decedent.

the law which governs Adoracion Campo's will is the law of Pennsylvania, U.S.A., which is the
national law of the decedent. Although the parties admit that the Pennsylvania law does not provide
for legitimes and that all the estate may be given away by the testatrix to a complete stranger, the
petitioner argues that such law should not apply because it would be contrary to the sound and
established public policy and would run counter to the specific provisions of Philippine Law.
It is a settled rule that as regards the intrinsic validity of the provisions of the will, as provided for by
Article 16(2) and 1039 of the Civil Code, the national law of the decedent must apply. This was
squarely applied in the case of Bellis v. Bellis (20 SCRA 358) wherein we ruled:

It is therefore evident that whatever public policy or good customs may be involved in
our system of legitimes, Congress has not intended to extend the same to the
succession of foreign nationals. For it has specifically chosen to leave, inter alia, the
amount of successional rights, to the decedent's national law. Specific provisions
must prevail over general ones.

xxx xxx xxx

The parties admit that the decedent, Amos G. Bellis, was a citizen of the State of
Texas, U.S.A., and under the law of Texas, there are no forced heirs or legitimes.
Accordingly, since the intrinsic validity of the provision of the will and the amount of
successional rights are to be determined under Texas law, the Philippine Law on
legitimes cannot be applied to the testacy of Amos G. Bellis.

As regards the alleged absence of notice of hearing for the petition for relief, the records wig bear
the fact that what was repeatedly scheduled for hearing on separate dates until June 19, 1980 was
the petitioner's petition for relief and not his motion to vacate the order of January 10, 1979. There is
no reason why the petitioner should have been led to believe otherwise. The court even admonished
the petitioner's failing to adduce evidence when his petition for relief was repeatedly set for hearing.
There was no denial of due process. The fact that he requested "for the future setting of the case for
hearing . . ." did not mean that at the next hearing, the motion to vacate would be heard and given
preference in lieu of the petition for relief. Furthermore, such request should be embodied in a
motion and not in a mere notice of hearing.

Finally, we find the contention of the petition as to the issue of jurisdiction utterly devoid of merit.
Under Rule 73, Section 1, of the Rules of Court, it is provided that:

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 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. 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.

Therefore, the settlement of the estate of Adoracion Campos was correctly filed with the Court of
First Instance of Manila where she had an estate since it was alleged and proven that Adoracion at
the time of her death was a citizen and permanent resident of Pennsylvania, United States of
America and not a "usual resident of Cavite" as alleged by the petitioner. Moreover, petitioner is now
estopped from questioning the jurisdiction of the probate court in the petition for relief. It is a settled
rule that a party cannot invoke the jurisdiction of a court to secure affirmative relief, against his
opponent and after failing to obtain such relief, repudiate or question that same jurisdiction. (See
Saulog Transit, Inc. vs. Hon. Manuel Lazaro, et al., G. R. No. 63 284, April 4, 1984).
WHEREFORE, the petition for certiorari and prohibition is hereby dismissed for lack of merit.

SO ORDERED.

G.R. No. L-40502 November 29, 1976

VIRGINIA GARCIA FULE, and HONORABLE SEVERO A. MALVAR, Presiding Judge, Court of
First Instance of Laguna, Branch Vl, petitioners,
vs.
THE HONORABLE COURT OF APPEALS, * PRECIOSA B. GARCIA and AGUSTINA B.
GARCIA, respondents.

G.R. No. L-42670 November 29, 1976

VIRGINIA GARCIA FULE, petitioner,

vs.
HONORABLE ERNANI C. PAO, Presiding Judge of Court of First Instance of Rizal, Quezon
City, Branch XVIII, and PRECIOSA B. GARCIA, respondents.

Francisco Carreon for petitioners.

Augusto G. Gatmaytan for private respondents.

MARTIN, J.:

These two interrelated cases bring to Us the question of what the word "resides" in Section 1,
Rule 73 of the Revised Rules Of Court, referring to the situs of the settlement of the estate of
deceased persons, means. Additionally, the rule in the appointment of a special administrator
is sought to be reviewed.

On May 2, 1973, Virginia G. Fule filed with the Court of First Instance of Laguna, at Calamba,
presided over by Judge Severo A. Malvar, a petition for letters of administration, docketed as
Sp. Proc. No. 27-C, alleging, inter alia, "that on April 26, 1973, Amado G. Garcia, a property
owner of Calamba, Laguna, died intestate in the City of Manila, leaving real estate and
personal properties in Calamba, Laguna, and in other places, within the jurisdiction of the
Honorable Court." At the same time, she moved
ex parte for her appointment as special administratrix over the estate. On even date, May 2,
1973, Judge Malvar granted the motion.

A motion for reconsideration was filed by Preciosa B. Garcia on May 8, 1973, contending that
the order appointing Virginia G. Fule as special administratrix was issued without
jurisdiction, since no notice of the petition for letters of administration has been served upon
all persons interested in the estate; there has been no delay or cause for delay in the
proceedings for the appointment of a regular administrator as the surviving spouse of Amado
G. Garcia, she should be preferred in the appointment of a special administratrix; and,
Virginia G. Fule is a debtor of the estate of Amado G. Garcia. Preciosa B. Garcia, therefore,
prayed that she be appointed special administratrix of the estate, in lieu of Virginia G. Fule,
and as regular administratrix after due hearing.
While this reconsideration motion was pending resolution before the Court, Preciosa B.
Garcia filed on May 29, 1973 a motion to remove Virginia G. Fule as special administratrix
alleging, besides the jurisdictional ground raised in the motion for reconsideration of May 8,
1973 that her appointment was obtained through erroneous, misleading and/or incomplete
misrepresentations; that Virginia G. Fule has adverse interest against the estate; and that she
has shown herself unsuitable as administratrix and as officer of the court.

In the meantime, the notice of hearing of the petition for letters of administration filed by
Virginia G. Fule with the Court of First Instance of Calamba, Laguna, was published on May
17, 24, and 31, 1973, in the Bayanihan, a weekly publication of general circulation in Southern
Luzon.

On June 6, 1973, Preciosa B. Garcia received a "Supplemental Petition for the Appointment of
Regular Administrator ' filed by Virginia G. Fule. This supplemental petition modified the
original petition in four aspects: (1) the allegation that during the lifetime of the deceased
Amado G. Garcia, he was elected as Constitutional Delegate for the First District of Laguna
and his last place of residence was at Calamba, Laguna; (2) the deletion of the names of
Preciosa B. Garcia and Agustina Garcia as legal heirs of Amado G. Garcia; (3) the allegation
that Carolina Carpio, who was simply listed as heir in the original petition, is the surviving
spouse of Amado G. Garcia and that she has expressly renounced her preferential right to
the administration of the estate in favor of Virginia G. Fule; and (4) that Virginia G. Fule be
appointed as the regular administratrix. The admission of this supplemental petition was
opposed by Preciosa B. Garcia for the reason, among others, that it attempts to confer
jurisdiction on the Court of First Instance of Laguna, of which the court was not possessed at
the beginning because the original petition was deficient.

On July 19, 1973, Preciosa B. Garcia filed an opposition to the original and supplemental
petitions for letters of administration, raising the issues of jurisdiction, venue, lack of interest
of Virginia G. Fule in the estate of Amado G. Garcia, and disqualification of Virginia G Fule as
special administratrix.

An omnibus motion was filed by Virginia G. Fule on August 20, 1973, praying for authority to
take possession of properties of the decedent allegedly in the hands of third persons as well
as to secure cash advances from the Calamba Sugar Planters Cooperative Marketing
Association, Inc. Preciosa B. Garcia opposed the motion, calling attention to the limitation
made by Judge Malvar on the power of the special administratrix, viz., "to making an
inventory of the personal and real properties making up the state of the deceased."

However, by July 2, 1973, Judge Malvar and already issued an order, received by Preciosa B.
Garcia only on July 31, 1973, denying the motion of Preciosa B. Garcia to reconsider the
order of May 2, 1973, appointing Virginia G. Fule as special administratrix, and admitting the
supplementation petition of May 18,1973.

On August 31, 1973, Preciosa B. Garcia moved to dismiss the petition, because (1)
jurisdiction over the petition or over the parties in interest has not been acquired by the
court; (2) venue was improperly laid; and (3) Virginia G. Fule is not a party in interest as she
is not entitled to inherit from the deceased Amado G. Garcia.

On September 28, 1973, Preciosa B. Garcia filed a supplemental motion to substitute Virginia
G. Fule as special administratrix, reasoning that the said Virginia G. Fule admitted before
before the court that she is a full-blooded sister of Pablo G. Alcalde, an illegitimate son of
Andrea Alcalde, with whom the deceased Amado G. Garcia has no relation.
Three motions were filed by Preciosa B. Garcia on November 14, 1973, one, to enjoin the
special administratrix from taking possession of properties in the hands of third persons
which have not been determined as belonging to Amado G. Garcia; another, to remove the
special administratrix for acting outside her authority and against the interest of the estate;
and still another, filed in behalf of the minor Agustina B. Garcia, to dismiss the petition for
want of cause of action, jurisdiction, and improper venue.

On November 28, 1973, Judge Malvar resolved the pending omnibus motion of Virgina G.
Fule and the motion to dismiss filed by Preciosa B. Garcia. Resolving the motion to dismiss,
Judge Malvar ruled that the powers of the special administratrix are those provided for in
Section 2, Rule 80 of the Rules of Court, 1subject only to the previous qualification made by
the court that the administration of the properties subject of the marketing agreement with
the Canlubang Sugar Planters Cooperative Marketing Association should remain with the
latter; and that the special administratrix had already been authorized in a previous order of
August 20, 1973 to take custody and possession of all papers and certificates of title and
personal effects of the decedent with the Canlubang Sugar Planters Cooperative Marketing
Association, Inc. Ramon Mercado, of the Canlubang Sugar Planters Cooperative Marketing
Association, Inc., was ordered to deliver to Preciosa B. Garcia all certificates of title in her
name without any qualifying words like "married to Amado Garcia" does not appear.
Regarding the motion to dismiss, Judge Malvar ruled that the issue of jurisdiction had
already been resolved in the order of July 2, 1973, denying Preciosa B. Garcia's motion to
reconsider the appointment of Virginia G. Fule and admitting the supplemental petition, the
failure of Virginia G. Fule to allege in her original petition for letters of administration in the
place of residence of the decedent at the time of his death was cured. Judge Malvar further
held that Preciosa B. Garcia had submitted to the jurisdiction of the court and had waived her
objections thereto by praying to be appointed as special and regular administratrix of the
estate.

An omnibus motion was filed by Preciosa B. Garcia on December 27, 1973 to clarify or
reconsider the foregoing order of Judge Malvar, in view of previous court order limiting the
authority of the special administratrix to the making of an inventory. Preciosa B. Garcia also
asked for the resolution of her motion to dismiss the petitions for lack of cause of action, and
also that filed in behalf of Agustina B. Garcia. Resolution of her motions to substitute and
remove the special administratrix was likewise prayed for.

On December 19, 1973, Judge Malvar issued two separate orders, the first, denying Preciosa
B. Garcia's motions to substitute and remove the special administratrix, and the second,
holding that the power allowed the special administratrix enables her to conduct and submit
an inventory of the assets of the estate.

On January 7, 1974, Preciosa B. Garcia moved for reconsideration of the foregoing orders of
November 28, 1973 and December 19, 1973, insofar as they sustained or failed to rule on the
issues raised by her: (a) legal standing (cause of action) of Virginia G. Fule; (b) venue; (c)
jurisdiction; (d) appointment, qualification and removal of special administratrix; and (e)
delivery to the special administratrix of checks and papers and effects in the office of the
Calamba Sugar Planters Cooperative Marketing Association, Inc.

On March 27, 1973, Judge Malvar issued the first questioned order denying Preciosa B.
Garcia's motion for reconsideration of January 7, 1974. On July 19, 1974, Judge Malvar
issued the other three questioned orders: one, directing Ramon Mercado, of the Calamba
Sugar Planters Cooperative Marketing Association, Inc., to furnish Virginia G. Fule, as special
administratrix, copy of the statement of accounts and final liquidation of sugar pool, as well
as to deliver to her the corresponding amount due the estate; another, directing Preciosa B.
Garcia to deliver to Virginia G. Fule two motor vehicles presumably belonging to the estate;
and another, directing Ramon Mercado to deliver to the court all certificates of title in his
possession in the name of Preciosa B. Garcia, whether qualified with the word "single" or
"married to Amado Garcia."

During the hearing of the various incidents of this case (Sp. Proc. 27-C) before Judge
Malvar, 2 Virginia G. Fule presented the death certificate of Amado G. Garcia showing that his
residence at the time of his death was Quezon City. On her part, Preciosa B. Garcia presented
the residence certificate of the decedent for 1973 showing that three months before his death
his residence was in Quezon City. Virginia G. Fule also testified that Amado G. Garcia was
residing in Calamba, Laguna at the time of his death, and that he was a delegate to the 1971
Constitutional Convention for the first district of Laguna.

On July 26, 1974, Preciosa B. Garcia and Agustina B. Garcia commenced a special action for
certiorari and/or prohibition and preliminary injunction before the Court of Appeals, docketed
as CA-G.R. No. 03221-SP. primarily to annul the proceedings before Judge Malvar in Sp. Proc.
No. 27-C of the Court of First Instance of Laguna, or, in the alternative, to vacate the
questioned four orders of that court, viz., one dated March 27, 1974, denying their motion for
reconsideration of the order denying their motion to dismiss the criminal and supplemental
petitions on the issue, among others, of jurisdiction, and the three others, all dated July 19,
1974, directing the delivery of certain properties to the special administratrix, Virginia G. Fule,
and to the court.

On January 30, 1975, the Court of Appeals rendered judgment annulling the proceedings
before Judge Severo A. Malvar in Sp. Proc. 27-C of the Court of First Instance of Calamba,
Laguna, for lack of jurisdiction.

Denied of their motion for reconsideration on March 31, 1975, Virginia G. Fule forthwith
elevated the matter to Us on appeal by certiorari. The case was docketed as G.R. No. L-40502.

However, even before Virginia G. Fule could receive the decision of the Court of Appeals,
Preciosa B. Garcia had already filed on February 1, 1975 a petition for letters of
administration before the Court of First Instance of Rizal, Quezon City Branch, docketed as
Sp. Proc. No. Q-19738, over the same intestate estate of Amado G. Garcia. On February 10,
1975, Preciosa B. Garcia urgently moved for her appointment as special administratrix of the
estate. Judge Vicente G. Ericta granted the motion and appointed Preciosa B. Garcia as
special administratrix upon a bond of P30,000.00. Preciosa B. Garcia qualified and assumed
the office.

For the first time, on February 14, 1975, Preciosa B. Garcia informed Judge Ericta of the
pendency of Sp. Proc. No. 27-C before Judge Malvar of the Court of First Instance of Laguna,
and the annulment of the proceedings therein by the Court of Appeals on January 30, 1975.
She manifested, however, her willingness to withdraw Sp. Proc. Q-19738 should the decision
of the Court of Appeals annulling the proceedings before the Court of First Instance of
Laguna in Sp. Proc. No. 27-C have not yet become final, it being the subject of a motion for
reconsideration.

On March 10, 1973, Judge Ericta ordered the suspension of the proceedings before his court
until Preciosa B. Garcia inform the court of the final outcome of the case pending before the
Court of Appeals. This notwithstanding, Preciosa B. Garcia filed on December 11, 1975, an
"Urgent Petition for Authority to Pay Estate Obligations."
On December 13, 1975, Virginia G. Fule filed a "Special Appearance to Question Venue and
Jurisdiction" reiterating the grounds stated in the previous special appearance of March 3,
1975, and calling attention that the decision of the Court of Appeals and its resolution
denying the motion for reconsideration had been appealed to this Court; that the parties had
already filed their respective briefs; and that the case is still pending before the Court.

On December 17, 1975, Judge Ernani Cruz Pano, who succeeded Judge Ericta, issued an
order granting Preciosa B. Garcia's "Urgent Petition for Authority to Pay Estate Obligations"
in that the payments were for the benefit of the estate and that there hangs a cloud of doubt
on the validity of the proceedings in Sp. Proc. No. 27-C of the Court of First Instance of
Laguna.

A compliance of this Order was filed by Preciosa B. Garcia on January 12,1976.

On February 4,1974, VIRGINIA G. FULE instituted G.R. No. L-42670, a petition for certiorari
with temporary restraining order, to annul the proceedings in Sp. Proc. No. Q-19738 and to
restrain Judge Ernani Cruz Pao from further acting in the case. A restraining order was
issued on February 9, 1976.

We dismiss the appeal in G.R. No. L-40502 and the petition for certiorari in G.R. No. L-
42670 for the reasons and considerations hereinafter stated.

