LUISA KHO MONTAER, ALEJANDRO G.R. No.

174975
MONTAER, JR., LILLIBETH MONTAER-
BARRIOS, AND RHODORA ELEANOR
MONTAER-DALUPAN,
Petitioners,
Promulgated:

- versus -
JANUARY 20, 2009

SHARIA DISTRICT COURT, FOURTH

SHARIA JUDICIAL DISTRICT,
MARAWI CITY, LILING
DISANGCOPAN, AND ALMAHLEEN
LILING S. MONTAER,
Respondents.

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DECISION

PUNO, C.J.:

This Petition for Certiorari and Prohibition seeks to set aside the Orders of the Sharia District Court,

Fourth Sharia Judicial District, Marawi City, dated August 22, 2006[1] and September 21, 2006.[2]

On August 17, 1956, petitioner Luisa Kho Montaer, a Roman Catholic, married Alejandro Montaer, Sr. at the

Immaculate Conception Parish in Cubao, Quezon City.[3] Petitioners Alejandro Montaer, Jr., Lillibeth

Montaer-Barrios, and Rhodora Eleanor Montaer-Dalupan are their children.[4] On May 26, 1995, Alejandro

Montaer, Sr. died.[5]

On August 19, 2005, private respondents Liling Disangcopan and her daughter, Almahleen Liling S. Montaer,

both Muslims, filed a Complaint for the judicial partition of properties before the Sharia District Court. [6] The

said complaint was entitled Almahleen Liling S. Montaer and Liling M. Disangcopan v. the Estates and

Properties of Late Alejandro Montaer, Sr., Luisa Kho Montaer, Lillibeth K. Montaer, Alejandro Kho Montaer,

Jr., and Rhodora Eleanor K. Montaer, and docketed as Special Civil Action No. 7-05.[7] In the said complaint,

private respondents made the following allegations: (1) in May 1995, Alejandro Montaer, Sr. died; (2) the

late Alejandro Montaer, Sr. is a Muslim; (3) petitioners are the first family of the decedent; (4) Liling

Disangcopan is the widow of the decedent; (5) Almahleen Liling S. Montaer is the daughter of the decedent;

and (6) the estimated value of and a list of the properties comprising the estate of the decedent. [8] Private

respondents prayed for the Sharia District Court to order, among others, the following: (1) the partition of

the estate of the decedent; and (2) the appointment of an administrator for the estate of the decedent. [9]

Petitioners filed an Answer with a Motion to Dismiss mainly on the following grounds: (1) the Sharia District

Court has no jurisdiction over the estate of the late Alejandro Montaer, Sr., because he was a Roman

Catholic; (2) private respondents failed to pay the correct amount of docket fees; and (3) private

respondents complaint is barred by prescription, as it seeks to establish filiation between Almahleen Liling

S. Montaer and the decedent, pursuant to Article 175 of the Family Code. [10]

On November 22, 2005, the Sharia District Court dismissed the private respondents complaint. The district

court held that Alejandro Montaer, Sr. was not a Muslim, and its jurisdiction extends only to the settlement

and distribution of the estate of deceased Muslims.[11]

 On December 12, 2005, private respondents filed a Motion for Reconsideration.[12] On December 28,

2005, petitioners filed an Opposition to the Motion for Reconsideration, alleging that the motion for

reconsideration lacked a notice of hearing.[13] On January 17, 2006, the Sharia District Court denied

petitioners opposition.[14] Despite finding that the said motion for reconsideration lacked notice of hearing,

the district court held that such defect was cured as petitioners were notified of the existence of the pleading,

and it took cognizance of the said motion.[15] The Sharia District Court also reset the hearing for the motion

for reconsideration.[16]

In its first assailed order dated August 22, 2006, the Sharia District Court reconsidered its order of

dismissal dated November 22, 2005.[17] The district court allowed private respondents to adduce further

evidence.[18] In its second assailed order dated September 21, 2006, the Sharia District Court ordered the

continuation of trial, trial on the merits, adducement of further evidence, and pre-trial conference.[19]

Seeking recourse before this Court, petitioners raise the following issues:

I.

RESPONDENT SHARIA DISTRICT COURT MARAWI CITY LACKS JURISDICTION OVER

PETITIONERS WHO ARE ROMAN CATHOLICS AND NON-MUSLIMS.

II.

RESPONDENT SHARIA DISTRICT COURT MARAWI CITY DID NOT ACQUIRE JURISDICTION
OVER THE ESTATES AND PROPERTIES OF THE LATE ALEJANDRO MONTAER, SR. WHICH IS
NOT A NATURAL OR JURIDICAL PERSON WITH CAPACITY TO BE SUED.

III.

RESPONDENT SHARIA DISTRICT COURT DID NOT ACQUIRE JURISDICTION OVER THE
COMPLAINT OF PRIVATE RESPONDENTS AGAINST PETITIONERS DUE TO NON-PAYMENT OF
THE FILING AND DOCKETING FEES.

IV.

RESPONDENT SHARIA DISTRICT COURTMARAWI CITY COMMITTED GRAVE ABUSE OF

DISCRETION AMOUNTING TO LACK OF JURISDICTION WHEN IT DENIED THE OPPOSITION
OF PETITIONERS AND THEN GRANTED THE MOTION FOR RECONSIDERATION OF
RESPONDENTS LILING DISANGCOPAN, ET AL. WHICH WAS FATALLY DEFECTIVE FOR LACK
OF A NOTICE OF HEARING.

V.

RESPONDENT SHARIA DISTRICT COURTMARAWI CITY COMMITTED GRAVE ABUSE OF

DISCRETION AMOUNTING TO LACK OF JURISDICTION WHEN IT SET SPL. CIVIL ACTION 7-
05 FOR TRIAL EVEN IF THE COMPLAINT PLAINLY REVEALS THAT RESPONDENT ALMAHLEEN
LILING S. MONTAER SEEKS RECOGNITION FROM ALEJANDRO MONTAER, SR. WHICH CAUSE
OF ACTION PRESCRIBED UPON THE DEATH OF ALEJANDRO MONTAER, SR. ON MAY 26, 1995.

In their Comment to the Petition for Certiorari, private respondents stress that the Sharia District Court

must be given the opportunity to hear and decide the question of whether the decedent is a Muslim in order

to determine whether it has jurisdiction.[20]

Jurisdiction: Settlement of the Estate of Deceased Muslims

Petitioners first argument, regarding the Sharia District Courts jurisdiction, is dependent on a

question of fact, whether the late Alejandro Montaer, Sr. is a Muslim. Inherent in this argument is the

premise that there has already been a determination resolving such a question of fact. It bears emphasis,
however, that the assailed orders did not determine whether the decedent is a Muslim. The assailed orders

did, however, set a hearing for the purpose of resolving this issue.

Article 143(b) of Presidential Decree No. 1083, otherwise known as the Code of Muslim Personal

Laws of the Philippines, provides that the Sharia District Courts have exclusive original jurisdiction over the

settlement of the estate of deceased Muslims:

ARTICLE 143. Original jurisdiction. (1) The Shari'a District Court shall have exclusive original
jurisdiction over:

xxxx

(b) All cases involving disposition, distribution and settlement of the estate of deceased
Muslims, probate of wills, issuance of letters of administration or appointment of
administrators or executors regardless of the nature or the aggregate value of the property.

The determination of the nature of an action or proceeding is controlled by the averments and character of

the relief sought in the complaint or petition. [21] The designation given by parties to their own pleadings

does not necessarily bind the courts to treat it according to the said designation. Rather than rely on a falsa

descriptio or defective caption, courts are guided by the substantive averments of the pleadings.[22]

Although private respondents designated the pleading filed before the Sharia District Court as a

Complaint for judicial partition of properties, it is a petition for the issuance of letters of administration,

settlement, and distribution of the estate of the decedent. It contains sufficient jurisdictional facts required

for the settlement of the estate of a deceased Muslim,[23] such as the fact of Alejandro Montaer, Sr.s death

as well as the allegation that he is a Muslim. The said petition also contains an enumeration of the names

of his legal heirs, so far as known to the private respondents, and a probable list of the properties left by

the decedent, which are the very properties sought to be settled before a probate court. Furthermore, the

reliefs prayed for reveal that it is the intention of the private respondents to seek judicial settlement of the

estate of the decedent.[24] These include the following: (1) the prayer for the partition of the estate of the

decedent; and (2) the prayer for the appointment of an administrator of the said estate.

We cannot agree with the contention of the petitioners that the district court does not have

jurisdiction over the case because of an allegation in their answer with a motion to dismiss that Montaer,

Sr. is not a Muslim. Jurisdiction of a court over the nature of the action and its subject matter does not

depend upon the defenses set forth in an answer[25] or a motion to dismiss.[26] Otherwise, jurisdiction would

depend almost entirely on the defendant[27] or result in having a case either thrown out of court or its

proceedings unduly delayed by simple stratagem. [28] Indeed, the defense of lack of jurisdiction which is

dependent on a question of fact does not render the court to lose or be deprived of its jurisdiction.[29]

The same rationale applies to an answer with a motion to dismiss. [30] In the case at bar, the Sharia

District Court is not deprived of jurisdiction simply because petitioners raised as a defense the allegation

that the deceased is not a Muslim. The Sharia District Court has the authority to hear and receive evidence

to determine whether it has jurisdiction, which requires an a priori determination that the deceased is a

Muslim. If after hearing, the Sharia District Court determines that the deceased was not in fact a Muslim,

the district court should dismiss the case for lack of jurisdiction.
Special Proceedings

The underlying assumption in petitioners second argument, that the proceeding before the Sharia

District Court is an ordinary civil action against a deceased person, rests on an erroneous understanding of

the proceeding before the court a quo. Part of the confusion may be attributed to the proceeding before the

Sharia District Court, where the parties were designated either as plaintiffs or defendants and the case was

denominated as a special civil action. We reiterate that the proceedings before the court a quo are for the

issuance of letters of administration, settlement, and distribution of the estate of the deceased, which is a

special proceeding. Section 3(c) of the Rules of Court (Rules) defines a special proceeding as a remedy by

which a party seeks to establish a status, a right, or a particular fact. This Court has applied the Rules,

particularly the rules on special proceedings, for the settlement of the estate of a deceased Muslim. [31] In a

petition for the issuance of letters of administration, settlement, and distribution of estate, the applicants

seek to establish the fact of death of the decedent and later to be duly recognized as among the decedents

heirs, which would allow them to exercise their right to participate in the settlement and liquidation of the

estate of the decedent.[32] Here, the respondents seek to establish the fact of Alejandro Montaer, Sr.s death

and, subsequently, for private respondent Almahleen Liling S. Montaer to be recognized as among his heirs,

if such is the case in fact.

Petitioners argument, that the prohibition against a decedent or his estate from being a party

defendant in a civil action[33] applies to a special proceeding such as the settlement of the estate of the

deceased, is misplaced. Unlike a civil action which has definite adverse parties, a special proceeding has no

definite adverse party. The definitions of a civil action and a special proceeding, respectively, in the Rules

illustrate this difference. A civil action, in which a party sues another for the enforcement or protection of a

right, or the prevention or redress of a wrong[34] necessarily has definite adverse parties, who are either the

plaintiff or defendant.[35] On the other hand, a special proceeding, by which a party seeks to establish a

status, right, or a particular fact,[36] has one definite party, who petitions or applies for a declaration of a

status, right, or particular fact, but no definite adverse party. In the case at bar, it bears emphasis that the

estate of the decedent is not being sued for any cause of action. As a special proceeding, the purpose of the

settlement of the estate of the decedent is to determine all the assets of the estate, [37] pay its

liabilities,[38] and to distribute the residual to those entitled to the same.[39]

Docket Fees

Petitioners third argument, that jurisdiction was not validly acquired for non-payment of docket fees,

is untenable. Petitioners point to private respondents petition in the proceeding before the court a quo,

which contains an allegation estimating the decedents estate as the basis for the conclusion that what

private respondents paid as docket fees was insufficient. Petitioners argument essentially involves two

aspects: (1) whether the clerk of court correctly assessed the docket fees; and (2) whether private

respondents paid the correct assessment of the docket fees.

Filing the appropriate initiatory pleading and the payment of the prescribed docket fees vest a trial

court with jurisdiction over the subject matter.[40] If the party filing the case paid less than the correct

amount for the docket fees because that was the amount assessed by the clerk of court, the responsibility

of making a deficiency assessment lies with the same clerk of court. [41] In such a case, the lower court
concerned will not automatically lose jurisdiction, because of a partys reliance on the clerk of courts

insufficient assessment of the docket fees.[42] As every citizen has the right to assume and trust that a public

officer charged by law with certain duties knows his duties and performs them in accordance with law, the

party filing the case cannot be penalized with the clerk of courts insufficient assessment.[43] However, the

party concerned will be required to pay the deficiency.[44]

In the case at bar, petitioners did not present the clerk of courts assessment of the docket fees.

Moreover, the records do not include this assessment. There can be no determination of whether private

respondents correctly paid the docket fees without the clerk of courts assessment.

Exception to Notice of Hearing

Petitioners fourth argument, that private respondents motion for reconsideration before the Sharia

District Court is defective for lack of a notice of hearing, must fail as the unique circumstances in the present

case constitute an exception to this requirement. The Rules require every written motion to be set for

hearing by the applicant and to address the notice of hearing to all parties concerned.[45] The Rules also

provide that no written motion set for hearing shall be acted upon by the court without proof of service

thereof.[46] However, the Rules allow a liberal construction of its provisions in order to promote [the]

objective of securing a just, speedy, and inexpensive disposition of every action and

proceeding.[47] Moreover, this Court has upheld a liberal construction specifically of the rules of notice of

hearing in cases where a rigid application will result in a manifest failure or miscarriage of justice especially

if a party successfully shows that the alleged defect in the questioned final and executory judgment is not

apparent on its face or from the recitals contained therein.[48] In these exceptional cases, the Court considers

that no party can even claim a vested right in technicalities, and for this reason, cases should, as much as

possible, be decided on the merits rather than on technicalities.[49]

The case at bar falls under this exception. To deny the Sharia District Court of an opportunity to

determine whether it has jurisdiction over a petition for the settlement of the estate of a decedent alleged

to be a Muslim would also deny its inherent power as a court to control its process to ensure conformity

with the law and justice. To sanction such a situation simply because of a lapse in fulfilling the notice

requirement will result in a miscarriage of justice.

In addition, the present case calls for a liberal construction of the rules on notice of hearing, because the

rights of the petitioners were not affected. This Court has held that an exception to the rules on notice of

hearing is where it appears that the rights of the adverse party were not affected. [50] The purpose for the

notice of hearing coincides with procedural due process, [51] for the court to determine whether the adverse

party agrees or objects to the motion, as the Rules do not fix any period within which to file a reply or

opposition.[52] In probate proceedings, what the law prohibits is not the absence of previousnotice, but the

absolute absence thereof and lack of opportunity to be heard. [53] In the case at bar, as evident from the

Sharia District Courts order dated January 17, 2006, petitioners counsel received a copy of the motion for

reconsideration in question. Petitioners were certainly not denied an opportunity to study the arguments in

the said motion as they filed an opposition to the same. Since the Sharia District Court reset the hearing for

the motion for reconsideration in the same order, petitioners were not denied the opportunity to object to
the said motion in a hearing. Taken together, these circumstances show that the purpose for the rules of

notice of hearing, procedural process, was duly observed.

Prescription and Filiation

Petitioners fifth argument is premature. Again, the Sharia District Court has not yet determined whether it

has jurisdiction to settle the estate of the decedent. In the event that a special proceeding for the settlement

of the estate of a decedent is pending, questions regarding heirship, including prescription in relation to

recognition and filiation, should be raised and settled in the said proceeding.[54] The court, in its capacity as

a probate court, has jurisdiction to declare who are the heirs of the decedent. [55] In the case at bar, the

determination of the heirs of the decedent depends on an affirmative answer to the question of whether the

Sharia District Court has jurisdiction over the estate of the decedent.

IN VIEW WHEREOF, the petition is DENIED. The Orders of the Sharia District Court, dated August

22, 2006 and September 21, 2006 respectively, are AFFIRMED. Cost against petitioners.
SO ORDERED.
 HEIRS OF TEOFILO G.R. No. 150206
GABATAN, namely: LOLITA
GABATAN, POMPEYO GABATAN,
PEREGRINO GABATAN, REYNALDO
GABATAN, NILA
GABATAN and JESUS JABINIS,
RIORITA GABATAN
TUMALA and FREIRA GABATAN,
Promulgated:
Petitioners,

March 13, 2009

-versus-

HON. COURT OF APPEALS and

LOURDES EVERO PACANA,

Respondents.

x-----------------------------------------------------------------------------------------x

DECISION
LEONARDO-DE CASTRO, J.:

Assailed and sought to be set aside in the instant petition for review on certiorari are the
Decision[1] dated April 28, 2000, and Resolution[2] dated September 12, 2001 of the Court of Appeals (CA),
in CA G.R. CV No. 52273. The challenged Decision affirmed the decision[3] of the Regional Trial Court (RTC)
of Cagayan de Oro City, Branch 19, dated October 20, 1995 in Civil Case No. 89-092, an action for Recovery
of Property and Ownership and Possession, thereat commenced by respondent Lourdes Evero Pacana
against petitioners, heirs of Teofilo Gabatan, Jesus Jabinis and Catalino Acantilado.

Subject of the present controversy is a 1.1062 hectare parcel of land, identified as Lot 3095 C-5 and
situated at Calinugan, Balulang, Cagayan de Oro City. This lot was declared for taxation in the name of Juan
Gabatan. In the complaint before the RTC, respondent alleged that she is the sole owner of Lot 3095 C-5,
having inherited the same from her deceased mother, Hermogena Gabatan Evero (Hermogena).Respondent
further claimed that her mother, Hermogena, is the only child of Juan Gabatan and his wife, Laureana
Clarito. Respondent alleged that upon the death of Juan Gabatan, Lot 3095 C-5 was entrusted to his brother,
Teofilo Gabatan (Teofilo), and Teofilos wife, Rita Gabatan, for administration. It was also claimed that prior
to her death Hermogena demanded for the return of the land but to no avail. After Hermogenas death,
respondent also did the same but petitioners refused to heed the numerous demands to surrender the
subject property. According to respondent, when Teofilo and his wife died, petitioners Jesus Jabinis and
Catalino Acantilado took possession of the disputed land despite respondents demands for them to vacate
the same.

In their answer, petitioners denied that respondents mother Hermogena was the daughter of Juan
Gabatan with Laureana Clarito and that Hermogena or respondent is the rightful heir of Juan
Gabatan.Petitioners maintained that Juan Gabatan died single in 1934 and without any issue and that Juan
was survived by one brother and two sisters, namely: Teofilo (petitioners predecessor-in-interest), Macaria
and Justa. These siblings and/or their heirs, inherited the subject land from Juan Gabatan and have been in
actual, physical, open, public, adverse, continuous and uninterrupted possession thereof in the concept of
owners for more than fifty (50) years and enjoyed the fruits of the improvements thereon, to the exclusion
of the whole world including respondent. Petitioners clarified that Jesus Jabinis and Catalino Acantilado have
no interest in the subject land; the former is merely the husband of Teofilos daughter while the latter is just
a caretaker. Petitioners added that a similar case was previously filed by respondent against Teofilos wife,
Rita Vda. de Gabatan, on February 21, 1978, docketed as Civil Case No. 5840 but the case was dismissed
on May 3, 1983 for lack of interest. Finally, petitioners contended that the complaint lacks or states no cause
of action or, if there was any, the same has long prescribed and/or has been barred by laches.

On June 20, 1989, the complaint was amended wherein the heirs of Teofilo were individually named,
to wit: Lolita Gabatan, Pompeyo Gabatan, Peregrino Gabatan, Reynaldo Gabatan, Nila Gabatan and Jesus
Jabinis, Riorita Gabatan Tumal and Freira Gabatan.

On July 30, 1990, petitioners filed an amended answer, additionally alleging that the disputed land
was already covered by OCT No. P-3316 in the name of the heirs of Juan Gabatan represented by petitioner
Riorita Gabatan (Teofilos daughter).

On October 20, 1995, the RTC rendered a decision in favor of respondent, the dispositive portion of
which reads:

WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against the
defendants, declaring the plaintiff the owner of Lot No. 3095 C-5 situated at Calinugan,
Balulang, Cagayan de Oro City; and ordering the defendants represented by Riorita Gabatan
Tumala to RECONVEY Original Certificate of Title No. P-3316 in favor of plaintiff Lourdes
Evero Pacana, free of any encumbrance; ordering the defendants to pay P10,000.00 by way
of moral damages; P10,000.00 as Attorneys fees; and P2,000.00 for litigation expenses. SO
ORDERED.[4]

Aggrieved, petitioners appealed to the CA whereat their recourse was docketed as CA-G.R. CV No.
52273.

On April 28, 2000, the CA rendered the herein challenged Decision affirming that of the
RTC. Dispositively, the Decision reads:

WHEREFORE, premises considered, the questioned decision of the lower court

dated October 20, 1995 is hereby AFFIRMED. With costs against appellants. SO ORDERED.

Discounting petitioners argument that respondent is not related to Juan Gabatan, the CA declared
that respondents claim of filiation with Juan Gabatan was sufficiently established during trial. Thus, the CA
echoed a long line of jurisprudence that findings of fact of the trial court are entitled to great weight and
are not disturbed except for cogent reasons, such as when the findings of fact are not supported by evidence.

The CA likewise gave weight to the Deed of Absolute Sale[5] executed by Macaria Gabatan de Abrogar,
Teofilo, Hermogena and heirs of Justa Gabatan, wherein Hermogena was identified as an heir of Juan
Gabatan:

x x x HERMOGENA GABATAN, of legal age, married, Filipino citizen and presently

residing at Kolambugan, Lanao del Norte, Philippines, as Heir of the deceased, JUAN
GABATAN; x x x.
 To the CA, the Deed of Absolute Sale on July 30, 1966 containing such declaration which was signed
by Teofilo and the latters nearest relatives by consanguinity, is a tangible proof that they acknowledged
Hermogenas status as the daughter of Juan Gabatan. Applying Section 38, Rule 130[6] of the Rules of Court
on the declaration against interest, the CA ruled that petitioners could not deny that even their very own
father, Teofilo formally recognized Hermogenas right to heirship from Juan Gabatan which ultimately passed
on to respondent.

As to the issue of prescription, the CA ruled that petitioners possession of the disputed property could
not ripen into acquisitive prescription because their predecessor-in-interest, Teofilo, never held the property
in the concept of an owner.

Aggrieved, petitioners are now with this Court via the present recourse principally contending that
the CA committed the following reversible errors:

FIRST ERROR: The lower court erred in not declaring that Juan Gabatan died single and
without issue;

SECOND ERROR: The lower court erred in declaring the plaintiff-appellee (respondent) as
the sole and surviving heir of Juan Gabatan, the only child of a certain Hermogena Clareto
GABATAN;

THIRD ERROR: The lower court erred in declaring that a certain Hermogena Clareto
GABATAN is the child and sole heir of Juan Gabatan;

FOURTH ERROR: The lower court erred in failing to appreciate by preponderance of evidence
in favor of the defendants-appellants (petitioners) claim that they and the heirs of Justa and
Macaria both surnamed Gabatan are the sole and surviving heirs of Juan Gabatan and,
therefore, entitled to inherit the land subject matter hereof;

FIFTH ERROR: The lower court erred in not declaring that the cause of action of plaintiff-
appellee (respondent) if any, has been barred by laches and/or prescription. [7]

Before proceeding to the merits of the case, we must pass upon certain preliminary matters.

In general, only questions of law may be raised in a petition for review on certiorari under Rule 45
of the Rules of Court. Questions of fact cannot be the subject of this particular mode of appeal, for this Court
is not a trier of facts.[8] It is not our function to examine and evaluate the probative value of the evidence
presented before the concerned tribunal upon which its impugned decision or resolution is based. [9]

However, there are established exceptions to the rule on conclusiveness of the findings of fact by the
lower courts, such as (1) when the findings are grounded entirely on speculation, surmises or conjectures;
(2) when the inference made is manifestly mistaken; (3) when there is grave abuse of discretion; (4) when
the judgment is based on a misapprehension of facts; (5) when the findings of facts are conflicting; (6)
when in making its findings the Court of Appeals went beyond the issues of the case, or its findings are
contrary to the admissions of both the appellant and the appellee; (7) when the findings are contrary to the
trial court; (8) when the findings are conclusions without citation of specific evidence on which they are
based; (9) when the facts set forth in the petition as well as in the petitioners main and reply briefs are not
disputed by the respondent; (10) when the findings of fact are premised on the supposed absence of
evidence and contradicted by the evidence on record; and (11) when the Court of Appeals manifestly
overlooked certain relevant facts not disputed by the parties, which, if properly considered, would justify a
different conclusion.[10]

Moreover, our rules recognize the broad discretionary power of an appellate court to waive the lack
of proper assignment of errors and to consider errors not assigned. Thus, the Court is clothed with ample
authority to review rulings even if they are not assigned as errors in the appeal in these instances: (a)
grounds not assigned as errors but affecting jurisdiction over the subject matter; (b) matters not assigned
as errors on appeal but are evidently plain or clerical errors within contemplation of law; (c) matters not
assigned as errors on appeal but consideration of which is necessary in arriving at a just decision and
complete resolution of the case or to serve the interests of justice or to avoid dispensing piecemeal justice;
(d) matters not specifically assigned as errors on appeal but raised in the trial court and are matters of
record having some bearing on the issue submitted which the parties failed to raise or which the lower court
ignored; (e) matters not assigned as errors on appeal but closely related to an error assigned; and (f)
matters not assigned as errors on appeal but upon which the determination of a question properly assigned,
is dependent. [11]

In the light of the foregoing established doctrines, we now proceed to resolve the merits of the case.

The respondents main cause of action in the court a quo is the recovery of ownership and possession
of property. It is undisputed that the subject property, Lot 3095 C-5, was owned by the deceased Juan
Gabatan, during his lifetime.[12] Before us are two contending parties, both insisting to be the legal heir(s)
of the decedent.

Jurisprudence dictates that the determination of who are the legal heirs of the deceased must be
made in the proper special proceedings in court, and not in an ordinary suit for recovery of ownership and
possession of property. This must take precedence over the action for recovery of possession and
ownership. The Court has consistently ruled that the trial court cannot make a declaration of heirship in the
civil action for the reason that such a declaration can only be made in a special proceeding. Under Section
3, Rule 1 of the 1997 Revised Rules of Court, a civil action is defined as one by which a party sues another
for the enforcement or protection of a right, or the prevention or redress of a wrong while a special
proceeding is a remedy by which a party seeks to establish a status, a right, or a particular fact. It is then
decisively clear that the declaration of heirship can be made only in a special proceeding inasmuch as the
petitioners here are seeking the establishment of a status or right. [13]

In the early case of Litam, et al. v. Rivera,[14] this Court ruled that the declaration of heirship must
be made in a special proceeding, and not in an independent civil action. This doctrine was reiterated
in Solivio v. Court of Appeals[15] where the Court held:

xxx where despite the pendency of the special proceedings for the settlement of the
intestate estate of the deceased Rafael Litam, the plaintiffs-appellants filed a civil action in
which they claimed that they were the children by a previous marriage of the deceased to a
Chinese woman, hence, entitled to inherit his one-half share of the conjugal properties
acquired during his marriage to Marcosa Rivera, the trial court in the civil case declared that
the plaintiffs-appellants were not children of the deceased, that the properties in question
were paraphernal properties of his wife, Marcosa Rivera, and that the latter was his only
heir. On appeal to this Court, we ruled that such declarations (that Marcosa Rivera was the
only heir of the decedent) is improper, in Civil Case No. 2071, it being within the exclusive
competence of the court in Special Proceedings No. 1537, in which it is not as yet, in issue,
and, will not be, ordinarily, in issue until the presentation of the project of partition.

In the more recent case of Milagros Joaquino v. Lourdes Reyes,[16] the Court reiterated its ruling that
matters relating to the rights of filiation and heirship must be ventilated in the proper probate court in a
special proceeding instituted precisely for the purpose of determining such rights. Citing the case of Agapay
v. Palang,[17] this Court held that the status of an illegitimate child who claimed to be an heir to a decedents
estate could not be adjudicated in an ordinary civil action which, as in this case, was for the recovery of
property.

However, we are not unmindful of our decision in Portugal v. Portugal-Beltran,[18] where the Court
relaxed its rule and allowed the trial court in a proceeding for annulment of title to determine the status of
the party therein as heirs, to wit:
 It appearing, however, that in the present case the only property of the intestate
estate of Portugal is the Caloocan parcel of land, to still subject it, under the
circumstances of the case, to a special proceeding which could be long, hence, not
expeditious, just to establish the status of petitioners as heirs is not only
impractical; it is burdensome to the estate with the costs and expenses of an administration
proceeding. And it is superfluous in light of the fact that the parties to the civil case
subject of the present case, could and had already in fact presented evidence before
the trial court which assumed jurisdiction over the case upon the issues it defined
during pre-trial.

In fine, under the circumstances of the present case, there being no compelling reason
to still subject Portugals estate to administration proceedings since a determination of
petitioners status as heirs could be achieved in the civil case filed by petitioners (Vide Pereira
v. Court of Appeals, 174 SCRA 154 [1989]; Intestate Estate of Mercado v. Magtibay, 96 Phil.
383 [1955]), the trial court should proceed to evaluate the evidence presented by the parties
during the trial and render a decision thereon upon the issues it defined during pre-trial, x x
x. (emphasis supplied)

Similarly, in the present case, there appears to be only one parcel of land being claimed by the
contending parties as their inheritance from Juan Gabatan. It would be more practical to dispense with a
separate special proceeding for the determination of the status of respondent as the sole heir of Juan
Gabatan, specially in light of the fact that the parties to Civil Case No. 89-092, had voluntarily submitted
the issue to the RTC and already presented their evidence regarding the issue of heirship in these
proceeding. Also the RTC assumed jurisdiction over the same and consequently rendered judgment thereon.

We GRANT the petition.

After a meticulous review of the records of this case, we find insufficient and questionable the basis
of the RTC in conferring upon respondent the status of sole heir of Juan Gabatan.

Respondent, in asserting to be entitled to possession and ownership of the property, pinned her claim
entirely on her alleged status as sole heir of Juan Gabatan. It was incumbent upon her to present
preponderant evidence in support of her complaint.

Under the Civil Code, the filiation of legitimate children is established by any of the following:

ART. 265. The filiation of legitimate children is proved by the record of birth appearing in the
Civil Register, or by an authentic document or a final judgment.

ART. 266. In the absence of the titles indicated in the preceding article, the filiation shall be
proved by the continuous possession of status of a legitimate child.

ART. 267. In the absence of a record of birth, authentic document, final judgment or
possession of status, legitimate filiation may be proved by any other means allowed by the
Rules of Court and special laws.

Here, two conflicting birth certificates[19] of respondent were presented at the RTC. Respondent,
during her direct testimony, presented and identified a purported certified true copy of her typewritten birth
certificate which indicated that her mothers maiden name was Hermogena Clarito Gabatan. Petitioners, on
the other hand, presented a certified true copy of respondents handwritten birth certificate which differed
from the copy presented by respondent. Among the differences was respondents mothers full maiden name
which was indicated as Hermogena Calarito in the handwritten birth certificate.