1. Section 1, Rule 73 of the Revised Rules of Court provides: "If the decedent is an inhabitant
of the Philippines at the time of his death, whether a citizen or an alien, his will shall be
proved, or letters of administration granted, and his estate settled, in the Court of First
Instance in the province in which he resides at the time of his death, and if he is an inhabitant
of a foreign country, the Court of First Instance of any province in which he had estate. The
court first taking cognizance of the settlement of the estate of a decedent, shall exercise
jurisdiction to the exclusion of all other courts. The jurisdiction assumed by a court, so far as
it depends on the place of residence of the decedent, or of the location of his estate, shall not
be contested in a suit or proceeding, except in an appeal from that court, in the original case,
or when the want of jurisdiction appears on the record." With particular regard to letters of
administration, Section 2, Rule 79 of the Revised Rules of Court demands that the petition
therefor should affirmatively show the existence of jurisdiction to make the appointment
sought, and should allege all the necessary facts, such as death, the name and last
residence of the decedent, the existence, and situs if need be, of assets, intestacy, where this
is relied upon, and the right of the person who seeks administration, as next of kin, creditor,
or otherwise, to be appointed. The fact of death of the intestate and his last residence within
the country are foundation facts upon which all subsequent proceedings in the
administration of the estate rest, and that if the intestate was not an inhabitant of the state at
the time of his death, and left no assets in the state, no jurisdiction is conferred on the court
to grant letters of administration. 3

The aforequoted Section 1, Rule 73 (formerly Rule 75, Section 1), specifically the clause "so far as it
depends on the place of residence of the decedent, or of the location of the estate," is in reality a
matter of venue, as the caption of the Rule indicates: "Settlement of Estate of Deceased
Persons. Venue and Processes. 4 It could not have been intended to define the jurisdiction over the
subject matter, because such legal provision is contained in a law of procedure dealing merely with
procedural matters. Procedure is one thing; jurisdiction over the subject matter is another. The
power or authority of the court over the subject matter "existed and was fixed before procedure in a
given cause began." That power or authority is not altered or changed by procedure, which simply
directs the manner in which the power or authority shall be fully and justly exercised. There are
cases though that if the power is not exercised conformably with the provisions of the procedural
law, purely, the court attempting to exercise it loses the power to exercise it legally. However, this
does not amount to a loss of jurisdiction over the subject matter. Rather, it means that the court may
thereby lose jurisdiction over the person or that the judgment may thereby be rendered defective for
lack of something essential to sustain it. The appearance of this provision in the procedural law at
once raises a strong presumption that it has nothing to do with the jurisdiction of the court over the
subject matter. In plain words, it is just a matter of method, of convenience to the parties. 5

The Judiciary Act of 1948, as amended, confers upon Courts of First Instance jurisdiction over all
probate cases independently of the place of residence of the deceased. Because of the existence of
numerous Courts of First Instance in the country, the Rules of Court, however, purposedly fixes the
venue or the place where each case shall be brought. A fortiori, the place of residence of the
deceased in settlement of estates, probate of will, and issuance of letters of administration does not
constitute an element of jurisdiction over the subject matter. It is merely constitutive of venue. And it
is upon this reason that the Revised Rules of Court properly considers the province where the estate
of a deceased person shall be settled as "venue." 6

2. But, the far-ranging question is this: What does the term "resides" mean? Does it refer to the
actual residence or domicile of the decedent at the time of his death? We lay down the doctrinal rule
that the term "resides" connotes ex vi termini "actual residence" as distinguished from "legal
residence or domicile." This term "resides," like, the terms "residing" and "residence," is elastic and
should be interpreted in the light of the object or purpose of the statute or rule in which it is
employed. 7 In the application of venue statutes and rules Section 1, Rule 73 of the Revised Rules
of Court is of such nature residence rather than domicile is the significant factor. Even where the
statute uses the word "domicile" still it is construed as meaning residence and not domicile in the
technical sense. Some cases make a distinction between the terms "residence" and "domicile" but
as generally used in statutes fixing venue, the terms are synonymous, and convey the same
meaning as the term "inhabitant." 8 In other words, "resides" should be viewed or understood in its
popular sense, meaning, the personal, actual or physical habitation of a person, actual residence or
place of abode. It signifies physical presence in a place and actual stay thereat. In this popular
sense, the term means merely residence, that is, personal residence, not legal residence or
domicile. 9Residence simply requires bodily presence as an inhabitant in a given place, while
domicile requires bodily presence in that place and also an intention to make it one's domicile. 10 No
particular length of time of residence is required though; however, the residence must be more than
temporary. 11

3. Divergent claims are maintained by Virginia G. Fule and Preciosa B. Garcia on the residence of
the deceased Amado G. Garcia at the time of his death. In her original petition for letters of
administration before the Court of First Instance of Calamba, Laguna, Virginia G. Fule measely
stated "(t)hat on April 26,1973, Amado G. Garcia, a property owner of Calamba, Laguna, died
intestate in the City of Manila, leaving real estate and personal properties in Calamba, Laguna, and
in other places within the jurisdiction of this Honorable Court." Preciosa B. Garcia assailed the
petition for failure to satisfy the jurisdictional requirement and improper laying of venue. For her, the
quoted statement avers no domicile or residence of the deceased Amado G. Garcia. To say that as
"property owner of Calamba, Laguna," he also resides in Calamba, Laguna, is, according to her, non
sequitur. On the contrary, Preciosa B. Garcia claims that, as appearing in his death certificate
presented by Virginia G. Fule herself before the Calamba court and in other papers, the last
residence of Amado G. Garcia was at 11 Carmel Avenue, Carmel Subdivision, Quezon City.
Parenthetically, in her amended petition, Virginia G. Fule categorically alleged that Amado G.
Garcia's "last place of residence was at Calamba, Laguna."

On this issue, We rule that the last place of residence of the deceased Amado G. Garcia was at 11
Carmel Avenue, Carmel Subdivision, Quezon City, and not at Calamba, Laguna. A death certificate
is admissible to prove the residence of the decedent at the time of his death. 12 As it is, the death
certificate of Amado G. Garcia, which was presented in evidence by Virginia G. Fule herself and also
by Preciosa B. Garcia, shows that his last place of residence was at 11 Carmel Avenue, Carmel
Subdivision, Quezon City. Aside from this, the deceased's residence certificate for 1973 obtained
three months before his death; the Marketing Agreement and Power of Attorney dated November
12, 1971 turning over the administration of his two parcels of sugar land to the Calamba Sugar
Planters Cooperative Marketing Association, Inc.; the Deed of Donation dated January 8, 1973,
transferring part of his interest in certain parcels of land in Calamba, Laguna to Agustina B. Garcia;
and certificates of titles covering parcels of land in Calamba, Laguna, show in bold documents that
Amado G. Garcia's last place of residence was at Quezon City. Withal, the conclusion becomes
imperative that the venue for Virginia C. Fule's petition for letters of administration was improperly
laid in the Court of First Instance of Calamba, Laguna. Nevertheless, the long-settled rule is that
objection to improper venue is subject to waiver. Section 4, Rule 4 of the Revised Rules of Court
states: "When improper venue is not objected to in a motion to dismiss, it is deemed waived." In the
case before Us the Court of Appeals had reason to hold that in asking to substitute Virginia G. Fule
as special administratrix, Preciosa B. Garcia did not necessarily waive her objection to the
jurisdiction or venue assumed by the Court of First Instance of Calamba, Laguna, but availed of a
mere practical resort to alternative remedy to assert her rights as surviving spouse, while insisting on
the enforcement of the Rule fixing the proper venue of the proceedings at the last residence of the
decedent.

4. Preciosa B. Garcia's challenge to Virginia G. Fule's appointment as special administratrix is

another issue of perplexity. Preciosa B. Garcia claims preference to the appointment as surviving
spouse. Section 1 of Rule 80 provides that "(w)hen there is delay in granting letters testamentary or
of administration by any cause including an appeal from the allowance or disallowance of a will, the
court may appoint a special administrator to take possession and charge of the estate of the
deceased until the questions causing the delay are decided and executors or administrators
appointed. 13 Formerly, the appointment of a special administrator was only proper when the
allowance or disallowance of a will is under appeal. The new Rules, however, broadened the basis
for appointment and such appointment is now allowed when there is delay in granting letters
testamentary or administration by any cause e.g., parties cannot agree among
themselves. 14 Nevertheless, the discretion to appoint a special administrator or not lies in the
probate court. 15 That, however, is no authority for the judge to become partial, or to make his
personal likes and dislikes prevail over, or his passions to rule, his judgment. Exercise of that
discretion must be based on reason, equity, justice and legal principle. There is no reason why the
same fundamental and legal principles governing the choice of a regular administrator should not be
taken into account in the appointment of a special administrator. 16 Nothing is wrong for the judge to
consider the order of preference in the appointment of a regular administrator in appointing a special
administrator. After all, the consideration that overrides all others in this respect is the beneficial
interest of the appointee in the estate of the decedent. 17 Under the law, the widow would have the
right of succession over a portion of the exclusive property of the decedent, besides her share in the
conjugal partnership. For such reason, she would have as such, if not more, interest in administering
the entire estate correctly than any other next of kin. The good or bad administration of a property
may affect rather the fruits than the naked ownership of a property. 18

Virginia G. Fule, however, disputes the status of Preciosa B. Garcia as the widow of the late Amado
G. Garcia. With equal force, Preciosa B. Garcia maintains that Virginia G. Fule has no relation
whatsoever with Amado G. Garcia, or that, she is a mere illegitimate sister of the latter, incapable of
any successional rights. 19 On this point, We rule that Preciosa B. Garcia is prima facie entitled to the
appointment of special administratrix. It needs be emphasized that in the issuance of such
appointment, which is but temporary and subsists only until a regular administrator is
appointed, 20 the appointing court does not determine who are entitled to share in the estate of the
decedent but who is entitled to the administration. The issue of heirship is one to be determined in
the decree of distribution, and the findings of the court on the relationship of the parties in the
administration as to be the basis of distribution. 21The preference of Preciosa B. Garcia is with
sufficient reason. In a Donation Inter Vivos executed by the deceased Amado G. Garcia on January
8, 1973 in favor of Agustina B. Garcia, he indicated therein that he is married to Preciosa B.
Garcia. 22 In his certificate of candidacy for the office of Delegate to the Constitutional Convention for
the First District of Laguna filed on September 1, 1970, he wrote therein the name of Preciosa B.
Banaticla as his spouse. 23 Faced with these documents and the presumption that a man and a
woman deporting themselves as husband and wife have entered into a lawful contract of marriage,
Preciosa B. Garcia can be reasonably believed to be the surviving spouse of the late Amado G.
Garcia. Semper praesumitur pro matrimonio. 24

5. Under these circumstances and the doctrine laid down in Cuenco vs. Court of Appeals, 25 this
Court under its supervisory authority over all inferior courts may properly decree that venue in the
instant case was properly assumed by and transferred to Quezon City and that it is in the interest of
justice and avoidance of needless delay that the Quezon City court's exercise of jurisdiction over the
settlement of the estate of the deceased Amado G. Garcia and the appointment of special
administratrix over the latter's estate be approved and authorized and the Court of First Instance of
Laguna be disauthorized from continuing with the case and instead be required to transfer all the
records thereof to the Court of First Instance of Quezon City for the continuation of the proceedings.

6. Accordingly, the Order of Judge Ernani Cruz Pano of December 17, 1975, granting the "Urgent
Petition for Authority to Pay Estate Obligations" filed by Preciosa B. Garcia in Sp. Proc. No. Q-
19738, subject matter of G.R. No. L-42670, and ordering the Canlubang Sugar Estate to deliver to
her as special administratrix the sum of P48,874.70 for payment of the sum of estate obligations is
hereby upheld.

IN VIEW OF THE FOREGOING, the petitions of petitioner Virginia Garcia Fule in G.R. No. L-40502
and in G.R. No. L42670 are hereby denied, with costs against petitioner.

SO ORDERED.

G.R. No. L-24742 October 26, 1973

ROSA CAYETANO CUENCO, petitioners,

vs.
THE HONORABLE COURT OF APPEALS, THIRD DIVISION, MANUEL CUENCO, LOURDES
CUENCO, CONCEPCION CUENCO MANGUERRA, CARMEN CUENCO, CONSUELO CUENCO
REYES, and TERESITA CUENCO GONZALEZ, respondents.

Ambrosio Padilla Law Office for petitioner.

Jalandoni and Jamir for respondents.

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

The pertinent facts which gave rise to the herein petition follow:

On 25 February 1964 Senator Mariano Jesus Cuenco died at the Manila Doctors' Hospital, Manila.
He was survived by his widow, the herein petitioner, and their two (2) minor sons, Mariano Jesus, Jr.
and Jesus Salvador, both surnamed Cuenco, all residing at 69 Pi y Margal St., Sta. Mesa Heights,
Quezon City, and by his children of the first marriage, respondents herein, namely, Manuel Cuenco,
Lourdes Cuenco, Concepcion Cuenco Manguera, Carmen Cuenco, Consuelo Cuenco Reyes and
Teresita Cuenco Gonzales, all of legal age and residing in Cebu.

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 probate proceedings 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 2433-R), it follows that the said court must exercise jurisdiction
to the exclusion of the Rizal CFI, in which the petition for probate was filed by the
respondent Rosa Cayetano Cuenco (Special Proceeding Q-7898). The said
respondent should assert her rights within the framework of the proceeding in the
Cebu CFI, instead of invoking the jurisdiction of another court.

The respondents try to make capital of the fact that on March 13, 1964, Judge
Amador Gomez of the Cebu CFI, acting in Sp. Proc. 2433-R, stated that the petition
for appointment of special administrator was "not yet ready for the consideration of
the Court today. It would be premature for this Court to act thereon, it not having yet
regularly acquired jurisdiction to try this proceeding ... . " It is sufficient to state in this
connection that the said judge was certainly not referring to the court's jurisdiction
over the res, not to jurisdiction itself which is acquired from the moment a petition is
filed, but only to the exercise of jurisdiction in relation to the stage of the proceedings.
At all events, jurisdiction is conferred and determined by law 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, to proceed 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 Act7 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 Ho9 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, 11Section 56, No. 5 confers upon Courts of First Instance jurisdiction over
all probate cases independently of the place of residence of the deceased. Since,
however, there are many courts of First Instance in the Philippines, the Law of
Procedure, Act No. 190, section 600, fixes the venue or the place where each case
shall be brought. Thus, the place of residence of the deceased is not an element of
jurisdiction over the subject-matter but merely of venue. And it is upon this ground
that in the new Rules of Court the province where the estate of a deceased person
shall be settled is properly called "venue".

It should be noted that the Rule on venue does not state that the court with whom the estate or
intestate petition is first filed acquires exclusive jurisdiction.

The Rule precisely and deliberately provides that "the court first taking cognizance of the settlement
of the estate of 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 intestatemay be actually false,
may decline to take cognizance of the petition and hold the petition before it in abeyance, and
instead defer to the second court which has before it the petition for probate of the decedent's
alleged last will.

2. This exactly what the Cebu court did. Upon petitioner-widow's filing with it a motion to dismiss
Lourdes' intestate petition, it issued its order holding in abeyance its action on the dismissal motion
and deferred to the Quezon City court, awaiting its action on the petition for probate before that
court. Implicit in the Cebu court's order was that if the will was duly admitted to probate, by the
Quezon City court, then it would definitely decline to take cognizance of Lourdes' intestate petition
which would thereby be shown to be false and improper, and leave the exercise of jurisdiction to
the Quezon City court, to the exclusion of all other courts. Likewise by its act of deference, the Cebu
court left it to the Quezon City court to resolve the question between the parties whether the
decedent's residence at the time of his death was in Quezon City where he had his conjugal
domicile rather than in Cebu City as claimed by respondents. The Cebu court thus indicated that it
would decline to take cognizance of the intestate petition before it and instead defer to the Quezon
City court, unless the latter would make a negative finding as to the probate petition and the
residence of the decedent within its territory and venue.

3. Under these facts, the Cebu court could not be held to have acted without jurisdiction or with
grave abuse of jurisdiction in declining to take cognizance of the intestate petition and deferring to
the Quezon City court.

Necessarily, neither could the Quezon City court be deemed to have acted without jurisdiction in
taking cognizance of and acting on the probate petition since under Rule 73, section 1, the Cebu
court must first take cognizance over the estate of the decedent and must exercise jurisdiction to
exclude all other courts, which the Cebu court declined to do. Furthermore, as is undisputed, said
rule only lays down a rule of venue and the Quezon City court indisputably had at least equal and
coordinate jurisdiction over the estate.

Since the Quezon City court took cognizance over the probate petition before it and assumed
jurisdiction over the estate, with the consent and deference of the Cebu court, the Quezon City court
should be left now, by the same rule of venue of said Rule 73, to exercise jurisdiction to the
exclusion of all other courts.

Under the facts of the case and where respondents submitted to the Quezon City court
their opposition to probate of the will, but failed to appear at the scheduled hearing despite due
notice, the Quezon City court cannot be declared, as the appellate court did, to have acted without
jurisdiction in admitting to probate the decedent's will and appointing petitioner-widow as executrix
thereof in accordance with the testator's testamentary disposition.

4. The relatively recent case of Uriarte vs. Court of First Instance of Negros Occidental 12 with facts
analogous to the present case 13 is authority against respondent appellate court's questioned
decision.
In said case, the Court upheld the doctrine of precedence of probate proceedings over intestate
proceedings in this wise:

It can not be denied that a special proceeding intended to effect the distribution of the
estate of a deceased person, whether in accordance with the law on intestate
succession or in accordance with his will, is a "probate matter" or a proceeding for
the settlement of his estate. It is equally true, however, that in accordance with
settled jurisprudence in this jurisdiction, testate proceedings for the settlement of the
estate of a deceased person take precedence over intestate proceedings for the
same purpose. Thus it has been held repeatedly that, if in the course of intestate
proceedings pending before a court of first instance it is found that the decedent had
left a last will, proceedings for the probate of the latter should replace the intestate
proceedings even if at that state an administrator had already been appointed, the
latter being required to render final account and turn over the estate in his
possession to the executor subsequently appointed. This however, is understood to
be without prejudice that should the alleged last will be rejected or is disapproved,
the proceeding shall continue as an intestacy. As already adverted to, this is a clear
indication that proceedings for the probate of a will enjoy priority over intestate
proceedings. 14

The Court likewise therein upheld the jurisdiction of the second court, (in this case, the Quezon City
court) although opining that certain considerations therein "would seem to support the view that
[therein respondent] should have submitted said will for probate to the Negros Court, [in this case,
the Cebu court] either in a separate special proceeding or in an appropriate motion for said purpose
filed in the already pending Special Proceeding No. 6344," 15 thus:

But the fact is that instead of the aforesaid will being presented for probate to the Negros Court,
Juan Uriarte Zamacona filed the petition for the purpose with the Manila Court. We can not accept
petitioner's contention in this regard that the latter court had no jurisdiction to consider said petition,
albeit we say that it was not the proper venuetherefor.

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 choiceof 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 petitioner-widow as executrix thereof. Hence, the Quezon city court's
action should not be set aside by a writ of prohibition for supposed lack of jurisdiction as per the
appellate court's appealed decision, and should instead be sustained in line with Uriarte, supra,
where the Court, in dismissing the certiorari petition challenging the Manila court's action admitting
the decedent's will to probate and distributing the estate in accordance therewith in
the second proceeding, held that "it must be remembered that this Court is not inclined to annul
proceedings regularly had in a lower court even if the latter was not the proper venue therefor, if the
net result would be to have the same proceedings repeated in some other court of similar
jurisdiction." As stressed by Chief Justice Moran in Sy Oa, supra, "the mischievous effect in the
administration of justice" of considering the question of residence as affecting the jurisdiction of the
trial court and annulling the whole proceedings only to start all over again the same proceedings
before another court of the same rank in another province "is too obvious to require comment."

8. If the question of jurisdiction were to be made to depend only on who of the decedent's relatives
gets first to file a petition for settlement of the decedent's estate, then the established jurisprudence
of the Court that Rule 73, section 1 provides only a rule of venue in order to preclude different courts
which may properly 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 convertedinto 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 testateproceedings 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 falsity of 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.

Fernando and Castro, JJ., took no part.

G.R. No. L-5772 January 23, 1912

JOSEFA FULGENCIO, plaintiff-appellee,

FERNANDO FULGENCIO, intervener,
vs.
BENITA GATCHALIAN, ET AL., defendants-appellants.

Mariano Lim for appellants.

Vicente Foz for appellee.

TORRES, J.:

This is an appeal raised through a bill of exception by counsel for the defendants, from a judgment
rendered by the Honorable Judge Isidro Paredes.

On August 17, 1908, Josefa Fulgencio, the administratrix of the intestate estate of Dionisio
Fulgencio, filed with the Court of First Instance of Pangasinan a written complaint, amended on the
26th of the same month, against Benita Gatchalian, Petrona Clavo, Emeteria Cristobal, Leoncia
Belen, and Gabriela Lopez, the latter represented by her husband, named Paning, alleging that by
virtue of letters of administration, issued in her behalf on July 22, 1908, in case No. 203, she entered
upon the discharge of the duties of her office with full powers to take possession of and to administer
all the property of the estate of the deceased Dionisio Fulgencio; that, of the defendants, Benita
Gatchalian is a widow, Petrona, Emeteria and Leoncia, single, and Gabriela, the wife of the said
Panong; that Benita Gatchalian, by order of July 27, was appointed administratrix, conjointly with the
plaintiff, of the estate of the said deceased, the required letters of administration having been issued
to her, although, by a writing of the date of August 6, Gatchalian tendered her resignation as
administratrix, which was accepted by the court, wherefore the plaintiff was the sole party upon
whom it was incumbent by law to fulfill the said office; that the defendants Petrona, Emeteria,
Leoncia and Gabriela were then incharge of a part of the estate of the deceased and were under the
care and direction of the defendant Gatchalian; that the deceased, Dionisio Fulgencio, legally
married, in second wedlock, the defendant Benita Gatchalian, with whom he did not have, during the
time they were married, any surviving or posthumous child, and left only one legitimate son, by his
first marriage, named Fernando Fulgencio, on marrying Gatchalian, brought the sum of 2,500 pesos
Mexican currency as shown as private property; that the conjugal partnership of the deceased
Fulgencio with the said Gatchalian, and the aforementioned sum, produced, up to the time of the
husband's death, several thousands pesos, all the property of the said partnership consisting of the
following:

A. A house of mixed material, constructed on land belonging to a

third party and situated on calle Rizal of the pueblo of Bautista,
assessed at . . . . . . . . P400.00
 B. A lot containing a warehouse, built of strong materials and with
four doors, on the same street and in the same pueblo,
assessed at . . . . . . . . 602.90
C. A bakery, called "El Porvenir," with all its accessories and
stock, and a cigar and cigarette stand, installed in the house
previously described, the reasonable value of all of which is . . .
................................ 600.00

D. A bazar of foreign and domestic articles and a shop for the sale
of cloth, installed in the said warehouse and reasonably worth .
................ 1,000.00

E. A share of stock in a cockpit in the municipality of Bautista,

worth . . . . . . . . 650.00

F. Three carabaos, reasonably worth, altogether . . . . . . . . . . . . . .

........... 120.00
G. Various articles of household furniture, reasonably worth,
altogether . . . . . 100.00
H. Four shops for the sale of cloth, situated in the market of
Bautista, worth altogether, at a reasonable valuation . . . . . . . .
......................... 1,000.00

Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,472.90

That all property afore-described belonged exclusively to the conjugal partnership of the deceased
Dionisio Fulgencio and the defendant Benita Gatchalian, with the exception of the said sum of 2,500
pesos Mexican currency; that the property described in the first seven paragraphs above was under
the control and in the legal possession of the defendants Benita Gatchalian, Petrona Clavo,
Emeteria Cristobal, Leoncia Belen and Gabriela Lopez, and that the defendant Gatchalian was, with
the exception of such property, insolvent; that a demand having repeatedly been made upon the
defendants for the friendly delivery by them of the said property, they categorically refused to deliver
the same, and that such property was liable to disappear and suffer material damages unless a
receiver were appointed for its preservation and administration during the pendency of the suit, as
indeed a part of the property in question had already disappeared.

For the foregoing reasons, the plaintiff asked that a person, whose name was not expressed, be
appointed as receiver of the property described in the 8th paragraph of her complaint, and that the
court order that, after taking oath and giving bond, the defendants deliver, to the receiver appointed,
the property aforementioned; that in due season judgment be rendered declaring that Dionisio
Fulgencio, on marrying Benita Gatchalian, brought to the marriage the sum of 2,500 pesos, which
should be deducted from the community property; that the other property enumerated belongs
exclusively to the conjugal partnership; that the plaintiff has a perfect right to ask for the appointment
of a receiver who shall be entitled to the possession of the said property for the purpose of
preserving and administering it, and that judgment be rendered in her behalf, against the
defendants.

Counsel for the defendants, answering the preceding complaint, set forth: that the defendants
Petrona Clavo, Emeteria Cristobal, Leoncia Belen, and Gabriela Lopez, instead of the erroneous
names under which the last three appear to have been designated, denied absolutely each and all of
the facts alleged against them in the complaint; and that the defendant Benita Gatchalian admitted
the facts related in paragraph 1, 2, 3, 4, and 6, but specifically denied those referred to in
paragraphs 5, 7, 8, 9, 10, 11, 12, and 13, of the same.

As a special defense, Gatchalian added that her deceased husband, Dionisio Fulgencio, on his
marriage with her, brought as property of his own only a few articles from his drug store, amounting
to the sum of 100 pesos; that the defendant Gatchalian, on her marriage with the said deceased,
brought 9,000 pesos in cash and 3,000 pesos in goods; that the profits obtained by the widow
Gatchalian, in the business in which she engaged with the said sum, as well as with the 100 pesos
brought in by her deceased husband, were squandered by the latter in his lifetime in gambling, and
that consequently, the capital brought to the marriage by Gatchalian, far from increasing, was
considerably diminished; that all the property designated under the letters A and G, paragraph 8 of
the complaint, was acquired by the defendant Gatchalian with her own funds, except the effects
mentioned under letters C and D, which were the subject matter of current accounts, yet unsettled,
with various commercial houses in Manila; that the receivership for the property in litigation, as
adjudged by the court, was unnecessary for the reasons already stated, and as shown by the
affidavits attached, and that the defendant Gatchalian would suffer considerable and irreparable loss
and detriment were an order not issued directing the discharge of the receiver; and she further
petitioned the court for the discontinuance of the receivership of the property in question and the
discharge of the said receiver from his office, in accordance with section 180 of act No. 190, and
offered to give bond, should the court so require, as security for the property in litigation and any loss
and damages which might be found in behalf of the plaintiff, and finally, asked that all the defendants
be absolved from the complaint, stating the property specified under letters A, B, C, D, E, F, and G
did not belong to the conjugal partnership, but exclusively to the defendant, Benita Gatchalian, and
asked that the plaintiff be sentenced to pay the costs.

The guardian of the minor Fernando Fulgencio, by a writing of October 10, 1908, set forth that the
latter was the legitimate son of the deceased spouses Dionisio Fulgencio and Tecla Monzon who
died intestate, the former in Calasiao on June 30, 1908, and the latter in the city of Manila on June 4,
1897; that the deceased Monzon was the first wife of Fulgencio, and left as her sole heir by
operation of law the said minor, with property in Manila consisting of a native dry-goods store, which
property was sold unconditionally by her deceased husband on December 30, 1897, for 3,000 pesos
Mexican currency, half of which sum, or 1,500 pesos, belonged to the minor, Fernando Fulgencio,
as the heir by force of law of the deceased Tecla Monzon, but remained in the control of his father
Fulgencio during the latter's lifetime and was brought by him upon his marriage, in second wedlock,
with the defendant Benita Gatchalian and included in the estate left by the deceased Dionisio
Fulgencio, which estate was being illegally held by the defendant; that the sum of 1,500 pesos
should bear legal interest at six per cent per annum from December 30, 1897, until it should be
delivered to the minor, its owner, who several times demanded of the plaintiff, Josefa Fulgencio, and
of the defendants, the delivery to him of the said sum, with interest, in Philippine currency; that they
refused to accede to the claim of the said minor, who thereby suffered damage to the amount of 100
pesos; therefore, the guardian prayed that judgment be rendered sentencing the defendants Benita
Gatchalian, Petrona Clavo, Emeteria Cristobal, Leoncia Belen and Gabriela Lopez to deliver to the
said minor the said sum of 1,500 pesos Mexican currency, or its equivalent in Philippine currency,
together with legal interest thereon, secured by the property of the intestate estate of the deceased
Dionisio Fulgencio, to the payment of 100 pesos for loss and damage, and the costs.

The defendants, in answer to the complaint of the intervener, Fernando Fulgencio, made a specific
and general denial of each and all allegations of each and all of the paragraphs of the said
complaint.

As a special defense, they all set up the same allegations of the special defense contained in the
written answer to the complaint of the administratrix, Josefa Fulgencio.
On motion for dismissal, they set forth: That the claim of the intervener has for its purpose the
collection of money from the intestate estate of Dionisio Fulgencio, wherefore the said claim should
be dismissed in accordance with section 119, in connection with sections 669, 686, 700, and 703, of
the Code of Civil Procedure; that the intervener, as the son and heir of the deceased Dionisio
Fulgencio, is not entitled to sue the defendant administratrix until his share of the estate shall have
been adjudicated to him, pursuant to section 704 of the Code of Civil Procedure, and therefore they
asked for the absolution of the defendants from the dismissal of this case with respect to the
intervener, with the costs against the former.

After the trial and the introduction of evidence adduced by the parties, the court, on December 29,
1908, rendered judgment absolving the defendant, Gabriel Lopez, from the complaint, and
sentencing the defendants, Benita Gatchalian, Petrona Clavo, Emeteria Cristobal, and Leoncia
Belen, to deliver to the plaintiff the property of the estate of the deceased Dionisio Fulgencio, which
they were retaining in their possession, and to pay the costs, dismissed the other petitions of the
complaint and answer as well as the claim of the intervener, Fernando Fulgencio, and discharged
the receiver, Aproniano Santos, canceling the bond executed by the latter. To this judgment the
defendants excepted and moved for a rehearing on the grounds that the evidence did not sufficiently
support the judgment and that the latter was contrary to law, equity and justice, and announced their
intention to appeal, which motion was overruled by an order of November 11, 1909. Exception
thereto was taken by the defendants, and, the proper bill of exceptions being presented, the same
was approved and forwarded to the clerk of this court.

It is sought in this litigation to have the judicial administratrix of the intestate succession of the
deceased Dionisio Fulgencio given possession of the property of different kinds, which constitute the
estate of the said deceased and are now under the control of the latter's widow, Benita Gatchalian,
and the other defendants.

The said widow was appointed administratrix of the estate of her deceased husband, jointly with the
plaintiff, Josefa Fulgencio, a sister of the latter; but the widow, Benita Gatchalian, expressly
renounced the appointment, and Josefa Fulgencio remained the sole administratrix of the intestate
estate and, in the fulfillment of the duties of her office, among the other things asked that there be
restored to her the possession of the property left by the deceased, consisting chiefly of conjugal
partnership property, in order that the might preserve and administer the same belonging to the
estate of which she was the administratrix.

The defendants denied the allegations of the complaint, and one of them, the said widow, Benita
Gatchalian alleged: that her deceased husband only brought, when they were married, certain
drugstores effects which were worth about one hundred pesos, while she brought to the conjugal
partnership 9,000 pesos in cash and goods to the value of 3,000 pesos, and acquired by use of her
funds the property described in the complaint, expecting a portion thereof which was the subject
matter of accounts current, yet unsettled, with various commercial firms of Manila; she therefore
prayed that they be absolved from the complaint, and that the property described in the complaint be
held to the private exclusive property of the widow, Benita Gatchalian, and not conjugal partnership
property.

It is fact, proved by the record, that the conjugal partnership formed between Dionisio Fulgencio,
during his lifetime, and Benita Gatchalian and dissolved by the husband's death, owed several large
debts and the testamentary executrix, in the fulfillment of her duty, has a right to claim the
possession of all the property belonging to the estate of which she is the judicial administratrix, in
order that, pursuant law, she may make the required inventory and proceed, with the authorization of
the court, to pay the debts duly presented to the commissioners of appraisal appointed in the special
proceedings. It is an incontrovertible principle of law that, before proceeding with the division among
the heirs, of the property left to them by the deceased predecessor in interest, without prejudice to
the rights of the surviving widow, in relation to her own property which does not form a part of the
conjugal partnership property nor is liable for the payment of the obligations existing against the
conjugal partnership.

Evidence was introduced to prove that the widow, Benita Gatchalian, on contracting marriage with
the now deceased Dionisio Fulgencio, brought to the conjugal partnership, property worth about
twelve thousand pesos, being paraphernalia of the wife's exclusive ownership; but once included
among the property of the conjugal partnership, a demand for its exclusion on the part of its
legitimate owner could properly be made only after the formation of the inventory of the property that
constitutes the estate of her deceased husband.

If the widow Benita Gatchalian now held the office of testamentary executrix, it would be her duty to
make the inventory of the property belonging to the marriage dissolved by the death of her husband,
and she would settle the claims which in any and all matters might be addressed to her against the
intestate succession of her deceased husband; however, the duties of the office of testamentary
executor being performed by another person, and there being debts of considerable amount to
settle, the judicial administratrix is entitled to demand that she be placed in possession of the
property that forms the assets of the intestate estate, in order that she may proceed to inventory the
same and to pay the legitimate debts duly claimed in the special intestate proceedings, exception
being made of and without prejudice to the rights of the widow with respect to her paraphernal
property, which is not liable for the debts of the conjugal partnership.