In resolving this particular issue, the trial court ruled in this wise:

The parties are trying to outdo with (sic) each other by presenting two conflicting
Certificate (sic) of Live Birth of plaintiff herein, Lourdes Evero Pacana, which are Exhibit A for
the plaintiff and Exhibit 1 for the defendants. Which of this (sic) is genuine, and which is
falsified. These (sic) issue is crucial and requires serious scrutiny. The Court is of the
observation that Exhibit A for the plaintiff which is a certified true copy is in due form and
bears the as is and where is rule. It has the impression of the original certificate. The forms
(sic) is an old one used in the 1950s. Her mothers maiden name appearing thereof is
Hermogina (sic) Clarito Gabatan. While Exhibit 1, the entries found thereof (sic) is handwritten
which is very unusual and of dubious source. The form used is of latest vintage. The entry on
the space for mothers maiden name is Hermogena Calarito. There seems to be an apparent
attempt to thwart plaintiffs mother filiation with the omission of the surname Gabatan.
Considering these circumstances alone the Court is inclined to believe that Exhibit A for the
plaintiff is far more genuine and authentic certificate of live birth.[20]

Having carefully examined the questioned birth certificates, we simply cannot agree with the above-
quoted findings of the trial court. To begin with, Exhibit A, as the trial court noted, was an original
typewritten document, not a mere photocopy or facsimile. It uses a form of 1950s vintage[21] but this Court
is unable to concur in the trial courts finding that Exhibit 1 [22] was of a later vintage than Exhibit A which
was one of the trial courts bases for doubting the authenticity of Exhibit 1. On the contrary, the printed
notation on the upper left hand corner of Exhibit 1 states Municipal Form No. 102 (Revised, January 1945)
which makes it an older form than Exhibit A. Thus, the trial courts finding regarding which form was of more
recent vintage was manifestly contradicted by the evidence on record. No actual signature appears on
Exhibit A except that of a certain Maximo P. Noriga, Deputy Local Civil Registrar of the Office of the Local
Civil Registrar, Cagayan de Oro City, who purportedly certified on July 6, 1977 that Exhibit A was a true
copy of respondents birth certificate. The names of the attendant at birth (Petra Sambaan) and the local
civil registrar (J.L. Rivera) in 1950 were typewritten with the notation (Sgd.) also merely typewritten beside
their names. The words A certified true copy: July 6, 1977 above the signature of Maximo P. Noriga on
Exhibit A appear to be inscribed by the same typewriter as the very entries in Exhibit A. It would seem that
Exhibit A and the information stated therein were prepared and entered only in 1977. Significantly, Maximo
P. Noriga was never presented as a witness to identify Exhibit A. Said document and the signature of Maximo
P. Noriga therein were identified by respondent herself whose self-serving testimony cannot be deemed
sufficient authentication of her birth certificate.

We cannot subscribe to the trial courts view that since the entries in Exhibit 1 were handwritten,
Exhibit 1 was the one of dubious credibility. Verily, the certified true copies of the handwritten birth
certificate of respondent (petitioners Exhibits 1 and 8) were duly authenticated by two competent witnesses;
namely, Rosita Vidal (Ms. Vidal), Assistant Registration Officer of the Office of the City Civil Registrar,
Cagayan de Oro City and Maribeth E. Cacho (Ms. Cacho), Archivist of the National Statistics Office (NSO),
Sta. Mesa, Manila. Both witnesses testified that: (a) as part of their official duties they have custody of birth
records in their respective offices,[23] and (b) the certified true copy of respondents handwritten birth
certificate is a faithful reproduction of the original birth certificate registered in their respective
offices.[24] Ms. Vidal, during her testimony, even brought the original of the handwritten birth certificate
before the trial court and respondents counsel confirmed that the certified true copy (which was eventually
marked as Exhibit 1) was a faithful reproduction of the original. [25] Ms. Vidal likewise categorically testified
that no other copy of respondents birth certificate exists in their records except the handwritten birth
certificate.[26] Ms. Cacho, in turn, testified that the original of respondents handwritten birth certificate found
in the records of the NSO Manila (from which Exhibit 8 was photocopied) was the one officially transmitted
to their office by the Local Civil Registry Office of Cagayan de Oro. [27] Both Ms. Vidal and Ms. Cacho testified
and brought their respective offices copies of respondents birth certificate in compliance with subpoenas
issued by the trial court and there is no showing that they were motivated by ill will or bias in giving their
testimonies. Thus, between respondents Exhibit A and petitioners Exhibits 1 and 8, the latter documents
deserve to be given greater probative weight.

Even assuming purely for the sake of argument that the birth certificate presented by respondent
(Exhibit A) is a reliable document, the same on its face is insufficient to prove respondents filiation to her
alleged grandfather, Juan Gabatan. All that Exhibit A, if it had been credible and authentic, would have
proven was that respondents mother was a certain Hermogena Clarito Gabatan. It does not prove that same
Hermogena Clarito Gabatan is the daughter of Juan Gabatan. Even the CA held that the conflicting
certificates of live birth of respondent submitted by the parties only proved the filiation of respondent to
Hermogena.[28]

It was absolutely crucial to respondents cause of action that she convincingly proves the filiation of
her mother to Juan Gabatan. To reiterate, to prove the relationship of respondents mother to Juan Gabatan,
our laws dictate that the best evidence of such familial tie was the record of birth appearing in the Civil
Register, or an authentic document or a final judgment. In the absence of these, respondent should have
presented proof that her mother enjoyed the continuous possession of the status of a legitimate child. Only
in the absence of these two classes of evidence is the respondent allowed to present other proof admissible
under the Rules of Court of her mothers relationship to Juan Gabatan.

However, respondents mothers (Hermogenas) birth certificate, which would have been the best
evidence of Hermogenas relationship to Juan Gabatan, was never offered as evidence at the RTC. Neither
did respondent present any authentic document or final judgment categorically evidencing Hermogenas
relationship to Juan Gabatan.

Respondent relied on the testimony of her witnesses, Frisco Lawan, Felicisima Nagac Pacana and
Cecilia Nagac Villareal who testified that they personally knew Hermogena (respondents mother) and/or
Juan Gabatan, that they knew Juan Gabatan was married to Laureana Clarito and that Hermogena was the
child of Juan and Laureana. However, none of these witnesses had personal knowledge of the fact of
marriage of Juan to Laureana or the fact of birth of Hermogena to Juan and Laureana. They were not yet
born or were very young when Juan supposedly married Laureana or when Hermogena was born and they
all admitted that none of them were present at Juan and Laureanas wedding or Hermogenas birth. These
witnesses based their testimony on what they had been told by, or heard from, others as young
children. Their testimonies were, in a word, hearsay.

Other circumstances prevent us from giving full faith to respondents witnesses testimonies. The
records would show that they cannot be said to be credible and impartial witnesses. Frisco Lawan testified
that he was the son of Laureana by a man other than Juan Gabatan and was admittedly not at all related
to Juan Gabatan.[29] His testimony regarding the relationships within the Gabatan family is hardly reliable. As
for Felicisima Nagac Pacana and Cecilia Nagac Villareal who are children of Justa Gabatan Nagac, [30] this
Court is wary of according probative weight to their testimonies since respondent admitted during her cross-
examination that her (respondents) husband is the son of Felicisima Nagac Pacana. [31] In other words,
although these witnesses are indeed blood relatives of petitioners, they are also the mother and the aunt of
respondents husband. They cannot be said to be entirely disinterested in the outcome of the case.

Aside from the testimonies of respondents witnesses, both the RTC and the CA relied heavily on a
photocopy of a Deed of Absolute Sale[32] (Exhibit H) presented by respondent and which appeared to be
signed by the siblings and the heirs of the siblings of Juan Gabatan. In this document involving the sale of
a lot different from Lot 3095 C-5, Hermogena Gabatan as heir of the deceased Juan Gabatan was indicated
as one of the vendors. The RTC deemed the statement therein as an affirmation or recognition by Teofilo
Gabatan, petitioners predecessor in interest, that Hermogena Gabatan was the heir of Juan Gabatan. [33] The
CA considered the same statement as a declaration against interest on the part of Teofilo Gabatan. [34]

However, the admission of this Deed of Absolute Sale, including its contents and the signatures
therein, as competent evidence was vigorously and repeatedly objected to by petitioners counsel for being
a mere photocopy and not being properly authenticated. [35] After a close scrutiny of the said photocopy of
the Deed of Absolute Sale, this Court cannot uphold the admissibility of the same.

Under the best evidence rule, when the subject of inquiry is the contents of a document, no evidence
shall be admissible other than the original document itself. [36] Although the best evidence rule admits of
exceptions and there are instances where the presentation of secondary evidence would be allowed, such
as when the original is lost or the original is a public record, the basis for the presentation of secondary
evidence must still be established. Thus, in Department of Education Culture and Sports v. Del
Rosario,[37] we held that a party must first satisfactorily explain the loss of the best or primary evidence
before he can resort to secondary evidence. A party must first present to the court proof of loss or other
satisfactory explanation for non-production of the original instrument.

In the case at bar, a perusal of the transcript of the testimony of Felicisima Nagac Pacana (who
identified the photocopy of the Deed of Absolute Sale) plainly shows that she gave no testimony regarding
the whereabouts of the original, whether it was lost or whether it was recorded in any public office.

There is an ostensible attempt to pass off Exhibit H as an admissible public document. For this,
respondent relied on the stamped notation on the photocopy of the deed that it is a certified true xerox copy
and said notation was signed by a certain Honesto P. Velez, Sr., Assessment Officer, who seems to be an
officer in the local assessors office. Regarding the authentication of public documents, the Rules of
Court[38] provide that the record of public documents, when admissible for any purpose, may be evidenced
by an official publication thereof or by a copy attested by the officer having legal custody of the record, or
by his deputy.[39] The attestation of the certifying officer must state, in substance, that the copy is a correct
copy of the original, or a specific part thereof, as the case may be. [40]

To begin with, no proof whatsoever was presented by respondent that an original of Exhibit H was
registered or exists in the records of the local assessors office. Furthermore, the stamped certification of
Honesto P. Velez is insufficient authentication of Exhibit H since Velezs certification did not state that Exhibit
H was a true copy from the original. Even worse, Velez was not presented as a witness to attest that Exhibit
H was a true copy from the original. Indeed, it is highly doubtful that Velez could have made such an
attestation since the assessors office is not the official repository of original notarized deeds of sale and
could not have been the legal custodian contemplated in the rules.
 It is the notary public who is mandated by law to keep an original of the Deed of Absolute Sale in his
notarial register and to forward the same to the proper court. It is the notary public or the proper court that
has custody of his notarial register that could have produced the original or a certified true copy
thereof. Instead, the Deed of Absolute Sale was identified by Felicisima Nagac Pacana who, despite
appearing to be a signatory thereto, is not a disinterested witness and as can be gleaned from her testimony,
she had no personal knowledge of the preparation of the alleged certified true copy of the Deed of Absolute
Sale. She did not even know who secured a copy of Exhibit H from the assessors office. [41] To be sure, the
roundabout and defective manner of authentication of Exhibit H renders it inadmissible for the purpose it
was offered, i.e. as proof that Teofilo Gabatan acknowledged or admitted the status of Hermogena Gabatan
as heir of Juan Gabatan.

Even if we are to overlook the lack of proper authentication of Exhibit H and consider the same
admissible, it still nonetheless would have only provided proof that a certain Hermogena Gabatan was the
heir of Juan Gabatan. Exhibit H does not show the filiation of respondent to either Hermogena Gabatan or
Juan Gabatan. As discussed above, the only document that respondent produced to demonstrate her filiation
to Hermogena Gabatan (respondents Exhibit A) was successfully put in doubt by contrary evidence
presented by petitioners.

As for the issue of laches, we are inclined to likewise rule against respondent. According to
respondents own testimony,[42] Juan Gabatan died sometime in 1933 and thus, the cause of action of the
heirs of Juan Gabatan to recover the decedents property from third parties or to quiet title to their
inheritance accrued in 1933. Yet, respondent and/or her mother Hermogena, if they were truly the legal
heirs of Juan Gabatan, did not assert their rights as such. It is only in 1978 that respondent filed her first
complaint to recover the subject property, docketed as Civil Case No. 5840, against Rita Gabatan, the widow
of Teofilo Gabatan.[43] However, that case was dismissed without prejudice for failure to prosecute.[44] Again,
respondent waited until 1989 to refile her cause of action, i.e. the present case.[45] She claimed that she
waited until the death of Rita Gabatan to refile her case out of respect because Rita was then already old. [46]

We cannot accept respondents flimsy reason. It is precisely because Rita Gabatan and her
contemporaries (who might have personal knowledge of the matters litigated in this case) were advancing
in age and might soon expire that respondent should have exerted every effort to preserve valuable evidence
and speedily litigate her claim. As we held in Republic of the Philippines v. Agunoy: Vigilantibus, sed non
dormientibus, jura subveniunt, the law aids the vigilant, not those who sleep on their rights[O]ne may not
sleep on a right while expecting to preserve it in its pristine purity.[47]

All in all, this Court finds that respondent dismally failed to substantiate, with convincing, credible
and independently verifiable proof, her assertion that she is the sole heir of Juan Gabatan and thus, entitled
to the property under litigation. Aggravating the weakness of her evidence were the circumstances that (a)
she did not come to court with clean hands for she presented a tampered/altered, if not outright spurious,
copy of her certificate of live birth and (b) she unreasonably delayed the prosecution of her own cause of
action. If the Court cannot now affirm her claim, respondent has her own self to blame.

WHEREFORE, the petition is GRANTED. The Court of Appeals Decision in CA-G.R. CV No. 52273,
affirming the decision of the Regional Trial Court in Civil Case No. 89-092, is hereby REVERSED and SET
ASIDE. The complaint and amended complaint in Civil Case No. 89-092 are DISMISSED for lack of merit.
SO ORDERED.
 [G.R. No. 109373. March 27, 1998]

PACIFIC BANKING CORPORATION EMPLOYEES ORGANIZATION, PAULA S. PAUG, and its officers
and members, petitioners, vs. THE HONORABLE COURT OF APPEALS and VITALIANO N.
NAAGAS II, as Liquidator of Pacific Banking Corporation, respondents.

[G.R. No. 112991. March 27, 1998]

THE PRESIDENT OF THE PHILIPPINE DEPOSIT INSURANCE CORPORATION, as Liquidator of the

Pacific Banking Corporation, petitioner, vs. COURT OF APPEALS, HON. JUDGE REGINO T.
VERIDIANO II, DEPUTY SHERIFF RAMON ENRIQUEZ and ANG ENG JOO, ANG KEONG LAN
and E.J ANG INTL. LTD., represented by their Attorney-in-fact, GONZALO C.
SY, respondents.

RESOLUTION
MENDOZA, J.:

For consideration are (1) petitioner's Omnibus Motion in G.R. No. 112991 seeking reconsideration of
the Court's resolution dated October 9, 1995, which denied the reconsideration of the decision in this case
promulgated on March 20, 1995, and the resolution of October 13, 1995 which absolved the branch clerk of
court of the RTC of Manila, Branch 31, of charges of wrongdoing; and (2) the manifestation and motions for
clarification filed by the Land Bank of the Philippines (LBP) concerning the request of petitioner in G.R. No.
112991 for the transfer of the funds of the Pacific Banking Corporation (PaBC) to its other account in another
branch of LBP and the alleged garnishment of the funds of PaBC deposited in LBP in favor of the Bureau of
Internal Revenue.
The antecedent facts are as follows:

On March 20, 1995, the Court rendered a decision holding that a petition for liquidation under Sec. 29 of
the Central Bank Act, R.A.No. 265[1] is a special proceeding and , therefore, the rules prescribing a period
of 30 days for appealing and requiring a record on appeal apply. Accordingly, the appeal in G.R. No. 109373
was held to have been duly perfected but the appeal in G.R. No. 112991 had not been perfected because of
petitioner's failure to file a record on appeal.

Petitioner in G.R. No. 112991 moved for a reconsideration of the aforesaid decision but the Court denied his
motion in its resolution of October 9, 1995 on the following grounds (1) the clerks of the RTC and the Court
of Appeals certified that no record on appeal had been filed; (2) the branch clerk denied that the signature
on the alleged copy of the record on appeal was his; (3) counsel for private respondents and his clerk denied
in their respective affidavits that they had been served a copy of the record on appeal; (4) the identity of
the person who allegedly received the record on appeal filed in the trial court and whose initials appear on
the first page of the alleged copy of the said record had never been established; and (5) the copy of the
record on appeal allegedly filed did not bear the stamp of the RTC showing due receipt thereof.

In the resolution of October 13, 1995, the Court held Judge Regino Veridiano II, Deputy Sheriff Carmelo
Cachero and private respondent's counsel, Atty. Marino Eslao, guilty of indirect contempt for executing the
decision of the trial court despite the temporary restraining order issued by this Court. The Court, however,
found no basis of holding branch clerk Antonio Valencia Jr. guilty of any wrongdoing in certifying that
petitioner failed to file a record on appeal.

On November 6, 1995, petitioner then filed the Omnibus Motion in question seeking to (1) reopen the case
and/or consider the resolution of October 9, 1995 which denied his motion for reconsideration, and (2)
reconsider the October 13, 1995 resolution absolving the branch clerk of the trial court from contempt
charges.

In his omnibus motion, petitioner insists that he filed a record on appeal. As proof, he presents a photocopy
of the record on appeal allegedly received by the branch clerk of the trial court bearing the handwritten
notation "Received, 10-15-92, 3:45 PM" and the alleged initials of the said clerk. Petitioner explains that the
record on appeal does not have the RTC stamp "Received" because the trial court does not use a stamp but
receipt of pleadings is acknowledged simply by nothing this fact by hand. Petitioner submitted certain
pleadings filed in the trial court which were acknowledged by the branch clerk in the same way he allegedly
acknowledged by the branch clerk in the same way he allegedly acknowledged receipt of petitioner's record
on appeal. These are the notice of appeal filed by petitioner on October 14, 1992 (Annex E, Omnibus Motion),
Motion to Strike Out the Notice of Appeal with Motion for Issuance of Writ of Execution filed by the private
respondents (Annex G) and Comment filed by another claimant (Solid Bank) dated May 26, 1995 (Annex
H).
In addition, petitioner claims that the certifications by the clerks of the RTC and the Court of Appeals that
no record on appeal was filed are unreliable, that his record on appeal was suppressed from the records of
the case, and that the certification of the Court of Appeals that no record on appeal was filed therein was to
be expected because the record on appeal was filed with the RTC and not with the Court of Appeals.

Commenting, private respondents contend that the Omnibus Motion is actually a second motion for
reconsideration which is not allowed by the rules since the issues raised therein had been fully considered
and passed upon by the Court and that there is no compelling reason to grant the motion. They maintain
that petitioner's appeal was not perfected because of the non-filing of a record on appeal. Branch Clerk of
court Antonio Valencia, on the other hand, maintains that "no record on appeal was filed and therefore none
could be found in the expediente (records of the case)." He claims that the record on appeal allegedly filed
in the trial court could not have been unlawfully removed from the records because all pleadings received
by the court are immediately attached to the records. He denies that the signature appearing on the alleged
record on appeal was his.

Because of the serious ness of the petitioner's allegation that its record on appeal had been suppressed, the
Court on December 11, 1996, referred the question to the Office of the Court Administrator (OCA) for
investigation, report and recommendation.

On June 18, 1997, the OCA submitted its report and recommendation, the pertinent portions of which
state:[2]
In the formal investigation conducted (please see attached transcript) it was disclosed that Atty.
Antonio Valencia Jr. was appointed as the Clerk of Court V on June 18, 1992 and officially assumed
office on July 1, 1992.
As the Clerk of Court of RTC, Branch 31, it is his duty to exercise control and supervision over the
personnel of the said court; examines records of all cases filed and calendared; issues court
processes, prepares drafts of orders and other matters which are assigned by the Judge Regino
Verediano.
In their sala each personnel have their respective duties , from receipt of pleadings that are being
filed to their safekeeping. In no case is anyone allowed to interfere with the duties of each personnel
except under extreme urgency. Thus, receiving of pleadings is normally entrusted to the receiving
clerk and no one else. It is, as claimed by Atty. Valencia, only in the absence of the said receiving
clerk that other employees are authorized to receive pleadings.
For his part, Atty. Valencia claims that he rarely receives pleadings since before it reaches his table,
the same are already duly received. Besides, it is not one of his duties to receive pleadings.
With respect to the alleged receipt of the record on appeal by their office, specifically to him, Atty.
Valencia vehemently denied having received the same. First, because the stroke of the alphabet
indicating his initials is very different and so with the dates, secondly, if it was actually received it
could have been brought to attention of the late Judge Verediano who thereafter would have made
a notation of the same, like all other pleadings received in their office or simply instruct the
preparation of an order if necessary and lastly, it would have been included in their court calendar
as there was a notice of hearing attached thereto.
In the court's calendar dated October 23, 1992, Sp. Proc. No. 35313 was never scheduled for
hearing. Under normal circumstances, if there was notice of hearing it would be outrightly included
in the court's calendar for October 23, 1992 as requested.
To substantiate the aforesaid allegations Atty. Valencia submitted copies of pleadings filed relative
to the subject case bearing the notation of then Judge Verediano and the Court's calendar for
October 22 and 23, 1992.
In addition, he pointed out that if the Notice of Appeal (Record on Appeal) was actually filed in their
sala, why was it raised for the first time only in PDIC's Motion for Reconsideration. This according
to him is suspicious. He even insinuated that nobody could have done this (meaning inserted the
notice of appeal [record on appeal] in their pleadings) except the interested lawyer/s.
Moreover, Atty. Valencia vouches for the honesty and integrity of his staff, and if there be a need
for the examination of their signatures they would be very willing to go for a specimen signature
examination only to clear his/their names.
The office of the undersigned believes the claim of Atty. Valencia that no Notice of Appeal [Record
on Appeal] was filed at RTC Branch 31, Manila. As a CPA/lawyer, he was very well aware of his
duties and responsibilities as a Branch Clerk of Court. This is evidenced by the fact that in his more
than five (5) years stay as a Branch Clerk of Court, no single administrative complaint has ever
been lodged against him, be it a harassment suit or otherwise.
Moreover, if it has been actually filed it would not have passed unnoticed by then Judge Verediano
who had to approve the same.
The undersigned is in accord with the claim of Atty. Valencia as presented by him to Atty. Cunanan
of this Office that indeed no record on appeal was filed by the counsels of PDIC in the subject case,
 thus no administrative action should be taken against him. (Memorandum dated June 5, 1997, pp.
1-2; Rollo, p. 538-539)
On July 23, 1997, after considering the report and it appearing that the investigation conducted by the
OCA was limited to hearing the evidence of the branch clerk of court and his witnesses, the required the
OCA to hear the evidence of petitioner that he had filed a record on appeal but it was suppressed and, after
considering that totality of the evidence presented, to determine liability for any wrongful act committed,
and to submit its findings and recommendations.
On January 27, 1998, the OCA submitted its report and recommendation on the additional investigation
it conducted from which it appears that hearings were held on three dates; the parties, through their
counsel, were duly notified of the same; and that at the first scheduled hearing on October 7, 1997, only
Atty. Marino E. Eslao, counsel for private respondent, appeared. In order to expidite the proceedings, he
was allowed to present documentary evidence without prejudice to the right of the petitioner to comment
thereon. During the hearing on November 5, 1997, the parties agreed to file position papers after the
testimony of branch clerk Atty. Valencia. On November 6, 1997, the respective testimonies of Atty. Valencia
and Atty. Pablo Romero, the sole witness for petitioner, were taken. In his report dated December 1,
1997,[3] Senior Deputy Court Administrator Reynaldo L. Suarez summarized the evidence presented by the
parties and his findings on the same, to wit:
Atty. Pablo Romero, Manager of R&L Litigation Center, PDIC testifies that he was the one who
prepared the subject Record on Appeal. He likewise confirmed the fact that the President of the
PDIC, Mr. Ernest Leung, Atty. Rosalinda Casiguran and he then went to see Judge Veridiano and
was informed by Atty. Valencia that he cannot find a copy of the Record on Appeal which was
allegedly filed. He cannot recall if Atty. Valencia ever demanded from him a copy of said record (pp.
28-29, TSN dated November 6, 1997). No other relevant information were given by Atty. Romero.
Atty. Antonio Valencia, Branch Clerk of Court, RTC, Branch 31, Manila, was invited to testify as to
whether a Record on Appeal was actually filed before their court and the same was duly received
by him. He was examined by the parties, principally the counsel for PDIC.
In his testimony, Atty. Valencia, reiterated his previous stand that he never saw a copy of the
Record on Appeal and he was positive that indeed there was no Record on Appeal having been filed
in his court.Counsel of PDIC however insinuated that record on appeal might have been filed but
the same was misplaced. Atty. Valencia assured that "this is very remote". (TSN, p. 8, November
6, 1997).
He even stressed that when he was made earlier to comment on whether or not a record on appeal
was actually filed, he checked and double checked the original records, inquired from the employees
of RTC, Manila including the Judge whether they have knowledge of any record on appeal which
was filed in their sala but all answered in the negative. (pp. 21 & 22, TSN, Nov. 6, 1997).
Moreover, he also firmly denied having received the alleged copy of the record on appeal which was
presented to him for identification during his direct testimony since the signatures appearing therein
are totally different from his actual signature (pp. 23, TSN, November 6, 1997).
It is to be noted that the alleged duplicate original copy of the Notice of Appeal [Record on Appeal]
which is supposed to be with the counsels of PDIC was not presented as evidence. In fact when the
counsel of PDIC Atty. Romero was asked if the PDIC employee who allegedly filed the Record on
Appeal could testify he answered in the negative and claimed that the said employee is already in
Riyadh, Saudi Arabia. No evidence was likewise presented to prove the same. No effort was exerted
by PDIC to prove the authenticity of the signature of Clerk of Court Valencia appearing in PDIC's
copy of the Record on Appeal.
It is also worthy to note that other than the bare testimony of Atty. Romero, no other evidence
were presented by petitioner PDIC to substantiate their claim that a Record on Appeal was filed at
the RTC of Manila and the same was duly received by Atty. Valencia. The testimony was not even
corroborated.
Be that as it may this Office still has to determine as to whether a Record on Appeal was actually
filed at the court a quo.
A review of the record impels a rejection of the petitioner's claim that a Record on Appeal was filed.
The private respondent was able to present proof which are affirmative, unequivocal convincing,
and consistent. In fact the testimony alone of Atty. Valencia which was a reiteration of his previous
testimonies were very clear, concise, and moreover consistent. For the record Atty. Valencia is
viewed by the undersigned who personally conducted the investigation as a plain, sincere and
honest man who, not having been shown of any reason to be bias or to favor any party, had no
reason to deliberately tell a falsehood relative to his official functions. The fact therefore that he
submitted himself to an investigatin twice and in different occassions shows his determination to
vindicate his honor by proving the integrity of the records of his office.
From all indications and as the records of the case will show NO RECORD ON APPEAL was actually
filed in the court a quo.
Apparently, RTC, Branch 31, Manila has an effective records management (system) and it is
improbable to have missed one important document (RECORD ON APPEAL). In the absence of any
convincing proof to the contrary, the regularity of official function must be upheld.
 Far from the assertions of the petitioner we conclude that there was no Record on Appeal actually
filed. (Memorandum dated December 11, 1997, pp. 3-5; Rollo, pp. 557-559)
The findings of the OCA are well taken.
In civil cases, the burden of proof is on the party who would be defeated if no evidence is given on the
either side. Plaintiff must therefore establish his case by a preponderance of evidence, i.e. evidence as a
whole which is superior to that of the defendant.[4] In other words, the party who alleges a fact has the
burden of proving it.[5] In this case, petitioner, as the party claiming affirmative relief from this Court by
contending that he had filed a record on appeal in the trial court, must discharge the burden of convincingly
proving his claim.[6] As found by the OCA, however, the evidence of the respondents even outweighs that
of petitioner. Private respondents presented proof which are affirmative, unequivocal, convincing, and
consistent that no record on appel had been filed. As the OCA noted, petitioner not only failed to present
the PDIC employee who allegedly filed on the record appeal in the trial court but more importantly, he failed
to prove the authenticity of the alleged signature of Branch Clerk Antonio Valencia appearing in his copy of
the record on appeal.
The firm and consistent denial of the branch clerk that he was the one who received the record on
appeal and acknowledged its filing was disputed by petitioner. But petitioner's witness, Atty. Romero, who
allegedly prepared the said record did not file it in the trial court. Nor did he have any personal knowledge
of the actual filing of the record on appeal in the trial court. According to Atty. Romero, the PDIC employee
who allegedly filed the record on appeal in the trial court could not testify because the said employee was
already in Riyadh, Saudi Arabia. This allegation is not persuasive since no evidence was presented to prove
the same.[7]
Even the documentary evidence submitted by petitioner to prove the authenticity of the signature of
the branch clerk on the alleged duplicate original copy of the record on appeal [8] is not convincing. The
signature and notation on the alleged duplicate original copy of the record on appeal do not match the actual
signature and handwriting of the branch clerk as shown in the pleadings submitted by petitioner himself,
namely, the notice of appeal filed by petitioner (Annex E, Omnibus Motion), motion to strike out notice of
appeal filed by private respondents (Annex G) and comment filed by another claimant (Annex H). The branch
clerk's alleged signature and notation are markedly different from his signature and handwriting appearing
in the submitted documentary evidence.[9] For one, the branch clerk's initial "AV" appear "HV" in the alleged
duplicate original copy of the record.In addition, numeral "5" was written with a rounded stroke instead of
a sharp one. Clearly, petitioner failed to discharge the required burden of proof. Hence, petitioner's assertion
that he had filed a record on appeal is not worthy of belief.
As regards petitioner's prayer that the Court reconsider its resolution of October 13, 1995 absolving the
branch clerk of court of charges of wrongdoing, suffice it to state here that no ground exists to impute bad
faith on the part of the branch clerk. Good faith is presumed and the complainant has the burden of proving
any wrongdoing.[10] Petitioner simply failed to prove that the branch clerk either suppressed the record on
appeal allegedly filed by petitioner did not file the said record. The Court cannot find the branch clerk
guilty of any wrongdoing in certifying that petitioner failed to file a record on appeal in the trial court in the
face of petitioner's failure to adduce convincing proof that such a record was in fact filed therein.
Also for consideration are two (2) manifestations and motions for clarification filed by the Land Bank of
the Philippines (LBP). In its Manifestation/Motion dated May 20, 1996, LBP alleges that on or about March
24, 1995, petitioner's deposit accounts in LBP were garnished by Sheriff Carmelo Cachero in favor of private
respondents pursuant to the writ of execution issued by RTC Branch 31, Manila acting as the liquidation
court; that on April 10, 1995, it received from petitioner a copy of the April 7, 1995 order of this
Court directing the parties to maintain the status quo in the case; that on November 20, 1995, the Court
issued another resolutiondirecting the parties to maintain the status quo until further orders; and that on
April 1, 1996, it received as request from the petitioner to transfer the garnished funds to a different account
maintained by petitioner in another branch of LBP. LBP seeks clarification whether or not the garnishment
of petitioner's deposit accounts on March 24, 1995 is null and void considering the status quo orders issued
by the Court. It further inquires whether or not it may acquiesce to petitioner's request to transfer the
garnished funds to petitioner's other account in another branch of LBP. [11] In its Manifestation dated October
7, 1996, on the other hand, LBP alleges that on September 9, 1996, it received from Sheriff Adolfo Garcia
a notice of garnishment over the same deposit accounts of petitioner implementing the writ of execution
issued also by the RTC, Branch 31, Manila, but for another claimant, the Bureau of Internal Revenue (BIR);
that on September 25, 1996, it wrote Sheriff Garcia informing him that the accounts sought to be garnished
were already garnished pursuant to the processes of the same court for another claimant (herein private
respondents); that on September 27, 1996, it received a letter from petitioner urging it to effect the
immediate release of the garnished funds to the BIR and that on October 2, 1996, it received from Sheriff
Garcia the order to deliver to him the garnished amount of P179,971,860.13. LBP manifests that it is holding
in abeyance action on the order to Sheriff Garcia and the letter of petitioner until the incidents in this case
are finally resolved by this Court.[12]
These are matters largely relating to the execution of the decision of the trial court. As far as this Court
is concerned, its decision is now final and it no longer has any jurisdiction to pass upon these incidents, not
to mention the fact that the manifestation filed by LBP are in the nature of consultation by one not a party
to this case.
WHEREFORE, the Court RESOLVED to DENY petitioner's Omnibus Motion for lack of merit. The
manifestations and motions dated May 20, 1996 and October 7, 1996 by the Land Bank of the Philippines
are NOTED. SO ORDERED.
 ALAN JOSEPH A. SHEKER, G.R. No. 157912

Petitioner,

- versus -

ESTATE OF ALICE O. SHEKER,

VICTORIA S. MEDINA-

Administratrix, Promulgated:

Respondent. December 13, 2007

x------------------------------------------------x

DECISION

AUSTRIA-MARTINEZ, J.:

This resolves the Petition for Review on Certiorari seeking the reversal of the Order[1] of
the Regional Trial Court of Iligan City, Branch 6 (RTC) dated January 15, 2003 and its Omnibus Order
dated April 9, 2003.

The undisputed facts are as follows.

The RTC admitted to probate the holographic will of Alice O. Sheker and thereafter issued an order for all
the creditors to file their respective claims against the estate. In compliance therewith, petitioner filed on
October 7, 2002 a contingent claim for agent's commission due him amounting to
approximately P206,250.00 in the event of the sale of certain parcels of land belonging to the estate, and
the amount of P275,000.00, as reimbursement for expenses incurred and/or to be incurred by petitioner in
the course of negotiating the sale of said realties.