At the beginning of the hearing of this case, the attorneys for both parties agreed that the following
facts should be considered as proven:

1. That the drygoods stores managed by the defendants Petrona Clavo, Emeteria Cristobal
and Leoncia de Belen, are inscribed in the tax register in the name of the deceased Dionisio
Fulgencio;

2. That the property, said in the answer to be the subject matter of the accounts current and
which according to the complaint consists of a bakery, a cigar and cigarette stand, a bazar
for the sale of foreign and domestic articles, and a dry-goods shop, is also inscribed in the
said tax register in the name of the same deceased, Dionisio Fulgencio; and

3. That all the other property described in the complaint, except the drygoods store managed
by the defendant Gabriela Lopez, was acquired during the marriage of the said Dionisio
Fulgencio and Benita Gatchalian and is in the name of the said Dionisio Fulgencio in the
respective documents pertaining thereto.

This agreement lends greater weight to the plaintiff administratrix's claim, because, if the property at
present under the control of the widow is of a paraphernal nature, it must necessarily be inventoried
as belonging to the estate of the deceased Dionisio Fulgencio.

Article 1407 of the Civil Code provides:

All of the property of the marriage shall be considered as partnership property until it is
proven that it belongs exclusively to the husband or to the wife.

Among other obligations expressly specified in article 1408 of the same code, as being those for
which the conjugal partneship shall be liable, are the debts and obligations contracted during the
marriage.
If it be not proven conclusively that the property claimed by the administratrix is paraphernalia and
belongs exclusively to the defendant Benita Gatchalian, it must be deemed to be conjugal
partnership property, liable for the debts of the conjugal partnership, and therefore, by virtue of the
preinserted agreement, the administratrix has a right to be placed in possession of the same for the
purpose of its inventory in the special proceedings, without prejudice to the rights of the widow
Benita Gatchalian in relation to her own property or to that of the nature of paraphernalia, for, once
the inventory of the property of the intestate estate has been made, the latter will have the same
opportunity to claim the exclusion of the property belonging to her exclusively and that of the nature
of paraphernalia.

For the foregoing reasons, wherein the errors assigned to the judgment appealed from have been
refuted, and admitting those alleged with relation to Gabriela Lopez and Fernando Fulgencio, it is
proper, in our opinion, to affirm as we do hereby affirm the said judgment, with the costs against the
appellant.

Mapa, Johnson, Carson and Trent, JJ., concur.

G.R. No. L-27421 September 12, 1986

ANITA MANG-OY, assisted by her husband, William Mang-oy; LEONORA MIGUEL, assisted
by her husband, Miguel Olila; HELENA TAYNAN, and JOSE TUMPAO, petitioners,
vs.
THE COURT OF APPEALS, BANDO TUMPAO, LAMBIA TUMPAO, married to Salming Pirazo,
and ABITO TUMPAO, respondents.

CRUZ, J.:

We are back to the early 1900's in the cool regions of the Mountain Province, setting of many
legends of adventure and romance among the highlanders of the North. Our story is not as fanciful,
involving as it does not a rivalry for the hand of a beautiful Igorot maiden but a prosaic dispute over a
piece of land. Even so, as in those tales of old, the issue shall be decided in favor of the just and
deserving albeit according to the dictates not of the heart but of the law.

The hero of this story we shall call Old Man Tumpao although at the time it all began he was still a
young and vigorous man. He had a first wife by whom he begot three children, who are the private
respondents in this case. 1Upon her death, he took to himself a second wife, by whom he had no issue but who had two children
she had "adopted" according to the practice of the Igorots then. 2 It is their children who, with some others, are the petitioners in this case.

The facts are as simple as the ancient hills.

On September 4, 1937, Old Man Tumpao executed what he called a "last will and testament" the
dispositive portion of which declared:

Lastly, I appoint my son BANDO TUMPAO, whom I named, that after departing from
this life, he shall be the one to carry or fulfill my Testament, and that he shall have
the power to see and dispose all what I have stated, he shall not change what I have
already stated in my Testament so that there is truth in my will. I will affix my right
thumbmark at the end of my written name because I do not know how to read and
 write, after it has been read to me and affirm all what is my Win this 2:00 o'clock in
the afternoon this 4th day of September 1937, before those who are present and
have heard what I have stated, Pico La Trinidad, Benguet, 4th September, 1937. 3

The contents of this document were read to the beneficiaries named therein who at the time were
already occupying the portions respectively allotted to them. In implementation of this document,
they then, on September 7, 1937, executed an agreement providing as follows:

We who are named children and who will inherit from our father TUMPAO: BANDO
TUMPAO, LAMBIA ABITO, JOSE and LABET, and we also whose lands are
included, SUCDAD BUTIOG, TULINGAN PUL-OT and ANTHONY MENECIO all of
legal age and residing in the town of La Trinidad, Sub-Province of Benguet we say in
truth after swearing under oath in accordance to law that the testament of our father
TUMPAO who is presently ill by virtue of our right to inherit and also acknowledge or
recognize the lands as included in the area of said land as appearing in Title No. 416
in the name of our father TUMPAO here in La Trinidad, Barrio Pico, have heard and
understood the Will as told by him concerning our right to the land which we will
inherit and also to those whose lands which were included in the said Title No. 416
because we were all called be present and hear his wilt We heard and agreed to his
will as appearing in his testament regarding the land which we will inherit. We also
recognized and agree to the appointment of our brother BANDO to whom the parcels
of land is to be delivered and he will also be the one, to deliver to us our shares as
soon as we will demand the partition in accordance with the will of our father
TUMPAO as soon in the Testament which we saw and have heard by all.

It is also agreed upon among us in this confirmation that when our brother BANDO
who is appointed to distribute to us our shares we affirm in this instrument that will
answer for all the expenses when it shag be surveyed so the share of each will be
segregated so also with the approval of the title, which shall appear the name of
each of us and that we do not dispute the land which we are actually working shall
pertain to us as embodied in the said win of our father TUMPAO.

We execute this deed of confirmation in the presence of the Notary Public here in
Baguio so that this Will, be used as our agreement so also with the wig of our father
so that they be one to be followed as regard upon by all and we affix our right
thumbmark at the end of our written name because we do not know how to read and
write this 7th day of September, 1937 in the City of Baguio. 4

Two days later, Old Man Tumpao died.

The parties remained in possession of the lots assigned to them, apparently in obedience to the wish
of Old Man Tumpao as expressed in his last "will" and affirmed by the other abovequoted instrument.
But things changed unexpectedly in 1960, twenty three years later, that brought this matter to the
courts.

On November 4, 1960, the respondents executed an extrajudicial partition in which they divided the
property of Old Man Tumpao among the three of them only, to the exclusion of the other persons
mentioned in the above-quoted documents. 5 By virtue of this partition, Old Man Tumpao's title was cancelled and another
6
one was issued in favor of the three respondents.
It is this title that is now being questioned by the petitioners, who are suing for reconveyance. They
had been sustained by the trial court, 7 which, however, was reversed by the Court of Appeals. They are before this Court to
challenge that reversal.

In deciding against them, the Court of Appeals held that the "will" executed by Old Man Tumpao was
null and void because it had not been probated The agreement of partition among the supposed
beneficiaries of the will was nullified because it was a partition inter vivos and had not been
approved by the Director of the Bureau of Non-Christian Tribes. It was likewise held that the land in
dispute was acquired during Old Man Tumpao's first marriage although it was registered during his
second marriage and so the petitioners were liable in rentals for the lots occupied by them, as well
as attorney's fees. 8

After examining the musty records, we sustain the ruling-made both by the trial court and the Court
of Appeals-that the will, not having been probated as required by law, was inoperative as such. The
settled principle, as announced in a long line of decisions in accordance with the Rules of Court, is
that no will shall pass either real or personal property unless it is proved or allowed in court. 9

We find, however, that the document may be sustained on the basis of Article 1056 of the Civil Code
of 1899, which was in force at the time the said document was executed by Old Man Tumpao in
1937. The said article reads as follows:

Art. 1056. If the testator should make a partition of his properties by an act inter
vivos, or by win, such partition shall stand in so far as it does not prejudice the
legitime of the forced heirs.

On this score, we agree with the trial court. The applicable decision is Albela vs. Albela, 10 also decided by
the Court of Appeals, with Justice J.B.L. Reyes as the ponente.

In this case, Agustin Albela executed on January 19, 1935, a deed of partition dividing two parcels of
land between hisdaughters, Eduarda and Restituta, who indicated their conformity by signing the
instrument. The took possession of their respective shares upon his death, but fourteen years later,
Restituta ejected Eduarda from her lot, alleging title by purchase from a third party and denying the
existence of the partition. Eduarda sued for recovery and was upheld by the trial court on the basis
of the deed of partition.

Let Justice J.B.L. Reyes, who later became a distinguished member of this Court, take over at this
point:

In their argument, appellants do not question the authenticity of the above document,
but argue against its validity, on the grounds summarized in their brief (p. 7), as
follows:

Therefore the allegations of the plaintiff-appellee, Eduarda Albela, rest on a

document which defies classification. If it is a deed of partition, it is null and void
because it is not embodied in a public document; if it is a simple donation of realty, it
is also null and void, because it is not in a public document and there is no
acceptance; if it is a donation Mortis Causa, certainly it is null and void because it
does not follow the rules governing testamentary succession; and if ever it is to be
classified as a will, more so, it is still null and void because it does not conform to the
requirements of Section 618, Act 190 as amended by Act 2645.
 None of these objections is valid in law. The appellants evidently fail to realize that
Article 1056 of the Civil Code of 1889 authorizes a testator to partition inter vivos his
property, and distribute them among his heirs, and that this partition is not
necessarily either a donation nor a testament, but an instrument of a special
character, sui generis, which is revocable at any time by the causante during his
lifetime, and does not operate as a conveyance of title until his death. It derives its
binding force on the heirs from the respect due to the will of the owner of the
property, limited only by his creditors and the intangibility of the legitime of the forced
heirs. 'El testador es libre y sus herederos han de pasar por lo que haga en cuanto
no perjudique la legitime de los forsozos. Inutil es sonar en otras limitaciones que no
existen.' (7 Manresa Commentaries, 6th Ed., p. 639.

That such partition is not governed by the rules of wills or donations inter vivos is a
consequence of its special nature. Says the learned Manresa on this point:

Con estas palabras (en acto entre vivos) la ley en el Articulo 1056, como en el 1057,
que despues examinaremos, alude a las formalidades con que puede practicarse la
particion, no a los efectos de esta, significando que para ella no es preciso que
intervengan las formas solemnes que todo testamento o acto de ultima voluntad en
general requiere. Ni aun sera preciso guardar las formalidades especiales de las
donaciones, porque no se trata de disponer a titulo gratuito, sino de divider aquellos
bienes de que ya anteriormente sedispuso en forma legal (Emphasis supplied. Op.
Cit., p. 635)

It was sufficient, therefore, that the partition Exhibit A, should be in writing. It does not
have to be in a public document except to affect third persons (Art. 1280), being valid
between the parties who signed it in its present form.

If any invalidity could be alleged against the partition, it would lie in the absence of a
previous testament preceding it (Legasto v. Verzosa, 54 Phil. 766). And even this
may not be indispensable in the present case, for the testator's partition did not
depart from the shares allotted to his heirs by the law of intestacy. Nor is a prior win
necessary under Article 1080 of the new Civil Code, which replaced the word
'testator' in Article 1056 of the Code of 1889 with the broader term 'person.'

Be that as it may, the nullity of the partition Exhibit A would not alter the result. There
being only two daughters surviving the deceased Agustin, each one of them would
necessarily be entitled to one-half of each of the two parcels he owned at his death,
and Agustin's former ownership is no longer disputed by the appellants in this
instance. In addition, since both daughters signed the partition Exhibit A, its terms
would bind both, and estop them from asserting a different interest. Appellants' act; in
appropriating the whole inheritance and its fruits can find no support in law or justice.

There is no difference in legal effect between Agustin Albela's deed of partition and Old Man
Tumpao's "last will and testament." Both are sustainable under Article 1056 of the Civil Code, which
was in force at the time they were executed Even as Agustin Albela's partition was signed by the two
daughters themselves, so was Old Man Tumpao's "will" affirmed by the beneficiaries in their
agreement of September 7, 1937, which reiterated and recognized the terms of such "will." While not
valid as a partition inter vivos under Articles 816 and 1271 of the old Civil Code, it was nevertheless
binding on the parties as proof of their conformity to the dispositions made by Old Man Tumpao in
his "last will and testament."
As the trial court put it:

The will alone, 'Exh. B', would be inoperative for the simple reason that it was not
probated, However, when the persons who were named therein as heirs and
beneficiaries voluntarily agreed in writing to abide by its terms probably to save the
expenses of probate. and furthermore, carried out its terms after the death of the
testator until now, then it must be held to be binding between them.

Said agreement was not a disposal of inheritance by a prospective heir before the
death of the testator, but an agreement to carry out the will. It was not contested by
the defendants and after the lapse of 25 years their right, if any, to assail it has
prescribed under Art. 1144 of the Civil Code.

Art. 1144-The following actions must be brought ten years from the time the right of
action accrues:

1) upon a written contract;

2) Upon an obligation created by law;

3) Upon a judgment.

Any formal defect of the deed, 'Exh. 'C', was cured by the lapse of time.

What the plaintiffs received had an aggregate area of less than 1/3 of the land of Old
Tumpao. It covers about 11,000 square meters while the total area was more than
35,000 square meters, Under the old Civil Code, it was within the free disposable
portion of ones' estate despite the existence of any forced heirs. (See old Civil Code,
Art. 808)

In view of the foregoing considerations, the defendants are ordered to execute a

deed of conveyance in favor of the plaintiffs of the areas respectively owned and
occupied by them and to pay the costs.

Sucdad Butiog is ordered to pay the defendants P160.00 more as a reasonable

amount of his additional share in the expenses of segregating his lot but the
(defendants) are ordered to execute a deed of conveyance in his favor of the said lot
owned by him.

The expenses of Survey and segregation must be borne by the plaintiffs.

We may add that the agreement entered into by the parties in implementation of Old Man Tumpao's
"will" did not have to be approved by the Director of the Bureau of Non-Christian Tribes because the
Administrative Code of Mindanao and Sulu was not extended to the Mountain Province. 11 Moreover, the
document was not a conveyance of properties or property right. 12

It remains to state that the property in dispute having been registered in 1917, the presumption is
that it was acquired during the second marriage and so cannot be claimed by the respondents as the
conjugal property of their mother and Old Man Tumpao. Hence, they are not entitled to retain the
entire land as their exclusive inheritance or to collect rentals for the lots occupied by the petitioners.
The trial judge, the Hon. Feliciano Belmonte, was correct in ordering the reconveyance to the
petitioners of their respective shares. We affirm his decision in toto.

How much simpler was life among the natives in the North during the early days, when right and
wrong were weighed according to the primal code of the ancient hills. Even so, though that past is
gone forever, justice now, as it was then, is still for the deserving.

WHEREFORE, the decision of the Court of Appeals is REVERSED and that of the trial court
reinstated, with costs against the respondents.

SO ORDERED.

G.R. No. 45629 September 22, 1938

ANTILANO G. MERCADO, petitioner,

vs.
ALFONSO SANTOS, Judge of First Instance of Pampanga, respondents.
ROSARIO BASA DE LEON, ET AL., intervenors.

Claro M. Recto and Benigno S. Aquino for petitioner.

Esperanza de la Cruz and Heracio Abistao for respondents.
Sotto and Sotto for intervenors.

LAUREL, J.:

On May 28, 1931, the petitioner herein filed in the Court of First Instance of Pampanga a petition for
the probate of the will of his deceased wife, Ines Basa. Without any opposition, and upon the
testimony of Benigno F. Gabino, one of the attesting witnesses, the probate court, on June 27,1931,
admitted the will to probate. Almost three years later, on April 11, 1934, the five intervenors herein
moved ex parte to reopen the proceedings, alleging lack of jurisdiction of the court to probate the will
and to close the proceedings. Because filed ex parte, the motion was denied. The same motion was
filed a second time, but with notice to the adverse party. The motion was nevertheless denied by the
probate court on May 24, 1934. On appeal to this court, the order of denial was affirmed on July 26,
1935. (Basa vs. Mercado, 33 Off. Gaz., 2521.)

It appears that on October 27, 1932, i. e., sixteen months after the probate of the will of Ines Basa,
intervenor Rosario Basa de Leon filed with the justice of the peace court of San Fernando,
Pampanga, a complaint against the petitioner herein, for falsification or forgery of the will probated
as above indicated. The petitioner was arrested. He put up a bond in the sum of P4,000 and
engaged the services of an attorney to undertake his defense. Preliminary investigation of the case
was continued twice upon petition of the complainant. The complaint was finally dismissed, at the
instance of the complainant herself, in an order dated December 8, 1932. Three months later, or on
March 2, 1933, the same intervenor charged the petitioner for the second time with the same
offense, presenting the complaint this time in the justice of the peace court of Mexico, Pampanga.
The petitioner was again arrested, again put up a bond in the sum of P4,000, and engaged the
services of counsel to defend him. This second complaint, after investigation, was also dismissed,
again at the instance of the complainant herself who alleged that the petitioner was in poor health.
That was on April 27, 1933. Some nine months later, on February 2, 1934, to be exact, the same
intervenor accused the same petitioner for the third time of the same offense. The information was
filed by the provincial fiscal of Pampanga in the justice of the peace court of Mexico. The petitioner
was again arrested, again put up a bond of P4,000, and engaged the services of defense counsel.
The case was dismissed on April 24, 1934, after due investigation, on the ground that the will
alleged to have been falsified had already been probated and there was no evidence that the
petitioner had forged the signature of the testatrix appearing thereon, but that, on the contrary, the
evidence satisfactorily established the authenticity of the signature aforesaid. Dissatisfied with the
result, the provincial fiscal, on May 9, 1934, moved in the Court of First Instance of Pampanga for
reinvestigation of the case. The motion was granted on May 23, 1934, and, for the fourth time, the
petitioner was arrested, filed a bond and engaged the services of counsel to handle his defense. The
reinvestigation dragged on for almost a year until February 18, 1934, when the Court of First
Instance ordered that the case be tried on the merits. The petitioner interposed a demurrer on
November 25, 1935, on the ground that the will alleged to have been forged had already been
probated. This demurrer was overruled on December 24, 1935, whereupon an exception was taken
and a motion for reconsideration and notice of appeal were filed. The motion for reconsideration and
the proposed appeal were denied on January 14, 1936. The case proceeded to trial, and forthwith
petitioner moved to dismiss the case claiming again that the will alleged to have been forged had
already been probated and, further, that the order probating the will is conclusive as to the
authenticity and due execution thereof. The motion was overruled and the petitioner filed with the
Court of Appeals a petition for certiorari with preliminary injunction to enjoin the trial court from
further proceedings in the matter. The injunction was issued and thereafter, on June 19, 1937, the
Court of Appeals denied the petition for certiorari, and dissolved the writ of preliminary injunction.
Three justices dissented in a separate opinion. The case is now before this court for review
on certiorari.

Petitioner contends (1) that the probate of the will of his deceased wife is a bar to his criminal
prosecution for the alleged forgery of the said will; and, (2) that he has been denied the constitutional
right to a speedy trial.

1. Section 306 of our Code of Civil Procedure provides as to the effect of judgments.

SEC. 306. Effect of judgment. The effect of a judgment or final order in an action or
special proceeding before a court or judge of the Philippine Islands or of the United States,
or of any State or Territory of the United States, having jurisdiction to pronounce the
judgment or order, may be as follows.

1. In case of a judgment or order against a specific thing, or in respect to the probate of a

will, or the administration of the estate of a deceased person, or in respect to the personal,
political, or legal condition or relation of a particular person, the judgment or order is
conclusive upon the title of the thing, the will or administration, or the condition or relation of
the person Provided, That the probate of a will or granting of letters of administration shall
only be prima facie evidence of the death of the testator or intestate.

xxx xxx xxx

(Emphasis ours.)

Section 625 of the same Code is more explicit as to the conclusiveness of the due execution of a
probate will. It says.

SEC. 625. Allowance Necessary, and Conclusive as to Execution. No will shall pass
either the real or personal estate, unless it is proved and allowed in the Court of First
 Instance, or by appeal to the Supreme Court; and the allowance by the court of a will of real
and personal estate shall be conclusive as to its due execution. (Emphasis ours.)

(In Manahan vs. Manahan 58 Phil., 448, 451), we held:

. . . The decree of probate is conclusive with respect to the due execution thereof and it
cannot be impugned on any of the grounds authorized by law, except that of fraud, in any
separate or independent action or proceeding. Sec. 625, Code of Civil Procedure;
Castaeda vs. Alemany, 3 Phil., 426; Pimentel vs. Palanca, 5 Phil., 436; Sahagun vs. De
Gorostiza, 7 Phil., 347; Limjuco vs. Ganara, 11 Phil., 393; Montaano vs. Suesa, 14 Phil.,
676; in re Estate of Johnson, 39 Phil, 156; Riera vs. Palmaroli, 40 Phil., 105;
Austria vs. Ventenilla, 21 Phil., 180; Ramirez vs. Gmur, 42 Phil., 855; and Chiong
Jocsoy vs. Vano, 8 Phil., 119.

In 28 R. C. L., p. 377, section 378, it is said.

The probate of a will by the probate court having jurisdiction thereof is usually considered as
conclusive as to its due execution and validity, and is also conclusive that the testator was of
sound and disposing mind at the time when he executed the will, and was not acting under
duress, menace, fraud, or undue influence, and that the will is genuine and not a forgery.
(Emphasis ours.)

As our law on wills, particularly section 625 of our Code of Civil Procedure aforequoted, was taken
almost bodily from the Statutes of Vermont, the decisions of the Supreme Court of the State relative
to the effect of the probate of a will are of persuasive authority in this jurisdiction. The Vermont
statute as to the conclusiveness of the due execution of a probated will reads as follows.

SEC. 2356. No will shall pass either real or personal estate, unless it is proved and allowed
in the probate court, or by appeal in the county or supreme court; and the probate of a will of
real or personal estate shall be conclusive as to its due execution. (Vermont Statutes, p.
451.)

Said the Supreme Court of Vermont in the case of Missionary Society vs. Eells (68 Vt., 497, 504):
"The probate of a will by the probate court having jurisdiction thereof, upon the due notice, is
conclusive as to its due execution against the whole world. (Vt. St., sec. 2336; Fosters
Exrs. vs. Dickerson, 64 Vt., 233.)"

The probate of a will in this jurisdiction is a proceeding in rem. The provision of notice by Publication
as a prerequisite to the allowance of a will is constructive notice to the whole world, and when
probate is granted, the judgment of the court is binding upon everybody, even against the State. This
court held in the case of Manalo vs. Paredes and Philippine Food Co. (47 Phil., 938):

The proceeding for the probate of a will is one in rem (40 Cyc., 1265), and the court acquires
jurisdiction over all the persons interested, through the publication of the notice prescribed by
section 630 of the Code of Civil Procedure, and any order that may be entered therein is
binding against all of them.

Through the publication of the petition for the probate of the will, the court acquires
jurisdiction over all such persons as are interested in said will; and any judgment that may be
rendered after said proceeding is binding against the whole world.
In Everrett vs. Wing (103 Vt., 488, 492), the Supreme Court of Vermont held.

In this State the probate of a will is a proceeding in rem being in form and substance upon
the will itself to determine its validity. The judgment determines the status of the instrument,
whether it is or is not the will of the testator. When the proper steps required by law have
been taken the judgment is binding upon everybody, and makes the instrument as to all the
world just what the judgment declares it to be. (Woodruff vs. Taylor, 20 Vt., 65, 73;
Burbeck vs. Little, 50 Vt., 713, 715; Missionary Society vs. Eells, 68 Vt., 497, 504; 35 Atl.,
463.) The proceedings before the probate court are statutory and are not governed by
common law rules as to parties or causes of action. (Holdrige vs. Holdriges Estate, 53 Vt.,
546, 550; Purdy vs. Estate of Purdy, 67 Vt. 50, 55; 30 Atl., 695.) No process is issued
against anyone in such proceedings, but all persons interested in determining the state or
conditions of the instrument are constructively notified by the publication of notice as
required by G. L. 3219. (Woodruff vs. Taylor, supra; In re Warners Estate 98 Vt., 254; 271;
127 Atl., 362.)

Section 333, paragraph 4, of the Code of Civil Procedure establishes an incontrovertible

presumption in favor of judgments declared by it to be conclusive.

SEC. 333. Conclusive Presumptions. The following presumptions or deductions, which

the law expressly directs to be made from particular facts, are deemed conclusive.

xxx xxx xxx

4. The judgment or order of a court, when declared by this code to be conclusive.

Conclusive presumptions are inferences which the law makes so peremptory that it will not allow
them to be overturned by any contrary proof however strong. (Brant vs. Morning Journal Assn., 80
N.Y.S., 1002, 1004; 81 App. Div., 183; see, also, Joslyn vs. Puloer, 59 Hun., 129, 140, 13 N.Y.S.,
311.) The will in question having been probated by a competent court, the law will not admit any
proof to overthrow the legal presumption that it is genuine and not a forgery.

The majority decision of the Court of Appeals cites English decisions to bolster up its conclusion that
"the judgment admitting the will to probate is binding upon the whole world as to the due execution
and genuineness of the will insofar as civil rights and liabilities are concerned, but not for the
purpose of punishment of a crime." The cases of Dominus Rex vs. Vincent, 93 English Reports, Full
Reprint, 795, the first case being decided in 1721, were cited to illustrate the earlier English
decisions to the effect that upon indictment for forging a will, the probating of the same is conclusive
evidence in the defendants favor of its genuine character. Reference is made, however, to the cases
of Rex vs. Gibson, 168 English Reports, Full Reprint, 836, footnote (a), decided in 1802, and
Rex vs. Buttery and Macnamarra, 168 English Reports, Full Reprint, 836, decided in 1818, which
establish a contrary rule. Citing these later cases, we find the following quotation from Black on
Judgments, Vol. II, page 764.

A judgment admitting a will to probate cannot be attacked collaterally although the will was
forged; and a payment to the executor named therein of a debt due the decedent will
discharge the same, notwithstanding the spurious character of the instrument probated. It
has also been held that, upon an indictment for forging a will, the probate of the paper in
question is conclusive evidence in the defendants favor of its genuine character. But this
particular point has lately been ruled otherwise.
It was the case of Rex vs. Buttery, supra, which induced the Supreme Court of Massachussetts in
the case of Waters vs. Stickney (12 Allen 1; 90 Am. Dec., 122) also cited by the majority opinion, to
hold that "according to later and sounder decisions, the probate, though conclusive until set aside of
the disposition of the property, does not protect the forger from punishment." This was reproduced in
28 R.C.L., p. 376, and quoted in Barry vs. Walker (103 Fla., 533; 137 So., 711, 715), and
Thompson vs. Freeman (149 So., 740, 742), also cited in support of the majority opinion of the Court
of Appeals. The dissenting opinion of the Court of Appeals in the instant case under review makes a
cursory study of the statutes obtaining in England, Massachussetts and Florida, and comes to the
conclusion that the decisions cited in the majority opinion do not appear to "have been
promulgated in the face of statutes similar to ours." The dissenting opinion cites Whartons Criminal
Evidence (11th ed., sec. 831), to show that the probate of a will in England is only prima facie proof
of the validity of the will (Op. Cit. quoting Marriot vs. Marriot, 93 English Reprint, 770); and 21 L.R.A.
(pp. 686689 and note), to show that in Massachussetts there is no statute making the probate of a
will conclusive, and that in Florida the statute(sec. 1810, Revised Statutes) makes the probate
conclusive evidence as to the validity of the will with regard to personal, and prima facie as to real
estate. The cases decided by the Supreme Court of Florida cited by the majority opinion, supra, refer
to wills of both personal and real estate.

The petitioner cites the case of State vs. McGlynn (20 Cal., 233, decided in 1862), in which Justice
Norton of the Supreme Court of California, makes the following review of the nature of probate
proceedings in England with respect to wills personal and real property.

In England, the probate of wills of personal estate belongs to the Ecclesiastical Courts. No
probate of a will relating to real estate is there necessary. The real estate, upon the death of
the party seized, passes immediately to the devisee under the will if there be one; or if there
be no will, to the heir at law. The person who thus becomes entitled takes possession. If one
person claims to be the owner under a will, and another denies the validity of the will and
claims to be the owner as heir at law, an action of ejectment is brought against the party who
may be in possession by the adverse claimant; and on the trial of such an action, the validity
of the will is contested, and evidence may be given by the respective parties as to the
capacity of the testator to make a will, or as to any fraud practiced upon him, or as to the
actual execution of it, or as to any other circumstance affecting its character as a valid devise
of the real estate in dispute. The decision upon the validity of the will in such action
becomes res adjudicata, and is binding and conclusive upon the parties to that action and
upon any person who may subsequently acquire the title from either of those parties; but the
decision has no effect upon other parties, and does not settle what may be called the status
or character of the will, leaving it subject to be enforced as a valid will, or defeated as invalid,
whenever other parties may have a contest depending upon it. A probate of a will of personal
property, on the contrary, is a judicial determination of the character of the will itself. It does
not necessarily or ordinarily arise from any controversy between adverse claimants, but is
necessary in order to authorize a disposition of the personal estate in pursuance of its
provisions. In case of any controversy between adverse claimants of the personal estate, the
probate is given in evidence and is binding upon the parties, who are not at liberty to
introduce any other evidence as to the validity of the will.

The intervenors, on the other hand, attempt to show that the English law on wills is different from
that stated in the case of State vs. McGlynn, supra, citing the following statutes.

1. The Wills Act, 1837 (7 Will. 4 E 1 Vict. c. 26).

2. The Court of Probate Act, 1857 (20 and 21 Vict. c. 77).

 3. The Judicature Act, 1873 (36 and 37 Vict. c. 66).

The Wills Act of 1837 provides that probate may be granted of "every instrumental purporting to be
testamentary and executed in accordance with the statutory requirements . . . if it disposes of
property, whether personal or real." The Ecclesiastical Courts which took charge of testamentary
causes (Ewells Blackstone [1910], p. 460), were determined by the Court of Probate Act of 1857,
and the Court of Probate in turn was, together with other courts, incorporated into the Supreme
Court of Judicature, and transformed into the Probate Division thereof, by the Judicature Act of
1873. (Lord Halsbury, The Laws of England[1910], pp. 151156.) The intervenors overlook the fact,
however, that the case of Rex vs. Buttery and Macnamarra, supra, upon which they rely in support
of their theory that the probate of a forged will does not protect the forger from punishment, was
decided long before the foregoing amendatory statutes to the English law on wills were enacted. The
case of State vs. McGlynn may be considered, therefore, as more or less authoritative on the law of
England at the time of the promulgation of the decision in the case of Rex vs. Buttery and
Macnamarra.

In the case of State vs. McGlynn, the Attorney General of California filed an information to set aside
the probate of the will of one Broderick, after the lapse of one year provided by the law of California
for the review of an order probating a will, in order that the estate may be escheated to the State of
California for the review of an probated will was forged and that Broderick therefore died intestate,
leaving no heirs, representatives or devisees capable of inheriting his estate. Upon these facts, the
Supreme Court of California held.

The fact that a will purporting to be genuine will of Broderick, devising his estate to a devisee
capable of inheriting and holding it, has been admitted to probate and established as a
genuine will by the decree of a Probate Court having jurisdiction of the case, renders
it necessary to decide whether that decree, and the will established by it, or either of them,
can be set aside and vacated by the judgment of any other court. If it shall be found that the
decree of the Probate Court, not reversed by the appellate court, is final and conclusive, and
not liable to be vacated or questioned by any other court, either incidentally or by any direct
proceeding, for the purpose of impeaching it, and that so long as the probate stands the will
must be recognized and admitted in all courts to be valid, then it will be immaterial and
useless to inquire whether the will in question was in fact genuine or forged.
(State vs. McGlynn, 20 Cal., 233; 81 Am. Dec., 118, 121.).

Although in the foregoing case the information filed by the State was to set aside the decree of
probate on the ground that the will was forged, we see no difference in principle between that case
and the case at bar. A subtle distinction could perhaps be drawn between setting aside a decree of
probate, and declaring a probated will to be a forgery. It is clear, however, that a duly probated will
cannot be declared to be a forgery without disturbing in a way the decree allowing said will to
probate. It is at least anomalous that a will should be regarded as genuine for one purpose and
spurious for another.

The American and English cases show a conflict of authorities on the question as to whether or not
the probate of a will bars criminal prosecution of the alleged forger of the probate will. We have
examined some important cases and have come to the conclusion that no fixed standard maybe
adopted or drawn therefrom, in view of the conflict no less than of diversity of statutory provisions
obtaining in different jurisdictions. It behooves us, therefore, as the court of last resort, to choose that
rule most consistent with our statutory law, having in view the needed stability of property rights and
the public interest in general. To be sure, we have seriously reflected upon the dangers of evasion
from punishment of culprits deserving of the severity of the law in cases where, as here, forgery is
discovered after the probate of the will and the prosecution is had before the prescription of the
offense. By and large, however, the balance seems inclined in favor of the view that we have taken.
Not only does the law surround the execution of the will with the necessary formalities and require
probate to be made after an elaborate judicial proceeding, but section 113, not to speak of section
513, of our Code of Civil Procedure provides for an adequate remedy to any party who might have
been adversely affected by the probate of a forged will, much in the same way as other parties
against whom a judgment is rendered under the same or similar circumstances. (Pecson vs.Coronel,
43 Phil., 358.)The aggrieved party may file an application for relief with the proper court within a
reasonable time, but in no case exceeding six months after said court has rendered the judgment of
probate, on the ground of mistake, inadvertence, surprise or excusable neglect. An appeal lies to
review the action of a court of first instance when that court refuses to grant relief. (Banco Espaol
Filipino vs. Palanca, 37 Phil., 921; Philippine Manufacturing Co. vs. Imperial, 47 Phil., 810;
Samia vs. Medina, 56 Phil., 613.) After a judgment allowing a will to be probated has become final
and unappealable, and after the period fixed by section 113 of the Code of Civil Procedure has
expired, the law as an expression of the legislative wisdom goes no further and the case ends there.