The executrix of the Estate of Alice O. Sheker (respondent) moved for the dismissal of said money claim
against the estate on the grounds that (1) the requisite docket fee, as prescribed in Section 7(a), Rule 141
of the Rules of Court, had not been paid; (2) petitioner failed to attach a certification against non-forum
shopping; and (3) petitioner failed to attach a written explanation why the money claim was not filed and
served personally.

On January 15, 2003, the RTC issued the assailed Order dismissing without prejudice the money claim based
on the grounds advanced by respondent. Petitioner's motion for reconsideration was denied per Omnibus
Order dated April 9, 2003.
Petitioner then filed the present petition for review on certiorari, raising the following questions:

(a) must a contingent claim filed in the probate proceeding contain a certification against non-
forum shopping, failing which such claim should be dismissed?

(b) must a contingent claim filed against an estate in a probate proceeding be dismissed for
failing to pay the docket fees at the time of its filing thereat?

(c) must a contingent claim filed in a probate proceeding be dismissed because of its failure
to contain a written explanation on the service and filing by registered mail?[2]

Petitioner maintains that the RTC erred in strictly applying to a probate proceeding the rules requiring
a certification of non-forum shopping, a written explanation for non-personal filing, and the payment of
docket fees upon filing of the claim. He insists that Section 2, Rule 72 of the Rules of Court provides that
rules in ordinary actions are applicable to special proceedings only in a suppletory manner.

The Court gave due course to the petition for review on certiorari although directly filed with this
Court, pursuant to Section 2(c), Rule 41 of the Rules of Court.[3]

The petition is imbued with merit.

However, it must be emphasized that petitioner's contention that rules in ordinary actions are only
supplementary to rules in special proceedings is not entirely correct.

Section 2, Rule 72, Part II of the same Rules of Court provides:

Sec. 2. Applicability of rules of Civil Actions. - In the absence of special provisions,

the rules provided for in ordinary actions shall be, as far as practicable, applicable in special
proceedings.

Stated differently, special provisions under Part II of the Rules of Court govern special proceedings;
but in the absence of special provisions, the rules provided for in Part I of the Rules governing ordinary civil
actions shall be applicable to special proceedings, as far as practicable.

The word practicable is defined as: possible to practice or perform; capable of being put into practice,
done or accomplished.[4] This means that in the absence of special provisions, rules in ordinary actions may
be applied in special proceedings as much as possible and where doing so would not pose an obstacle to
said proceedings. Nowhere in the Rules of Court does it categorically say that rules in ordinary actions are
inapplicable or merely suppletory to special proceedings. Provisions of the Rules of Court requiring a
certification of non-forum shopping for complaints and initiatory pleadings, a written explanation for
non-personal service and filing, and the payment of filing fees for money claims against an estate would not
in any way obstruct probate proceedings, thus, they are applicable to special proceedings such as the
settlement of the estate of a deceased person as in the present case.

Thus, the principal question in the present case is: did the RTC err in dismissing petitioner's
contingent money claim against respondent estate for failure of petitioner to attach to his motion a
certification against non-forum shopping?

The Court rules in the affirmative.

 The certification of non-forum shopping is required only for complaints and other initiatory
pleadings. The RTC erred in ruling that a contingent money claim against the estate of a decedent is an
initiatory pleading. In the present case, the whole probate proceeding was initiated upon the filing
of the petition for allowance of the decedent's will. Under Sections 1 and 5, Rule 86 of the Rules of
Court, after granting letters of testamentary or of administration, all persons having money claims against
the decedent are mandated to file or notify the court and the estate administrator of their respective money
claims; otherwise, they would be barred, subject to certain exceptions. [5]

Such being the case, a money claim against an estate is more akin to a motion for creditors' claims to be
recognized and taken into consideration in the proper disposition of the properties of the
estate. In Arquiza v. Court of Appeals,[6] the Court explained thus:

x x x The office of a motion is not to initiate new litigation, but to bring a material
but incidental matter arising in the progress of the case in which the motion is
filed. A motion is not an independent right or remedy, but is confined to incidental
matters in the progress of a cause. It relates to some question that is collateral to the
main object of the action and is connected with and dependent upon the principal
remedy.[7] (Emphasis supplied)

A money claim is only an incidental matter in the main action for the settlement of the decedent's estate;
more so if the claim is contingent since the claimant cannot even institute a separate action for a mere
contingent claim. Hence, herein petitioner's contingent money claim, not being an initiatory
pleading, does not require a certification against non-forum shopping.

On the issue of filing fees, the Court ruled in Pascual v. Court of Appeals,[8] that the trial court has jurisdiction
to act on a money claim (attorney's fees) against an estate for services rendered by a lawyer to
the administratrix to assist her in fulfilling her duties to the estate even without payment of separate docket
fees because the filing fees shall constitute a lien on the judgment pursuant to Section 2, Rule 141 of the
Rules of Court, or the trial court may order the payment of such filing fees within a reasonable time. [9] After
all, the trial court had already assumed jurisdiction over the action for settlement of the estate. Clearly,
therefore, non-payment of filing fees for a money claim against the estate is not one of the grounds for
dismissing a money claim against the estate.

With regard to the requirement of a written explanation, Maceda v. De Guzman Vda. de Macatangay[10] is
squarely in point. Therein, the Court held thus:

In Solar Team Entertainment, Inc. v. Ricafort, this Court, passing upon Section 11 of Rule 13
of the Rules of Court, held that a court has the discretion to consider a pleading or paper as
not filed if said rule is not complied with.
Personal service and filing are preferred for obvious reasons. Plainly, such should expedite
action or resolution on a pleading, motion or other paper; and conversely, minimize, if not
eliminate, delays likely to be incurred if service or filing is done by mail, considering the
inefficiency of the postal service. Likewise, personal service will do away with the practice of
some lawyers who, wanting to appear clever, resort to the following less than ethical
practices: (1) serving or filing pleadings by mail to catch opposing counsel off-guard, thus
leaving the latter with little or no time to prepare, for instance, responsive pleadings or an
opposition; or (2) upon receiving notice from the post office that the registered mail
containing the pleading of or other paper from the adverse party may be claimed, unduly
procrastinating before claiming the parcel, or, worse, not claiming it at all, thereby causing
undue delay in the disposition of such pleading or other papers.

If only to underscore the mandatory nature of this innovation to our set of adjective rules
requiring personal service whenever practicable, Section 11 of Rule 13 then gives the court
the discretion to consider a pleading or paper as not filed if the other modes of
service or filing were not resorted to and no written explanation was made as to
why personal service was not done in the first place. The exercise of discretion
must, necessarily consider the practicability of personal service, for Section 11 itself
begins with the clause whenever practicable.
 We thus take this opportunity to clarify that under Section 11, Rule 13 of the 1997 Rules of
Civil Procedure, personal service and filing is the general rule, and resort to other modes of
service and filing, the exception. Henceforth, whenever personal service or filing is
practicable, in the light of the circumstances of time, place and person, personal service or
filing is mandatory. Only when personal service or filing is not practicable may resort to other
modes be had, which must then be accompanied by a written explanation as to why personal
service or filing was not practicable to begin with. In adjudging the plausibility of an
explanation, a court shall likewise consider the importance of the subject matter of the case
or the issues involved therein, and the prima facie merit of the pleading sought to be
expunged for violation of Section 11. (Emphasis and italics supplied)

In Musa v. Amor, this Court, on noting the impracticality of personal service, exercised its
discretion and liberally applied Section 11 of Rule 13:

As [Section 11, Rule 13 of the Rules of Court] requires, service and filing of
pleadings must be done personally whenever practicable. The court notes
that in the present case, personal service would not be
practicable.Considering the distance between the Court of Appeals
and Donsol, Sorsogon where the petition was posted, clearly, service
by registered mail [sic] would have entailed considerable time, effort
and expense. A written explanation why service was not done
personally might have been superfluous. In any case, as the rule is so
worded with the use of may, signifying permissiveness, a violation
thereof gives the court discretion whether or not to consider the paper
as not filed. While it is true that procedural rules are necessary to
secure an orderly and speedy administration of justice, rigid
application of Section 11, Rule 13 may be relaxed in this case in the
interest of substantial justice. (Emphasis and italics supplied)

In the case at bar, the address of respondents counsel is Lopez, Quezon, while petitioner
Sonias counsels is Lucena City. Lopez, Quezon is 83 kilometers away from Lucena City. Such
distance makes personal service impracticable. As in Musa v. Amor, a written explanation
why service was not done personally might have been superfluous.

As this Court held in Tan v. Court of Appeals, liberal construction of a rule of procedure has
been allowed where, among other cases, the injustice to the adverse party is not
commensurate with the degree of his thoughtlessness in not complying with the procedure
prescribed.[11] (Emphasis supplied)

In the present case, petitioner holds office in Salcedo Village, Makati City, while counsel for respondent and
the RTC which rendered the assailed orders are both in Iligan City. The lower court should have taken
judicial notice of the great distance between said cities and realized that it is indeed not practicable to serve
and file the money claim personally. Thus, following Medina v. Court of Appeals,[12] the failure of petitioner
to submit a written explanation why service has not been done personally, may be considered as superfluous
and the RTC should have exercised its discretion under Section 11, Rule 13, not to dismiss the money claim
of petitioner, in the interest of substantial justice.

The ruling spirit of the probate law is the speedy settlement of estates of deceased persons for the
benefit of creditors and those entitled to residue by way of inheritance or legacy after the debts and expenses
of administration have been paid.[13] The ultimate purpose for the rule on money claims was further
explained in Union Bank of the Phil. v. Santibaez,[14] thus:

The filing of a money claim against the decedents estate in the probate court is mandatory. As
we held in the vintage case of Py Eng Chong v. Herrera:

x x x This requirement is for the purpose of protecting the estate of the deceased by
informing the executor or administrator of the claims against it, thus enabling him to
examine each claim and to determine whether it is a proper one which should be allowed. The
plain and obvious design of the rule is the speedy settlement of the affairs of the deceased
and the early delivery of the property to the distributees, legatees, or heirs. The law strictly
requires the prompt presentation and disposition of the claims against the
decedent's estate in order to settle the affairs of the estate as soon as possible, pay
off its debts and distribute the residue.[15] (Emphasis supplied)
The RTC should have relaxed and liberally construed the procedural rule on the requirement of a written
explanation for non-personal service, again in the interest of substantial justice.

WHEREFORE, the petition is GRANTED. The Orders of the Regional Trial Court of Iligan City, Branch 6
dated January 15, 2003 and April 9, 2003, respectively,
are REVERSED and SET ASIDE. The Regional Trial Court of Iligan City, Branch 6, is hereby DIRECTED to
give due course and take appropriate action on petitioner's money claim in accordance with Rule 82 of the
Rules of Court. No pronouncement as to costs. SO ORDERED.
G.R. No. 164108 May 8, 2009

ALFREDO HILADO, LOPEZ SUGAR CORPORATION, FIRST FARMERS HOLDING

CORPORATION, Petitioners,
vs.
THE HONORABLE COURT OF APPEALS, THE HONORABLE AMOR A. REYES, Presiding Judge,
Regional Trial Court of Manila, Branch 21 and ADMINISTRATRIX JULITA CAMPOS
BENEDICTO, Respondents.

DECISION

TINGA, J.:

The well-known sugar magnate Roberto S. Benedicto died intestate on 15 May 2000. He was survived by
his wife, private respondent Julita Campos Benedicto (administratrix Benedicto), and his only daughter,
Francisca Benedicto-Paulino.1 At the time of his death, there were two pending civil cases against Benedicto
involving the petitioners. The first, Civil Case No. 95-9137, was then pending with the Regional Trial Court
(RTC) of Bacolod City, Branch 44, with petitioner Alfredo Hilado as one of the plaintiffs therein. The second,
Civil Case No. 11178, was then pending with the RTC of Bacolod City, Branch 44, with petitioners Lopez
Sugar Corporation and First Farmers Holding Corporation as one of the plaintiffs therein.2

On 25 May 2000, private respondent Julita Campos Benedicto filed with the RTC of Manila a petition for the
issuance of letters of administration in her favor, pursuant to Section 6, Rule 78 of the Revised Rules of
Court. The petition was raffled to Branch 21, presided by respondent Judge Amor A. Reyes. Said petition
acknowledged the value of the assets of the decedent to be ₱5 Million, "net of liabilities."3 On 2 August 2000,
the Manila RTC issued an order appointing private respondent as administrator of the estate of her deceased
husband, and issuing letters of administration in her favor.4 In January 2001, private respondent submitted
an Inventory of the Estate, Lists of Personal and Real Properties, and Liabilities of the Estate of her deceased
husband.5 In the List of Liabilities attached to the inventory, private respondent included as among the
liabilities, the above-mentioned two pending claims then being litigated before the Bacolod City
courts.6 Private respondent stated that the amounts of liability corresponding to the two cases as
₱136,045,772.50 for Civil Case No. 95-9137 and ₱35,198,697.40 for Civil Case No. 11178. 7 Thereafter, the
Manila RTC required private respondent to submit a complete and updated inventory and appraisal report
pertaining to the estate.8

On 24 September 2001, petitioners filed with the Manila RTC a Manifestation/Motion Ex Abundanti
Cautela,9praying that they be furnished with copies of all processes and orders pertaining to the intestate
proceedings. Private respondent opposed the manifestation/motion, disputing the personality of petitioners
to intervene in the intestate proceedings of her husband. Even before the Manila RTC acted on the
manifestation/motion, petitioners filed an omnibus motion praying that the Manila RTC set a deadline for
the submission by private respondent of the required inventory of the decedent’s estate. 10 Petitioners also
filed other pleadings or motions with the Manila RTC, alleging lapses on the part of private respondent in
her administration of the estate, and assailing the inventory that had been submitted thus far as unverified,
incomplete and inaccurate.

On 2 January 2002, the Manila RTC issued an order denying the manifestation/motion, on the ground that
petitioners are not interested parties within the contemplation of the Rules of Court to intervene in the
intestate proceedings.11 After the Manila RTC had denied petitioners’ motion for reconsideration, a petition
for certiorari was filed with the Court of Appeals. The petition argued in general that petitioners had the
right to intervene in the intestate proceedings of Roberto Benedicto, the latter being the defendant in the
civil cases they lodged with the Bacolod RTC.

On 27 February 2004, the Court of Appeals promulgated a decision 12 dismissing the petition and declaring
that the Manila RTC did not abuse its discretion in refusing to allow petitioners to intervene in the intestate
proceedings. The allowance or disallowance of a motion to intervene, according to the appellate court, is
addressed to the sound discretion of the court. The Court of Appeals cited the fact that the claims of
petitioners against the decedent were in fact contingent or expectant, as these were still pending litigation
in separate proceedings before other courts.

Hence, the present petition. In essence, petitioners argue that the lower courts erred in denying them the
right to intervene in the intestate proceedings of the estate of Roberto Benedicto. Interestingly, the rules of
procedure they cite in support of their argument is not the rule on intervention, but rather various other
provisions of the Rules on Special Proceedings.13

To recall, petitioners had sought three specific reliefs that were denied by the courts a quo. First, they
prayed that they be henceforth furnished "copies of all processes and orders issued" by the intestate court
as well as the pleadings filed by administratrix Benedicto with the said court.14 Second, they prayed that
the intestate court set a deadline for the submission by administratrix Benedicto to submit a verified and
complete inventory of the estate, and upon submission thereof, order the inheritance tax appraisers of the
Bureau of Internal Revenue to assist in the appraisal of the fair market value of the same. 15 Third, petitioners
moved that the intestate court set a deadline for the submission by the administrator of her verified annual
account, and, upon submission thereof, set the date for her examination under oath with respect thereto,
with due notice to them and other parties interested in the collation, preservation and disposition of the
estate.16

The Court of Appeals chose to view the matter from a perspective solely informed by the rule on intervention.
We can readily agree with the Court of Appeals on that point. Section 1 of Rule 19 of the 1997 Rules of Civil
Procedure requires that an intervenor "has a legal interest in the matter in litigation, or in the success of
either of the parties, or an interest against both, or is so situated as to be adversely affected by a distribution
or other disposition of property in the custody of the court x x x" While the language of Section 1, Rule 19
does not literally preclude petitioners from intervening in the intestate proceedings, case law has
consistently held that the legal interest required of an intervenor "must be actual and material, direct and
immediate, and not simply contingent and expectant."17

Nonetheless, it is not immediately evident that intervention under the Rules of Civil Procedure necessarily
comes into operation in special proceedings. The settlement of estates of deceased persons fall within the
rules of special proceedings under the Rules of Court, 18 not the Rules on Civil Procedure. Section 2, Rule 72
further provides that "[i]n the absence of special provisions, the rules provided for in ordinary actions shall
be, as far as practicable, applicable to special proceedings."

We can readily conclude that notwithstanding Section 2 of Rule 72, intervention as set forth under Rule 19
does not extend to creditors of a decedent whose credit is based on a contingent claim. The definition of
"intervention" under Rule 19 simply does not accommodate contingent claims.

Yet, even as petitioners now contend before us that they have the right to intervene in the intestate
proceedings of Roberto Benedicto, the reliefs they had sought then before the RTC, and also now before us,
do not square with their recognition as intervenors. In short, even if it were declared that petitioners have
no right to intervene in accordance with Rule 19, it would not necessarily mean the disallowance of the
reliefs they had sought before the RTC since the right to intervene is not one of those reliefs.

To better put across what the ultimate disposition of this petition should be, let us now turn our focus to the
Rules on Special Proceedings.

In several instances, the Rules on Special Proceedings entitle "any interested persons" or "any persons
interested in the estate" to participate in varying capacities in the testate or intestate proceedings.
Petitioners cite these provisions before us, namely: (1) Section 1, Rule 79, which recognizes the right of
"any person interested" to oppose the issuance of letters testamentary and to file a petition for
administration;" (2) Section 3, Rule 79, which mandates the giving of notice of hearing on the petition for
letters of administration to the known heirs, creditors, and "to any other persons believed to have interest
in the estate;" (3) Section 1, Rule 76, which allows a "person interested in the estate" to petition for the
allowance of a will; (4) Section 6 of Rule 87, which allows an individual interested in the estate of the
deceased "to complain to the court of the concealment, embezzlement, or conveyance of any asset of the
decedent, or of evidence of the decedent’s title or interest therein;" (5) Section 10 of Rule 85, which requires
notice of the time and place of the examination and allowance of the Administrator’s account "to persons
interested;" (6) Section 7(b) of Rule 89, which requires the court to give notice "to the persons interested"
before it may hear and grant a petition seeking the disposition or encumbrance of the properties of the
estate; and (7) Section 1, Rule 90, which allows "any person interested in the estate" to petition for an
order for the distribution of the residue of the estate of the decedent, after all obligations are either satisfied
or provided for.

Had the claims of petitioners against Benedicto been based on contract, whether express or implied, then
they should have filed their claim, even if contingent, under the aegis of the notice to creditors to be issued
by the court immediately after granting letters of administration and published by the administrator
immediately after the issuance of such notice.19 However, it appears that the claims against Benedicto were
based on tort, as they arose from his actions in connection with Philsucom, Nasutra and Traders Royal Bank.
Civil actions for tort or quasi-delict do not fall within the class of claims to be filed under the notice to
creditors required under Rule 86.20 These actions, being as they are civil, survive the death of the decedent
and may be commenced against the administrator pursuant to Section 1, Rule 87. Indeed, the records
indicate that the intestate estate of Benedicto, as represented by its administrator, was successfully
impleaded in Civil Case No. 11178, whereas the other civil case 21 was already pending review before this
Court at the time of Benedicto’s death.

Evidently, the merits of petitioners’ claims against Benedicto are to be settled in the civil cases where they
were raised, and not in the intestate proceedings. In the event the claims for damages of petitioners are
granted, they would have the right to enforce the judgment against the estate. Yet until such time, to what
extent may they be allowed to participate in the intestate proceedings?

Petitioners place heavy reliance on our ruling in Dinglasan v. Ang Chia, 22 and it does provide us with guidance
on how to proceed. A brief narration of the facts therein is in order. Dinglasan had filed an action for
reconveyance and damages against respondents, and during a hearing of the case, learned that the same
trial court was hearing the intestate proceedings of Lee Liong to whom Dinglasan had sold the property
years earlier. Dinglasan thus amended his complaint to implead Ang Chia, administrator of the estate of her
late husband. He likewise filed a verified claim-in-intervention, manifesting the pendency of the civil case,
praying that a co-administrator be appointed, the bond of the administrator be increased, and that the
intestate proceedings not be closed until the civil case had been terminated. When the trial court ordered
the increase of the bond and took cognizance of the pending civil case, the administrator moved to close
the intestate proceedings, on the ground that the heirs had already entered into an extrajudicial partition
of the estate. The trial court refused to close the intestate proceedings pending the termination of the civil
case, and the Court affirmed such action.

If the appellants filed a claim in intervention in the intestate proceedings it was only pursuant to their desire
to protect their interests it appearing that the property in litigation is involved in said proceedings and in
fact is the only property of the estate left subject of administration and distribution; and the court is justified
in taking cognizance of said civil case because of the unavoidable fact that whatever is determined in said
civil case will necessarily reflect and have a far reaching consequence in the determination and distribution
of the estate. In so taking cognizance of civil case No. V-331 the court does not assume general jurisdiction
over the case but merely makes of record its existence because of the close interrelation of the two cases
and cannot therefore be branded as having acted in excess of its jurisdiction.

Appellants' claim that the lower court erred in holding in abeyance the closing of the intestate proceedings
pending determination of the separate civil action for the reason that there is no rule or authority justifying
the extension of administration proceedings until after the separate action pertaining to its general
jurisdiction has been terminated, cannot be entertained. Section 1, Rule 88, of the Rules of Court, expressly
provides that "action to recover real or personal property from the estate or to enforce a lien thereon, and
actions to recover damages for an injury to person or property, real or personal, may be commenced against
the executor or administrator." What practical value would this provision have if the action against the
administrator cannot be prosecuted to its termination simply because the heirs desire to close the intestate
proceedings without first taking any step to settle the ordinary civil case? This rule is but a corollary to the
ruling which declares that questions concerning ownership of property alleged to be part of the estate but
claimed by another person should be determined in a separate action and should be submitted to the court
in the exercise of its general jurisdiction. These rules would be rendered nugatory if we are to hold that an
intestate proceedings can be closed by any time at the whim and caprice of the heirs x x x 23(Emphasis
supplied) [Citations omitted]

It is not clear whether the claim-in-intervention filed by Dinglasan conformed to an action-in-intervention

under the Rules of Civil Procedure, but we can partake of the spirit behind such pronouncement. Indeed, a
few years later, the Court, citing Dinglasan, stated: "[t]he rulings of this court have always been to the
effect that in the special proceeding for the settlement of the estate of a deceased person, persons not heirs,
intervening therein to protect their interests are allowed to do so to protect the same, but not for a decision
on their action."24

Petitioners’ interests in the estate of Benedicto may be inchoate interests, but they are viable interests
nonetheless. We are mindful that the Rules of Special Proceedings allows not just creditors, but also "any
person interested" or "persons interested in the estate" various specified capacities to protect their
respective interests in the estate. Anybody with a contingent claim based on a pending action for quasi-
delict against a decedent may be reasonably concerned that by the time judgment is rendered in their favor,
the estate of the decedent would have already been distributed, or diminished to the extent that the
judgment could no longer be enforced against it.

In the same manner that the Rules on Special Proceedings do not provide a creditor or any person interested
in the estate, the right to participate in every aspect of the testate or intestate proceedings, but instead
provides for specific instances when such persons may accordingly act in those proceedings, we deem that
while there is no general right to intervene on the part of the petitioners, they may be allowed to seek
certain prayers or reliefs from the intestate court not explicitly provided for under the Rules, if the prayer
or relief sought is necessary to protect their interest in the estate, and there is no other modality under the
Rules by which such interests can be protected. It is under this standard that we assess the three prayers
sought by petitioners.

The first is that petitioners be furnished with copies of all processes and orders issued in connection with
the intestate proceedings, as well as the pleadings filed by the administrator of the estate. There is no
questioning as to the utility of such relief for the petitioners. They would be duly alerted of the developments
in the intestate proceedings, including the status of the assets of the estate. Such a running account would
allow them to pursue the appropriate remedies should their interests be compromised, such as the right,
under Section 6, Rule 87, to complain to the intestate court if property of the estate concealed, embezzled,
or fraudulently conveyed.

At the same time, the fact that petitioners’ interests remain inchoate and contingent counterbalances their
ability to participate in the intestate proceedings. We are mindful of respondent’s submission that if the
Court were to entitle petitioners with service of all processes and pleadings of the intestate court, then
anybody claiming to be a creditor, whether contingent or otherwise, would have the right to be furnished
such pleadings, no matter how wanting of merit the claim may be. Indeed, to impose a precedent that would
mandate the service of all court processes and pleadings to anybody posing a claim to the estate, much less
contingent claims, would unduly complicate and burden the intestate proceedings, and would ultimately
offend the guiding principle of speedy and orderly disposition of cases.
Fortunately, there is a median that not only exists, but also has been recognized by this Court, with respect
to the petitioners herein, that addresses the core concern of petitioners to be apprised of developments in
the intestate proceedings. In Hilado v. Judge Reyes,25 the Court heard a petition for mandamus filed by the
same petitioners herein against the RTC judge, praying that they be allowed access to the records of the
intestate proceedings, which the respondent judge had denied from them. Section 2 of Rule 135 came to
fore, the provision stating that "the records of every court of justice shall be public records and shall be
available for the inspection of any interested person x x x." The Court ruled that petitioners were "interested
persons" entitled to access the court records in the intestate proceedings. We said:

Petitioners' stated main purpose for accessing the records to—monitor prompt compliance with the Rules
governing the preservation and proper disposition of the assets of the estate, e.g., the completion and
appraisal of the Inventory and the submission by the Administratrix of an annual accounting —appears
legitimate, for, as the plaintiffs in the complaints for sum of money against Roberto Benedicto, et al., they
have an interest over the outcome of the settlement of his estate. They are in fact "interested persons"
under Rule 135, Sec. 2 of the Rules of Court x x x26

Allowing creditors, contingent or otherwise, access to the records of the intestate proceedings is an
eminently preferable precedent than mandating the service of court processes and pleadings upon them. In
either case, the interest of the creditor in seeing to it that the assets are being preserved and disposed of
in accordance with the rules will be duly satisfied. Acknowledging their right to access the records, rather
than entitling them to the service of every court order or pleading no matter how relevant to their individual
claim, will be less cumbersome on the intestate court, the administrator and the heirs of the decedent, while
providing a viable means by which the interests of the creditors in the estate are preserved.1awphi1

Nonetheless, in the instances that the Rules on Special Proceedings do require notice to any or all "interested
parties" the petitioners as "interested parties" will be entitled to such notice. The instances when notice has
to be given to interested parties are provided in: (1) Sec. 10, Rule 85 in reference to the time and place of
examining and allowing the account of the executor or administrator; (2) Sec. 7(b) of Rule 89 concerning
the petition to authorize the executor or administrator to sell personal estate, or to sell, mortgage or
otherwise encumber real estates; and; (3) Sec. 1, Rule 90 regarding the hearing for the application for an
order for distribution of the estate residue. After all, even the administratrix has acknowledged in her
submitted inventory, the existence of the pending cases filed by the petitioners.

We now turn to the remaining reliefs sought by petitioners; that a deadline be set for the submission by
administratrix Benedicto to submit a verified and complete inventory of the estate, and upon submission
thereof: the inheritance tax appraisers of the Bureau of Internal Revenue be required to assist in the
appraisal of the fair market value of the same; and that the intestate court set a deadline for the submission
by the administratrix of her verified annual account, and, upon submission thereof, set the date for her
examination under oath with respect thereto, with due notice to them and other parties interested in the
collation, preservation and disposition of the estate. We cannot grant said reliefs.

Section 1 of Rule 83 requires the administrator to return to the court a true inventory and appraisal of all
the real and personal estate of the deceased within three (3) months from appointment, while Section 8 of
Rule 85 requires the administrator to render an account of his administration within one (1) year from
receipt of the letters testamentary or of administration. We do not doubt that there are reliefs available to
compel an administrator to perform either duty, but a person whose claim against the estate is still
contingent is not the party entitled to do so. Still, even if the administrator did delay in the performance of
these duties in the context of dissipating the assets of the estate, there are protections enforced and
available under Rule 88 to protect the interests of those with contingent claims against the estate.

Concerning complaints against the general competence of the administrator, the proper remedy is to seek
the removal of the administrator in accordance with Section 2, Rule 82. While the provision is silent as to
who may seek with the court the removal of the administrator, we do not doubt that a creditor, even a
contingent one, would have the personality to seek such relief. After all, the interest of the creditor in the
estate relates to the preservation of sufficient assets to answer for the debt, and the general competence
or good faith of the administrator is necessary to fulfill such purpose.

All told, the ultimate disposition of the RTC and the Court of Appeals is correct. Nonetheless, as we have
explained, petitioners should not be deprived of their prerogatives under the Rules on Special Proceedings
as enunciated in this decision.

WHEREFORE, the petition is DENIED, subject to the qualification that petitioners, as persons interested in
the intestate estate of Roberto Benedicto, are entitled to such notices and rights as provided for such
interested persons in the Rules on Settlement of Estates of Deceased Persons under the Rules on Special
Proceedings. No pronouncements as to costs. SO ORDERED.
G.R. No. 180394 September 29, 2008

MARJORIE B. CADIMAS, by her Attorney-In-Fact, VENANCIO Z. ROSALES,

vs.
MARITES CARRION and GEMMA HUGO, Respondents.

DECISION

TINGA, J.:

This is a petition for review on certiorari 1 under Rule 45 of the 1997 Rules of Civil Procedure, assailing the
Decision2 and Resolution3 of the Court of Appeals in CA-G.R. SP No. 98572. The appellate court set aside
two orders4 of the Regional Trial Court (RTC), Branch 85, Quezon City issued in Civil Case No. Q-04-53581
on the ground that the trial court had no jurisdiction over the case.

The instant petition stemmed from the complaint5 for accion reivindicatoria and damages filed by petitioner
Marjorie B. Cadimas, through her attorney-in-fact, Venancio Z. Rosales, against respondents Marites Carrion
and Gemma Hugo. The complaint was docketed as Civil Case No. Q-04-53581 and raffled to Branch 85 of
the RTC of Quezon City.

In the complaint, petitioner averred that she and respondent Carrion were parties to a Contract To Sell
dated 4 August 2003, wherein petitioner sold to respondent Carrion a town house located at Lot 4-F-1-12
No. 23 Aster Street, West Fairview Park Subdivision, Quezon City for the sum of P330,000.00 to be paid in
installments. According to petitioner, Carrion had violated paragraph 8 of said contract when she transferred
ownership of the property to respondent Hugo under the guise of a special power of attorney, which
authorized the latter to manage and administer the property for and in behalf of respondent Carrion.
Allegedly, petitioner asked respondent Carrion in writing to explain the alleged violation but the latter
ignored petitioner’s letter, prompting petitioner to demand in writing that Carrion and Hugo vacate the
property and to cancel the contract.6

On 28 October 2004, petitioner filed a Motion To Declare Defendant Marites Carrion In Default, 7alleging that
despite the service of summons and a copy of the complaint, respondent Carrion failed to file a responsive
pleading within the reglementary period.

Respondent Hugo filed a Motion To Dismiss8 on her behalf and on behalf of respondent Carrion on 18
November 2004, citing the grounds of lack of jurisdiction to hear the case on the part of the RTC and
estoppel and/or laches on the part of petitioner. Respondent Hugo argued that the Housing and Land Use
Regulatory Board (HLURB) has jurisdiction over the complaint because ultimately, the sole issue to be
resolved was whether petitioner, as the owner and developer of the subdivision on which the subject
property stood, was guilty of committing unsound real estate business practices.

In the same motion, respondent Hugo averred that the RTC had not acquired jurisdiction over the person
of respondent Carrion for not complying with Section 16, Rule 14 of the Rules of Court on the proper service
of summons on a non-resident defendant. However, attached to the motion was a special power of attorney,
whereby respondent Carrion had authorized respondent Hugo, among others, to manage and administer
the subject property and to prosecute and defend all suits to protect her rights and interest in said property. 9

After petitioner filed a comment on the motion to dismiss, the RTC issued an Omnibus Order10 on 21 March
2005, which denied the motion to dismiss. The RTC held that the court’s jurisdiction is not determined by
the defenses set up in the answer or the motion to dismiss.