. . . The court of chancery has no capacity, as the authorities have settled, to judge or decide
whether a will is or is not a forgery; and hence there would be an incongruity in its assuming
to set aside a probate decree establishing a will, on the ground that the decree was procured
by fraud, when it can only arrive at the fact of such fraud by first deciding that the will was a
forgery. There seems, therefore, to be a substantial reason, so long as a court of chancery is
not allowed to judge of the validity of a will, except as shown by the probate, for the
exception of probate decrees from the jurisdiction which courts of chancery exercise in
setting aside other judgments obtained by fraud. But whether the exception be founded in
good reason or otherwise, it has become too firmly established to be disregarded. At the
present day, it would not be a greater assumption to deny the general rule that courts of
chancery may set aside judgments procured by fraud, than to deny the exception to that rule
in the case of probate decrees. We must acquiesce in the principle established by the
authorities, if we are unable to approve of the reason. Judge Story was a staunch advocate
for the most enlarged jurisdiction of courts of chancery, and was compelled to yield to the
weight of authority. He says "No other excepted case is known to exist; and it is not easy to
discover the grounds upon which this exception stands, in point of reason or principle,
although it is clearly settled by authority. (1 Storys Eq. Jur. sec. 440.)" (State vs. McGlynn,
20 Cal., 233; 81 Am. Dec., 118, 129. See, also, Tracy vs. Muir, 121 American State Reports,
118, 125.)

We hold, therefore, that in view of the provisions of sections 306, 333 and 625 of our Code of Civil
Procedure, criminal action will not lie in this jurisdiction against the forger of a will which had been
duly admitted to probate by a court of competent jurisdiction.

The resolution of the foregoing legal question is sufficient to dispose of the case. However, the other
legal question with reference to the denial to the accused of his right to a speedy trial having been
squarely raised and submitted, we shall proceed to consider the same in the light of cases already
adjudicated by this court.

2. The Constitution of the Philippines provides that "In all criminal prosecutions the accused . . . shall
enjoy the right . . . to have a speedy . . . trial. . . . (Art. III, sec. 1, par. 17. See, also, G.O. No. 58, sec.
15, No. 7.) Similar provisions are to be found in the Presidents Instructions to the Second Philippine
Commission (par. 11), the Philippine Bill of July 1, 1902 (sec. 5, par. 2) and the Jones Act of August
29, 1916 (sec. 3, par. 2). The provisions in the foregoing organic acts appear to have been taken
from similar provisions in the Constitution of the United States (6th Amendment) and those of the
various states of the American Union. A similar injunction is contained in the Malolos Constitution
(art. 8, Title IV), not to speak of other constitutions. More than once this court had occasion to set
aside the proceedings in criminal cases to give effect to the constitutional injunction of speedy trial.
(Conde vs. Judge of First Instance and Fiscal of Tayabas [1923], 45 Phil., 173; Conde vs. Rivera
and Unson[1924], 45 Phil., 650; People vs. Castaeda and Fernandez[1936]), 35 Off. Gaz., 1269;
Kalaw vs. Apostol, Oct. 15, 1937, G.R. No. 45591; Esguerra vs. De la Costa, Aug. 30,1938, G.R.
No. 46039.).

In Conde vs. Rivera and Unson, supra, decided before the adoption of our Constitution, we said.

Philippine organic and statutory law expressly guarantee that in all criminal prosecutions the
accused shall enjoy the right to have a speedy trial. Aurelia Conde, like all other accused
persons, has a right to a speedy trial in order that if innocent she may go free, and she has
been deprived of that right in defiance of law. Dismissed from her humble position, and
compelled to dance attendance on courts while investigations and trials are arbitrarily
postponed without her consent, is palpably and openly unjust to her and a detriment to the
public. By the use of reasonable diligence, the prosecution could have settled upon the
appropriate information, could have attended to the formal preliminary examination, and
could have prepared the case for a trial free from vexatious, capricious, and oppressive
delays.

In People vs. Castaeda and Fernandez, supra, this court found that the accused had not been
given a fair and impartial trial. The case was to have been remanded to the court a quo for a new
trial before an impartial judge. This step, however, was found unnecessary. A review of the evidence
convinced this court that a judgment of conviction for theft, as charged, could not be sustained and,
having in view the right to a speedy trial guaranteed by the Constitution to every person accused of
crime, entered a judgment acquitting the accused, with costs de oficio. We said.

. . . The Constitution, Article III, section 1, paragraph 17, guarantees to every accused
person the right to a speedy trial. This criminal proceeding has been dragging on for almost
five years now. The accused have twice appealed to this court for redress from the wrong
that they have suffered at the hands of the trial court. At least one of them, namely Pedro
Fernandez alias Piro, had been con-fined in prison from July 20, 1932 to November 27,
1934, for inability to post the required bond of P3,000 which was finally reduced to P300. The
Government should be the last to set an example of delay and oppression in the
administration of justice and it is the moral and legal obligation of this court to see that the
criminal proceedings against the accused come to an end and that they be immediately dis-
charged from the custody of the law. (Conde vs. Rivera and Unson, 45 Phil., 651.)

In Kalaw vs. Apostol, supra, the petitioner invoked and this court applied and gave effect to the
doctrines stated in the second Conde case, supra. In granting the writs prayed for, this court, after
referring to the constitutional and statutory provisions guaranteeing to persons accused of crime the
right to a speedy trial, said:

Se infiere de los preceptos legales transcritos que todo acusado en causa criminal tiene
derecho a ser juzgado pronta y publicamente. Juicio rapido significa un juicioque se celebra
de acuerdo con la ley de procedimiento criminal y los reglamentos, libre de dilaciones
vejatorias, caprichosas y opersivas (Burnett vs.State, 76 Ark., 295; 88S. W., 956; 113
AMSR, 94; Stewart vs. State, 13 Ark., 720; Peo. vs. Shufelt, 61 Mich., 237; 28 N. W., 79;
Nixon vs. State, 10 Miss., 497; 41 AMD., 601; State vs. Cole, 4 Okl. Cr., 25; 109 P., 736;
State vs. Caruthers, 1 Okl. Cr., 428; 98 P., 474; State vs. Keefe, 17 Wyo., 227, 98 p., 122;22
IRANS, 896; 17 Ann. Cas., 161). Segun los hechos admitidos resulta que al recurrente se le
concedio vista parcial del asunto, en el Juzgado de Primera Instancia de Samar, solo
despues de haber transcurrido ya mas de un ao y medio desde la presentacion de la
primera querella y desde la recepcion de la causa en dicho Juzgado, y despues de haberse
 transferido dos veces la vista delasunto sin su consentimiento. A esto debe aadirse que
laprimera transferencia de vista era claramente injustificadaporque el motivo que se alego
consistio unicamente en laconveniencia personal del ofendido y su abogado, no habiendose
probado suficientemente la alegacion del primero de quese hallaba enfermo. Es cierto que el
recurrente habia pedido que, en vez de sealarse a vista el asunto para el mayo de 1936, lo
fuera para el noviembre del mismo ao; pero,aparte de que la razon que alego era bastante
fuerte porquesu abogado se oponia a comparecer por compromisos urgentes contraidos con
anterioridad y en tal circunstancia hubiera quedado indefenso si hubiese sido obligado a
entraren juicio, aparece que la vista se pospuso por el Juzgado amotu proprio, por haber
cancelado todo el calendario judicial preparado por el Escribano para el mes de junio.
Declaramos, con visto de estos hechos, que al recurrents se leprivo de su derecho
fundamental de ser juzgado prontamente.

Esguerra vs. De la Costa, supra, was a petition for mandamus to compel the respondent judge of
the Court of First Instance of Rizal to dismiss the complaint filed in a criminal case against the
petitioner, to cancel the bond put up by the said petitioner and to declare the costs de oficio. In
accepting the contention that the petitioner had been denied speedy trial, this court said:

Consta que en menos de un ao el recurrente fue procesado criminalmente por el alegado

delito de abusos deshonestos, en el Juzgado de Paz del Municipio de Cainta, Rizal. Como
consecuencia de las denuncias que contra el se presentaron fue arrestado tres veces y para
gozar de libertad provisional, en espera de los juicios, se vio obligado a prestartres fianzas
por la suma de P1,000 cada una. Si no se da fin al proceso que ultimamente se ha incoado
contra el recurrente la incertidumbre continuara cerniendose sobre el y las consiguientes
molestias y preocupaciones continuaran igualmente abrumandole. El Titulo III, articulo 1, No.
17,de la Constitucion preceptua que en todo proceso criminalel acusado tiene derecho de
ser juzgado pronta y publicamente. El Articulo 15, No. 7, de la Orden General No. 58
dispone asimismo que en las causas criminales el acusado tendra derecho a ser juzgado
pronta y publicamente. Si el recurrente era realmente culpable del delito que se le imputo,
tenia de todos modos derechos a que fuera juzgado pronta y publicamente y sin dilaciones
arbitrarias y vejatorias. Hemos declarado reiteradamente que existe un remedio positivo
para los casos en que se viola el derecho constitucional del acusado de ser juzgado
prontamente. El acusado que esprivado de su derecho fundomental de ser enjuiciado
rapidamente tiene derecho a pedir que se le ponga en libertad, si estuviese detenido, o a
que la causa que pende contra el sea sobreseida definitivamente. (Conde contra Rivera y
Unson, 45 Jur. Fil., 682; In the matter of Ford [1911], 160 Cal., 334; U. S. vs. Fox [1880], 3
Mont., 512; Kalaw contra Apostol, R. G. No. 45591, Oct. 15, 1937; Pueblo contra Castaeda
y Fernandez, 35 Gac. Of., 1357.)

We are again called upon to vindicate the fundamental right to a speedy trial. The facts of the
present case may be at variance with those of the cases hereinabove referred to. Nevertheless, we
are of the opinion that, under the circumstances, we should consider the substance of the right
instead of indulging in more or less academic or undue factual differentiations. The petitioner herein
has been arrested four times, has put up a bond in the sum of P4,000 and has engaged the services
of counsel to undertake his defense an equal number of times. The first arrest was made upon a
complaint filed by one of the intervenors herein for alleged falsification of a will which, sixteen
months before, had been probated in court. This complaint, after investigation, was dismissed at the
complainant's own request. The second arrest was made upon a complaint charging the same
offense and this complaint, too, was dismissed at the behest of the complainant herself who alleged
the quite startling ground that the petitioner was in poor health. The third arrest was made following
the filing of an information by the provincial fiscal of Pampanga, which information was dismissed,
after due investigation, because of insufficiency of the evidence. The fourth arrest was made when
the provincial fiscal secured a reinvestigation of the case against the petitioner on the pretext that he
had additional evidence to present, although such evidence does not appear to have ever been
presented.

It is true that the provincial fiscal did not intervene in the case until February 2, 1934, when he
presented an information charging the petitioner, for the third time, of the offense of falsification.
This, however, does not matter. The prosecution of offenses is a matter of public interest and it is the
duty of the government or those acting in its behalf to prosecute all cases to their termination without
oppressive, capricious and vexatious delay. The Constitution does not say that the right to a speedy
trial may be availed of only where the prosecution for crime is commenced and undertaken by the
fiscal. It does not exclude from its operation cases commenced by private individuals. Where once a
person is prosecuted criminally, he is entitled to a speedy trial, irrespective of the nature of the
offense or the manner in which it is authorized to be commenced. In any event, even the actuations
of the fiscal himself in this case is not entirely free from criticism. From October 27, 1932, when the
first complaint was filed in the justice of the peace court of San Fernando, to February 2, 1934, when
the provincial fiscal filed his information with the justice of the peace of Mexico, one year, three
months and six days transpired; and from April 27, 1933, when the second criminal complaint was
dismissed by the justice of the peace of Mexico, to February 2, 1934, nine months and six days
elapsed. The investigation following the fourth arrest, made after the fiscal had secured a
reinvestigation of the case, appears also to have dragged on for about a year. There obviously has
been a delay, and considering the antecedent facts and circumstances within the knowledge of the
fiscal, the delay may not at all be regarded as permissible. In Kalaw vs. Apostol, supra, we observed
that the prosecuting officer all prosecutions for public offenses (secs. 1681 and 2465 of the Rev.
Adm. Code), and that it is his duty to see that criminal cases are heard without vexatious, capricious
and oppressive delays so that the courts of justice may dispose of them on the merits and determine
whether the accused is guilty or not. This is as clear an admonition as could be made. An accused
person is entitled to a trial at the earliest opportunity. (Sutherland on the Constitution, p. 664; United
States vs. Fox, 3 Mont., 512.) He cannot be oppressed by delaying he commencement of trial for an
unreasonable length of time. If the proceedings pending trial are deferred, the trial itself is
necessarily delayed. It is not to be supposed, of course, that the Constitution intends to remove from
the prosecution every reasonable opportunity to prepare for trial. Impossibilities cannot be expected
or extraordinary efforts required on the part of the prosecutor or the court. As stated by the Supreme
Court of the United States, "The right of a speedy trial is necessarily relative. It is consistent with
delays and depends upon circumstances. It secures rights to a defendant. It does not preclude the
rights of public justice." (Beavers vs. Haubert [1905], 198 U. S., 86; 25 S. Ct., 573; 49 Law. ed., 950,
954.).

It may be true, as seems admitted by counsel for the intervenors, in paragraph 8, page 3 of his brief,
that the delay was due to "the efforts towards reaching an amicable extrajudicial compromise," but
this fact, we think, casts doubt instead upon the motive which led the intervenors to bring criminal
action against the petitioner. The petitioner claims that the intention of the intervenors was to press
upon settlement, with the continuous threat of criminal prosecution, notwithstanding the probate of
the will alleged to have been falsified. Argument of counsel for the petitioner in this regard is not
without justification. Thus after the filing of the second complaint with the justice of the peace court of
Mexico, complainant herself, as we have seen, asked for dismissal of the complaint, on the ground
that "el acusado tenia la salud bastante delicada," and, apparently because of failure to arrive at any
settlement, she decided to renew her complaint.

Counsel for the intervenors contend and the contention is sustained by the Court of Appeals
that the petitioner did not complain heretofore of the denial of his constitutional right to a speedy trial.
This is a mistake. When the petitioner, for the fourth time, was ordered arrested by the Court of First
Instance of Pampanga, he moved for reconsideration of the order of arrest, alleging, among other
things, "Que por estas continuas acusaciones e investigaciones, el acusado compareciente no
obstante su mal estado de salud desde el ao 1932 en que tuvo que ser operado por padecer de
tuberculosis ha tenido que sostener litigios y ha sufrido la mar de humiliaciones y zozobras y ha
incudo en enormes gastos y molestias y ha desatendido su quebrantada salud." The foregoing
allegation was inserted on page 6 of the amended petition for certiorari presented to the Court of
Appeals. The constitutional issue also appears to have been actually raised and considered in the
Court of Appeals. In the majority opinion of that court, it is stated:

Upon the foregoing facts, counsel for the petitioner submits for the consideration of this court
the following questions of law: First, that the respondent court acted arbitrarily and with
abuse of its authority, with serious damage and prejudice to the rights and interests of the
petitioner, in allowing that the latter be prosecuted and arrested for the fourth time, and that
he be subjected, also for the fourth time, to a preliminary investigation for the same offense,
hereby converting the court into an instrument of oppression and vengeance on the part of
the alleged offended parties, Rosario Basa et al.; . . . .

And in the dissenting opinion, we find the following opening paragraph:

We cannot join in a decision declining to stop a prosecution that has dragged for about five
years and caused the arrest on four different occasions of a law abiding citizen for the
alleged offense of falsifying a will that years be competent jurisdiction.

From the view we take of the instant case, the petitioner is entitled to have the criminal proceedings
against him quashed. The judgment of the Court of Appeals is hereby reversed, without
pronouncement regarding costs. So ordered.

Avancea, C.J., Villa-Real, Imperial, Diaz and Concepcion, JJ., concur.

G.R. No. L-56340 June 24, 1983

SPOUSES ALVARO PASTOR, JR. and MA. ELENA ACHAVAL DE PASTOR, petitioners,
vs.
THE COURT OF APPEALS, JUAN Y. REYES, JUDGE OF BRANCH I, COURT OF FIRST
INSTANCE OF CEBU and LEWELLYN BARLITO QUEMADA, respondents.

Pelaez, Pelaez, & Pelaez Law Office for petitioners.

Ceniza, Rama & Associates for private respondents.

PLANA, J.:

I. FACTS:

This is a case of hereditary succession.

Alvaro Pastor, Sr. (PASTOR, SR.), a Spanish subject, died in Cebu City on June 5, 1966, survived
by his Spanish wife Sofia Bossio (who also died on October 21, 1966), their two legitimate children
Alvaro Pastor, Jr. (PASTOR, JR.) and Sofia Pastor de Midgely (SOFIA), and an illegitimate child, not
natural, by the name of Lewellyn Barlito Quemada QUEMADA PASTOR, JR. is a Philippine citizen,
having been naturalized in 1936. SOFIA is a Spanish subject. QUEMADA is a Filipino by his
mother's citizenship.
On November 13, 1970, QUEMADA filed a petition for the probate and allowance of an alleged
holographic will of PASTOR, SR. with the Court of First Instance of Cebu, Branch I (PROBATE
COURT), docketed as SP No. 3128-R. The will contained only one testamentary disposition: a
legacy in favor of QUEMADA consisting of 30% of PASTOR, SR.'s 42% share in the operation by
Atlas Consolidated Mining and Development Corporation (ATLAS) of some mining claims in Pina-
Barot, Cebu.

On November 21, 1970, the PROBATE COURT, upon motion of QUEMADA and after an ex parte
hearing, appointed him special administrator of the entire estate of PASTOR, SR., whether or not
covered or affected by the holographic will. He assumed office as such on December 4, 1970 after
filing a bond of P 5,000.00.

On December 7, 1970, QUEMADA as special administrator, instituted against PASTOR, JR. and his
wife an action for reconveyance of alleged properties of the estate, which included the properties
subject of the legacy and which were in the names of the spouses PASTOR, JR. and his wife, Maria
Elena Achaval de Pastor, who claimed to be the owners thereof in their own rights, and not by
inheritance. The action, docketed as Civil Case No. 274-R, was filed with the Court of First Instance
of Cebu, Branch IX.

On February 2, 1971, PASTOR, JR. and his sister SOFIA filed their opposition to the petition for
probate and the order appointing QUEMADA as special administrator.

On December 5, 1972, the PROBATE COURT issued an order allowing the will to probate.
Appealed to the Court of Appeals in CA-G.R. No. 52961- R, the order was affirmed in a decision
dated May 9, 1977. On petition for review, the Supreme Court in G.R. No. L-46645 dismissed the
petition in a minute resolution dated November 1, 1977 and remanded the same to the PROBATE
COURT after denying reconsideration on January 11, 1978.

For two years after remand of the case to the PROBATE COURT, QUEMADA filed pleading after
pleading asking for payment of his legacy and seizure of the properties subject of said legacy.
PASTOR, JR. and SOFIA opposed these pleadings on the ground of pendency of the reconveyance
suit with another branch of the Cebu Court of First Instance. All pleadings remained unacted upon by
the PROBATE COURT.

On March 5, 1980, the PROBATE COURT set the hearing on the intrinsic validity of the will for
March 25, 1980, but upon objection of PASTOR, JR. and SOFIA on the e ground of pendency of the
reconveyance suit, no hearing was held on March 25. Instead, the PROBATE COURT required the
parties to submit their respective position papers as to how much inheritance QUEMADA was
entitled to receive under the wig. Pursuant thereto, PASTOR. JR. and SOFIA submitted their
Memorandum of authorities dated April 10, which in effect showed that determination of how much
QUEMADA should receive was still premature. QUEMADA submitted his Position paper dated April
20, 1980. ATLAS, upon order of the Court, submitted a sworn statement of royalties paid to the
Pastor Group of tsn from June 1966 (when Pastor, Sr. died) to February 1980. The statement
revealed that of the mining claims being operated by ATLAS, 60% pertained to the Pastor Group
distributed as follows:

1. A. Pastor, Jr. ...................................40.5%

2. E. Pelaez, Sr. ...................................15.0%

3. B. Quemada .......................................4.5%
On August 20, 1980, while the reconveyance suit was still being litigated in Branch IX of the Court of
First Instance of Cebu, the PROBATE COURT issued the now assailed Order of Execution and
Garnishment, resolving the question of ownership of the royalties payable by ATLAS and ruling in
effect that the legacy to QUEMADA was not inofficious. [There was absolutely no statement or claim
in the Order that the Probate Order of December 5, 1972 had previously resolved the issue of
ownership of the mining rights of royalties thereon, nor the intrinsic validity of the holographic will.]

The order of August 20, 1980 found that as per the holographic will and a written acknowledgment of
PASTOR, JR. dated June 17, 1962, of the above 60% interest in the mining claims belonging to the
Pastor Group, 42% belonged to PASTOR, SR. and only 33% belonged to PASTOR, JR. The
remaining 25% belonged to E. Pelaez, also of the Pastor Group. The PROBATE COURT thus
directed ATLAS to remit directly to QUEMADA the 42% royalties due decedent's estate, of which
QUEMADA was authorized to retain 75% for himself as legatee and to deposit 25% with a reputable
banking institution for payment of the estate taxes and other obligations of the estate. The 33%
share of PASTOR, JR. and/or his assignees was ordered garnished to answer for the accumulated
legacy of QUEMADA from the time of PASTOR, SR.'s death, which amounted to over two million
pesos.

The order being "immediately executory", QUEMADA succeeded in obtaining a Writ of Execution
and Garnishment on September 4, 1980, and in serving the same on ATLAS on the same day.
Notified of the Order on September 6, 1980, the oppositors sought reconsideration thereof on the
same date primarily on the ground that the PROBATE COURT gravely abused its discretion when it
resolved the question of ownership of the royalties and ordered the payment of QUEMADA's legacy
after prematurely passing upon the intrinsic validity of the will. In the meantime, the PROBATE
COURT ordered suspension of payment of all royalties due PASTOR, JR. and/or his assignees until
after resolution of oppositors' motion for reconsideration.

Before the Motion for Reconsideration could be resolved, however, PASTOR, JR., this time joined
by his wife Ma. ELENA ACHAVAL DE PASTOR, filed with the Court of Appeals a Petition for
certiorari and Prohibition with a prayer for writ of preliminary injunction (CA-G.R. No. SP- 11373-R).
They assailed the Order dated August 20, 1980 and the writ of execution and garnishment issued
pursuant thereto. The petition was denied on November 18, 1980 on the grounds (1) that its filing
was premature because the Motion for Reconsideration of the questioned Order was still pending
determination by the PROBATE COURT; and (2) that although "the rule that a motion for
reconsideration is prerequisite for an action for certiorari is never an absolute rule," the Order
assailed is "legally valid. "

On December 9, 1980, PASTOR, JR. and his wife moved for reconsideration of the Court of
Appeal's decision of November 18, 1980, calling the attention of the appellate court to another order
of the Probate Court dated November 11, 1980 (i.e., while their petition for certiorari was pending
decision in the appellate court), by which the oppositors' motion for reconsideration of the Probate
Court's Order of August 20, 1980 was denied. [The November 11 Order declared that the questions
of intrinsic validity of the will and of ownership over the mining claims (not the royalties alone) had
been finally adjudicated by the final and executory Order of December 5, 1972, as affirmed by the
Court of Appeals and the Supreme Court, thereby rendering moot and academic the suit for
reconveyance then pending in the Court of First Instance of Cebu, Branch IX. It clarified that only the
33% share of PASTOR, JR. in the royalties (less than 7.5% share which he had assigned to
QUEMADA before PASTOR, SR. died) was to be garnished and that as regards PASTOR, SR.'s
42% share, what was ordered was just the transfer of its possession to the custody of the PROBATE
COURT through the special administrator. Further, the Order granted QUEMADA 6% interest on his
unpaid legacy from August 1980 until fully paid.] Nonetheless, the Court of Appeals denied
reconsideration.
Hence, this Petition for Review by certiorari with prayer for a writ of pre y injunction, assailing the
decision of the Court of Appeals dated November 18, 1980 as well as the orders of the Probate
Court dated August 20, 1980, November 11, 1980 and December 17, 1980, Med by petitioners on
March 26, 1981, followed by a Supplemental Petition with Urgent Prayer for Restraining Order.

In April 1981, the Court (First Division) issued a writ of preliminary injunction, the lifting of which was
denied in the Resolution of the same Division dated October 18, 1982, although the bond of
petitioners was increased from P50,000.00 to P100,000.00.

Between December 21, 1981 and October 12, 1982, private respondent filed seven successive
motions for early resolution. Five of these motions expressly prayed for the resolution of the question
as to whether or not the petition should be given due course.

On October 18, 1982, the Court (First Division) adopted a resolution stating that "the petition in fact
and in effect was given due course when this case was heard on the merits on September 7, (should
be October 21, 1981) and concise memoranda in amplification of their oral arguments on the merits
of the case were filed by the parties pursuant to the resolution of October 21, 1981 . . . " and denied
in a resolution dated December 13, 1982, private respondent's "Omnibus motion to set aside
resolution dated October 18, 1982 and to submit the matter of due course to the present
membership of the Division; and to reassign the case to another ponente."

Upon Motion for Reconsideration of the October 18, 1982 and December 13, 1982 Resolutions, the
Court en banc resolved to CONFIRM the questioned resolutions insofar as hey resolved that the
petition in fact and in effect had been given due course.

II. ISSUES:

Assailed by the petitioners in these proceedings is the validity of the Order of execution and
garnishment dated August 20, 1980 as well as the Orders subsequently issued allegedly to
implement the Probate Order of December 5, 1972, to wit: the Order of November 11, 1980
declaring that the Probate Order of 1972 indeed resolved the issues of ownership and intrinsic
validity of the will, and reiterating the Order of Execution dated August 20, 1980; and the Order of
December 17, 1980 reducing to P2,251,516.74 the amount payable to QUEMADA representing the
royalties he should have received from the death of PASTOR, SR. in 1966 up to February 1980.

The Probate Order itself, insofar as it merely allowed the holographic will in probate, is not
questioned. But petitioners denounce the Probate Court for having acted beyond its jurisdiction or
with grave abuse of discretion when it issued the assailed Orders. Their argument runs this way:
Before the provisions of the holographic win can be implemented, the questions of ownership of the
mining properties and the intrinsic validity of the holographic will must first be resolved with finality.
Now, contrary to the position taken by the Probate Court in 1980 i.e., almost eight years after the
probate of the will in 1972 the Probate Order did not resolve the two said issues. Therefore, the
Probate Order could not have resolved and actually did not decide QUEMADA's entitlement to the
legacy. This being so, the Orders for the payment of the legacy in alleged implementation of the
Probate Order of 1972 are unwarranted for lack of basis.

Closely related to the foregoing is the issue raised by QUEMADA The Probate Order of 1972 having
become final and executory, how can its implementation (payment of legacy) be restrained? Of
course, the question assumes that QUEMADA's entitlement to the legacy was finally adjudged in the
Probate Order.
On the merits, therefore, the basic issue is whether the Probate Order of December 5, 1972 resolved
with finality the questions of ownership and intrinsic validity. A negative finding will necessarily
render moot and academic the other issues raised by the parties, such as the jurisdiction of the
Probate Court to conclusively resolve title to property, and the constitutionality and repercussions of
a ruling that the mining properties in dispute, although in the name of PASTOR, JR. and his wife,
really belonged to the decedent despite the latter's constitutional disqualification as an alien.

On the procedural aspect, placed in issue is the propriety of certiorari as a means to assail the
validity of the order of execution and the implementing writ.

III. DISCUSSION:

1. Issue of Ownership

(a) In a special proceeding for the probate of a will, the issue by and large is restricted to the
extrinsic validity of the will, i.e., whether the testator, being of sound mind, freely executed the will in
accordance with the formalities prescribed by law. (Rules of Court, Rule 75, Section 1; Rule 76,
Section 9.) As a rule, the question of ownership is an extraneous matter which the Probate Court
cannot resolve with finality. Thus, for the purpose of determining whether a certain property should
or should not be included in the inventory of estate properties, the Probate Court may pass upon the
title thereto, but such determination is provisional, not conclusive, and is subject to the final decision
in a separate action to resolve title. [3 Moran, Comments on the Rules of Court (1980 ed.), p. 458;
Valero Vda. de Rodriguez vs. Court of Appeals, 91 SCRA 540.]

(b) The rule is that execution of a judgment must conform to that decreed in the dispositive part of
the decision. (Philippine-American Insurance Co. vs. Honorable Flores, 97 SCRA 811.) However, in
case of ambiguity or uncertainty, the body of the decision may be scanned for guidance in
construing the judgment. (Heirs of Presto vs. Galang, 78 SCRA 534; Fabular vs. Court of Appeals,
119 SCRA 329; Robles vs. Timario. 107 Phil. 809.)

The Order sought to be executed by the assailed Order of execution is the Probate Order of
December 5, 1972 which allegedly resolved the question of ownership of the disputed mining
properties. The said Probate Order enumerated the issues before the Probate Court, thus:

Unmistakably, there are three aspects in these proceedings: (1) the probate of the
holographic will (2) the intestate estate aspect; and (3) the administration
proceedings for the purported estate of the decedent in the Philippines.

In its broad and total perspective the whole proceedings are being impugned by the
oppositors on jurisdictional grounds, i.e., that the fact of the decedent's residence
and existence of properties in the Philippines have not been established.

Specifically placed in issue with respect to the probate proceedings are: (a) whether
or not the holographic will (Exhibit "J") has lost its efficacy as the last will and
testament upon the death of Alvaro Pastor, Sr. on June 5, 1966, in Cebu City,
Philippines; (b) Whether or not the said will has been executed with all the formalities
required by law; and (c) Did the late presentation of the holographic will affect the
validity of the same?

Issues In the Administration Proceedings are as follows: (1) Was the ex- parte
appointment of the petitioner as special administrator valid and proper? (2) Is there
any indispensable necessity for the estate of the decedent to be placed under
 administration? (3) Whether or not petition is qualified to be a special administrator of
the estate; and (4) Whether or not the properties listed in the inventory (submitted by
the special administrator but not approved by the Probate Court) are to be excluded.

Then came what purports to be the dispositive portion:

Upon the foregoing premises, this Court rules on and resolves some of the problems
and issues presented in these proceedings, as follows:

(a) The Court has acquired jurisdiction over the probate proceedings as it hereby
allows and approves the so-called holographic will of testator Alvaro Pastor, Sr.,
executed on July 31, 1961 with respect to its extrinsic validity, the same having been
duly authenticated pursuant to the requisites or solemnities prescribed by law. Let,
therefore, a certificate of its allowance be prepared by the Branch Clerk of this Court
to be signed by this Presiding Judge, and attested by the seal of the Court, and
thereafter attached to the will, and the will and certificate filed and recorded by the
clerk. Let attested copies of the will and of the certificate of allowance thereof be sent
to Atlas Consolidated Mining & Development Corporation, Goodrich Bldg., Cebu City,
and the Register of Deeds of Cebu or of Toledo City, as the case may be, for
recording.

(b) There was a delay in the granting of the letters testamentary or of administration
for as a matter of fact, no regular executor and/or administrator has been appointed
up to this time and - the appointment of a special administrator was, and still is,
justified under the circumstances to take possession and charge of the estate of the
deceased in the Philippines (particularly in Cebu) until the problems causing the
delay are decided and the regular executor and/or administrator appointed.

(c) There is a necessity and propriety of a special administrator and later on an

executor and/or administrator in these proceedings, in spite of this Court's
declaration that the oppositors are the forced heirs and the petitioner is merely
vested with the character of a voluntary heir to the extent of the bounty given to him
(under) the will insofar as the same will not prejudice the legitimes of the oppositorfor
the following reasons:

1. To submit a complete inventory of the estate of the

decedent-testator Alvaro Pastor, Sr.

2. To administer and to continue to put to prolific

utilization of the properties of the decedent;

3. To keep and maintain the houses and other

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

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

The suitability and propriety of allowing petitioner to remain as special administrator

or administrator of the other properties of the estate of the decedent, which
properties are not directly or indirectly affected by the provisions of the holographic
will (such as bank deposits, land in Mactan etc.), will be resolved in another order as
separate incident, considering that this order should have been properly issued
solely as a resolution on the issue of whether or not to allow and approve the
aforestated will. (Emphasis supplied.)

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

(c) That the Probate Order did not resolve the question of ownership of the properties listed in the
estate inventory was appropriate, considering that the issue of ownership was the very subject of
controversy in the reconveyance suit that was still pending in Branch IX of the Court of First Instance
of Cebu.

(d) What, therefore, the Court of Appeals and, in effect, the Supreme Court affirmed en toto when
they reviewed the Probable Order were only the matters properly adjudged in the said Order.