In the same omnibus order, the RTC ruled that summons was served properly, thus, the court had acquired
jurisdiction over respondent Carrion. The RTC noted that respondent Hugo’s failure to disclose at the outset
that she was equipped with a special power of attorney was an act constitutive of misleading the court.
Thus, the RTC declared respondent Carrion in default, directed petitioner to present evidence ex-
parte against respondent Carrion, and respondent Hugo to file an answer.

On 18 April 2005, respondent Hugo filed an answer on her behalf and as the attorney-in-fact of respondent
Carrion.11 The answer pleaded a compulsory counterclaim for damages. The following day, petitioner
presented evidence ex-parte against respondent Carrion. Thus, on 22 April 2005, respondent Hugo sought
a reconsideration of the omnibus order, praying for the dismissal of the complaint, the cancellation of the
presentation of evidence ex-parte, the lifting of the order of default against respondent Carrion and the
issuance of an order directing the extraterritorial service of summons on respondent Carrion. 12

On 17 January 2007, the RTC issued an order, upholding its jurisdiction over petitioner’s complaint. Citing
the interest of substantial justice, the RTC lifted the order of default against respondent Carrion and set the
pre-trial conference of the case.13

However, respondents elevated the matter to the Court of Appeals via a special civil action for certiorari,
praying that the Omnibus Order dated 21 March 2005 and Order dated 17 January 2007 issued by Judge
Teodoro T. Riel be reversed and set aside and that the complaint in Civil Case No. Q-04-53581 be dismissed
for lack of jurisdiction.

On 27 September 2007, the Court of Appeals rendered the assailed Decision granting respondents’ petition
for certiorari. The appellate court set aside the assailed orders of the RTC and ordered the dismissal of
petitioner’s complaint for lack of jurisdiction. In its Resolution dated 9 November 2007, the Court of Appeals
denied petitioner’s motion for reconsideration.

Hence, the instant petition, raising the following arguments: (1) based on the allegations in the complaint,
the RTC has jurisdiction over Civil Case No. Q-04-53581; (2) in any case, respondents have expressly
submitted to or recognized the jurisdiction of the RTC by filing an answer with counterclaim; and (3)
respondents erroneously availed of a Rule 65 petition instead of filing a timely appeal from the order denying
their motion to dismiss.14

Essentially, petitioner argues that based on the allegations in the complaint and the reliefs sought, the RTC
has jurisdiction over the matter. In any case, the compulsory counterclaim pleaded in the answer of
respondents was an express recognition on their part of the jurisdiction of the RTC over the complaint
for accion reivindicatoria, petitioner adds.

The petition is meritorious.

The nature of an action and the jurisdiction of a tribunal are determined by the material allegations of the
complaint and the law at the time the action was commenced. Jurisdiction of the tribunal over the subject
matter or nature of an action is conferred only by law and not by the consent or waiver upon a court which,
otherwise, would have no jurisdiction over the subject matter or nature of an action. 15

An examination of Section 1 of Presidential Decree (P.D.) No. 1344, 16 which enumerates the regulatory
functions of the HLURB,17

readily shows that its quasi-judicial function is limited to hearing only the following specific cases:

SECTION 1. In the exercise of its functions to regulate the real estate trade and business and in addition to
its powers provided for in Presidential Decree No. 957, the National Housing Authority shall have exclusive
jurisdiction to hear and decide cases of the following nature:

A. Unsound real estate business practices;

B. Claims involving refund and any other claims filed by subdivision lot or condominium unit buyer
against the project owner, developer, dealer, broker, or salesman; and

C. Cases involving specific performance of contractual and statutory obligations filed by buyers of
subdivision lot or condominium unit against the owner, developer, dealer or salesman.

The aforequoted provision must be read in the light of the statute’s preamble or the introductory or
preparatory clause that explains the reasons for its enactment or the contextual basis for its interpretation.
The scope of the regulatory authority thus lodged in the National Housing Authority (NHA) [now HLURB] is
indicated in the second and third preambular paragraphs of the statute which provide:

"WHEREAS, numerous reports reveal that many real estate subdivision owners, developers, operators,
and/or sellers have reneged on their representations and obligations to provide and maintain properly
subdivision roads, drainage, sewerage, water systems, lighting systems and other similar basic
requirements, thus endangering the health and safety of home and lot buyers;

WHEREAS, reports of alarming magnitude also show cases of swindling and fraudulent manipulations
perpetrated by unscrupulous subdivision and condominium sellers and operators, such as failure to deliver
titles to the buyers or titles free from liens and encumbrances, and to pay real estate taxes, and fraudulent
sales of the same subdivision lots to different innocent purchasers for value ."18

The boom in the real estate business all over the country resulted in more litigation between subdivision
owners/developers and lot buyers with the issue of the jurisdiction of the NHA or the HLURB over such
controversies as against that of regular courts. In the cases that reached this Court, the ruling has
consistently been that the NHA or the HLURB has jurisdiction over complaints arising from contracts between
the subdivision developer and the lot buyer or those aimed at compelling the subdivision developer to comply
with its contractual and statutory obligations to make the subdivision a better place to live in. 19

We agree with the ruling of the RTC that it has jurisdiction over the case based on the allegations of the
complaint. Nothing in the complaint or in the contract to sell suggests that petitioner is the proper party to
invoke the jurisdiction of the HLURB. There is nothing in the allegations in the complaint or in the terms and
conditions of the contract to sell that would suggest that the nature of the controversy calls for the
application of either P.D. No. 957 or P.D. No. 1344 insofar as the extent of the powers and duties of the
HLURB is concerned.
Note particularly paragraphs (b) and (c) of Sec. 1, P.D. No. 1344 as worded, where the HLURB’s jurisdiction
concerns cases commenced by subdivision lot or condominium unit buyers. As to paragraph (a), concerning
"unsound real estate practices," the logical complainants would be the buyers and customers against the
sellers (subdivision owners and developers or condominium builders and realtors), and not vice versa.20

The complaint does not allege that petitioner is a subdivision lot buyer. The contract to sell does not contain
clauses which would indicate that petitioner has obligations in the capacity of a subdivision lot developer,
owner or broker or salesman or a person engaged in real estate business. From the face of the complaint
and the contract to sell, petitioner is an ordinary seller of an interest in the subject property who is seeking
redress for the alleged violation of the terms of the contract to sell. Petitioner’s complaint alleged that a
contract to sell over a townhouse was entered into by and between petitioner and respondent Carrion and
that the latter breached the contract when Carrion transferred the same to respondent Hugo without
petitioner’s consent.21 Thus, petitioner sought

the cancellation of the contract and the recovery of possession and ownership of the town house. Clearly,
the complaint is well within the jurisdiction of the RTC.

In Javellana v. Hon. Presiding Judge, RTC, Branch 30, Manila,22 the Court affirmed the jurisdiction of the
RTC over the complaint for accion publiciana and sum of money on the ground that the complaint did not
allege that the subject lot was part of a subdivision project but that the sale was an ordinary sale on an
installment basis. Even the mere assertion that the defendant is a subdivision developer or that the subject
lot is a subdivision lot does not automatically vest jurisdiction on the HLURB. On its face, the complaint must
sufficiently describe the lot as a subdivision lot and sold by the defendant in his capacity as a subdivision
developer to fall within the purview of P.D. No. 957 and P.D. No. 1344 and thus within the exclusive
jurisdiction of the HLURB.23

In their comment, respondents cite Antipolo Realty Corp. v. National Housing Authority,24 to bolster the
argument that the HLURB has jurisdiction over controversies involving the determination of the rights of the
parties under a contract to sell a subdivision lot. Antipolo Realty is not squarely applicable to the instant
controversy. The issue in said case called for the determination of whether the developer complied with its
obligations to complete certain specified improvements in the subdivision within the specified period of time,
a case that clearly falls under Section 1, paragraph (c) of P.D. No. 1344.

In the instances where the jurisdiction of the HLURB was upheld, the allegations in the complaint clearly
showed that the case involved the determination of the rights and obligations of the parties in a sale of real
estate under P.D. No. 957,25 or the complaint for specific performance sought to compel the subdivision
developer to comply with its undertaking under the contract to sell,26 or the claim by the subdivision
developer would have been properly pleaded as a counterclaim in the HLURB case filed by the buyer against
the developer to avoid splitting causes of action.27

The statement in Suntay v. Gocolay28 to the effect that P.D. No. 957 encompasses all questions regarding
subdivisions and condominiums, which was cited by the Court of Appeals in the assailed decision, is a
mere obiter dictum. As a matter of fact, the Court in Suntay nullified the orders issued by the HLURB over
the action for the annulment of an auction sale, cancellation of notice of levy and damages on the ground
of lack of jurisdiction. P.D. No. 957 and P.D. No. 1344 were not the applicable laws because the action was
brought against a condominium buyer and not against the developer, seller, or broker contemplated under
P.D. No. 1344. The action likewise involved the determination of ownership over the disputed condominium
unit, which by its nature does not fall under the classes of disputes cognizable by the HLURB under Section
1 of P.D. No. 1344.

The Court of Appeals held that the provision in the contract to sell mandating membership of the buyer of
the housing unit in a housing corporation was a strong indication that the property purchased by respondent
Carrion from petitioner was part of a tract of land subdivided primarily for residential purposes. Thus, the
appellate court concluded that the HLURB has jurisdiction over the controversy because the property subject
thereof was part of a subdivision project.

Not every controversy involving a subdivision or condominium unit falls under the competence of the
HLURB29 in the same way that the mere allegation of relationship between the parties, i.e., that of being
subdivision owner/developer and subdivision lot buyer, does not automatically vest jurisdiction in the
HLURB. For an action to fall within the exclusive jurisdiction of the HLURB, the decisive element is the nature
of the action as enumerated in Section 1 of P.D. No. 1344. 30 Notably, in Spouses Dela Cruz v. Court of
Appeals,31 the Court upheld the jurisdiction of the RTC over the complaint for cancellation of the contract to
sell of a subdivision house and lot because the case did not fall under any of the cases mentioned in Section
1, P.D. No. 1344. In interpreting said provision, the Court explained, thus:

On this matter, we have consistently held that the concerned administrative agency, the National Housing
Authority (NHA) before and now the HLURB, has jurisdiction over complaints aimed at compelling the
subdivision developer to comply with its contractual and statutory obligations.

For their part, respondents claim that the resolution of the case ultimately calls for the interpretation of the
contract to sell and the determination of whether petitioner is guilty of committing unsound real estate
business practices, thus, the proper forum to hear and decide the matter is the HLURB. The argument does
not impress.

It is an elementary rule of procedural law that jurisdiction of the court over the subject matter is determined
by the allegations of the complaint irrespective of whether or not the plaintiff is entitled to recover upon all
or some of the claims asserted therein. As a necessary consequence, the jurisdiction of the court cannot be
made to depend upon the defenses set up in the answer or upon the motion to dismiss, for otherwise, the
question of jurisdiction would almost entirely depend upon the defendant. What determines the jurisdiction
of the court is the nature of the action pleaded as appearing from the allegations in the complaint. The
averments in the complaint and the character of the relief sought are the matters to be consulted.32 Thus,
the allegations in respondents’ motion to dismiss on the unsound real estate business practices allegedly
committed by petitioner, even if proved to be true, cannot serve to oust the RTC of its jurisdiction over
actions for breach of contract and damages which has been conferred to it by law.

WHEREFORE, the instant petition for review on certiorari is GRANTED and the Decision dated 27 September
2007 and Resolution dated 9 November 2007 of the Court of Appeals in CA-G.R. SP No. 98572 are REVERSED
and SET ASIDE. The orders dated 21 March 2005 and 17 January 2007 of the Regional Trial Court, Branch
85, Quezon City in Civil Case No. Q-04-53581 are REINSTATED. The Regional Trial Court is ORDERED to
resume the proceedings in and decide Civil Case No. Q-04-53581 with deliberate speed. Costs against
respondents. 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. PAÑO, 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 Paño
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-8409 December 28, 1956

In the Matter of the Intestate of the deceased Andres Eusebio. EUGENIO EUSEBIO, petitioner-
appellee,
vs.
AMANDA EUSEBIO, JUAN EUSEBIO, DELFIN EUSEBIO, VICENTE EUSEBIO, and CARLOS
EUSEBIO,oppositors-appellants.

Francisco M. Ramos and Valeriano Silva for appellee.

Filemon Cajator for appellants.

CONCEPCION, J.:

This case instituted on November 16, 1953, when Eugenio Eusebio filed with the Court of First Instance of
Rizal, a petition for his appointment as administrator of the estate of his father, Andres Eusebio, who died
on November 28, 1952, residing, according to said petition, in the City of Quezon. On December 4, 1953,
Amanda, Virginia, Juan, Delfin, Vicente and Carlos, all surnamed Eusebio, objected to said petition, stating
that they are illegitimate children of the deceased and that the latter was domiciled in San Fernando,
Pampanga, and praying, therefore, that the case be dismissed upon the ground that venue had been
improperly filed. By an order, dated March 10, 1954, said court overruled this objection and granted said
petition. Hence, the case is before us on appeal taken, from said order, by Amanda Eusebio, and her
aforementioned sister and brothers.

The appeal hinges on the situs of the residence of Andres Eusebio on November 28, 1952, for Rule 75,
section 1, of the Rules of Court, provides:

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

It is not disputed that up to, at least, October 29, 1952, Andres Eusebio was, and had always been, domiciled
in San Fernando, Pampanga, where he had his home, as well as some other properties. Inasmuch as his
heart was in bad condition and his son, Dr. Jesus Eusebio, who treated him, resided at No. 41 P. Florentino
St., Quezon City, on October 29, 1952, Andres Eusebio bought a house and lot at 889-A España Extention,
in said City (Exhibit 2). While transferring his belongings to this house, soon thereafter, the decedent
suffered a stroke (probably heart failure), for which reason Dr. Eusebio took him to his (Dr. Eusebio's)
aforementioned residence, where the decedent remained until he was brought to the UST Hospital, in the
City of Manila, sometimes before November 26, 1952. On this date, he contracted marriage in articulo
mortis with his common law wife, Concepcion Villanueva, in said hospital. Two (2) days later, he died therein
of "acute left ventricular failure secondary to hypertensive heart disease", at the age of seventy-four (74)
years (Exhibit A). Consequently, he never stayed or even slept in said house at España Extention.

It being apparent from the foregoing that the domicile of origin of the decedent was San Fernando,
Pampanga, where he resided for over seventy (70) years, the presumption is that he retained such domicile,
and, hence, residence, in the absence of satisfactory proof to the contrary, for it is well-settled that "a
domicile once acquired is retained until a new domicile is gained" (Minor, Conflict of Laws, p.70; Restatement
of the Law on Conflict of Laws, p. 47; In re Estate of Johnson, 192 Iowa, 78). Under the circumstances
surrounding the case at bar, if Andres Eusebio established another domicile, it must have been one of choice,
for which the following conditions are essential, namely: (1) capacity to choose and freedom of choice; (2)
physical presence at the place chosen; and (3) intention to stay therein permanently (Minor, Conflict of
Laws, pp. 109-110; Googrich, Conflict of Laws, p. 169; Velilla vs. Posadas, 62 Phil., 624; Zuellig vs. Republic
of the Philippines, 46 Off. Gaz. Suppl. No. 11, p. 220). Admittedly, the decedent was juridically capable of
choosing a domicile and had been in Quezon City several days prior to his demise. Thus, the issue narrows
down to whether he intended to stay in that place permanently.

There is no direct evidence of such intent. Neither does the decedent appears to have manifested his wish
to live indefinitely in said city. His son, petitioner-appellee, who took the witness stand, did not testify
thereon, despite the allegation, in his answer to the aforemention, opposition of the appellants herein, that
"the deceased (had) decided to reside . . . for the rest of his life, in Quezon City". Moreover, said appellee
did not introduce the testimony of his legitimate full brother and son of the decedent, Dr. Jesus Eusebio,
upon whose advice, presumably, the house and lot at No. 889-A España Extention was purchased, and who,
therefore, might have cast some light on his (decedent's) purpose in buying said property. This
notwithstanding, the lower court held that the decedent's intent to stay permanently in Quezon City is
"manifest" from the acquisition of said property and the transfer of his belonging thereto. This conclusion is
untenable.lawphil.net
The aforementioned house and lot were bought by the decedent because he had been adviced to do so "due
to his illness", in the very words of herein appellee. It is not improbable — in fact, its is very likely — that
said advice was given and followed in order that the patient could be near his doctor and have a more
effective treatment. It is well settled that "domicile is not commonly changed by presence in a place merely
for one's own health", even if coupled with "knowledge that one will never again be able, on account of
illness, to return home." (The Conflict of Laws, by Beale, Vol. I, pp. 172-173; see, also, Shenton vs. Abbott,
Md., 15., A. 2d. 906; U.S. vs. Knight, D. C. Mont., 291 Fed. 129).

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

The lower court, however, rejected said Exhibits 1 and 2, upon being offered in evidence, and refused to
entertain the same in the order appealed from. The reason therefor are deducible from its resolution in
rejecting said documents during the hearing of the incident at bar. The court then held:

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

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

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

Thus, the lower court refused to consider appellant's evidence on the domicile of the decedent, because of
their alleged lack of "personality", but, when tried to establish such "personality", they were barred from
doing so on account of the question of venue raised by him. We find ourselves unable to sanction either the
foregoing procedure adopted by the lower court or the inference it drew from the circumstances surrounding
the case.

To begin with, His Honor, the trial Judge had taken inconsistent positions. While, on the one hand, he
declared that appellants could not be permitted to introduce evidence on the residence of the decedent, for
they contested the jurisdiction of court, on the other hand, he held, in the order appealed from, that, by
cross-examining the appellee, said appellants had submitted themselves to the authority of the court.

What is more, this conclusion is refuted by the record. At the beginning of the hearing, in the lower court,
appellants' counsel announced that he would take part therein "only to question the jurisdiction, for the
purpose of dismissing this proceeding," (p. 2, t.s.n.). During the cross-examination of petitioner herein, said
counsel tried to elicit the relation between the decedent and the appellants. As, the appellee objected
thereto, the court said, addressing appellants' counsel: "Your stand until now is to question the jurisdiction
of the court. . . . It you are trying to establish the status of the oppositors, I will sustain the objection,
unless you want to submit to the jurisdiction of the court" (p. 7, t.s.n.). Thereupon, appellants' counsel
refused to do so, stating: "I will insist on my stand." Then, too, at the conclusion of the hearing, the court
rejected Exhibits 1 and 2, for the reason that appellants "refuse to submit to the jurisdiction of this court and
they maintain that these proceedings should be dismissed." Thus, appellants specially made of record that
they were not submitting themselves to the jurisdiction of the court, except for the
purpose only of assailing the same, and the court felt that appellants were not giving up their stand, which
was, and is, a fact.
At any rate, appellants were entitled to establish facts tending to prove, not only their right to object to
appellee's petition, but, also, that venue had been laid improperly. Such facts were: (a) their alleged
relationship with the decedent, 3 which, if true, entitle them to proceed him under the Civil Code of the
Philippines; and (b) his alleged residence is Pampanga. In other words, the lower court should have admitted
Exhibits 1 and 2 in evidence and given thereto the proper effect, in connection with the issue under
consideration.

Appellee, however, asks: "What will happen if this case be dismissed in the Court of First Instance of Quezon
City on the ground of lack of jurisdiction or improper venue?" In this connection, it appears that on November
14, 1953, the Clerk of the Court of First Instance of Pampanga received a petition of appellants herein,
dated November 4, 1953, for the settlement of the "Intestate Estate of the late Don Andres Eusebio".
Attached to said petition was petition for the docketing thereof free charge, pursuant to Rule 3, section 22,
of the Rules of Court. The latter petition was granted by an order dated November 16, 1953, which was
received by the cashier of said court on November 17, 1953, on which date the case was docketed as Special
Proceedings No. 957. On December 14, 1953, Jesus, Eugenio, Amando and Alfonso, all surnamed Eusebio
(the children of the decedent by first marriage, including petitioner herein), moved for the dismissal of said
proceedings, owing to the pendency of the present case, before the Court of First Instance of Rizal, since
November 16, 1953. This motion was granted in an order dated December 21, 1953, relying upon the above
Rule 75, section 1, of the Rules of Court, pursuant to which "the court first taking cognizance of the
settlement of the estate of a decedent, shall exercise jurisdiction to the exclusion of all other courts."

Although said order is now final, it cannot affect the outcome of the case at bar. Said order did not pass
upon the question of domicile or residence of the decedent. Moreover, in granting the court first taking
cognizance of the case exclusive jurisdiction over the same, said provision of the Rules of Court evidently
refers to cases triable before two or more courts with concurrent jurisdiction. It could not possibly have
intended to deprive a competent court of the authority vested therein by law, merely because a similar case
had been previously filed before a court to which jurisdiction is denied by law, for the same would then be
defeated by the will of one of the parties. More specially, said provision refers mainly to non-resident
decedents who have properties in several provinces in the Philippines, for the settlement of their respective
estates may undertaken before the court of first instance of either one of said provinces, not only because
said courts then have concurrent jurisdiction — and, hence, the one first taking cognizance of the case shall
exclude the other courts — but, also, because the statement to this effect in said section 1 of Rule 75 of the
Rules of the Court immediately follows the last part of the next preceding sentence, which deals with non-
resident decedents, whose estate may settled the court of first instance of any province in which they have
properties.lawphil.net

In view, however, of the last sentence of said section, providing that:

. . . The jurisdiction assumed by a court, so far as it depends on the place of residence of the
decedent, or of the location of his estate, shall not be contested in a suit or proceedings, except in
an appeal from that court, in the original case, or when the want of jurisdiction appears on the record.

if proceedings for the settlement of the estate of a deceased resident are instituted in two or more courts,
and the question of venue is raised before the same, the court in which the first case was filed shall have
exclusive jurisdiction to decide said issue, and we so held in the case of Taciana Vda. De Borja vs. Tan, L-
7792 (July 27, 1955). Should it be decided, in the proceedings before the said court, that venue had been
improperly laid, the case pending therein should be dismissed and the corresponding proceedings may,
thereafter, be initiated in the proper court.

In conclusion, we find that the decedent was, at the time of his death, domiciled in San Fernando,
Pampanga; that the Court of First Instance of Rizal had no authority, therefore, to appoint an administrator
of the estate of the deceased, the venue having been laid improperly; and that it should, accordingly, have
sustained appellants' opposition and dismissed appellee's petition.

Wherefore, the order appealed from is hereby reversed and appellee's petition is dismissed, with costs
against the appellee. It is so ordered.
G.R. No. L-56504 May 7, 1987

POMPILLO VALERA and EUMELIA VALERA CABADO, petitioners,

vs.
HON. JUDGE SANCHO Y. INSERTO, in his capacity as Presiding Judge, Court of First Instance of
Iloilo, Branch 1, and MANUEL R. FABIANA, respondents.

Nos. L-59867-68 May 7, 1987

EUMELIA V. CABADO, POMPILLO VALERA and HON. MIDPANTAO L. ADIL, petitioners-appellants,

vs.
MANUEL FABIANA, JOSE GARIN and HON. COURT OF APPEALS (Tenth Division), respondents-
appellants.

Eduardo S. Baranda and Avelino T Javellana for petitioners.

Dominador G. Garin for private respondents.

NARVASA, J.:

Conflicting claims over a fishpond asserted by the administrators of the estate of deceased spouses, on the
one hand, and by the heirs of a daughter of said spouses and their lessee, on the other, have given rise to
the proceedings now docketed in this Court as (1) G.R. No. 56504 and (2) G.R. Nos. 59867-68.

Sp. Proc. No. 2223, CFI, Iloilo

In the proceedings for the settlement of the intestate estate of the decedent spouses, Rafael Valera and
Consolacion Sarrosa 1 — in which Eumelia Cabado and Pompiro Valera had been appointed
administrators 2 — the heirs of a deceased daughter of the spouses, Teresa Garin, filed a motion asking that
the Administratrix, Cabado, be declared in contempt for her failure to render an accounting of her
administration. 3 Cabado replied that no accounting could be submitted unless Jose Garin, Teresa's husband
and the movant heirs' father, delivered to the administrator an 18-hectare fishpond in Baras, Barotoc Nuevo,
Iloilo, belonging to the estate and she in turn moved for the return thereof to the estate, 4 so that it might
be partitioned among the decedents' heirs. Jose Garin opposed the plea for the fishpond's return to the
estate, asserting that the property was owned by his children and this was why it had never been included
in any inventory of the estate.

The Court, presided over by Hon. Judge Midpantao Adil, viewed the Garin Heirs' motion for contempt, as
well as Cabado's prayer for the fishpond's return to the estate, as having given rise to a claim for the
recovery of an asset of the estate within the purview of Section 6, Rule 87 of the Rules of Court. 5 It
accordingly set said incidents for hearing during which the parties presentee evidence in substantiation of
their positions. 6 Thereafter, the Court issued an Order dated September 17, 1980 commanding the Heirs
of Teresa Garin "to reconvey immediately the fishpond in question * * to the intestate Estate of the
Spouses. 7

The Order was predicated upon the Court's factual findings mainly derived from the testimony of the two
administrators that:

1. the fishpond originally belonged to the Government, and had been given in lease to Rafael Valera in his
lifetime;

2. Rafael Valera ostensibly sold all his leasehold rights in the fishpond to his daughter, Teresa Garin; but
the sale was fictitious, having been resorted to merely so that she might use the property to provide for her
children's support and education, and was subject to the resolutory term that the fishpond should revert to
Rafael Valera upon completion of the schooling of Teresa Garin's Children; and

3. with the income generated by the fishpond, the property was eventually purchased from the Government
by the Heirs of Teresa Garin, collectively named as such in the Original Certificate of Title issued in their
favor.

Upon these facts, Judge Adil ruled that an implied trust had been created, obligating Teresa Garin's heirs to
restore the property to the Valera Spouses' Estate, in accordance with Articles 1453 and 1455 of the Civil
Code providing as follows:

Article 1453. When property is conveyed to a person in reliance upon his declared intentions
to hold it for, or transfer it to another or the grantor, there is an implied trust in favor of the
person for whose benefit it is contemplated.

Article 1455. When any trustee, guardian or other person holding a fiduciary relationship uses
trust funds for the purchase of property and causes a conveyance to be made to him or to a
 third person, a trust is established by operation of law in favor of the person to whom the
fund belongs.

The Court also held that the action for reconveyance based on constructive trust had not yet prescribed,
Cabado's motion for the fishpond's reversion to the estate having been filed well within ten (10) years from
June 30, 1980, the date on which Teresa Garin's heirs allegedly acquired title over it. 8

There seems little doubt, however, that the Court's pronouncement regarding the estate's title to the
fishpond was merely provisional in character, made solely to determine whether or not the fishpond should
be included in the inventory of estate assets. So it was evidently understood by the administrators who have
more than once asserted that "the probate court has jurisdiction to determine the ownership of the
fishpond for purposes of inclusion in the inventory of the properties. 9 So it was made clear by the Probate
Court itself which, at the outset, stated that the hearing on the matter 10 was meant "merely to determine
whether or not the fishpond should be included as part of the estate and whether or not the person holding
it should be made to deliver and/or return ** (it) to the estate. 11 And so it was emphasized in another
Order, denying reconsideration of the Order of September 17, 1980, which states that:

**(i)t is never the intendment of this court to write a finish to the issue of ownership of the
fishpond in dispute. The movants may pursue their claim of ownership over the same in an
ordinary civil action. Meanwhile, however, it is the finding of this probate court that the
fishpond must be delivered to the estate.

Clearly, there is no incompatibility between the exercise of the power of this probate court
under Section 6 in relation to Section 7, both of Rule 87, and the contention of the movants
that the proper forum to settle the issue of ownership should be in a court of general
jurisdiction. 12

Judge Adil afterwards granted the administrators' motion for execution of the order pending appeal, and
directed the sheriff to enforce the direction for the Garin Heirs to reconvey the fishpond to the estate. 13 The
corresponding writ was served on Manuel Fabiana, the supposed encargado or caretaker. Voicing no
objection to the writ, and declaring to the sheriff that he was a mere lessee, 14 Fabiana voluntarily
relinquished possession of the fishpond to the sheriff. The latter, in turn, delivered it to the
administrators. 15

Later however, Fabiana filed a complaint-in-intervention with the Probate Court seeking vindication of his
right to the possession of the fishpond, based on a contract of lease between himself, as lessee, and Jose
Garin, as lessor. 16 But Judge Adil dismissed his complaint on the following grounds, to wit:

(1) it was filed out of time because not only had judgment been rendered, but execution as regards transfer
of possession had already taken place; and

(2) the lease contract had not been registered and hence was not binding as against the estate. 17

G.R. No. 56504

Fabiana thereupon instituted a separate action for injunction and damages, with application for a preliminary
injunction. This was docketed as Civil Case No. 13742 and assigned to Branch I of the Iloilo CFI, Hon. Sancho
Y. Inserto, presiding. 18 Judge Inserto issued a temporary restraining order enjoining estate administrators
from disturbing Fabiana in the possession of the fishpond, as lessee. 19

The estate administrators filed a motion to dismiss the complaint and to dissolve the temporary restraining
order, averring that the action was barred by the Probate Court's prior judgment which had exclusive
jurisdiction over the issue of the lease, and that the act sought to be restrained had already been
accomplished, Fabiana having voluntarily surrendered possession of the fishpond to the sheriff. 20 When
Judge Inserto failed to act on their motion within what the administrators believed to be a reasonable time,
considering the circumstances of the Case, the administrators filed with the Supreme Court a special civil
action for certiorari and mandamus, with a prayer for Preliminary mandatory injunction and temporary
restraining order, which was docketed as G.R. No. 56504. 21 In their petition, the administrators contended
that Branch I of the Iloilo CFI (Judge Inserto, presiding) could not and should not interfere with the Probate
Court (Branch I I, Judge Adil, presiding) in the legitimate exercise of its j jurisdiction over the proceedings
for the Settlement of the estate of the Valera Spouses.

G.R. Nos. 59867-68

In the meantime, Jose Garin — having filed a motion for reconsideration of the above mentioned order of
Judge Adil (declaring the estate to be the owner of the fishpond), in which he asserted that the Probate
Court, being of limited jurisdiction, had no competence to decide the ownership of the fishpond, 22 which
motion had been denied 23-filed a notice of appeal from said Order.24 But he quickly abandoned the appeal
when, as aforestated 25 Judge Adil authorized execution of the order pending appeal, instead, he initiated a
special action for certiorari prohibition and mandamus )with prayer for preliminary injunction) in the Court
of Appeals, therein docketed as CA-G. R. No. SP-1154-R.
Fabiana followed suit. He instituted in the same Court of Appeals his own action for certiorari and injunction,
docketed as CA-G.R. No. SP-11577-R; this, notwithstanding the pendency in judge Inserto's sala of the case
he had earlier filed. 26

These two special civil actions were jointly decided by the Court of Appeals. The Court granted the petitions
and ruled in substance that:

1. The Probate Court indeed possessed no jurisdiction to resolve the issue of ownership based merely on
evidence adduced at the hearing of a "counter-motion" conducted under Section 6, Rule 87;

2. The original and transfer certificates of title covering the fishpond stand in the names of the Heirs of
Teresa Garin as registered owners, and therefore no presumption that the estate owns the fishpond is
warranted to justify return of the property on the theory that it had merely been borrowed; and

3. Even assuming the Probate Court's competence to resolve the ownership question, the estate
administrators would have to recover possession of the fishpond by separate action, in view of the lessee's
claim of right to superior possession, as lessee thereof.

From this joint judgment, the administrators have taken separate appeals to this Court
by certiorari,27 docketed as G.R. Nos. 59867 and 59868. They ascribe to the Appellate Court the following
errors, viz: Page 542

1) in holding that the Probate Court (Judge Adil, Presiding) had no jurisdiction to take cognizance of and
decide the issue of title covering a fishpond being claimed by an heir adversely to the decedent spouses;

2) in ruling that it was needful for the administrators to file a separate action for the recovery of the
possession of the fishpond then in the hands of a third person; and

3) in sanctioning the act of a CFI Branch in interfering with and overruling the final judgment of another
branch, acting as probate Court, and otherwise frustrating and inhibiting the enforcement and
implementation of said judgment.

Jurisdiction of Probate Court

As regards the first issue, settled is the rule that a Court of First Instance (now Regional Trial Court), acting
as a Probate Court, exercises but limited jurisdiction, 28 and thus has no power to take cognizance of and
determine the issue of title to property claimed by a third person adversely to the decedent, unless the
claimant and all the Other parties having legal interest in the property consent, expressly or impliedly, to
the submission of the question to the Probate Court for adjudgment, or the interests of third persons are
not thereby prejudiced, 29 the reason for the exception being that the question of whether or not a particular
matter should be resolved by the Court in the exercise of its general jurisdiction or of its limited jurisdiction
as a special court (e.g., probate, land registration, etc., is in reality not a jurisdictional but in essence of
procedural one, involving a mode of practice which may be waived. 30

The facts obtaining in this case, however, do not call for the application of the exception to the rule. As
already earlier stressed, it was at all times clear to the Court as well as to the parties that if cognizance was
being taken of the question of title over the fishpond, it was not for the purpose of settling the issue definitely
and permanently, and writing "finis" thereto, the question being explicitly left for determination "in an
ordinary civil action," but merely to determine whether it should or should not be included in the
inventory. 31 This function of resolving whether or not property should be included in the estate inventory
is, to be sure, one clearly within the Probate Court's competence, although the Court's determination is only
provisional in character, not conclusive, and is subject to the final decision in a separate action that may be
instituted by the parties. 32

The same norm governs the situation contemplated in Section 6, Rule 87 of the Rules of Court, expressly
invoked by the Probate Court in justification of its holding a hearing on the issue arising from the parties'
conflicting claims over the fishpond. 33 The examination provided in the cited section is intended merely to
elicit evidence relevant to property of the decedent from persons suspected of having possession or
knowledge thereof, or of having concealed, embezzled, or conveyed away the same. Of course, if the latter
lays no claim to the property and manifests willingness to tum it over to the estate, no difficulty arises; the
Probate Court simply issues the appropriate direction for the delivery of the property to the estate. On the
other hand, if the third person asserts a right to the property contrary to the decedent's, the Probate Court
would have no authority to resolve the issue; a separate action must be instituted by the administrator to
recover the property. 34

Parenthetically, in the light of the foregoing principles, the Probate Court could have admitted and taken
cognizance of Fabiana's complaint in intervention after obtaining the consent of all interested parties to its
assumption of jurisdiction over the question of title to the fishpond, or ascertaining the absence of objection
thereto. But it did not. It dismissed the complaint in intervention instead. And all this is now water under
the bridge.
Possession of Fishpond Pending

Determination of Title Thereto

Since the determination by the Probate Court of the question of title to the fishpond was merely provisional,
not binding on the property with any character of authority, definiteness or permanence, having been made
only for purposes of in. conclusion in the inventory and upon evidence adduced at the hearing of a motion,
it cannot and should not be subject of execution, as against its possessor who has set up title in himself (or
in another) adversely to the decedent, and whose right to possess has not been ventilated and adjudicated
in an appropriate action. These considerations assume greater cogency where, as here, the Torrens title to
the property is not in the decedents' names but in others, a situation on which this Court has already had
occasion to rule.

In regard to such incident of inclusion or exclusion, We hold that if a property covered by

Torrens title is involved, the presumptive conclusiveness of such title should be given due
weight, and in the absence of strong compelling evidence to the contrary, the holder thereof
should be consider as the owner of the property in controversy until his title is nullified or
modified in an appropriate ordinary action, particularly, when as in the case at bar, possession
of the property itself is in the persons named in the title. 35

Primary Jurisdiction over Title issue in

Court Taking Cognizance of Separate Action

Since, too, both the Probate Court and the estate administrators are one in the recognition of the proposition
that title to the fishpond could in the premises only be appropriately determined in a separate action, 36 the
actual firing of such a separate action should have been anticipated, and should not therefore have come
as a surprise, to the latter. And since moreover, implicit in that recognition is also the acknowledge judgment
of the superiority of the authority of the court in which the separate action is filed over the issue of title, the
estate administrators may not now be heard to complain that in such a separate action, the court should
have issued orders necessarily involved in or flowing from the assumption of that jurisdiction. Those orders
cannot in any sense be considered as undue interference with the jurisdiction of the Probate Court. Resulting
from the exercise of primary jurisdiction over the question of ownership involving estate property claimed
by the estate, they must be deemed superior to otherwise contrary orders issued by the Probate Court in
the exercise of what may be, regarded as merely secondary, or provisional, jurisdiction over the same
question.

WHEREFORE, the petition in G.R. No. 56504 is DISMISSED, for lack of merit. The petitions in G.R. No. 59867
and G.R. No. 59868 are DENIED, and the judgment of the Appellate Court, subject thereof, is affirmed in
toto. The temporary restraining order dated April 1, 1981 is lifted. Costs against petitioners.
G.R. No. L-18148 February 28, 1963

DEOGRACIAS BERNARDO, executor of the testate estate of the deceased EUSEBIO CAPILI; and
the instituted heirs, namely: ARMANDO CAPILI and ARTURO BERNARDO, ET AL., petitioners,
vs.
HON. COURT OF APPEALS and THE HEIRS OF THE LATE HERMOGENA REYES, namely:
FRANCISCO REYES, ET AL., and JOSE ISIDORO, ET AL., respondents.

Ambrosio Padilla Law Offices for petitioners.

Romerico F. Flores for respondents.

BARRERA, J.:

This is a petition by certiorari for the review of the decision of the Court of Appeals affirming that of the
Court of First Instance of Bulacan holding that the probate court in Special Proceeding 1101 had jurisdiction
to determine the validity of the deed of donation in question and to pass upon the question of title or
ownership of the properties mentioned therein.

The facts are briefly stated in the appealed decision of the Court of Appeals as follows:

Eusebio Capili and Hermogena Reyes were husband and wife. The first died on July 27, 1958 and a
testate proceeding for the settlement of his estate was instituted in the Court of the Fist Instance of
Bulacan. His will was admitted to probate on October 9, 1958, disposing of his properties in favor of
his widow; his cousins Armando, Ursula, and Buenaventura, all surnamed Capili; and Arturo,
Deogracias and Eduardo, all surnamed Bernardo. Hermogena Reyes herself died on April 24, 1959.
Upon petition of Deogracias Bernardo, executor of the estate of the deceased Eusebio Capili, she was
substituted by her collateral relatives and intestate heirs, namely, Marcos, Vicente, Francisco and
Dominga, all surnamed Reyes; and Jose, Constancia, Raymunda and Elena, all surnamed Isidoro.

On June 12, 1959, the executor filed a project of partition in the testate proceeding in accordance
with the terms of the will, adjudicating the estate of Eusebio Capili among the testamentary heirs
with the exception of Hermogena Reyes, whose share was alloted to her collateral relatives
aforementioned. On June 16, 1959 these relatives filed an opposition to the executor's project of
partition and submitted a counter-project of partition of their own, claiming 1/2 of the properties
mentioned in the will of the deceased Eusebio Capili on the theory that they belonged not to the
latter alone but to the conjugal partnership of the spouses.

The probate court, in two orders dated June 24, 1959 and February 10, 1960, respectively, set the
two projects of partition for hearing, at which evidence was presented by the parties, followed by the
submission of memoranda discussing certain legal issues. In the memorandum for the executor and
the instituted heirs it was contended: (1) that the properties disposed of in the will of the deceased
Eusebio Capili belonged to him exclusively and not to the conjugal partnership, because Hermogena
Reyes had donated to him her half share of such partnership; (2) that the collateral heirs of
Hermogena Reyes had no lawful standing or grounds to question the validity of the donation; and
(3) that even assuming that they could question the validity of the donation, the same must be
litigated not in the testate proceeding but in a separate civil action.

Wherefore, the parties respectfully pray that the foregoing stipulation of facts be admitted and
approved by this Honorable Court, without prejudice to the parties adducing other evidence to prove
their case not covered by this stipulation of facts. 1äwphï1.ñët

The oppositors and heirs of Hermogena Reyes, on their part, argued that the deed of donation itself
was determinative of the original conjugal character to the properties, aside from the legal
presumption laid down in Article 160 of the Civil Code, and that since the donation was null and void
the deceased Eusebio Capili did not become owner of the share of his wife and therefore could not
validly dispose of it in his will.

On September 14, 1960, the probate court, the Honorable M. Mejia presiding, issued an order
declaring the donation void without making any specific finding as to its juridical nature, that is,
whether it was inter vivos or mortis causa, for the reason that, considered under the first category,
it falls under Article 133 of the Civil Code, which prohibits donations between spouses during the
marriage; and considered under the second category, it does not comply with the formalities of a
will as required by Article 728 in relation to Article 805 of the same Code, there being no attestation
clause. In the same order the court disapproved both projects of partition and directed the executor
to file another," dividing the property mentioned in the last will and testament of the deceased
Eusebio Capili and the properties mentioned in the deed of donation, Exhibit B, between the instituted
heirs of the deceased Eusebio Capili and the legal heirs of the deceased Hermogena Reyes, upon the
basis that the said properties were conjugal properties of the deceased spouses." On September 27,
1960, the executor filed a motion for new trial, reiterating and emphasizing the contention previously
raised in their memorandum that the probate court had no jurisdiction to take cognizance of the
claim of the legal heirs of Hermogena Reyes involving title to the properties mentioned in the will of
 Eusebio Capili and taking exception to the court's declaration of the nullity of the donation "without
stating facts or provision of law on which it was based." The motion for new trial was denied in an
order dated October 3, 1960.

On appeal to the Court of Appeals the order appealed from being affirmed, petitioners filed this present
petition for review by certiorari.

The petitioners-appellants contend that the appellate court erred in not declaring that the probate court,
having limited and special jurisdiction, had generally no power to adjudicate title and erred in applying the
exception to the rule.

In a line of decisions, this Court consistently held that as a general rule, question as to title to property
cannot be passed upon on testate or intestate proceedings," 1 except where one of the parties prays merely
for the inclusion or exclusion from the inventory of the property, in which case the probate court may pass
provisionally upon the question without prejudice to its final determination in a separate action. 2 However,
we have also held that when the parties interested are all heirs of the deceased, it is optional to them to
submit to the probate court a question as to title to property, and when so submitted, said probate court
may definitely pass judgment thereon (Pascual v. Pascual, 73 Phil. 561; Manalac v. Ocampo, et al., 73 Phil.
661); and that with the consent of the parties, matters affecting property under judicial administration may
be taken cognizance of by the court in the course of intestate proceeding, provided interests of third persons
are not prejudiced (Cunanan v. Amparo, 80 Phil. 229, 232).

In the light of this doctrine, may it be said correctly that the trial court as well as the Court of Appeals erred
in upholding the power of the probate court in this case to adjudicate in the testate proceedings, the question
as to whether the properties herein involved belong to the conjugal partnership of Eusebio Capili and
Hermogena Reyes, or to the deceased husband exclusively?

At the outset, let it be clarified that the matter at issue is not a question of jurisdiction, in the sense advanced
by appellants that the trial court had completely no authority to pass upon the title to the lands in dispute,
and that its decision on the subject is null and void and does not bind even those who had invoked its
authority and submitted to its decision because, it is contended, jurisdiction is a creature of law and parties
to an action can not vest, extend or broaden it. If appellants' contention is correct, then there can be no
exception to the no-jurisdiction theory. But as has been stated in the case of Cunanan v. Amparo (supra) the
Supreme Court speaking through Mr. Justice Pedro Tuason: "Determination of title to property is within the
jurisdiction of Courts of First Instance. The responding Soriano's objection (that the probate court lacked
jurisdiction to order the delivery of the possession of the lots to the estate) relates exclusively to the
procedure, which is distinct from jurisdiction. It affects only personal rights to a mode of practice (the filing
of an independent ordinary action) which may be waived". Strictly speaking, it is more a question of
jurisdiction over the person, not over the subject matter, for the jurisdiction to try controversies between
heirs of a deceased person regarding the ownership of properties alleged to belong to his estate, has been
recognized to be vested in probate courts. This is so because the purpose of an administration proceeding
is the liquidation of the estate and distribution of the residue among the heirs and legatees. Liquidation
means determination of all the assets of the estate and payment of all the debts and expenses. 3 Thereafter,
distribution is made of the decedent's liquidated estate among the persons entitled to succeed him. The
proceeding is in the nature of an action of partition, in which each party is required to bring into the mass
whatever community property he has in his possession. To this end, and as a necessary corollary, the
interested parties may introduce proofs relative to the ownership of the properties in dispute. All the heirs
who take part in the distribution of the decedent's estate are before the court, and subject to the jurisdiction
thereof, in all matters and incidents necessary to the complete settlement of such estate, so long as no
interests of third parties are affected.4

In the case now before us, the matter in controversy is the question of ownership of certain of the properties
involved — whether they belong to the conjugal partnership or to the husband exclusively. This is a matter
properly within the jurisdiction of the probate court which necessarily has to liquidate the conjugal
partnership in order to determine the estate of the decedent which is to be distributed among his heirs who
are all parties to the proceedings, including, of course, the widow, now represented because of her death,
by her heirs who have been substituted upon petition of the executor himself and who have appeared
voluntarily. There are no third parties whose rights may be affected. It is true that the heirs of the deceased
widow are not heirs of the testator-husband, but the widow is, in addition to her own right to the conjugal
property. And it is this right that is being sought to be enforced by her substitutes. Therefore, the claim that
is being asserted is one belonging to an heir to the testator and, consequently, it complies with the
requirement of the exception that the parties interested (the petitioners and the widow, represented by
dents) are all heirs claiming title under the testator.

Petitioners contend additionally that they have never submitted themselves to the jurisdiction of the probate
court, for the purpose of the determination of the question of ownership of the disputed properties. This is
not borne by the admitted facts. On the contrary, it is undisputed that they were the ones who presented
the project of partition claiming the questioned properties as part of the testator's asset. The respondents,
as representatives or substitutes of the deceased widow opposed the project of partition and submitted
another. As the Court of Appeals said, "In doing so all of them must be deemed to have submitted the issue
for resolution in the same proceeding. Certainly, the petitioners can not be heard to insist, as they do, on
the approval of their project of partition and, thus, have the court take it for granted that their theory as to
the character of the properties is correct, entirely without regard to the opposition of the respondents". In
other words, by presenting their project of partition including therein the disputed lands (upon the claim
that they were donated by the wife to her husband), petitioners themselves put in issue the question of
ownership of the properties — which is well within the competence of the probate court — and just because
of an opposition thereto, they can not thereafter withdraw either their appearance or the issue from the
jurisdiction of the court. Certainly, there is here a waiver where the parties who raise the objection are the
ones who set the court in motion.5 They can not be permitted to complain if the court, after due hearing,
adjudges question against them.6

Finally, petitioners-appellants claim that appellees are estopped to raise the question of ownership of the
properties involved because the widow herself, during her lifetime, not only did not object to the inclusion
of these properties in the inventory of the assets of her deceased husband, but also signed an extra-judicial
partition of those inventoried properties. But the very authorities cited by appellants require that to
constitute estoppel, the actor must have knowledge of the facts and be appraised of his rights at the time
he performs the act constituting estoppel, because silence without knowledge works no estoppel. 7 In the
present case, the deceased widow acted as she did because of the deed of donation she executed in favor
of her husband not knowing that such deed was illegal, if inter-vivos, and ineffectual if mortis-causa, as it
has not been executed with the required formalities similar to a will.

WHEREFORE, the decision of the Court of Appeals being in accordance with law, the same is hereby affirmed
with costs against appellants. So ordered.
G.R. No. L-27082 January 31, 1978

Intestate Estate of the Spouses Juan C. Pangilinan and Teresa Magtuba. FILOMENO COCA,
Administrator, PRIMA PANGILINAN, and HEIRS OF CONCEPCION PANGILINAN-YAMUTA,
namely, MARIA P. YAMUTA DE ATAY, EUSEBIO P. YAMUTA, and APOLINAR P.
YAMUTA, petitioners-appellants,
vs.
GUADALUPE PIZARRAS VDA. DE PANGILINAN, HEIRS OF FRANCISCO PANGILINAN, namely,
FRANCIS, ALGERIAN, BENJAMIN, PERLA and FRANCISCO, JR., all surnamed PANGILINAN, and
CRISPIN BORROMEO, oppositors-appellees.

G.R. No. L-29545 January 31, 1978

FILOMENO COCA, administrator-appellant,

vs.
CRISPIN BORROMEO and GUADALUPE PIZARRAS VDA. DE PANGILINAN and her
Children, claimants-appellees.

Casiano U. Laput and Lorenzo D. de Guzman for appellants.

Paulino A. Conol and Felicidario M. Batoy for appellees.

AQUINO, J.:

These two cases involve the question of whether the ownership of a parcel of land, whether belonging to
the deceased spouses or to their heirs, should be decided in the intestate proceeding or in a separate action.
Also in issue in these two cases is the liability of the decedents' estate for the litigation expenses allegedly
incurred in a case regarding that same land.

Being related cases, their adjudication in a single decision was allowed in this Court's resolution of August
13, 1969.

The spouses Juan Pan and Teresa Magtuba died intestate in 1943 and 1948, respectively. They possession
a homestead, consisting of two parcels of land, located at Barrio Bunawan or Mauswagon, Calamba, Misamis
Occidental.

One parcel is Identified as Lot No. 1927. It has an area of 3.9791 hectares. It was covered by Original
Certificate of Title (OCT) No. 10 of the registry of deeds of Oriental Misamis in the name of Juan Pangilinan
issued in 1927. It is now covered by Transfer Certificate of Title No. 86 (T-10) of the registry of deeds of
Misamis Occidental (p. 7, Appellees' brief in L-27082).

The other parcel is Identified as Lot No. 1112. It has an area of 18.0291 hectares. It is covered by OCT No.
P-8419 issued on November 21, 1961 in the name of the Heirs of Juan Pan , represented by Concepcion
Pan de Yamuta (p. 73, Record on Appeal in L-27082).

According to Guadalupe Pizarras and her children, a third parcel, Lot No. 1920, with an area of eight hectares
which was surveyed in the name of Concepcion Pan and which adjoins Lots Nos. 1927 and 1112, also forms
part of the estate of the deceased Pangilinan spouses (pp. 61-64, Record on Appeal).

The Pangilinan spouses were survived by the following heirs: (1) Prima Pangilinan, (2) Maria, Eusebio and
Apolinar all surnamed Yamuta, the children of Concepcion Pangilinan Yamuta who died in 1961, and (3)
Francis, A Benjamin Perla and Francisco, Jr., all surnamed Pan the children of Francisco Pan who died in
1948 and who was also survived by his widow, Guadalupe Pizarras. (It is not clear whether Roseller,
Demosthenes and Eliza, all surnamed Japay, were the children of the deceased Helen Pangilinan, presumably
a daughter of Francisco Pangilinan and Teresa Magtuba. See pages 81-82, Record on Appeal).

Special Proceeding No. 508 of the Court of First Instance of Misamis Occidental was instituted on September
5, 1963 for the settlement of the estate of the deceased spouses, Juan C. Pangilinan and Teresa Magtuba.

On September 25, 1965 the administrator presented a project of partition wherein the combined areas of
Lots Nos. 1112 and 1927, or 22.0082 hectares, were partitioned as follows:

(a) To Crispin Borromeo as payment of his attorney's fees in Civil Case No. 560 or CA-G.R.
No. 6721-R, February 27, 1952, Crispin Labaria vs. Juan C. Pangilinan, in accordance with
the lower court's decision dated July 19, 1965 in Civil Case No. 2440. Borromeo vs. Coca (p.
11, Appellees' brief in L-27082), three hectares which should be taken from Lot No. 1112 and
designated as Lot No. 1112-A;

(b) To the heirs of Francisco Pangilinan (Mrs. Pizarras and children), 5.3361 hectares taken
from Lot No. 1112 and designated as Lot No. 1112-B;
 (c) To Prima Pangilinan, 6.3361 hectares, taken from Lot No. 1112 and designated as Lot No.
1112-C, and presumably a daughter of Francisco Pan 81-82, Record on Appeal).

(d) To the heirs of Concepcion Pangilinan, 7.3360 hectares, consisting of Lot No. 1927 and
the remainder of Lot No. 1112, which remainder is designated as Lot No. 1112-D.

It was also provided in the project of partition that the sum of P5,088.50, as the alleged debt of the estate
to Concepcion Pan should be divided equally among the three sets of heirs, or P1,696.16 for each set of
heirs, and that Prima Pangilinan and the heirs of Francisco Pangilinan should pay that amount to the heirs
of Concepcion Pangilinan.

The heirs of Francisco Pangilinan (Guadalupe Pizarras, et al.) opposed that project of partition. They
contended that the proposed partition contravened the lower court's order of December 6, 1963 which
recognized the right of the heirs of Francisco Pan to a twelve-hectare portion of Lot No. 1112; that Prima
Pangilinan, who sold her share to Francisco Pan should be excluded from the partition; that the total share
of the heirs of Francisco Pangilinan in Lot No. 1112 is 12.6720 hectares, while that of the heirs of Concepcion
Pangilinan is 6.3360 hectares, and that the claim of the heirs of Concepcion Pangilinan for 115,088.50 had
not been properly allowed.

The lower court in its order of October 2, 1965 directed the administrator to pay the debt of the estate to
the heirs of Concepcion Pangilinan. It deferred action on the project of partition until the ownership of the
twelve hectares, which were claimed by the heirs of Francisco Pan and the six hectares, which were claimed
by Crispen Borromeo (eighteen hectares in all which were excluded from the inventory in the court's order
of December 6, 1963) is determined in an ordinary action.

On may 14,1966 the heirs of Francisco Pangilinan filed a supplemental opposition wherein they asked that
Lot No. 1920, with an area of eight hectares, which lot was surveyed at should be included in the project of
partition.

On August 31, 1966 the lower court, apparently acting on its own volition, tackled once more the project of
partition. After noting that no separate action had been filed to determine the ownership of the twelve
hectares, it issued an order approving the project of partition but excluding the twelve hectares claimed by
the heirs of Francisco Pangilinan.

That order on its face appears to be incomplete because, after excluding the twelve hectares, the lower
court did not bother to decide how the remainder should be partitioned and whether Prima Pangilinan had
a share in that remainder.

That is the order under appeal in L-27082 by Filomeno Coca as administrator, Prima Pangilinan and the
heirs of Concepcion Pangilinan. However, the said appellants in their brief also assail the lower court's order
of December 6, 1963, excluding eighteen hectares from the inventory, which order was sustained by the
Court of Appeals in its decision in Atay vs. Catolico, CA-G.R. Nos. 33165-R, and 3426-R, May 14,1964, 5
CAR 1200. This Court refused to review that decision in its resolution of July 29, 1964, in
L-23088-89, Atay vs. Court of Appeals.

The other incident involves the lower court's order of May 11, 1968 which directed that the claim of the
heirs of Francisco Pangilinan for reimbursement of litigation expenses (apart from the sum of P1,459.49, as
the value of the produce of the twelve hectares already mentioned, which was appropriated by the special
administrator), be referred to the clerk of court for reception of the evidence.

In another order, also dated May 11, 1968, the lower court reiterated its order of October 2, 1965 that the
administrator should pay the heirs of Concepcion Pan the. amount to be reimbursed to her estate. The court
further directed the administrator to account for the income of the estate, to recover any amount due from
the special administrator, and to pay the claim of Crispin Borromeo and the amount due to the heirs of
Concepcion Pangilinan as directed in its order of August 31, 1966 and in its approval of the accounting of
the special administrator.

The administrator, Filomeno Coca, Prima Pangilinan and the heirs of Concepcion Pan also appealed from
those two orders dated May 11, 1968 (L-29545).

The appellant contend that the lower court, as a probate court, has no jurisdiction to decide the ownership
of the twelve-hectare portion of Lot No. 1112. On the other hand, the appellees" or the heirs of Francisco
Pangilinan counter that the lower court did not decide the ownership of the twelve hectares when it ordered
their exclusion from the project of partition. So, the problem is how the title to the twelve hectares should
be decided, whether in a separate action or in the intestate. proceeding.

It should be clarified that whether a particular matter should be resolved by the Court of First Instance in
the exercise of its general jurisdiction or of its limited probate jurisdiction is in reality not a jurisdictional
question. In essence, it is a procedural question involving a mode of practice "which may be waived"
(Cunanan vs. Amparo, 80 Phil. 227, 232. Cf. Reyes vs. Diaz, 73 Phil. 484 re jurisdiction over the issue).
As a general rule, the question as to title to property should not be passed upon in the estate or intestate
proceeding. That question should be ventilated in a separate action. (Lachenal vs. Salas, L-42257, June 14,
1976, 71 SCRA 262, 266). That general rule has qualifications or exceptions justified by expediency and
convenience.

Thus, the probate court may provisionally pass upon in an intestate or testate proceeding the question of
inclusion in, or exclusion from, the inventory of a piece of property without prejudice to its final
determination in a separate action Lachenal vs. Salas, supra).

Although generally, a probate court may not decide a question of title or ownership, yet if the interested
parties are all heirs or the question is one of collation or advancement, or the parties consent to the
assumption of jurisdiction by the probate court and the rights of 'third parties are not impaired, then the
probate court is competent to decide the question of ownership (Pascual vs. Pascual 73 Phil. 561; Alvarez
vs. Espiritu, L-18833, August 14, 1965, 14 SCRA 892; Cunanan vs. Amparo, supra; 3 Morans Comments
on the Rules of Court, 1970 Ed., p. 4731).

We hold that the instant case may be treated as an exception to the general rule that questions of title
should be ventilated in a separate action.

Here, the probate court had already received evidence on the ownership of the twelve-hectare portion during
the hearing of the motion for its exclusion from title inventory The only interested parties are the heirs who
have all appeared in the intestate proceeding.

As pointed out by the appellees, they belong to the poor stratum of society. They should not be forced to
incur additional expenses (such as filing fees) by bringing a separate action to determine the ownership of
the twelve-hectare portion.

The just, expeditious and inexpensive solution is to require the heirs of Francisco Pangilinan to the in the
intestate, proceeding, Special Proceeding No. 568, a motion in the form of a complaint wherein they should
set forth their claim for the twelve hectares in question, stating the ultimate facts in support of their claim,
such as the partition made by Juan C. Pangilinan, their acquisition of the share of Prima Pangilinan and the
usufructuary rights of their parents, their long possession of the said portion, their claim for the produce of
the land, the expenses incurred by them in Civil Case No. 560, Labaria vs. Pangilinan, and their contention
that Lot No. 1920 forms part of the estate of the Pangilinan spouses.

Copies of that motion should be serves upon the administrator and upon Prima Pangilinan and the heirs of
Concepcion Pangilinan (who are all represented by the same lawyers). They should answer the motion within
fifteen days from service. In their answer the appellants should set forth the ultimate facts and the defenses
(such as the violation of section 118 of the Public Land Law) to support their theory that Lot No. 1112 still
forms part of the estate of the spouses Juan C. Pangilinan and Teresa Magtuba and that the heirs of Francisco
Pangilinan should bear one-third of the expenses incurred by Concepcion Pan in Civil Case No. 560.

After the issues have been joined and in case no amicable settlement has been reached, the probate court
should receive evidence or, as indicated by the Court of Appeals in Atay vs. Catolico, supra a full-dress
hearing should be held.

Crispin Borromeo may set forth also his claim for the three hectares but only for the purpose of deciding
what portion of the estate should be given to him in satisfaction of his share. His claim for the sum of P416
had already been adjudicated by the lower court in its order of August 31, 1966 (pp. 26- 27, Record on
Appeal in L-29545). No appeal was interposed from that adjudication.

After trial the lower court's decision on the issues as to what constitutes the estate of the Pangilinan spouses
should include the partition thereof and should indicate what portion of the estate should be allocated to
Crispen Borromeo. If necessary, the validity of the donation or partition of Lot No. 1112, made by Juan C.
Pangilinan during his lifetime, should be passed upon.

Considering that the respective claims of the heirs of Francisco Pangilinan . and the heirs of Concepcion
Pangilinan for reimbursement of the litigation expenses allegedly incurred in Civil Case No. 560 will be
included in the trial, the two orders of the trial court dated May 11, 1968 regarding those matters (L-29545)
should not be enforced. They should be set aside.

WHEREFORE, (1) the lower court's amended order of August 31, 1966, excluding twelve hectares from the
partition of the estate of the deceased Pan spouses (L-27082) and (2) the two orders dated May 11, 1968,
regarding the claim of Guadalupe Pizarras and her children and the debt of the estate to Concepcion
Pangilinan (L-29545) are reversed and set aside. A new trial should be held on those matters after the filing
of the proper pleadings and in case no amicable settlement is reached. The heirs of Francisco Pangilinan
should file their motion within thirty days from notice of the entry of judgment in this case. The case is
remanded to the lower court for further proceedings in accordance with the guidelines already set forth. No
costs. SO ORDERED.
 [G.R. No. 133000. October 2, 2001]

PATRICIA NATCHER, petitioner, vs. HON. COURT OF APPEALS AND THE HEIRS OF GRACIANO DEL
ROSARIO LETICIA DEL ROSARIO, EMILIA DEL ROSARIO-MANANGAN, ROSALINDA
FUENTES LLANA, RODOLFO FUENTES, ALBERTO FUENTES, EVELYN DEL ROSARIO, and
EDUARDO DEL ROSARIO, respondents.

DECISION
BUENA, J.:

May a Regional Trial Court, acting as a court of general jurisdiction in an action for reconveyance and
annulment of title with damages, adjudicate matters relating to the settlement of the estate of a deceased
person particularly in questions as to advancement of property made by the decedent to any of the heirs?
Sought to be reversed in this petition for review on certiorari under Rule 45 is the decision[1] of public
respondent Court of Appeals, the decretal portion of which declares:

Wherefore in view of the foregoing considerations, judgment appealed from is reversed and set aside and
another one entered annulling the Deed of Sale executed by Graciano Del Rosario in favor of defendant-
appellee Patricia Natcher, and ordering the Register of Deeds to Cancel TCT No. 186059 and reinstate TCT
No. 107443 without prejudice to the filing of a special proceeding for the settlement of the estate of Graciano
Del Rosario in a proper court. No costs.

So ordered.

Spouses Graciano del Rosario and Graciana Esguerra were registered owners of a parcel of land with an
area of 9,322 square meters located in Manila and covered by Transfer Certificate of Title No. 11889. Upon
the death of Graciana in 1951, Graciano, together with his six children, namely: Bayani, Ricardo, Rafael,
Leticia, Emiliana and Nieves, entered into an extrajudicial settlement of Gracianas estate on 09 February
1954 adjudicating and dividing among themselves the real property subject of TCT No. 11889. Under the
agreement, Graciano received 8/14 share while each of the six children received 1/14 share of the said
property. Accordingly, TCT No. 11889 was cancelled, and in lieu thereof, TCT No. 35980 was issued in the
name of Graciano and the six children.
Further, on 09 February 1954, said heirs executed and forged an Agreement of Consolidation-
Subdivision of Real Property with Waiver of Rights where they subdivided among themselves the parcel of
land covered by TCT No. 35980 into several lots. Graciano then donated to his children, share and share
alike, a portion of his interest in the land amounting to 4,849.38 square meters leaving only 447.60 square
meters registered under Gracianos name, as covered by TCT No. 35988. Subsequently, the land subject of
TCT No. 35988 was further subdivided into two separate lots where the first lot with a land area of 80.90
square meters was registered under TCT No. 107442 and the second lot with a land area of 396.70 square
meters was registered under TCT No. 107443. Eventually, Graciano sold the first lot[2] to a third person but
retained ownership over the second lot.[3]
On 20 March 1980, Graciano married herein petitioner Patricia Natcher. During their marriage, Graciano
sold the land covered by TCT No. 107443 to his wife Patricia as a result of which TCT No. 186059 [4] was
issued in the latters name.On 07 October 1985, Graciano died leaving his second wife Patricia and his six
children by his first marriage, as heirs.
In a complaint[5] filed in Civil Case No. 71075 before the Regional Trial Court of Manila, Branch 55,
herein private respondents alleged that upon Gracianos death, petitioner Natcher, through the employment
of fraud, misrepresentation and forgery, acquired TCT No. 107443, by making it appear that Graciano
executed a Deed of Sale dated 25 June 1987 [6] in favor of herein petitioner resulting in the cancellation of
TCT No. 107443 and the issuance of TCT No. 186059 in the name of Patricia Natcher. Similarly, herein
private respondents alleged in said complaint that as a consequence of such fraudulent sale, their legitimes
have been impaired.
In her answer[7] dated 19 August 1994, herein petitioner Natcher averred that she was legally married
to Graciano on 20 March 1980 and thus, under the law, she was likewise considered a compulsory heir of
the latter. Petitioner further alleged that during Gracianos lifetime, Graciano already distributed, in advance,
properties to his children, hence, herein private respondents may not anymore claim against Gracianos
estate or against herein petitioners property.
After trial, the Regional Trial Court of Manila, Branch 55, rendered a decision dated 26 January 1996
holding:[8]
1) The deed of sale executed by the late Graciano del Rosario in favor of Patricia Natcher is
prohibited by law and thus a complete nullity. There being no evidence that a separation of
property was agreed upon in the marriage settlements or that there has been decreed a judicial
separation of property between them, the spouses are prohibited from entering (into) a contract
of sale;
 2) The deed of sale cannot be likewise regarded as a valid donation as it was equally prohibited by
law under Article 133 of the New Civil Code;
3) Although the deed of sale cannot be regarded as such or as a donation, it may however be
regarded as an extension of advance inheritance of Patricia Natcher being a compulsory heir of
the deceased.
On appeal, the Court of Appeals reversed and set aside the lower courts decision ratiocinating, inter
alia:

It is the probate court that has exclusive jurisdiction to make a just and legal distribution of the estate. The
court a quo, trying an ordinary action for reconveyance/annulment of title, went beyond its jurisdiction when
it performed the acts proper only in a special proceeding for the settlement of estate of a deceased
person. XXX

X X X Thus the court a quo erred in regarding the subject property as an advance inheritance. What the
court should have done was merely to rule on the validity of (the) sale and leave the issue on advancement
to be resolved in a separate proceeding instituted for that purpose. X X X

Aggrieved, herein petitioner seeks refuge under our protective mantle through the expediency of Rule
45 of the Rules of Court and assails the appellate courts decision for being contrary to law and the facts of
the case.
We concur with the Court of Appeals and find no merit in the instant petition.
Section 3, Rule 1 of the 1997 Rules of Civil Procedure defines civil action and special proceedings, in
this wise:

X X X a) A civil action is one by which a party sues another for the enforcement or protection of a right, or
the prevention or redress of a wrong.