(e) In an attempt to justify the issuance of the Order of execution dated August 20, 1980, the Probate
Court in its Order of November 11, 1980 explained that the basis for its conclusion that the question
of ownership had been formally resolved by the Probate Order of 1972 are the findings in the latter
Order that (1) during the lifetime of the decedent, he was receiving royalties from ATLAS; (2) he had
resided in the Philippines since pre-war days and was engaged in the mine prospecting business
since 1937 particularly in the City of Toledo; and (3) PASTOR, JR. was only acting as dummy for his
father because the latter was a Spaniard.
Based on the premises laid, the conclusion is obviously far-fetched.

(f) It was, therefore, error for the assailed implementing Orders to conclude that the Probate Order
adjudged with finality the question of ownership of the mining properties and royalties, and that,
premised on this conclusion, the dispositive portion of the said Probate Order directed the special
administrator to pay the legacy in dispute.

2. Issue of Intrinsic Validity of the Holographic Will -

(a) When PASTOR, SR. died in 1966, he was survived by his wife, aside from his two legitimate
children and one illegitimate son. There is therefore a need to liquidate the conjugal partnership and
set apart the share of PASTOR, SR.'s wife in the conjugal partnership preparatory to the
administration and liquidation of the estate of PASTOR, SR. which will include, among others, the
determination of the extent of the statutory usufructuary right of his wife until her death. * When the
disputed Probate order was issued on December 5, 1972, there had been no liquidation of the community properties of PASTOR, SR. and
his wife.

(b) So, also, as of the same date, there had been no prior definitive determination of the assets of
the estate of PASTOR, SR. There was an inventory of his properties presumably prepared by the
special administrator, but it does not appear that it was ever the subject of a hearing or that it was
judicially approved. The reconveyance or recovery of properties allegedly owned but not in the name
of PASTOR, SR. was still being litigated in another court.

(c) There was no appropriate determination, much less payment, of the debts of the decedent and
his estate. Indeed, it was only in the Probate Order of December 5, 1972 where the Probate Court
ordered that-

... a notice be issued and published pursuant to the provisions of Rule 86 of the
Rules of Court, requiring all persons having money claims against the decedent to
file them in the office of the Branch Clerk of this Court."

(d) Nor had the estate tax been determined and paid, or at least provided for, as of December 5,
1972.

(e) The net assets of the estate not having been determined, the legitime of the forced heirs in
concrete figures could not be ascertained.

(f) All the foregoing deficiencies considered, it was not possible to determine whether the legacy of
QUEMADA - a fixed share in a specific property rather than an aliquot part of the entire net estate of
the deceased - would produce an impairment of the legitime of the compulsory heirs.

(g) Finally, there actually was no determination of the intrinsic validity of the will in other respects. It
was obviously for this reason that as late as March 5, 1980 - more than 7 years after the Probate
Order was issued the Probate Court scheduled on March 25, 1980 a hearing on the intrinsic validity
of the will.

3. Propriety of certiorari

Private respondent challenges the propriety of certiorari as a means to assail the validity of the
disputed Order of execution. He contends that the error, if any, is one of judgment, not jurisdiction,
and properly correctible only by appeal, not certiorari.
Under the circumstances of the case at bar, the challenge must be rejected. Grave abuse of
discretion amounting to lack of jurisdiction is much too evident in the actuations of the probate court
to be overlooked or condoned.

(a) Without a final, authoritative adjudication of the issue as to what properties compose the estate of
PASTOR, SR. in the face of conflicting claims made by heirs and a non-heir (MA. ELENA ACHAVAL
DE PASTOR) involving properties not in the name of the decedent, and in the absence of a
resolution on the intrinsic validity of the will here in question, there was no basis for the Probate
Court to hold in its Probate Order of 1972, which it did not, that private respondent is entitled to the
payment of the questioned legacy. Therefore, the Order of Execution of August 20, 1980 and the
subsequent implementing orders for the payment of QUEMADA's legacy, in alleged implementation
of the dispositive part of the Probate Order of December 5, 1972, must fall for lack of basis.

(b) The ordered payment of legacy would be violative of the rule requiring prior liquidation of the
estate of the deceased, i.e., the determination of the assets of the estate and payment of all debts
and expenses, before apportionment and distribution of the residue among the heirs and legatees.
(Bernardo vs. Court of Appeals, 7 SCRA 367.)

(c) Neither has the estate tax been paid on the estate of PASTOR, SR. Payment therefore of the
legacy to QUEMADA would collide with the provision of the National Internal Revenue Code
requiring payment of estate tax before delivery to any beneficiary of his distributive share of the
estate (Section 107 [c])

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

Sec. 6. Court to fix contributive shares where devisees, legatees, or heirs have been
in possession. Where devisees, legatees, or heirs have entered into possession of
portions of the estate before the debts and expenses have been settled and paid and
have become liable to contribute for the payment of such debts and expenses, the
court having jurisdiction of the estate may, by order for that purpose, after hearing,
settle the amount of their several liabilities, and order how much and in what manner
each person shall contribute, and may issue execution as circumstances require.

The above provision clearly authorizes execution to enforce payment of debts of estate. A legacy is
not a debt of the estate; indeed, legatees are among those against whom execution is authorized to
be issued.

... there is merit in the petitioners' contention that the probate court generally cannot
issue a writ of execution. It is not supposed to issue a writ of execution because its
orders usually refer to the adjudication of claims against the estate which the
executor or administrator may satisfy without the necessity of resorting to a writ of
execution. The probate court, as such, does not render any judgment enforceable by
execution.

The circumstances that the Rules of Court expressly specifies that the probate court
may issue execution (a) to satisfy (debts of the estate out of) the contributive shares
of devisees, legatees and heirs in possession of the decedent's assets (Sec. 6. Rule
88), (b) to enforce payment of the expenses of partition (Sec. 3, Rule 90), and (c) to
satisfy the costs when a person is cited for examination in probate proceedings (Sec.
13, Rule 142) may mean, under the rule of inclusion unius est exclusion alterius, that
 those are the only instances when it can issue a writ of execution. (Vda. de Valera
vs. Ofilada, 59 SCRA 96, 108.)

(d) It is within a court's competence to order the execution of a final judgment; but to order the
execution of a final order (which is not even meant to be executed) by reading into it terms that are
not there and in utter disregard of existing rules and law, is manifest grave abuse of discretion
tantamount to lack of jurisdiction. Consequently, the rule that certiorari may not be invoked to defeat
the right of a prevailing party to the execution of a valid and final judgment, is inapplicable. For when
an order of execution is issued with grave abuse of discretion or is at variance with the judgment
sought to be enforced (PVTA vs. Honorable Gonzales, 92 SCRA 172), certiorari will lie to abate the
order of execution.

(e) Aside from the propriety of resorting to certiorari to assail an order of execution which varies the
terms of the judgment sought to be executed or does not find support in the dispositive part of the
latter, there are circumstances in the instant case which justify the remedy applied for.

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

Likewise, at the time petitioner PASTOR, JR. Med the petition for certiorari with the Court of
Appeals, appeal was not available to him since his motion for reconsideration of the execution order
was still pending resolution by the Probate Court. But in the face of actual garnishment of their major
source of income, petitioners could no longer wait for the resolution of their motion for
reconsideration. They needed prompt relief from the injurious effects of the execution order. Under
the circumstances, recourse to certiorari was the feasible remedy.

WHEREFORE, the decision of the Court of Appeals in CA G.R. No. SP-11373-R is reversed. The
Order of execution issued by the probate Court dated August 20, 1980, as well as all the Orders
issued subsequent thereto in alleged implementation of the Probate Order dated December 5, 1972,
particularly the Orders dated November 11, 1980 and December 17, 1980, are hereby set aside; and
this case is remanded to the appropriate Regional Trial Court for proper proceedings, subject to the
judgment to be rendered in Civil Case No. 274-R.

SO ORDERED.

G.R. No. 77047 May 28, 1988

JOAQUINA R-INFANTE DE ARANZ, ANTONIO R-INFANTE, CARLOS R. INFANTE, MERCEDES
R-INFANTE DE LEDNICKY, ALFREDO R-INFANTE, TERESITA R-INFANTE, RAMON R-
INFANTE, FLORENCIA R-INFANTE DE DIAS, MARTIN R-INFANTE, JOSE R-INFANTE LINK and
JOAQUIN R-INFANTE CAMPBELL, petitioners,
vs.
THE HON. NICOLAS GALING, PRESIDING JUDGE, REGIONAL TRIAL COURT, NATIONAL
CAPITAL JUDICIAL REGION, BRANCH NO. 166, PASIG, METRO MANILA AND JOAQUIN R-
INFANTE, respondents.

Belo, Abiera and Associates for petitioners.

Miguel J. Lagman for respondents.

PADILLA, J.:

This is a petition for review on certiorari of the decision 1 of the Court of Appeals, dated 13 January 1987, in CA-G.R. SP No. 09622, entitled
"Joaquina R-Infante de Aranz, et al., petitioners vs. Hon. Nicolas Galing, etc., et al., respondents," dismissing petitioners' petition for certiorari
and prohibition as-, sailing the orders 2 of the Regional Trial Court of Pasig, Branch 166, dated 12 May 1986 and 30 May 1986, respectively,
in Sp. Proc. No. 9995, entitled, "In the Matter of Petition for Approval of the Last Will and Testament of Montserrat R-Infante y G-Pola
Joaquin R. Infante, Petitioner."

On 3 March 1986, private respondent filed with the Regional Trial Court of Pasig, Branch 166, a
petition for the probate and allowance of the last will and testament of the late Montserrat R-Infante y
G-Pola The petition specified the names and ad- dresses of herein petitioners as legatees and
devisees, as follows:

Joaquina R-Infante Roxas de Aranz residing at No. 86 10th St., New Manila, Quezon
City, Metro Manila;

Antonio R-Infante Roxas residing at #91 Cambridge, North Forbes, Makati, Metro
Manila;

Carlos R-Infante Roxas residing at #46 Washington St., Greenhills, San Juan, Metro
Manila;

Mercedes R-Infante Roxas de Lednicky residing at #386 P. Guevarra St., San Juan,
Metro Manila;

Alfredo R-Infante Roxas residing at #27 A Scout Tobias St., Quezon City, Metro
Manila;

Teresita R-Infante Roxas residing at #121 9th Street, New Manila, Quezon City,
Metro Manila;

Ramon R-Infante Roxas residing at #27 B Scout Tobias St., Quezon City, Metro
Manila;

Florencia R-Infante Roxas de Diaz residing at Calle Sancho Davila, 13-19-D, Madrid,
28028 Spain;
 Martin R-Infante Roxas residing at #2 Bongavilla St., Cubao, Quezon City, Metro
Manila;

Jose R-Infante Link residing at 174R-Pascual St., San Juan, Metro Manila;

Joaquin R-Infante Campbell C/O Pilar Campbell, 15 Briones, Makati, Metro Marta. 3

On 12 March 1986, the probate court issued an order selling the petition for hearing on 5 May 1986
at 8:30 o'clock in the morning. Said order was published in the "Nueva Era" A newspaper of general
circulation in Metro Manila once a week for three (3) consecutive weeks. On the date of the hearing,
no oppositor appeared. The hearing was then reset to 12 May 1986, on which date, the probate
court issued the following order:

There being no opposition to this instant case, as prayed for, the oner to-receive
Branch Clerk of Court is hereby designated Co evidence ex-parte of the petitioner.

SO ORDERED. 4

On the same day (12 May 1986), private respondent presented his evidence ex-parte and placed
Arturo Arceo one of the testamentary witnesses, on the witness stand. During the proceedings,
private respondent was appointed executor.

On 14 May 1986, petitioners filed a motion for reconsideration of the order of 12 May 1986 alleging
that, as named legatees, no notices were sent to them as required by Sec. 4, Rule 76 of the Rules of
Court and they prayed that they be given a period of ten (10) days within which to file their
opposition to the probate of the will.

On 30 May 1986, the probate court, acting on the opposition of private respondent and the reply
thereto of petitioners, issued an order denying petitioners motion for reconsideration.

Thereafter, petitioners filed with this Court a petition for certiorari and prohibition which was,
however, referred to the Court of Appeals. On 13 January 1987, the Court of Appeals promulgated a
decision dismissing the petition. 5Hence, the instant petition.

It is the view of petitioners that the Court of Appeals erred in holding that personal notice of probate
proceedings to the known legatees and devisees is not a jurisdictional requirement in the probate of
a will. Contrary to the holding of the Court of Appeals that the requirement of notice on individual
heirs, legatees and devisees is merely a matter of procedural convenience to better satisfy in some
instances the requirements of due process, petitioners allege that under Sec. 4 of Rule 76 of the
Rules of Court, said requirement of the law is mandatory and its omission constitutes a reversible
error for being constitutive of grave abuse of discretion. 6

We grant the petition:

Sec. 4, Rule 76 of the Rules of Cof reads:

SEC. 4. Heirs, devisees, legatees, and executors to be notified by mail or personally.

The court shag also cause copies of the notice of the time and place fixed for
proving the will to be addressed to the designated or other known heirs, legatees,
and devisees of the testator resident in the Philippines at their places of residence,
and deposited in the post office with the postage thereon prepaid at least twenty (20)
 days before the hearing, if such places of residence be known. A copy of the notice
must in like manner be mailed to the person named as executor, if he be not, the
petitioner; also, to any person named as co-executor not petitioning, if their places of
residence be known. Personal service of copies of the notice at least ten (10) days
before the day of hearing shall be equivalent to mailing.

It is clear from the aforecited rule that notice of the time and place of the hearing for the allowance of
a will shall be forwarded to the designated or other known heirs, legatees, and devisees residing in
the Philippines at their places of residence, if such places of residence be known. There is no
question that the residences of herein petitioners legatees and devisees were known to the probate
court. The petition for the allowance of the wig itself indicated the names and addresses of the
legatees and devisees of the testator. 7 But despite such knowledge, the probate court did not cause
copies of the notice to be sent to petitioners. The requirement of the law for the allowance of the will
was not satisfied by mere publication of the notice of hearing for three (3) weeks in a newspaper of
general circulation in the province.

The case of Joson vs. Nable 8 cited by the Court of Appeals in its assailed decision to support its
theory is not applicable in the present case. In that case, petitioners Purificacion Joson and Erotica
Joson failed to contest the will of Tomas Joson because they had not been notified of the hearing of
the petition for probate. he the petition included the residence of petitioners as Dagupan Street No.
83, Manila, petitioners claimed that their residence was not Dagupan Street No. 83, Manila. There
the Court said:

Petitioners maintain that no notice was received by them partly because their
residence was not Dagupan Street No. 83 as alleged in the petition for probate. If the
allegation of the petition was wrong and the true residence of petitioners was not
known, then notice upon them individually was not necessary. Under the provision
abovequoted, individual notice upon heirs, legatees and devisees is necessary only
when they are known or when their places of residence are known. In other
instances, such notice is not necessary and the court may acquire and exercise
jurisdiction simply upon the publication of the notice in a newspaper of general
circulation. ... 9

In Re: Testate Estate of Suntay, 10 the Court, speaking thru Mr. Justice Sabino Padilla, said:

... It is a proceedings in rem and for the validity of such proceedings personal notice
or by publication or both to all interested parties must be made. The interested
parties in the case were known to reside in the Philippines. The evidence shows that
no such notice was received by the interested parties residing in the Philippines (pp.
474, 476, 481, 503-4, t.s.n., hearing of 24 February 1948). The proceedings had in
the municipal district court of Amoy, China, may be likened to a deposition or to a
perpetuation of testimony, and even if it were so it does not measure or come up to
the standard of such proceedings in the Philippines for lack of notice to all interested
parties and the proceedings were held at the back of such interested parties.

xxx xxx xxx

... In view thereof, the will and the alleged probate thereof cannot be said to have
been done in accordance with the accepted basic and fundamental concepts and
principles followed in the probate and allowance of wills. Consequently, the
authenticated transcript of proceedings held in the municipal district court of Amoy,
China, cannot be deemed and accepted as proceedings leading to the probate or
 allowance of a will and, therefore, the will referred to therein cannot be allowed, filed
and recorded by a competent court of court. 11

WHEREFORE, the decision of the Court of Appeals dated 13 January 1987 is hereby ANNULLED
and SET ASIDE. The case is hereby ordered remanded to the Regional Trial Court of Pasig for
further proceedings in accordance with this decision. No costs.

SO ORDERED.

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,
vs.
AMPARO ARANZA, ET AL., oppositors-appellees, ATTY. LORENZO SUMULONG, intervenor.

Luciano A. Joson for petitioner-appellant.

Cesar Paralejo for oppositor-appellee.

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:

... 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:

(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;

(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 hollographic will itself,and not an alleged copy thereof, must be
produced, otherwise it would produce no effect, as held in Gam 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:

(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:

... 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 Gam vs. 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.

Appellant's motion for reconsideration was denied. Hence, an appeal to the Court of Appeals in
which it is contended that the dismissal of appellant's 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:

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 APPELLANT'S WILL.

The only question here is whether a holographic will which was lost or cannot 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 Gam vs. 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 appellant's 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.