A civil action may either be ordinary or special. Both are governed by the rules for ordinary civil actions,
subject to specific rules prescribed for a special civil action.

XXX

c) A special proceeding is a remedy by which a party seeks to establish a status, a right or a particular fact.

As could be gleaned from the foregoing, there lies a marked distinction between an action and a special
proceeding. An action is a formal demand of ones right in a court of justice in the manner prescribed by the
court or by the law. It is the method of applying legal remedies according to definite established rules. The
term special proceeding may be defined as an application or proceeding to establish the status or right of a
party, or a particular fact. Usually, in special proceedings, no formal pleadings are required unless the
statute expressly so provides. In special proceedings, the remedy is granted generally upon an application
or motion.[9]
Citing American Jurisprudence, a noted authority in Remedial Law expounds further:

It may accordingly be stated generally that actions include those proceedings which are instituted and
prosecuted according to the ordinary rules and provisions relating to actions at law or suits in equity, and
that special proceedings include those proceedings which are not ordinary in this sense, but is instituted and
prosecuted according to some special mode as in the case of proceedings commenced without summons
and prosecuted without regular pleadings, which are characteristics of ordinary actions. X X X A special
proceeding must therefore be in the nature of a distinct and independent proceeding for particular relief,
such as may be instituted independently of a pending action, by petition or motion upon notice. [10]

Applying these principles, an action for reconveyance and annulment of title with damages is a civil
action, whereas matters relating to settlement of the estate of a deceased person such as advancement of
property made by the decedent, partake of the nature of a special proceeding, which concomitantly requires
the application of specific rules as provided for in the Rules of Court.
Clearly, matters which involve settlement and distribution of the estate of the decedent fall within the
exclusive province of the probate court in the exercise of its limited jurisdiction.
Thus, under Section 2, Rule 90 of the Rules of Court, questions as to advancement made or alleged to
have been made by the deceased to any heir may be heard and determined by the court having
jurisdiction of the estate proceedings; and the final order of the court thereon shall be binding on the
person raising the questions and on the heir.
While it may be true that the Rules used the word may, it is nevertheless clear that the same
provision[11] contemplates a probate court when it speaks of the court having jurisdiction of the estate
proceedings.
Corollarily, the Regional Trial Court in the instant case, acting in its general jurisdiction, is devoid of
authority to render an adjudication and resolve the issue of advancement of the real property in favor of
herein petitioner Natcher, inasmuch as Civil Case No. 71075 for reconveyance and annulment of title with
damages is not, to our mind, the proper vehicle to thresh out said question. Moreover, under the present
circumstances, the RTC of Manila, Branch 55 was not properly constituted as a probate court so as to validly
pass upon the question of advancement made by the decedent Graciano Del Rosario to his wife, herein
petitioner Natcher.
At this point, the appellate courts disquisition is elucidating:

Before a court can make a partition and distribution of the estate of a deceased, it must first settle the
estate in a special proceeding instituted for the purpose. In the case at hand, the court a quo determined
the respective legitimes of the plaintiffs-appellants and assigned the subject property owned by the estate
of the deceased to defendant-appellee without observing the proper proceedings provided (for) by the Rules
of Court. From the aforecited discussions, it is clear that trial courts trying an ordinary action cannot resolve
to perform acts pertaining to a special proceeding because it is subject to specific prescribed rules. Thus,
the court a quo erred in regarding the subject property as an advance inheritance. [12]

In resolving the case at bench, this Court is not unaware of our pronouncement in Coca vs.
Borromeo[13] and Mendoza vs. Teh[14] that whether a particular matter should be resolved by the Regional
Trial Court (then Court of First Instance) in the exercise of its general jurisdiction or its limited probate
jurisdiction is not a jurisdictional issue but a mere question of procedure. In essence, it is a procedural
question involving a mode of practice which may be waived.[15]
Notwithstanding, we do not see any waiver on the part of herein private respondents inasmuch as the
six children of the decedent even assailed the authority of the trial court, acting in its general jurisdiction,
to rule on this specific issue of advancement made by the decedent to petitioner.
Analogously, in a train of decisions, this Court has consistently enunciated the long standing principle
that although generally, a probate court may not decide a question of title or ownership, yet if the interested
parties are all heirs, or the question is one of collation or advancement, or the parties consent to the
assumption of jurisdiction by the probate court and the rights of third parties are not impaired, then the
probate court is competent to decide the question of ownership.[16]
Similarly in Mendoza vs. Teh, we had occasion to hold:

In the present suit, no settlement of estate is involved, but merely an allegation seeking appointment as
estate administratrix which does not necessarily involve settlement of estate that would have invited
the exercise of the limited jurisdiction of a probate court. [17] (emphasis supplied)

Of equal importance is that before any conclusion about the legal share due to a compulsory heir may
be reached, it is necessary that certain steps be taken first.[18] The net estate of the decedent must be
ascertained, by deducting all payable obligations and charges from the value of the property owned by the
deceased at the time of his death; then, all donations subject to collation would be added to it. With the
partible estate thus determined, the legitime of the compulsory heir or heirs can be established; and only
thereafter can it be ascertained whether or not a donation had prejudiced the legitimes.[19]
A perusal of the records, specifically the antecedents and proceedings in the present case, reveals that
the trial court failed to observe established rules of procedure governing the settlement of the estate of
Graciano Del Rosario. This Court sees no cogent reason to sanction the non-observance of these well-
entrenched rules and hereby holds that under the prevailing circumstances, a probate court, in the exercise
of its limited jurisdiction, is indeed the best forum to ventilate and adjudge the issue of advancement as
well as other related matters involving the settlement of Graciano Del Rosarios estate.
WHEREFORE, premises considered, the assailed decision of the Court of Appeals is hereby AFFIRMED
and the instant petition is DISMISSED for lack of merit. SO ORDERED.
G.R. No. L-1723 May 30, 1949

LUZ MARQUEZ DE SANDOVAL, petitioner,

vs.
VICENTE SANTIAGO, judge of the Court of First Instance of Quezon Province, Branch
III, respondent.

Potenciano A. Magtibay for petitioner.

First Assistant Solicitor General Roberto A. Gianzon and Solicitor MartinianoP. Vivo for respondent.

FERIA, J.:

This is a special civil action of certiorari filed by the petitioner against the respondent Judge Hon. Vicente
Santiago.

The herein petitioner instituted a special proceeding in the Court of First Instance of First Instance of Quezon
Province for then probate of the will and codicil executed by the deceased Daniel Marquez in which she was
designated as executrix. The will and codicil were allowed and the petitioner was appointed on August 16,
1946, executrix in accordance with the will but before the petitioner qualified as executrix the three heirs
instituted in the will all age made an extrajudicial partition of all the properties of he deceased on October
5, 1946 and entered into the possession of their respective share without the authority and approval of the
court. On August 22, 1947, that is one year after the probate of the will and appointment of the petitioner
as executrix the respondent judge required the petitioner to quality as such and file a bind of P5,000. In
response thereto the petitioner informed the respondent judge that it was not necessary for her to qualify
because the heirs had already made an extrajudicial partition in accordance with the will as shown by the
copy the copy of said partition which she submitted to the court. In view of the answer of the petitioner the
respondent judge ordered the executrix to qualify as such within forty-eight hour and declared the
extrajudicial agreement of partition entered into by the heirs null and void, on the ground that the probate
proceedings having been commenced judicially it must also be terminated judicially. A motion for
reconsideration was filed by the petitioner and denied by the court hence, the filing of the present petition
for certiorari.

We are of the opinion, and so hold, that the respondent, Judge or Court of First Instance of Quezon Province,
wherein the deceased was residing at the time of his death, has acquired exclusive jurisdiction to settle the
testate estate of the deceased Daniel Marquez and over the heirs and other person interested in the estate
of the deceased from the moment the application for the probate of the decedent's will was filed with the
said court and the publication required by law were made; and the heirs of the deceased Marquez could not
divest the Court of First Instance of its already acquired jurisdiction by the mere fact of dividing
extrajudicially the estate of the deceased among themselves.

If the extrajudicial partition made by the heirs of the deceased wassubmitted to the court and approved by
the respondent judge after verifying that it does not prejudicially affect the rights of third parties, the testate
proceedings pending in the court would have been legally thereby terminated. An extrajudicial partition of
the estate of a deceased by the heirs becomes a judicial partition after its approval by the court which had
previously acquired jurisdiction of the estate by the filing of an application for the probate of the decedent's
will; but as the testate proceeding is terminated in such case without the necessary publication ofnotices to
creditors and other persons interested in the estate required ina required in a regular judicial administration,
the effect of such judicial partition would be the same as if it had been effected extrajudicially without the
intervention of the court under the provisions of section1,of Rule 74, that is, subject to the claims against
the distributees by persons mentioned in sections 4 and 5, of the same rule. (McMicking vs. Sy Conbieng.
21 Phil., 211.)

In view of the foregoing, the petition for certiorari is denied with costs against the petitioner, because the
respondent judge did not exceed his jurisdiction in not giving the deed of extrajudicial settlement or partition
of the estate of the deceased the effect of terminating the testate proceedingover which the court has
acquired exclusive jurisdiction since said partition was not submitted to said court for approval. So ordered.
G.R. No. L-21993 June 21, 1966

ANGELA RODRIGUEZ, MARIA RODRIGUEZ, ET AL., petitioners,

vs.
HON. JUAN DE BORJA, as Judge of the Court of First Instance of Bulacan, Branch III,
ANATOLIA PANGILINAN and ADELAIDA JACALAN, respondents.

Lorenzo Somulong for petitioners.

Torres and Torres for respondents.

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

Petitioners Angela, Maria, Abelardo and Antonio, surnamed Rodriguez, petition this Court for a writ
of certiorari and prohibition to the Court of First Instance of Bulacan, for its refusal to grant their motion to
dismiss its Special Proceeding No. 1331, which said Court is alleged to have taken cognizance of without
jurisdiction.

The facts and issues are succinctly narrated in the order of the respondent court, dated June 13, 1963
(Petition, Annex 0), in this wise:

It is alleged in the motion to dismiss filed by Angela, Maria, Abelardo and Antonio Rodriguez, through
counsel, that this Court "has no jurisdiction to try the above-entitled case in view of the pendency of
another action for the settlement of the estate of the deceased Rev. Fr. Celestino Rodriguez in the
Court of First Instance of Rizal, namely, Sp. Proceedings No. 3907 entitled 'In the matter of the
Intestate Estate of the deceased Rev. Fr. Celestino Rodriguez which was filed ahead of the instant
case".

The records show that Fr. Celestino Rodriguez died on February 12, 1963 in the City of Manila; that
on March 4, 1963, Apolonia Pangilinan and Adelaida Jacalan delivered to the Clerk of Court of Bulacan
a purported last will and testament of Fr. Rodriguez; that on March 8, 1963, Maria Rodriguez and
Angela Rodriguez, through counsel filed a petition for leave of court to allow them to examine the
alleged will; that on March 11, 1963 before the Court could act on the petition, the same was
withdrawn; that on March 12, 1963, aforementioned petitioners filed before the Court of First
Instance of Rizal a petition for the settlement of the intestate estate of Fr. Rodriguez alleging, among
other things, that Fr. Rodriguez was a resident of Parañaque, Rizal, and died without leaving a will
and praying that Maria Rodriguez be appointed as Special Administratrix of the estate; and that on
March 12, 1963 Apolonia Pangilinan and Adelaida Jacalan filed a petition in this Court for the
probation of the will delivered by them on March 4, 1963. It was stipulated by the parties that Fr.
Rodriguez was born in Parañaque, Rizal; that he was Parish priest of the Catholic Church of Hagonoy,
Bulacan, from the year 1930 up to the time of his death in 1963; that he was buried in Parañaque,
and that he left real properties in Rizal, Cavite, Quezon City and Bulacan.

The movants contend that since the intestate proceedings in the Court of First Instance of Rizal was
filed at 8:00 A.M. on March 12, 1963 while the petition for probate was filed in the Court of First
Instance of Bulacan at 11:00 A.M. on the same date, the latter Court has no jurisdiction to entertain
the petition for probate, citing as authority in support thereof the case of Ongsingco Vda. de Borja
vs. Tan and De Borja, G.R. No. 7792, July 27, 1955.

The petitioners Pangilinan and Jacalan, on the other hand, take the stand that the Court of First
Instance of Bulacan acquired jurisdiction over the case upon delivery by them of the will to the Clerk
of Court on March 4, 1963, and that the case in this Court therefore has precedence over the case
filed in Rizal on March 12, 1963.

The Court of First Instance, as previously stated denied the motion to dismiss on the ground that a difference
of a few hours did not entitle one proceeding to preference over the other; that, as early as March 7,
movants were aware of the existence of the purported will of Father Rodriguez, deposited in the Court of
Bulacan, since they filed a petition to examine the same, and that movants clearly filed the intestate
proceedings in Rizal "for no other purpose than to prevent this Court (of Bulacan) from exercising jurisdiction
over the probate proceedings". Reconsideration having been denied, movants, now petitioners, came to this
Court, relying principally on Rule 73, section 1 of the Rules of Court, and invoking our ruling in Ongsingco
vs. Tan and De Borja, L-7792, July 27, 1955.

SECTION 1. Where estate of deceased persons settled. — If the decedent is an inhabitant of the
Philippines at the time of his death, whether a citizen or an alien, his will shall be proved, or letters
of administration granted, and his estate settled, in the Court of First Instance in the province in
which he resides at the time of his death, and if he is an inhabitant of a foreign country, the Court
of First Instance of any province which he had estate. The court first taking cognizance of the
settlement of the estate of a decedent, shall exercise jurisdiction to the exclusion of all other courts.
The jurisdiction assumed by a court, as far as it depends on the place of residence of the decedent,
or of the location of his estate, shall not be contested in a suit or proceeding, except in an appeal
from that court, in the original case, or when the want of jurisdiction appears on the record.
We find this recourse to be untenable. The jurisdiction of the Court of First Instance of Bulacan became
vested upon the delivery thereto of the will of the late Father Rodriguez on March 4, 1963, even if no petition
for its allowance was filed until later, because upon the will being deposited the court could, motu proprio,
have taken steps to fix the time and place for proving the will, and issued the corresponding notices
conformably to what is prescribed by section 3, Rule 76, of the Revised Rules of Court (Section 3, Rule 77,
of the old Rules):

SEC. 3. Court to appoint time for proving will. Notice thereof to be published. — When a will is
delivered to, or a petition for the allowance of a will is filed in, the Court having jurisdiction, such
Court shall fix a time and place for proving the will when all concerned may appear to contest the
allowance thereof, and shall cause notice of such time and place to be published three (3) weeks
successively, previous to the time appointed, in a newspaper of general circulation in the province.

But no newspaper publication shall be made where the petition for probate has been filed by the
testator himself.

The use of the disjunctive in the words "when a will is delivered to OR a petition for the allowance of a will
is filed" plainly indicates that the court may act upon the mere deposit therein of a decedent's testament,
even if no petition for its allowance is as yet filed. Where the petition for probate is made after the deposit
of the will, the petition is deemed to relate back to the time when the will was delivered. Since the testament
of Fr. Rodriguez was submitted and delivered to the Court of Bulacan on March 4, while petitioners initiated
intestate proceedings in the Court of First Instance of Rizal only on March 12, eight days later, the
precedence and exclusive jurisdiction of the Bulacan court is incontestable.1äwphï1.ñët

But, petitioners object, section 3 of revised Rule 76 (old Rule 77) speaks of a will being delivered to "the
Court having jurisdiction," and in the case at bar the Bulacan court did not have it because the decedent
was domiciled in Rizal province. We can not disregard Fr. Rodriguez's 33 years of residence as parish priest
in Hagonoy, Bulacan (1930-1963); but even if we do so, and consider that he retained throughout
some animus revertendi to the place of his birth in Parañaque, Rizal, that detail would not imply that the
Bulacan court lacked jurisdiction. As ruled in previous decisions, the power to settle decedents' estates is
conferred by law upon all courts of first instance, and the domicile of the testator only affects the venue but
not the jurisdiction of the Court (In re Kaw Singco, 74 Phil. 239; Reyes vs. Diaz, 73 Phil. 484; Bernabe vs.
Vergara, 73 Phil. 676). Neither party denies that the late Fr. Rodriguez is deceased, or that he left personal
property in Hagonoy, province of Bulacan (t.s.n. p. 46, hearing of June 11, 1963, Annex "H", Petition, Rec.,
p. 48). That is sufficient in the case before us.

In the Kaw Singco case (ante) this Court ruled that:

"... If we consider such question of residence as one affecting the jurisdiction of the trial court over
the 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, providing that the estate of a deceased person shall be settled in the province where
he had last resided, could not have been intended as defining the jurisdiction of the probate court
over the subject matter, because such legal provision is contained in a law of procedure dealing
merely with procedural matters, and, as we have said time and again, procedure is one thing and
jurisdiction over the subject matter is another. (Attorney General vs. Manila Railroad Company, 20
Phil. 523.) The law of jurisdiction — Act No. 136, Section 56, No. 5 — confers upon Courts of First
Instance jurisdiction over all probate cases independently of the place of residence of the
deceased.1 Since, however, there are many Courts of First Instance in the Philippines, the Law of
Procedure, Act No. 190, section 600, fixes the venue or the place where each case shall be brought.
Thus, the place of residence of the deceased is not an element of jurisdiction over the subject matter
but merely of venue. And it is upon this ground that in the new Rules of Court the province where
the estate of a deceased person shall be settled is properly called "venue" (Rule 75, section 1.)
Motion for reconsideration is denied.

The estate proceedings having been initiated in the Bulacan Court of First Instance ahead of any other, that
court is entitled to assume jurisdiction to the exclusion of all other courts, even if it were a case of wrong
venue by express provisions of Rule 73 (old Rule 75) of the Rules of Court, since the same enjoins that:

The Court first taking cognizance of the settlement of the estate of a decedent shall exercise
jurisdiction to the exclusion of all other courts. (Sec. 1)

This disposition presupposes that two or more courts have been asked to take cognizance of the settlement
of the estate. Of them only one could be of proper venue, yet the rule grants precedence to that Court
whose jurisdiction is first invoked, without taking venue into account.

There are two other reasons that militate against the success of petitioners. One is that their commencing
intestate proceedings in Rizal, after they learned of the delivery of the decedent's will to the Court of Bulacan,
was in bad faith, patently done with a view to divesting the latter court of the precedence awarded it by the
Rules. Certainly the order of priority established in Rule 73 (old Rule 75) was not designed to convert the
settlement of decedent's estates into a race between applicants, with the administration of the properties
as the price for the fleetest.

The other reason is that, in our system of civil law, intestate succession is only subsidiary or subordinate to
the testate, since intestacy only takes place in the absence of a valid operative will. Says Article 960 of the
Civil Code of the Philippines:

ART. 960. Legal or intestate succession takes place:

(1) If a person dies without a will, or with a void will, or one which has subsequently lost its validity;

(2) When the will does not institute an heir to, or dispose of all the property belonging to the testator.
In such case, legal succession shall take place only with respect to the property in which the testator
has not disposed;

(3) If the suspensive condition attached to the institution of heir does not happen or is not fulfilled,
or if the heir dies before the testator, or repudiates the inheritance, there being no substitution, and
no right of accretion takes place;

(4) When the heir instituted is incapable of succeeding, except in cases provided in this Code.

Therefore, as ruled in Castro, et al. vs. Martinez, 10 Phil. 307, "only after final decision as to the nullity of
testate succession could an intestate succession be instituted in the form of pre-established action". The
institution of intestacy proceedings in Rizal may not thus proceed while the probate of the purported will of
Father Rodriguez is pending.

We rule that the Bulacan Court of First Instance was entitled to priority in the settlement of the estate in
question, and that in refusing to dismiss the probate. proceedings, said court did not commit any abuse of
discretion. It is the proceedings in the Rizal Court that should be discontinued.

Wherefore, the writ of certiorari applied for is denied. Costs against petitioners Rodriguez.
G.R. Nos. L-21938-39 May 29, 1970

VICENTE URIARTE, petitioner,

vs.
THE COURT OF FIRST INSTANCE OF NEGROS OCCIDENTAL (12th Judicial District) THE COURT
OF FIRST INSTANCE OF MANILA, BRANCH IV, JUAN URIARTE ZAMACONA and HIGINIO
URIARTE, respondents.

Norberto J. Quisumbing for petitioner.

Tañada, Teehankee & Carreon for respondents.

DIZON, J.:

On October 3, 1963 petitioner Vicente Uriarte filed an original petition for certiorari — docketed as G.R. L-
21938 — against the respondents Juan Uriarte Zamacona, Higinio Uriarte, and the Courts of First Instance
of Negros Occidental and of Manila, Branch IV, who will be referred to hereinafter as the Negros Court and
the Manila Court, respectively — praying:

... that after due proceedings judgment be rendered annulling the orders of 19 April 1963
(Annex 'H') and 11 July 1963 (Annex 'I') of respondent Negros court dismissing the first
instituted Special Proceeding No. 6344, supra, and the order of 1 July 1963 (Annex 'K') of
respondent Manila court denying petitioner's omnibus motion to intervene and to dismiss the
later-instituted Special Proceeding No. 51396, supra, both special proceedings pertaining to
the settlement of the same estate of the same deceased, and consequently annulling all
proceedings had in Special Proceeding No. 51396; supra, of the respondent Manila court as
all taken without jurisdiction.

For the preservation of the rights of the parties pending these proceedings, petitioner prays
for the issuance of a writ of preliminary injunction enjoining respondents Manila court, Juan
Uriarte Zamacona and Higinio Uriarte from proceeding with Special Proceeding No.
51396, supra, until further orders of this Court.

Reasons in support of said petition are stated therein as follows:

6. Respondent Negros court erred in dismissing its Special Proceeding No. 6344, supra, and
failing to declare itself 'the court first taking cognizance of the settlement of the estate of' the
deceased Don Juan Uriarte y Goite as prescribed in Rule 75 section 1 of the Rules of Court.
Respondent Manila court erred in failing to dismiss its Special Proceeding No. 51396, supra,
notwithstanding proof of prior filing of Special Proceeding No. 6344, supra, in the Negros
court.

The writ of preliminary injunction prayed for was granted and issued by this Court on October 24, 1963.

On April 22, 1964 petitioner filed against the same respondents a pleading entitled SUPPLEMENTAL
PETITION FOR MANDAMUS — docketed in this Court as G.R. No. L-21939 — praying, for the reasons therein
stated, that judgment be rendered annulling the orders issued by the Negros Court on December 7, 1963
and February 26, 1964, the first disapproving his record on appeal and the second denying his motion for
reconsideration, and further commanding said court to approve his record on appeal and to give due course
to his appeal. On July 15, 1964 We issued a resolution deferring action on this Supplemental Petition until
the original action for certiorari (G.R. L-21938) is taken up on the merits.

On October 21, 1963 the respondents in G.R. L-21938 filed their answer traversing petitioner's contention
that the respondent courts had committed grave abuse of discretion in relation to the matters alleged in the
petition for certiorari.

It appears that on November 6, 1961 petitioner filed with the Negros Court a petition for the settlement of
the estate of the late Don Juan Uriarte y Goite (Special Proceeding No. 6344) alleging therein, inter alia,
that, as a natural son of the latter, he was his sole heir, and that, during the lifetime of said decedent,
petitioner had instituted Civil Case No. 6142 in the same Court for his compulsory acknowledgment as such
natural son. Upon petitioner's motion the Negros Court appointed the Philippine National Bank as special
administrator on November 13, 1961 and two days later it set the date for the hearing of the petition and
ordered that the requisite notices be published in accordance with law. The record discloses, however, that,
for one reason or another, the Philippine, National Bank never actually qualified as special administrator.

On December 19, 1961, Higinio Uriarte, one of the two private respondents herein, filed an opposition to
the above-mentioned petition alleging that he was a nephew of the deceased Juan Uriarte y Goite who had
"executed a Last Will and Testament in Spain, a duly authenticated copy whereof has been requested and
which shall be submitted to this Honorable Court upon receipt thereof," and further questioning petitioner's
capacity and interest to commence the intestate proceeding.
On August 28, 1962, Juan Uriarte Zamacona, the other private respondent, commenced Special Proceeding
No. 51396 in the Manila Court for the probate of a document alleged to be the last will of the deceased Juan
Uriarte y Goite, and on the same date he filed in Special Proceeding No. 6344 of the Negros Court a motion
to dismiss the same on the following grounds: (1) that, as the deceased Juan Uriarte y Goite had left a last
will, there was no legal basis to proceed with said intestate proceedings, and (2) that petitioner Vicente
Uriarte had no legal personality and interest to initiate said intestate proceedings, he not being an
acknowledged natural son of the decedent. A copy of the Petition for Probate and of the alleged Will were
attached to the Motion to Dismiss.

Petitioner opposed the aforesaid motion to dismiss contending that, as the Negros Court was first to take
cognizance of the settlement of the estate of the deceased Juan Uriarte y Goite, it had acquired exclusive
jurisdiction over same pursuant to Rule 75, Section 1 of the Rules of Court.

On April 19, 1963, the Negros Court sustained Juan Uriarte Zamacona's motion to dismiss and dismissed
the Special Proceeding No. 6344 pending before it. His motion for reconsideration of said order having been
denied on July 27, 1963, petitioner proceeded to file his notice of appeal, appeal bond and record on appeal
for the purpose of appealing from said orders to this court on questions of law. The administrator with the
will annexed appointed by the Manila Court in Special Proceeding No. 51396 objected to the approval of the
record on appeal, and under date of December 7, 1963 the Negros Court issued the following order:

Oppositor prays that the record on appeal filed by the petitioner on July 27, 1963, be
dismissed for having been filed out of time and for being incomplete. In the meantime, before
the said record on appeal was approved by this Court, the petitioner filed a petition for
certiorari before the Supreme Court entitled Vicente Uriarte, Petitioner, vs. Court of First
Instance of Negros Occidental, et al., G.R. No. L-21938, bringing this case squarely before
the Supreme Court on questions of law which is tantamount to petitioner's abandoning his
appeal from this Court.

WHEREFORE, in order to give way to the certiorari, the record on appeal filed by the petitioner
is hereby disapproved.

In view of the above-quoted order, petitioner filed the supplemental petition for mandamus mentioned
heretofore.

On April 15, 1963 Vicente Uriarte filed an Omnibus Motion in Special Proceeding No. 51396 pending in the
Manila Court, asking for leave to intervene therein; for the dismissal of the petition and the annulment of
the proceedings had in said special proceeding. This motion was denied by said court in its order of July 1
of the same year.

It is admitted that, as alleged in the basic petition filed in Special Proceeding No. 6344 of the Negros Court,
Vicente Uriarte filed in the same court, during the lifetime of Juan Uriarte y Goite, Civil Case No. 6142 to
obtain judgment for his compulsory acknowledgment as his natural child. Clearly inferrable from this is that
at the time he filed the action, as well as when he commenced the aforesaid special proceeding, he had not
yet been acknowledged as natural son of Juan Uriarte y Goite. Up to this time, no final judgment to that
effect appears to have been rendered.

The record further discloses that the special proceeding before the Negros Court has not gone farther than
the appointment of a special administrator in the person of the Philippine National Bank who, as stated
heretofore, failed to qualify.

On the other hand, it is not disputed that, after proper proceedings were had in Special Proceeding No.
51396, the Manila Court admitted to probate the document submitted to, it as the last will of Juan Uriarte
y Goite, the petition for probate appearing not to have been contested. It appears further that, as stated
heretofore, the order issued by the Manila Court on July 1, 1963 denied petitioner. Vicente Uriarte's Omnibus
Motion for Intervention, Dismissal of Petition and Annulment of said proceedings.

Likewise, it is not denied that to the motion to dismiss the special proceeding pending before the Negros
Court filed by Higinio Uriarte were attached a copy of the alleged last will of Juan Uriarte y Goite and of the
petition filed with the Manila Court for its probate. It is clear, therefore, that almost from the start of Special
Proceeding No. 6344, the Negros Court and petitioner Vicente Uriarte knew of the existence of the aforesaid
last will and of the proceedings for its probate.

The principal legal questions raised in the petition for certiorari are (a) whether or not the Negros Court
erred in dismissing Special Proceeding No. 6644, on the one hand, and on the other, (b) whether the Manila
Court similarly erred in not dismissing Special Proceeding No. 51396 notwithstanding proof of the prior filing
of Special Proceeding No. 6344 in the Negros Court.

Under the Judiciary Act of 1948 [Section 44, paragraph (e)], Courts of First Instance have original exclusive
jurisdiction over "all matters of probate," that is, over special proceedings for the settlement of the estate
of deceased persons — whether they died testate or intestate. While their jurisdiction over such subject
matter is beyond question, the matter of venue, or the particular Court of First Instance where the special
proceeding should be commenced, is regulated by former Rule 75, Section 1 of the Rules of Court, now
Section 1, Rule 73 of the Revised Rules of Court, which provides that the estate of a decedent inhabitant of
the Philippines at the time of his death, whether a citizen or an alien, shall be in the court of first instance
in the province in which he resided at the time of his death, and if he is an inhabitant of a foreign country,
the court of first instance of any province in which he had estate. Accordingly, when the estate to be settled
is that of a non-resident alien — like the deceased Juan Uriarte y Goite — the Courts of First Instance in
provinces where the deceased left any property have concurrent jurisdiction to take cognizance of the proper
special proceeding for the settlement of his estate. In the case before Us, these Courts of First Instance are
the Negros and the Manila Courts — province and city where the deceased Juan Uriarte y Goite left
considerable properties. From this premise petitioner argues that, as the Negros Court had first taken
cognizance of the special proceeding for the settlement of the estate of said decedent (Special Proceeding
No. 6344), the Manila Court no longer had jurisdiction to take cognizance of Special Proceeding No. 51396
intended to settle the estate of the same decedent in accordance with his alleged will, and that consequently,
the first court erred in dismissing Special Proceeding No. 6344, while the second court similarly erred in not
dismissing Special Proceeding No. 51396.

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

Upon the facts before Us the question arises as to whether Juan Uriarte Zamacona should have filed the
petition for the probate of the last will of Juan Uriarte y Goite with the Negros Court — particularly in Special
Proceeding No. 6344 — or was entitled to commence the corresponding separate proceedings, as he did, in
the Manila Court.

The following considerations and the facts of record would seem to support the view that he should have
submitted said will for probate to the Negros Court, either in a separate special proceeding or in an
appropriate motion for said purpose filed in the already pending Special Proceeding No. 6344. In the first
place, it is not in accord with public policy and the orderly and inexpensive administration of justice to
unnecessarily multiply litigation, especially if several courts would be involved. This, in effect, was the result
of the submission of the will aforesaid to the Manila Court. In the second place, when respondent Higinio
Uriarte filed an opposition to Vicente Uriarte's petition for the issuance of letters of administration, he had
already informed the Negros Court that the deceased Juan Uriarte y Goite had left a will in Spain, of which
a copy had been requested for submission to said court; and when the other respondent, Juan Uriarte
Zamacona, filed his motion to dismiss Special Proceeding No. 6344, he had submitted to the Negros Court
a copy of the alleged will of the decedent, from which fact it may be inferred that, like Higinio Uriarte, he
knew before filing the petition for probate with the Manila Court that there was already a special proceeding
pending in the Negros Court for the settlement of the estate of the same deceased person. As far as Higinio
Uriarte is concerned, it seems quite clear that in his opposition to petitioner's petition in Special Proceeding
No. 6344, he had expressly promised to submit said will for probate to the Negros Court.

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

It is well settled in this jurisdiction that wrong venue is merely a waiveable procedural defect, and, in the
light of the circumstances obtaining in the instant case, we are of the opinion, and so hold, that petitioner
has waived the right to raise such objection or is precluded from doing so by laches. It is enough to consider
in this connection that petitioner knew of the existence of a will executed by Juan Uriarte y Goite since
December 19, 1961 when Higinio Uriarte filed his opposition to the initial petition filed in Special Proceeding
No. 6344; that petitioner likewise was served with notice of the existence (presence) of the alleged last will
in the Philippines and of the filing of the petition for its probate with the Manila Court since August 28, 1962
when Juan Uriarte Zamacona filed a motion for the dismissal of Special Proceeding No. 6344. All these
notwithstanding, it was only on April 15, 1963 that he filed with the Manila Court in Special Proceeding No.
51396 an Omnibus motion asking for leave to intervene and for the dismissal and annulment of all the
proceedings had therein up to that date; thus enabling the Manila Court not only to appoint an administrator
with the will annexed but also to admit said will to probate more than five months earlier, or more
specifically, on October 31, 1962. To allow him now to assail the exercise of jurisdiction over the probate of
the will by the Manila Court and the validity of all the proceedings had in Special Proceeding No. 51396
would put a premium on his negligence. Moreover, it must be remembered that this Court is not inclined to
annul proceedings regularly had in a lower court even if the latter was not the proper venue therefor, if the
net result would be to have the same proceedings repeated in some other court of similar jurisdiction; more
so in a case like the present where the objection against said proceedings is raised too late.

In his order of April 19, 1963 dismissing Special Proceeding No. 6344, Judge Fernandez of the Negros Court
said that he was "not inclined to sustain the contention of the petitioner that inasmuch as the herein
petitioner has instituted Civil Case No. 6142 for compulsory acknowledgment by the decedent such action
justifies the institution by him of this proceedings. If the petitioner is to be consistent with the authorities
cited by him in support of his contention, the proper thing for him to do would be to intervene in the testate
estate proceedings entitled Special Proceedings No. 51396 in the Court of First Instance of Manila instead
of maintaining an independent action, for indeed his supposed interest in the estate of the decedent is of
his doubtful character pending the final decision of the action for compulsory acknowledgment."

We believe in connection with the above matter that petitioner is entitled to prosecute Civil Case No. 6142
until it is finally determined, or intervene in Special Proceeding No. 51396 of the Manila Court, if it is still
open, or to ask for its reopening if it has already been closed, so as to be able to submit for determination
the question of his acknowledgment as natural child of the deceased testator, said court having, in its
capacity as a probate court, jurisdiction to declare who are the heirs of the deceased testator and whether
or not a particular party is or should be declared his acknowledged natural child (II Moran on Rules of Court,
1957 Ed., p. 476; Conde vs. Abaya, 13 Phil. 249; Severino vs. Severino, 44 Phil. 343; Lopez vs. Lopez, 68
Phil. 227, and Jimoga-on vs. Belmonte, 47 O. G. 1119).

Coming now to the supplemental petition for mandamus (G.R. No. L-21939), We are of the opinion, and so
hold, that in view of the conclusions heretofore stated, the same has become moot and academic. If the
said supplemental petition is successful, it will only result in compelling the Negros Court to give due course
to the appeal that petitioner was taking from the orders of said court dated December 7, 1963 and February
26, 1964, the first being the order of said court dismissing Special Proceeding No. 6344, and the second
being an order denying petitioner's motion for the reconsideration of said order of dismissal. Said orders
being, as a result of what has been said heretofore beyond petitioner's power to contest, the conclusion can
not be other than that the intended appeal would serve no useful purpose, or, worse still, would enable
petitioner to circumvent our ruling that he can no longer question the validity of said orders.

IN VIEW OF THE FOREGOING CONSIDERATIONS, judgment is hereby rendered denying the writs prayed for
and, as a result, the petition for certiorari filed in G.R. No. L-21938, as well as the supplemental petition
for mandamus docketed as G.R. No. L-21939, are hereby dismissed. The writ of preliminary injunction
heretofore issued is set aside. With costs against petitioner.
G.R. No. L-3039 December 29, 1949

VICTORIA REYNOSO and JUAN REYNOSO, petitioners,

vs.
VICENTE SANTIAGO, Judge of the Court of First Instance of Quezon, PIA REYNOSO, AGUSTINA
REYNOSO, MELITON PALABRICA, LEONCIO CADIZ, ET AL., respondents.

Laurel, Sabido, Almario, and Laurel for petitioners.

Ed. Espinosa Antona for respondents.

TUASON, J.:

Victorio Reynoso and Juan Reynoso apply for a writ of mandamus to compel Judge Vicente Santiago of the
Court of the First Instance of Quezon to order the opening of a testate estate of the deceased Salvadora
Obispo in the place of special intestate proceeding No. 2914, and to appoint Victorio Reynoso as executor
of the decedent's last will and testament.

Briefly, the facts are as follows: On April 29, 1947, Leoncio Cadiz and other heirs of Salvadora Obispo
presented an application in the Court of the First Instance of Quezon for the administration of the property
of the deceased, application which was docketed as intestate proceeding No. 2914. Victorio Reynoso and
Juan Reynoso, Salvadora Obispo's surviving spouse and eldest son respectively, opposed the application
and filed a document, which purported to be the last will and testament of Salvadora Obispo, with a counter
petition for its probate. Upon trial the court rejected that instrument as a forgery, but on the appeal the
Court of Appeals reversed the finding of the court below, found the will authentic and drawn with all the
formalities of Law. The dispository part of the decision of the Appellate Court, promulgated November 27,
1948, read as follows:

Se revoca la sentencia de que se apela, y reuniendo el exhibito A los requisitos exigidos por la ley,
se ordena, (a) la legalizacion de dich documento como testamento y ultima voluntad de la finada
Salvadora Obispo, para que surta todos sus efectos legales; (b) la apertura de la testamentaria de
dicha finada; y (c) el nombramiento de un albacea de la misma testamentaria de conformidad con
el precepto del articulo 6, de la Regla 70 de los Reglamentos de los Tribunales.

Thereafter Victorio Reynoso And Juan Reynoso filed two petitions, one in special proceeding No. 2914 and
another under a separate and new docket number (3107) and with a different title (Testate Estate of the
deceased Salvadora Obispo ). The first prayed that the special administrator, Meliton Palabrica, who had
theretofore been appointed in special proceeding No. 2914, be ordered to turn over the properties of the
deceased and the proceeds of coprax, nuts and other agricultural products to Victorio Reynoso, and to render
an accounting within a reasonable time, It also asked for the closing of the intestate proceeding. The other
petition prayed that the estate be administered and settled in special proceeding No. 3107 and that Victorio
Reynoso be appointed executor of Salvadora Obispo's last will and testament. It also contained a prayer for
an accounting by Palabrica and delivery by him to the new executor of the properties that came into
possession including the proceeds from the sales of coprax, nuts, etc.

The two petitions were decided separately by Judge Santiago on April 20,1949. With respect to the opening
of another expediente, His Honor believed that the proposed change or substitution was " not only
unnecessary but inconvenient and expensive." An intestate proceeding like special proceeding like special
proceeding No. 2914, he said, could and should and should be converted into a testate proceeding in the
same original expediente without the necessity of changing its number, name or title.

The petition has no merit. Whether the intestate proceeding already commenced should be discontinued
and a new proceeding under a separate number and title should be constituted is entirely a matter of form
and lies within the sound discretion of the court. In no manner does it prejudice the substantial rights of
any heirs or creditors. Amor propio is perhaps the only thing is at stake on this phase of the
controversy.lawphi1.net

As to the appointment of the deceased's husband as executor or administrator the court said that action on
the petition should be withheld for the time being, because of the pendency on appeal of a case in which
the special administrator in special proceeding No. 2914 is plaintiff and appellee and Victorio Reynoso
defendant and appellant. It involves the question whether an extensive parcel of coconut land is conjugal
property or the exclusive property of the husband.

On this feature of the second petition we disagree with the respondent judge. If one other than the surviving
spouse is appointed, which is possible, the feared conflict will not materialize. If Victorio Reynoso is chosen,
a special administrator may be named to represent the estate in the suit against him. Section 8 of Rule 87
provides that "If the executor or administrator has a claim against the estate he represents, he shall give
notice thereof, in writing, to the court, and the court shall appoint a special administrator who shall, in the
adjustment of such claim, have the same power and be subject to the same liability as the general
administrator or executor in the settlement of the claims." The situation in which Victorio Reynoso is found
with reference to the land within the spirit if not exactly within the letter of this provision.
Subject to this observation, an administrator should be appointed without delay in accordance with the final
decision of the Court of Appeals. The appointment of a special administrator is justified only when there is
delay in granting letters testamentary or of administration occasioned by an appeal from the allowance or
disallowance of a will or some other cause. The Court of Appeals having decreed the probate of the will and
the appointment of an albacea, there is no valid reason for the further retention of a special administrator.
The appointment of a regular administrator is necessary for the prompt settlement and distribution of the
estate. There are important duties devolving on a regular administrator which a special administrator can
not perform, and there are many actions to be taken by the court which could not be accomplished before
a regular administrator is appointed.

But whether or not Victorio Reynoso should be appointed as administrator we do not and cannot of course
decide in a petition for mandamus. While the surviving spouse is entitled to preference in the appointment
(section 6, Rule 79), circumstances might warrant his rejection and the appointment of someone
else. Mandamus lies where the duty is specific and ministerial. It does not lie where judgment or discretion
is exercised in the performance of the act. Applying the rule to this case, it is proper to command the court
below to appoint a regular administrator, but it is not proper to tell it whom to appoint.

The petition for the constitution of a separate proceeding for the administration of the estate under the will
is denied. The petition for the appointment of a regular administrator is granted subject to the provision of
section 6 Rule 79 in the selection of the person to be appointed. Without costs.
G.R. No. L-55509 April 27, 1984

ETHEL GRIMM ROBERTS, petitioner,

vs.
JUDGE TOMAS R. LEONIDAS, Branch 38, Court of First Instance of Manila; MAXINE TATE-
GRIMM, EDWARD MILLER GRIMM II and LINDA GRIMM, respondents.

N. J. Quisumbing and Associates for petitioners.

Angara, Abello, Concepcion, Regala and Cruz for respondents.

AQUINO, J.:ñé+.£ªwph!1

The question in this case is whether a petition for allowance of wills and to annul a partition, approved in
an intestateproceeding by Branch 20 of the Manila Court of First Instance, can be entertained by its Branch
38 (after a probate in the Utah district court).

Antecedents. — Edward M. Grimm an American resident of Manila, died at 78 in the Makati Medical Center
on November 27, 1977. He was survived by his second wife, Maxine Tate Grimm and their two children,
named Edward Miller Grimm II (Pete) and Linda Grimm and by Juanita Grimm Morris and Ethel Grimm
Roberts (McFadden), his two children by a first marriage which ended in divorce (Sub-Annexes A and B. pp.
36-47, Rollo).

He executed on January 23, 1959 two wills in San Francisco, California. One will disposed of his Philippine
estate which he described as conjugal property of himself and his second wife. The second win disposed of
his estate outside the Philippines.

In both wills, the second wife and two children were favored. The two children of the first marriage were
given their legitimes in the will disposing of the estate situated in this country. In the will dealing with his
property outside this country, the testator said: têñ.£îhqwâ£

I purposely have made no provision in this will for my daughter, Juanita Grimm Morris, or my
daughter, Elsa Grimm McFadden (Ethel Grimm Roberts), because I have provided for each of
them in a separate will disposing of my Philippine property. (First clause, pp. 43-47, Rollo).

The two wills and a codicil were presented for probate by Maxine Tate Grimm and E. LaVar Tate on March
7, 1978 in Probate No. 3720 of the Third Judicial District Court of Tooele County, Utah. Juanita Grimm Morris
of Cupertino, California and Mrs. Roberts of 15 C. Benitez Street, Horseshoe Village, Quezon City were
notified of the probate proceeding (Sub-Annex C, pp. 48-55, Rollo).

Maxine admitted that she received notice of the intestate petition filed in Manila by Ethel in January, 1978
(p. 53, Rollo). In its order dated April 10, 1978, the Third Judicial District Court admitted to probate the two
wills and the codicil It was issued upon consideration of the stipulation dated April 4, 1978 "by and between
the attorneys for Maxine Tate Grimm, Linda Grimm, Edward Miller Grimm II, E. LaVar Tate, Juanita Kegley
Grimm (first wife), Juanita Grimm Morris and Ethel Grimm Roberts" (Annex C, pp. 48-51, Rollo).

Two weeks later, or on April 25, 1978, Maxine and her two children Linda and Pete, as the first parties, and
Ethel, Juanita Grimm Morris and their mother Juanita Kegley Grimm as the second parties, with knowledge
of the intestate proceeding in Manila, entered into a compromise agreement in Utah regarding the estate.
It was signed by David E. Salisbury and Donald B. Holbrook, as lawyers of the parties, by Pete and Linda
and the attorney-in-fact of Maxine and by the attorney-in-fact of Ethel, Juanita Grimm Morris and Juanita
Kegley Grimm.

In that agreement, it was stipulated that Maxine, Pete and Ethel would be designated as personal
representatives (administrators) of Grimm's Philippine estate (par. 2). It was also stipulated that Maxine's
one-half conjugal share in the estate should be reserved for her and that would not be less than $1,500,000
plus the homes in Utah and Santa Mesa, Manila (par. 4). The agreement indicated the computation of the
"net distributable estate". It recognized that the estate was liable to pay the fees of the Angara law firm
(par. 5).

It was stipulated in paragraph 6 that the decedent's four children "shall share equally in the Net Distributable
Estate" and that Ethel and Juanita Morris should each receive at least 12-1/2% of the total of the net
distributable estate and marital share. A supplemental memorandum also dated April 25, 1978 was executed
by the parties (Sub-Annex F, pp. 49-61, Annex, F-1, pp. 75-76, Testate case).

Intestate proceeding No. 113024.-At this juncture, it should be stated that forty- three days after Grimm's
death, or January 9, 1978, his daughter of the first marriage, Ethel, 49, through lawyers Deogracias T.
Reyes and. Gerardo B. Macaraeg, filed with Branch 20 of the Manila Court of First Instance intestate
proceeding No. 113024 for the settlement of his estate. She was named special administratrix.
On March 11, the second wife, Maxine, through the Angara law office, filed an opposition and motion to
dismiss the intestate proceeding on the ground of the pendency of Utah of a proceeding for the probate of
Grimm's will. She also moved that she be appointed special administratrix, She submitted to the court a
copy of Grimm's will disposing of his Philippine estate. It is found in pages 58 to 64 of the record.

The intestate court in its orders of May 23 and June 2 noted that Maxine, through a new lawyer, William C.
Limqueco (partner of Gerardo B. Macaraeg, p. 78, testate case withdrew that opposition and motion to
dismiss and, at the behest of Maxine, Ethel and Pete, appointed them joint administrators. Apparently, this
was done pursuant to the aforementioned Utah compromise agreement. The court ignored the will already
found in the record.

The three administrators submitted an inventory. With the authority and approval of the court, they sold for
P75,000 on March 21, 1979 the so-called Palawan Pearl Project, a business owned by the deceased. Linda
and Juanita allegedly conformed with the sale (pp. 120-129, Record). It turned out that the buyer, Makiling
Management Co., Inc., was incorporated by Ethel and her husband, Rex Roberts, and by lawyer Limqueco
(Annex L, p. 90, testate case).

Also with the court's approval and the consent of Linda and Juanita, they sold for P1,546,136 to Joseph
Server and others 193,267 shares of RFM Corporation (p. 135, Record).

Acting on the declaration of heirs and project of partition signed and filed by lawyers Limqueco and Macaraeg
(not signed by Maxine and her two children), Judge Conrado M. Molina in his order of July 27, 1979
adjudicated to Maxine onehalf (4/8) of the decedent's Philippine estate and one-eighth (1/8) each to his
four children or 12-1/2% (pp. 140-142, Record). No mention at all was made of the will in that order.

Six days later, or on August 2, Maxine and her two children replaced Limqueco with Octavio del Callar as
their lawyer who on August 9, moved to defer approval of the project of partition. The court considered the
motion moot considering that it had already approved the declaration of heirs and project of partition (p.
149, Record).

Lawyer Limqueco in a letter to Maxine dated August 2, 1979 alleged that he was no longer connected with
Makiling Management Co., Inc. when the Palawan Pearl Project was sold: that it was Maxine's son Pete who
negotiated the sale with Rex Roberts and that he (Limqueco) was going to sue Maxine for the lies she
imputed to him (Annex H, p. 78, testate case).

Ethel submitted to the court a certification of the Assistant Commissioner of Internal Revenue dated October
2, 1979. It was stated therein that Maxine paid P1,992,233.69 as estate tax and penalties and that he
interposed no objection to the transfer of the estate to Grimm's heirs (p. 153, Record). The court noted the
certification as in conformity with its order of July 27, 1979.

After November, 1979 or for a period of more than five months, there was no movement or activity in the
intestate case. On April 18, 1980 Juanita Grimm Morris, through Ethel's lawyers, filed a motion for
accounting "so that the Estate properties can be partitioned among the heirs and the present intestate
estate be closed." Del Callar, Maxine's lawyer was notified of that motion.

Before that motion could be heard, or on June 10, 1980, the Angara law firm filed again its appearance in
collaboration with Del Callar as counsel for Maxine and her two children, Linda and Pete. It should be recalled
that the firm had previously appeared in the case as Maxine's counsel on March 11, 1978, when it filed a
motion to dismiss the intestate proceeding and furnished the court with a copy of Grimm's will. As already
noted, the firm was then superseded by lawyer Limqueco.

Petition to annul partition and testate proceeding No. 134559. — On September 8, 1980, Rogelio A. Vinluan
of the Angara law firm in behalf of Maxine, Pete and Linda, filed in Branch 38 of the lower court a petition
praying for the probate of Grimm's two wills (already probated in Utah), that the 1979 partition approved
by the intestate court be set aside and the letters of administration revoked, that Maxine be appointed
executrix and that Ethel and Juanita Morris be ordered to account for the properties received by them and
to return the same to Maxine (pp. 25-35, Rollo).

Grimm's second wife and two children alleged that they were defraud due to the machinations of the Roberts
spouses, that the 1978 Utah compromise agreement was illegal, that the intestate proceeding is void
because Grimm died testate and that the partition was contrary to the decedent's wills.

Ethel filed a motion to dismiss the petition. Judge Leonidas denied it for lack of merit in his order of October
27, 1980. Ethel then filed a petition for certiorari and prohibition in this Court, praying that the testate
proceeding be dismissed, or. alternatively that the two proceedings be consolidated and heard in Branch
20 and that the matter of the annulment of the Utah compromise agreement be heard prior to the petition
for probate (pp. 22-23, Rollo).

Ruling. — We hold that respondent judge did not commit any grave abuse of discretion, amounting to lack
of jurisdiction, in denying Ethel's motion to dismiss.
A testate proceeding is proper in this case because Grimm died with two wills and "no will shall pass either
real or personal property unless it is proved and allowed" (Art. 838, Civil Code; sec. 1, Rule 75, Rules of
Court).

The probate of the will is mandatory (Guevara vs. Guevara, 74 Phil. 479 and 98 Phil. 249; Baluyot vs. Panio,
L-42088, May 7, 1976, 71 SCRA 86). It is anomalous that the estate of a person who died testate should
be settled in an intestate proceeding. Therefore, the intestate case should be consolidated with the testate
proceeding and the judge assigned to the testate proceeding should continue hearing the two cases.

Ethel may file within twenty days from notice of the finality of this judgment an opposition and answer to
the petition unless she considers her motion to dismiss and other pleadings sufficient for the purpose. Juanita
G. Morris, who appeared in the intestate case, should be served with copies of orders, notices and other
papers in the testate case.

WHEREFORE the petition is dismissed. The temporary restraining order is dissolved. No costs. SO ORDERED.
 [G.R. No. L-9282. May 31, 1956.]
EMILIO ADVINCULA, Petitioner, vs. HONORABLE JUDGE JOSE TEODORO, SR., Judge of the Court
of First Instance of Negros Occidental, and ENRIQUE A. LACSON, Respondents.

DECISION
CONCEPCION, J.:
Petitioner Emilio Advincula seeks a writ of certiorari, to annul certain orders of the Court of First Instance of
Negros Occidental.
Said Petitioner was, on November 22, 1954, appointed, special administrator of the estate of his deceased
wife, Josefa Lacson Advincula, in special proceeding No. 3245 of said court. In due course, he was, on
February 12, 1955, appointed regular administrator of said estate. After Advincula had qualified as such,
the brothers of the deceased, who left no issue, submitted to the court, for allowance, a document purporting
to be her last will and testament. Petitioner opposed the probate thereof upon the ground that it did not
bear the signature of the deceased; that the signature thereon, if hers, was secured through fraud and
duress; and that, the instrument had not been executed with the requisite formalities. On May 4,
1955, Respondent Enrique Lacson, one of the brothers of the deceased, filed a motion praying that he be
appointed administrator of said estate, in lieu of Petitioner herein, for the reason that said Respondent is
the executor named in the aforementioned alleged will. On or about May 16, 1955, Attys. Jose Y. Torres
and Antonio Lozada, as counsel for Advincula, filed an opposition to said motion. When the latter was called
for hearing on May 18, 1955, Atty. Lozada was served, in open court, copy of an amended motion,
of Respondent Lacson, for change of administrator, dated May 14, 1955. It was alleged therein, in addition
to the ground set forth in the first motion:
“5. That the present administrator is incompetent, incapable and unsuitable to the discharge of the trust,
he being foreign to the estate, and without changing or removing him as such would be disastrous to the
estate and to the heirs named in the will of the decedent.”
Atty. Lozada asked a postponement of the hearing upon the ground that Advincula’s main counsel, Atty.
Torres, was in Manila, but his request was denied. Then, after hearing the argument of opposing counsel,
the court, presided over by Respondent, Honorable Jose Teodoro, Sr., Judge, issued, on the same date (May
18, 1955), an order the pertinent parts of which read:
“The Court, after hearing the oral arguments of both parties, finds the motion for postponement not well-
taken and hereby denies the same; and finding the motion dated May 4, 1955 as amended by the amended
motion dated May 14, 1955, well-founded and the opposition thereto dated May 16, 1955 not well-founded,
said motion is hereby granted.
“WHEREFORE, in the interest of justice and for the preservation of the property for the heirs, the
appointment of Emilio Advincula as administrator is hereby revoked and in his stead, the Oppositor, Enrique
A. Lacson, is hereby appointed administrator of this intestate estate, and same may qualify by filing a bond
in the sum of P5,000 and taking and subscribing the corresponding oath of Office. Once said Enrique A.
Lacson has qualified, let letters of administration issue in his favor.
“The former administrator, Emilio Advincula, is hereby ordered to submit within ten (10) days from receipt
hereof, his final account covering the entire period of his administration and should it appear that any
deficiency has been incurred by him during his incumbency, his bond shall answer for said deficiency.”
Thereupon, Lacson gave the requisite bond, letters of administration was issued to him, and he tried to take
possession of the estate of the deceased. A reconsideration of said order of May 18, 1955, having been
denied by another order, dated May 30, 1955, Petitioner instituted the present action for certiorari, against
Lacson and Judge Teodoro, to annul his aforesaid orders of May 18 and 30, 1955, upon the ground that the
same were issued with grave abuse of discretion. Upon the filing of a bond by Advincula, we issued, as
prayed for in his petition, a writ of preliminary injunction restraining Respondent Lacson and his agents from
interfering, molesting and harassing the Petitioner in the administration of the estate of the deceased,
during the pendency of this case.
The writ of certiorari prayed for is in order. Lacson’s appointment, in lieu of Advincula, as administrator of
the estate of Josefa Lacson Advincula, is predicated upon the fact that the former is named executor in the
alleged will of said deceased. The provision therein to this effect cannot be enforced, however, until after
said document has been allowed to probate, for section 4 of Rule 79 of the Rules of Court provides:
“When a will has been proved and allowed, the court shall issue letters testamentary thereon to the person
named as executor therein, if he is competent, accepts the trusts, and gives bond as required by these
rules.” (Italics supplied.)
Besides, the discovery of a document purporting to be the last will and testament of a deceased, after the
appointment of an administrator of the estate of the latter, upon the assumption that he or she had died
intestate, does not ipso facto nullify the letters of administration already issued or even authorize the
revocation thereof, until the alleged will has been “proved and allowed by the court.” Rule 83, section 1, of
the Rules of Court, is plain and explicit on this point.
“If after letters of administration have been granted on the estate of a decedent as if he had died intestate,
his will is proved and allowed by the court, the letters of administration shall be revoked and all powers
thereunder cease, and the administrator shall forthwith surrender the letters to the court, end render his
account within such time as the court directs. Proceedings for the issuance of letters testamentary or of
administration under the will shall be as hereinbefore provided.” (Italics supplied.)
The amended motion for change of administrator endeavored to justify the removal of Advincula by alleging
that he is “incompetent, incapable and unsuitable to the discharge of the trust, he being foreign to the
estate” of the deceased. By holding, in its order of May 18, 1955, that said motion is “well-founded” — with
nothing, absolutely nothing else, to indicate the basis of this conclusion — Respondent Judge has impliedly
adopted the line of argument followed in the above quoted allegation of the amended motion to change
administrator. Said argument is, however, devoid of merit.
It is untenable from the viewpoint of logic and experience, because a stranger to deceased may be
competent, capable and fit to administer her estate, in much the same as a member of her immediate family
could be incompetent, incapable and unfit to do so. At any rate, Advincula is not a stranger, either to her or
to her estate, he bring her surviving spouse and, as such, one of her forced heirs (Arts. 887, 888, 892, 893,
894, 897 to 900, and 995 to 1001, Civil Code of the Philippines), whether she died testate or intestate.
What is more, he is prima facie entitled to one-half of all property subject to the authority of the
administrator of said estate, apart from his share of the other half thereof, as heir of the deceased, for “all
property of the marriage is presumed to belong to the conjugal partnership” — of which he is its
administrator (Article 165, Civil Code of the Philippines) — “unless it be proved that it pertains exclusively
to the husband or to the wife” (See Articles 160 and 185, Civil Code of the Philippines). Lastly, Advincula
has not been found guilty of any specific act or omission constituting one of the legal grounds, enumerated
in Rule 83, section 2, of the Rules of Court, for the removal of an executor or administrator. Hence, it is
clear that Respondent Judge exceeded his jurisdiction in removing Advincula and appointing Lacson as
administrator of the estate of the deceased Josefa Lacson Advincula.
Wherefore, the aforementioned orders of Respondent Judge, dated May 8 and 30, 1955, are reversed, and
the writ of preliminary injunction issued in this case hereby made permanent, with costs
against Respondent Enrique A. Lacson. It is SO ORDERED.
ANICETO G. SALUDO, JR., G.R. No. 159507

Petitioner,

- versus –

AMERICAN EXPRESS INTERNATIONAL, INC.,

and/or IAN T. FISH and Promulgated:

DOMINIC MASCRINAS,

Respondents. April 19, 2006

x-----------------------------------------------------------------------------------------x

DECISION

CALLEJO, SR., J.:

Before the Court is the Petition for Review on Certiorari filed by Aniceto G. Saludo, Jr. seeking to reverse

and set aside the Decision[1] dated May 22, 2003 of the Court of Appeals in CA-G.R. SP No. 69553.The

assailed decision directed the Regional Trial Court (RTC) of Maasin City, Southern Leyte, Branch 25 thereof,

to vacate and set aside its Orders dated September 10, 2001 and January 2, 2002 in Civil Case No. R-3172,

and enjoined the presiding judge[2] thereof from conducting further proceedings in said case, except to

dismiss the complaint filed therewith on ground of improper venue. The petition also seeks to reverse and

set aside the appellate courts Resolution dated August 14, 2003 denying the motion for reconsideration of

the assailed decision.

The factual and procedural antecedents are as follows:

Aniceto G. Saludo, Jr. filed a complaint for damages against the American Express International, Inc. (AMEX)

and/or its officers Ian T. Fish, Vice-President and Country Manager, and Dominic Mascrinas, Head of

Operations, with the RTC of Maasin City, Southern Leyte. The case was raffled to Branch 25 of the said

court.

The complaint alleged, inter alia, that plaintiff (herein petitioner Saludo) is a Filipino citizen, of legal age,

and a member of the House of Representatives and a resident of Ichon, Macrohon, Southern Leyte,

Philippines. On the other hand, defendant (herein respondent AMEX, Inc.) is a corporation doing business

in the Philippines and engaged in providing credit and other credit facilities and allied services with office

address at 4th floor, ACE Building, Rada Street, Legaspi Village, Makati City. The other defendants (herein

respondents Fish and Mascrinas) are officers of respondent AMEX, and may be served with summons and

other court processes at their office address.

The complaints cause of action stemmed from the alleged wrongful dishonor of petitioner Saludos AMEX

credit card and the supplementary card issued to his daughter. The first dishonor happened when petitioner

Saludos daughter used her supplementary credit card to pay her purchases in the United States some time

in April 2000. The second dishonor occurred when petitioner Saludo used his principal credit card to pay his
account at the Hotel Okawa in Tokyo, Japan while he was there with other delegates from the Philippines to

attend the Congressional Recognition in honor of Mr. Hiroshi Tanaka.

The dishonor of these AMEX credit cards were allegedly unjustified as they resulted from respondents

unilateral act of suspending petitioner Saludos account for his failure to pay its balance covering the period

of March 2000. Petitioner Saludo denied having received the corresponding statement of account. Further,

he was allegedly wrongfully charged for late payment in June 2000. Subsequently, his credit card and its

supplementary cards were canceled by respondents on July 20, 2000.

Petitioner Saludo claimed that he suffered great inconvenience, wounded feelings, mental anguish,

embarrassment, humiliation and besmirched political and professional standing as a result of respondents

acts which were committed in gross and evident bad faith, and in wanton, reckless and oppressive

manner. He thus prayed that respondents be adjudged to pay him, jointly and severally, actual, moral and

exemplary damages, and attorneys fees.

In their answer, respondents specifically denied the allegations in the complaint. Further, they raised the

affirmative defenses of lack of cause of action and improper venue. On the latter, respondents averred that

the complaint should be dismissed on the ground that venue was improperly laid because none of the parties

was a resident of Leyte. They alleged that respondents were not residents of Southern Leyte.Moreover,

notwithstanding the claim in his complaint, petitioner Saludo was not allegedly a resident thereof as

evidenced by the fact that his community tax certificate, which was presented when he executed the

complaints verification and certification of non-forum shopping, was issued at Pasay City. To buttress their

contention, respondents pointed out that petitioner Saludos complaint was prepared in Pasay Cityand signed

by a lawyer of the said city. Respondents prayed for the dismissal of the complaint a quo.

Thereafter, respondents filed an Opposition to Ex-Parte Motion (to Set Case for Pre-Trial) and Motion for

Preliminary Hearing (on Affirmative Defense of Improper Venue) to which petitioner Saludo filed his

Comments and/or Objections to the Affirmative Defense of Improper Venue. He asserted that any allegation

refuting his residency in Southern Leyte was baseless and unfounded considering that he was the

congressman of the lone district thereof at the time of the filing of his complaint. He urged the court a quo to

take judicial notice of this particular fact. As a member of Congress, he possessed all the qualifications

prescribed by the Constitution including that of being a resident of his district. He was also a member of the

Integrated Bar of the Philippines-Southern Leyte Chapter, and has been such ever since his admission to

the Bar. His community tax certificate was issued at Pasay City only because he has an office thereat and

the office messenger obtained the same in the said city. In any event, the community tax certificate is not

determinative of ones residence.

In the Order dated September 10, 2001, the court a quo denied the affirmative defenses interposed by

respondents. It found the allegations of the complaint sufficient to constitute a cause of action against

respondents. The court a quo likewise denied respondents affirmative defense that venue was improperly

laid. It reasoned, thus:

 x x x [T]he fact alone that the plaintiff at the time he filed the complaint was and still is, the
incumbent Congressman of the Lone District of Southern Leyte with residence at Ichon,
Macrohon, Southern Leyte, is enough to dispell any and all doubts about his actual
residence. As a high-ranking government official of the province, his residence there can be
taken judicial notice of. As such his personal, actual and physical habitation or his actual
residence or place of abode can never be in some other place but in Ichon,
Macrohon, Southern Leyte. It is correctly stated by the plaintiff, citing the case of Core v.
Core, 100 Phil. 321 that, residence, for purposes of fixing venue of an action, is synonymous
with domicile. This is defined as the permanent home, the place to which, whenever absent
for business or pleasure, one intends to return, and depends on the facts and circumstances,
in the sense that they disclose intent. A person can have but one domicile at a time. A man
can have but one domicile for one and the same purpose at any time, but he may have
numerous places of residence. Venue could be at place of his residence. (Masa v. Mison, 200
SCRA 715 [1991])[3]

Respondents sought the reconsideration thereof but the court a quo denied the same in the Order

dated January 2, 2002. They then filed with the appellate court a petition for certiorari and prohibition

alleging grave abuse of discretion on the part of the presiding judge of the court a quo in

issuing the September 10, 2001 and January 2, 2002 Orders. Upon respondents posting of a bond, the

appellate court issued on March 14, 2002 a temporary restraining order which enjoined the presiding judge

of the court a quo from conducting further proceedings in Civil Case No. R-3172.

On May 22, 2003, the appellate court rendered the assailed decision granting respondents petition

for certiorari as it found that venue was improperly laid. It directed the court a quo to vacate and set aside

its Orders dated September 10, 2001 and January 2, 2002, and enjoined the presiding judge thereof from

further proceeding in the case, except to dismiss the complaint.

The appellate court explained that the action filed by petitioner Saludo against respondents is governed by

Section 2, Rule 4 of the Rules of Court. The said rule on venue of personal actions basically provides that

personal actions may be commenced and tried where plaintiff or any of the principal plaintiffs resides, or

where defendant or any of the principal defendants resides, at the election of plaintiff.

Venue was improperly laid in the court a quo, according to the appellate court, because not one of the

parties was a resident of Southern Leyte. Specifically, it declared that petitioner Saludo was not a resident

thereof. The appellate court pronounced that, for purposes of venue, the residence of a person is his

personal, actual or physical habitation, or his actual residence or place of abode, which may not necessarily

be his legal residence or domicile provided he resides therein with continuity and consistency. [4]

The appellate court quoted the following discussion in Koh v. Court of Appeals[5] where the Court

distinguished the terms residence and domicile in this wise:

x x x [T]he term domicile is not exactly synonymous in legal contemplation with the
term residence, for it is [an] established principle in Conflict of Laws that domicile refers to
the relatively more permanent abode of a person while residence applies to a temporary stay
of a person in a given place. In fact, this distinction is very well emphasized in those cases
where the Domiciliary Theory must necessarily supplant the Nationality Theory in cases
involving stateless persons.

xxxx

There is a difference between domicile and residence. Residence is used to indicate a

place of abode, whether permanent or temporary; domicile denotes a fixed permanent
residence to which when absent, one has the intention of returning. A man may have a
 residence in one place and a domicile in another. Residence is not domicile, but domicile is
residence coupled with intention to remain for an unlimited time. A man can have but one
domicile for one and the same purpose at any time, but he may have numerous places of
residence. His place of residence generally is his place of domicile, but is not by any means,
necessarily so since no length of residence without intention of remaining will constitute
domicile.[6] (Italicized for emphasis)

In holding that petitioner Saludo is not a resident of Maasin City, Southern Leyte, the appellate court

referred to his community tax certificate, as indicated in his complaints verification and certification of non-

forum shopping, which was issued at Pasay City. Similarly, it referred to the same community tax certificate,

as indicated in his complaint for deportation filed against respondents Fish and Mascrinas.Under Republic

Act No. 7160,[7] the community tax certificate shall be paid in the place of residence of the individual, or in

the place where the principal office of the juridical entity is located.[8] It also pointed out that petitioner

Saludos law office, which was also representing him in the present case, is in Pasay City. The foregoing

circumstances were considered by the appellate court as judicial admissions of petitioner Saludo which are

conclusive upon him and no longer required proof.

The appellate court chided the court a quo for stating that as incumbent congressman of the lone

district of Southern Leyte, judicial notice could be taken of the fact of petitioner Saludos residence

thereat. No evidence had yet been adduced that petitioner Saludo was then the congressman of Southern

Leyte and actual resident of Ichon, Macrohon of the said province.

The appellate court held that, based on his complaint, petitioner Saludo was actually residing

in Pasay City. It faulted him for filing his complaint with the court a quo when the said venue is inconvenient

to the parties to the case. It opined that under the rules, the possible choices of venue

are Pasay City or Makati City, or any place in the National Capital Judicial Region, at the option of petitioner

Saludo.

It stressed that while the choice of venue is given to plaintiff, said choice is not left to his caprice

and cannot deprive a defendant of the rights conferred upon him by the Rules of Court. [9] Further,

fundamental in the law governing venue of actions that the situs for bringing real and personal civil actions

is fixed by the rules to attain the greatest possible convenience to the party litigants by taking into

consideration the maximum accessibility to them i.e., to both plaintiff and defendant, not only to one or the

other of the courts of justice.[10]

The appellate court concluded that the court a quo should have given due course to respondents

affirmative defense of improper venue in order to avoid any suspicion that petitioner Saludos motive in filing

his complaint with the court a quo was only to vex and unduly inconvenience respondents or even to wield

influence in the outcome of the case, petitioner Saludo being a powerful and influential figure in the said

province. The latter circumstance could be regarded as a specie of forum shopping akin to that in Investors

Finance Corp. v. Ebarle[11] where the Court mentioned that the filing of the civil action before the court

in Pagadian City was a specie of forum shopping considering that plaintiff therein was an influential person

in the locality.
 The decretal portion of the assailed Decision dated May 22, 2003 of the appellate court reads:

UPON THE VIEW WE TAKE OF THIS CASE, THUS, the challenged orders must be, as they
hereby are, VACATED and SET ASIDE and the respondent judge, or any one acting in his place
or stead, is instructed and enjoined to desist from further proceeding in the case, except to
dismiss it. The temporary restraining order earlier issued is hereby converted into a writ of
preliminary injunction, upon the posting this time by petitioners [herein respondents], within
five (5) days from receipt of this decision, of a bond in the amount of Five Million Pesos
(P5,000,000.00), to answer for all damages that private respondent [herein petitioner] may
sustain by reason of the issuance of such injunction should the Court finally decide that
petitioners are not entitled thereto. Private respondent, if he so minded, may refile his case
for damages before the Regional Trial Court of Makati City or Pasay City, or any of the Regional
Trial Courts of the National Capital Judicial Region. Without costs.

SO ORDERED.[12]

Petitioner Saludo sought the reconsideration of the said decision but the appellate court, in the Resolution

dated August 14, 2003, denied his motion for reconsideration. Hence, he filed the instant petition for review

with the Court alleging that:

The Court of Appeals, (Special Fourth Division), in promulgating the afore-mentioned Decision
and Resolution, has decided a question of substance in a way probably not in accord with law
or with applicable decisions of this Honorable Court.

(a) the Court of Appeals erred in not taking judicial notice of the undisputed fact that herein
petitioner is the incumbent congressman of the lone district of Southern Leyte and as
such, he is a residence (sic) of said district;

(b) the Court of Appeals erred in dismissing the complaint on the basis of improper venue
due to the alleged judicial admission of herein petitioner;

(c) the Court of Appeals in dismissing the complaint ignored applicable decisions of this
Honorable Court; and

(d) the Court of Appeals erred in deciding that herein petitioner violated the rules on venue,
and even speculated that herein petitioners motive in filing the complaint
in Maasin City was only to vex the respondents.[13]

In gist, the sole substantive issue for the Courts resolution is whether the appellate court committed

reversible error in holding that venue was improperly laid in the court a quo in Civil Case No. R-3172 because

not one of the parties, including petitioner Saludo, as plaintiff therein, was a resident of Southern Leyte at

the time of filing of the complaint.

The petition is meritorious.

Petitioner Saludos complaint for damages against respondents before the court a quo is a personal

action. As such, it is governed by Section 2, Rule 4 of the Rules of Courts which reads:

SEC. 2. Venue of personal actions. All other actions may be commenced and tried where the
plaintiff or any of the principal plaintiffs resides, or where the defendant or any of the principal
defendants resides, or in the case of a non-resident defendant where he may be found, at the
election of the plaintiff.
 The choice of venue for personal actions cognizable by the RTC is given to plaintiff but not to plaintiffs

caprice because the matter is regulated by the Rules of Court. [14] The rule on venue, like other procedural

rules, is designed to insure a just and orderly administration of justice, or the impartial and evenhanded

determination of every action and proceeding.[15] The option of plaintiff in personal actions cognizable by

the RTC is either the place where defendant resides or may be found, or the place where plaintiff resides. If

plaintiff opts for the latter, he is limited to that place.[16]

Following this rule, petitioner Saludo, as plaintiff, had opted to file his complaint with the court a

quo which is in Maasin City, Southern Leyte. He alleged in his complaint that he was a member of the House

of

Representatives and a resident of Ichon, Macrohon, Southern Leyte to comply with the residency

requirement of the rule.

However, the appellate court, adopting respondents theory, made the finding that petitioner Saludo was not

a resident of Southern Leyte at the time of the filing of his complaint. It hinged the said finding mainly on

the fact that petitioner Saludos community tax certificate, indicated in his complaints verification and

certification of non-forum shopping, was issued at Pasay City. That his law office is in Pasay City was also

taken by the appellate court as negating petitioner Saludos claim of residence in Southern Leyte.

The appellate court committed reversible error in finding that petitioner Saludo was not a resident of

Southern Leyte at the time of the filing of his complaint, and consequently holding that venue was improperly

laid in the court a quo. In Dangwa Transportation Co., Inc. v. Sarmiento,[17] the Court had the occasion to

explain at length the meaning of the term resides for purposes of venue, thus:

In Koh v. Court of Appeals, we explained that the term resides as employed in the rule on
venue on personal actions filed with the courts of first instance means the place of abode,
whether permanent or temporary, of the plaintiff or the defendant, as distinguished from
domicile which denotes a fixed permanent residence to which, when absent, one has the
intention of returning.

It is fundamental in the law governing venue of actions (Rule 4 of the Rules of Court) that the
situs for bringing real and personal civil actions are fixed by the rules to attain the greatest
convenience possible to the parties-litigants by taking into consideration the maximum
accessibility to them of the courts of justice. It is, likewise, undeniable that the
term domicile is not exactly synonymous in legal contemplation with the term residence, for
it is an established principle in Conflict of Laws that domicile refers to the relatively more
permanent abode of a person while residence applies to a temporary stay of a person in a
given place. In fact, this distinction is very well emphasized in those cases where the
Domiciliary Theory must necessarily supplant the Nationality Theory in cases involving
stateless persons.

This Court held in the case of Uytengsu v. Republic, 50 O.G. 4781, October, 1954, reversing
its previous stand in Larena v. Ferrer, 61 Phil. 36, and Nuval v. Guray, 52 Phil. 645, that

There is a difference between domicile and residence. Residence is used to indicate a

place of abode, whether permanent or temporary; domicile denotes a fixed permanent
residence to which when absent, one has the intention of returning. A man may have a
residence in one place and a domicile in another. Residence is not domicile, but domicile
is residence coupled with the intention to remain for an unlimited time. A man can have
but one domicile for one and the same purpose at any time, but he may have numerous
places of residence. His place of residence generally is his place of domicile, but is not
by any means, necessarily so since no length of residence without intention of remaining
will constitute domicile. (Italicized for emphasis)
 We note that the law on venue in Courts of First Instance (Section 2, of Rule 4, Rules of Court)
in referring to the parties utilizes the words resides or may be found, and not is domiciled,
thus:

Sec. 2(b) Personal actions All other actions may be commenced and tried where the
defendant or any of the defendants resides or may be found, or where the plaintiff or
any of the plaintiffs resides, at the election of the plaintiff. (Italicized for emphasis)

Applying the foregoing observation to the present case, We are fully convinced that private
respondent Colomas protestations of domicile in San Nicolas, Ilocos Norte, based on his
manifested intention to return there after the retirement of his wife from government service
to justify his bringing of an action for damages against petitioner in the C.F.I. of Ilocos Norte,
is entirely of no moment since what is of paramount importance is where he actually resided
or where he may be found at the time he brought the action, to comply substantially with the
requirements of Sec. 2(b) of Rule 4, Rules of Court, on venue of personal actions. (Koh v.
Court of Appeals, supra, pp. 304-305.)

The same construction of the word resides as used in Section 1, Rule 73, of the Revised Rules
of Court, was enunciated in Fule v. Court of Appeals, et al. (G.R. No. L-40502) and Fule v.
Hon. Ernani C. Pao, et al. (G.R. No. L-42670), decided on November 29, 1976. Thus, this
Court, in the aforecited cases, stated:

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 purposes of the statute or rule in
which it is employed. In the application of venue statutes and rules Section 1, Rule 73 of the
Revised Rules of Court is of such nature residence rather than domicile is the significant
factor. Even where the statute uses the word domicile still it is construed as meaning
residence and not domicile in the technical sense. Some cases make a distinction between
the terms residence and domicile but as generally used in statutes fixing venue, the terms
are synonymous, and convey the same meaning as the term inhabitant. In other words,
resides should be viewed or understood in its popular sense, meaning, the personal, actual
or physical habitation of a person, actual residence or place of abode. It signifies physical
presence in a place and actual stay thereat. In this popular sense, the term means merely
residence, that is, personal residence, not legal residence or domicile. Residence simply
requires bodily presence as an inhabitant in a given place, while domicile requires bodily
presence in that place and also an intention to make it ones domicile. No particular length of
time of residence is required though; however, the residence must be more than
temporary.[18]

There is no dispute that petitioner Saludo was the congressman or the representative of the lone district of

Southern Leyte at the time of filing of his complaint with the court a quo. Even the appellate court admits

this fact as it states that it may be conceded that private respondent ever so often travels to Maasin City,

Southern Leyte, because he is its representative in the lower house.[19]

As a member of the House of Representatives, petitioner Saludo was correctly deemed by the court a quo as

possessing the requirements for the said position,[20] including that he was then a resident of the district

which he was representing, i.e., Southern Leyte. Significantly, for purposes of election law, the term

residence is synonymous with domicile, thus:

x x x [T]he Court held that domicile and residence are synonymous. The term residence, as
used in the election law, imports not only an intention to reside in a fixed place but also
personal presence in that place, coupled with conduct indicative of such intention. Domicile
denotes a fixed permanent residence to which when absent for business or pleasure, or for
like reasons, one intends to return. x x x[21]
It can be readily gleaned that the definition of residence for purposes of election law is more stringent in

that it is equated with the term domicile. Hence, for the said purpose, the term residence imports not only

an intention to reside in a fixed place but also personal presence in that place, coupled with conduct

indicative of such intention.[22] When parsed, therefore, the term residence requires two elements: (1)

intention to reside in the particular place; and (2) personal or physical presence in that place, coupled with

conduct indicative of such intention. As the Court elucidated, the place where a party actually or

constructively has a permanent home, where he, no matter where he may be found at any given time,

eventually intends to return and remain, i.e., his domicile, is that to which the Constitution refers when it

speaks of residence for the purposes of election law.[23]

On the other hand, for purposes of venue, the less technical definition of residence is adopted. Thus,

it is understood to mean as 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. Residencesimply

requires bodily presence as an inhabitant in a given place, while domicile requires bodily presence in that

place and also an intention to make it ones domicile.[24]

Since petitioner Saludo, as congressman or the lone representative of the district of Southern Leyte, had

his residence (or domicile) therein as the term is construed in relation to election laws, necessarily, he is

also deemed to have had his residence therein for purposes of venue for filing personal actions. Put in

another manner, Southern Leyte, as the domicile of petitioner Saludo, was also his residence, as the term

is understood in its popular sense. This is because residence is not domicile,

but domicile is residence coupled with the intention to remain for an unlimited time.

Reliance by the appellate court on Koh v. Court of Appeals[25] is misplaced. Contrary to its holding,[26] the

facts of the present case are not similar to the facts therein. In Koh, the complaint was filed with the Court

of First Instance in San Nicolas, Ilocos Norte by plaintiff who admitted that he was a resident of Kamias,

Quezon City. Save for the fact that he grew up in San Nicolas, Ilocos Norte and that he manifested the intent

to return there after retirement, plaintiff therein had not established that he was actually a resident therein

at the time of the filing of his complaint. Neither did he establish that he had his domicile therein because

although he manifested the intent to go back there after retirement, the element of personal presence in

that place was lacking. To reiterate, domicile or residence, as the terms are taken as synonyms, imports

not only an intention to reside in a fixed place but also personal presence in that place, coupled with conduct

indicative of such intention.[27]

In contrast, petitioner Saludo was the congressman or representative of Southern Leyte at the time of filing

of his complaint with the court a quo. Absent any evidence to the contrary, he is deemed to possess the

qualifications for the said position, including that he was a resident therein. And following the definition of

the term residence for purposes of election law, petitioner Saludo not only had the intention to reside in

Southern Leyte, but he also had personal presence therein, coupled with conduct indicative of such

intention. The latter element, or his bodily presence as an inhabitant in Southern Leyte, was sufficient for

petitioner Saludo to be considered a resident therein for purposes of venue.

The following ratiocination of the court a quo is apt:

Residence in civil law is a material fact, referring to the physical presence of a person in a
place. A person can have two or more residences, such as a country residence and a city
residence. (Quetulio v. Ruiz, S.C. Off. Gaz. 156, Commentaries and Jurisprudence in Civil
Law, Vol. 1, page 211, Tolentino). Residence is acquired by living in a place; on the other
hand, domicile can exist without actually living in the place. The important thing for domicile
is that, once residence has been established in one place, there be an intention to stay there
permanently, even if residence is also established in some other place.

Thus, if a person lives with his family habitually in Quezon City, he would have his domicile
in Quezon City. If he also has a house for vacation purposes in the City of Baguio, and another
house in connection with his business in the City of Manila, he would have residence in all
three places (Tolentino, Commentaries and Jurisprudence on Civil Law, Vol. 1, Page 212, 1990
Edition) so that one[]s legal residence or domicile can also be his actual, personal or physical
residence or habitation or place of abode if he stays there with intention to stay there
permanently.

In the instant case, since plaintiff has a house in Makati City for the purpose of exercising his
profession or doing business and also a house in Ichon, Macrohon, Southern Leyte, for doing
business and/or for election or political purposes where he also lives or stays physically,
personally and actually then he can have residences in these two places. Because it would
then be preposterous to acknowledge and recognize plaintiff Aniceto G. Saludo, Jr. as
congressman of Southern Leyte without also recognizing him as actually, personally and
physically residing thereat, when such residence is required by law.[28]

The fact then that petitioner Saludos community tax certificate was issued at Pasay City is of no

moment because granting arguendo that he could be considered a resident therein, the same does not

preclude his having a residence in Southern Leyte for purposes of venue. A man can have but one domicile

for one and the same purpose at any time, but he may have numerous places of residence.[29]

That petitioner Saludo was the congressman or representative of the lone district of Southern Leyte

at the time of the filing of his complaint was admitted as a fact by the court a quo. In this connection, it

consequently held that, as such, petitioner Saludos residence in Southern Leyte, the district he was the

representing, could be taken judicial notice of. The court a quo cannot be faulted for doing so because courts

are allowed to take judicial notice of matters which are of public knowledge, or are capable of unquestionable

demonstration, or ought to be known to judges because of their judicial functions. [30]Courts are likewise

bound to take judicial notice, without the introduction of evidence, of the law in force in the

Philippines,[31] including its Constitution.

The concept of facts of common knowledge in the context of judicial notice has been explained as

those facts that are so commonly known in the community as to make it unprofitable to require proof, and

so certainly known to as to make it indisputable among reasonable men. [32] Moreover, though usually facts

of common knowledge will be generally known throughout the country, it is sufficient as a basis for judicial

notice that they be known in the local community where the trial court sits. [33] Certainly, the fact of petitioner

Saludo being the duly elected representative of Southern Leyte at the time could be properly taken judicial

notice of by the court a quo, the same being a matter of common knowledge in the community where it

sits.

Further, petitioner Saludos residence in Southern Leyte could likewise be properly taken judicial

notice of by the court a quo. It is bound to know that, under the Constitution, one of the qualifications of a
congressman or representative to the House of Representatives is having a residence in the district in which

he shall be elected.

In fine, petitioner Saludos act of filing his complaint with the court a quo cannot be characterized as

a specie of forum-shopping or capricious on his part because, under the rules, as plaintiff, he is precisely

given this option.

Finally, respondents claim that the instant petition for review was not properly verified by petitioner

Saludo deserves scant consideration.

Section 4, Rule 7 of the Rules of Court reads:

Sec. 4. Verification. Except when otherwise specifically required by law or rule, pleadings need
not be under oath, verified or accompanied by affidavit.

A pleading is verified by an affidavit that the affiant has read the pleading and that the
allegations therein are true and correct of his personal knowledge or based on authentic
records.

A pleading required to be verified which contains a verification based on information and

belief, or upon knowledge, information and belief, or lacks proper verification, shall be treated
as an unsigned pleading.

Petitioner Saludos verification and certification of non-forum shopping states that he has read the

contents thereof [referring to the petition] and the same are true and correct of my

own personalknowledge and belief and on the basis of the records at hand. The same clearly constitutes

substantial compliance with the above requirements of the Rules of Court.

WHEREFORE, premises considered, the petition is GRANTED. The Decision dated May 22, 2003 and

Resolution dated August 14, 2003 of the Court of Appeals in CA-G.R. SP No. 69553 are REVERSEDand SET

ASIDE. The Orders dated September 10, 2001 and January 2, 2002 of the Regional Trial Court of Maasin

City, Southern Leyte, Branch 25 thereof, in Civil Case No. R-3172 are REINSTATED. SO ORDERED.
EMILIA FIGURACION-GERILLA, G.R. No. 154322

Petitioner,

-versus-

CAROLINA VDA. DE FIGURACION,*

ELENA FIGURACION-ANCHETA,*

HILARIA A. FIGURACION, FELIPA

FIGURACION-MANUEL, QUINTIN

FIGURACION and

MARY FIGURACION-GINEZ,

Respondents. Promulgated:

August 22, 2006

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

CORONA, J.:

In this petition for review on certiorari,[1] petitioner Emilia Figuracion-Gerilla challenges the
decision[2] and resolution[3] of the Court of Appeals (CA) affirming the decision of the Regional Trial Court
(RTC) of Urdaneta City, Pangasinan, Branch 49, which dismissed her complaint for partition. The properties
involved are two parcels of land which belonged to her late father, Leandro Figuracion.

The facts of the case follow.[4]

Spouses Leandro and respondent Carolina Figuracion (now both deceased) had six children:
petitioner and respondents Elena Figuracion-Ancheta (now deceased), Hilaria Figuracion, Felipa Figuracion-
Manuel, Quintin Figuracion and Mary Figuracion-Ginez.

On August 23, 1955, Leandro executed a deed of quitclaim over his real properties in favor of his six
children. When he died in 1958, he left behind two parcels of land: (1) Lot 2299 of the Cadastral Survey
of Urdaneta consisting of 7,547 square meters with Transfer Certificate of Title (TCT) No. 4221-P in the
name of Leandro Figuracion, married to Carolina Adviento and (2) Lot 705 of the Cadastral Survey
of Urdaneta with an area of 2,900 sq. m. with TCT No. 4220-P also in the name of Leandro Figuracion,
married to Carolina Adviento. Leandro had inherited both lots from his deceased parents,[5] as evidenced by
Original Certificate of Title (OCT) Nos. 16731 and 16610, respectively, issued by the Register of Deeds of
the Province of Pangasinan.

Leandro sold a portion of Lot 2299 to Lazaro Adviento, as a result of which TCT No. 4221-P was
cancelled and TCT No. 101331 was issued to Lazaro Adviento, married to Rosenda Sagueped as owner of
the 162 sq. m. and Leandro Figuracion, married to Carolina Adviento as owner of 7,385 sq. m. This lot
continued to be in the name of Leandro in Tax Declaration No. 616 for the year 1985.
 What gave rise to the complaint for partition, however, was a dispute between petitioner and her
sister, respondent Mary, over the eastern half of Lot 707 of the Cadastral Survey of Urdaneta with an area
of 3,164 sq. m.

Lot 707 belonged to Eulalio Adviento, as evidenced by OCT No. 15867 issued on February 9,
1916. When Adviento died, his two daughters, Agripina Adviento (his daughter by his first wife) and
respondent Carolina (his daughter by his second wife), succeeded him to it. On November 28,
1961, Agripina executed a quitclaim in favor of petitioner over the one-half eastern portion of Lot
707. Agripinadied on July 28, 1963, single and without any issue. Before her half-sisters death, however,
respondent Carolina adjudicated unto herself, via affidavit under Rule 74 of the Rules of Court, the entire
Lot 707 which she later sold to respondents Felipa and Hilaria. The latter two immediately had OCT No.
15867 cancelled, on December 11, 1962. A new title, TCT No. 42244, was then issued in the names
of Felipaand Hilaria for Lot 707.

In February 1971, petitioner and her family went to the United States where they stayed for ten
years. Returning in 1981,[6] she built a house made of strong materials on the eastern half-portion of Lot
707. She continued paying her share of the realty taxes thereon.

It was sometime later that this dispute erupted. Petitioner sought the extrajudicial partition of all
properties held in common by her and respondents. On May 23, 1994, petitioner filed a complaint in the
RTC of Urdaneta City, Branch 49, for partition, annulment of documents, reconveyance, quieting of title and
damages against respondents, praying, among others, for: (1) the partition of Lots 2299 and 705; (2) the
nullification of the affidavit of self-adjudication executed by respondent Carolina over Lot 707, the deed of
absolute sale in favor of respondents Felipa and Hilaria, and TCT No. 42244; (3) a declaration that petitioner
was the owner of one-half of Lot 707 and (4) damages. The case was docketed as Civil Case No. U-5826.

On the other hand, respondents took the position that Leandros estate should first undergo
settlement proceedings before partition among the heirs could take place. And they claimed that an
accounting of expenses chargeable to the estate was necessary for such settlement.

On June 26, 1997,[7] the RTC[8] rendered judgment nullifying Carolinas affidavit of self-adjudication
and deed of absolute sale of Lot 707. It also declared Lots 2299 and 705 as exclusive properties
of Leandro Figuracion and therefore part of his estate. The RTC, however, dismissed the complaint for
partition, reconveyance and damages on the ground that it could not grant the reliefs prayed for by
petitioner without any (prior) settlement proceedings wherein the transfer of title of the properties should
first be effected.

On appeal, the CA upheld the dismissal of petitioners action for partition for being premature. The
CA reversed the decision, however, with respect to the nullification of the self-adjudication and the deed of
sale. Upholding the validity of the affidavit of self-adjudication and deed of sale as to Carolinas one-half pro-
indiviso share, it instead partitioned Lot 707. Dissatisfied, respondents elevated the CA decision to this Court
in G.R. No. 151334, entitled Carolina vda. de Figuracion, et al. v. Emilia Figuracion-Gerilla.[9]

The issue for our consideration is whether or not there needs to be a prior settlement

of Leandros intestate estate (that is, an accounting of the income of Lots 2299 and 705, the payment of
 expenses, liabilities and taxes, plus compliance with other legal requirements, etc.) before the properties

can be partitioned or distributed.

Respondents claim that: (1) the properties constituting Leandros estate cannot be partitioned before his
estate is settled and (2) there should be an accounting before anything else, considering that they
(respondents) had to spend for the maintenance of the deceased Leandro Figuracion and his wife in their
final years, which support was supposed to come from the income of the properties. Among other things,
respondents apparently wanted petitioner to share in the expenses incurred for the care of their parents
during the ten years she stayed in the United States, before she could get her part of the estate while
petitioner apparently wanted her gross share, without first contributing to the expenses.

In any event, there appears to be a complication with respect to the partition of Lot 705. The records
refer to a case entitled Figuracion, et al. v. Alejo currently pending in the CA. The records, however, give
no clue or information regarding what exactly this case is all about. Whatever the issues may be, suffice it
to say that partition is premature when ownership of the lot is still in dispute.[10]

Petitioner faces a different problem with respect to Lot 2299. Section 1, Rule 69 of the Rules of Court
provides:

SECTION 1. Complaint in action for partition of real estate. A person having the right to
compel the partition of real estate may do so as provided in this Rule, setting forth in his
complaint the nature and extent of his title and an adequate description of the real estate of
which partition is demanded and joining as defendants all other persons interested in the
property.

The right to an inheritance is transmitted immediately to the heirs by operation of law, at the moment
of death of the decedent. There is no doubt that, as one of the heirs of Leandro Figuracion, petitioner has a
legal interest in Lot 2299. But can she compel partition at this stage?

There are two ways by which partition can take place under Rule 69: by agreement under Section
2 [11]
and through commissioners when such agreement cannot be reached, under Sections 3 to 6. [12]

Neither method specifies a procedure for determining expenses chargeable to the decedents estate.
While Section 8 of Rule 69 provides that there shall be an accounting of the real propertys income (rentals
and profits) in the course of an action for partition, [13] there is no provision for the accounting of expenses
for which property belonging to the decedents estate may be answerable, such as funeral expenses,
inheritance taxes and similar expenses enumerated under Section 1, Rule 90 of the Rules of Court.

In a situation where there remains an issue as to the expenses chargeable to the estate, partition is
inappropriate. While petitioner points out that the estate is allegedly without any debt and she and
respondents are Leandro Figuracions only legal heirs, she does not dispute the finding of the CA that certain
expenses including those related to her fathers final illness and burial have not been properly
settled.[14] Thus, the heirs (petitioner and respondents) have to submit their fathers estate to settlement
because the determination of these expenses cannot be done in an action for partition.
 In estate settlement proceedings, there is a proper procedure for the accounting of all expenses for
which the estate must answer. If it is any consolation at all to petitioner, the heirs or distributees of the
properties may take possession thereof even before the settlement of accounts, as long as they first file a
bond conditioned on the payment of the estates obligations.[15]

WHEREFORE, the petition is hereby DENIED. The Court of Appeals decision and resolution in CA-
G.R. CV No. 58290 are AFFIRMED in so far as the issue of the partition of Lots 2299 and 705 is concerned.

But with respect to Lot 707, we make no ruling on the validity of Carolina vda. de Figuracions affidavit
of self-adjudication and deed of sale in favor of Felipa and Hilaria Figuracion in view of the fact
that Carolina vda. de Figuracion, et al. v. Emilia Figuracion-Gerilla (G.R. No. 151334) is still pending in this
Division. Costs against petitioner. SO ORDERED.
G.R. No. L-27526 September 12, 1974

ANGELITA G. VDA. DE VALERA, AMANDA G. VALERA, OSCAR G. VALERA, DIONISIO G. VALERA,

FELIXBERTO G. VALERA, BENITO G. VALERA, EVA G. VALERA, LITA G. VALERA, TONIETTE
VALERA, ANGEL V. COLET, NORMAN PE BENITO and ROMEO PE BENITO, petitioners,
vs.
HON. MACARIO M. OFILADA, as Probate Judge, Court of First Instance of Abra; ADORACION
VALERA-BRINGAS, as Administratrix of the Intestate Estate of Francisco Valera; PROVINCIAL
SHERIFF of Abra; DOMINGO V. BANEZ as Deputy Provincial Sheriff of Abra, and CELSO
VALERA, respondents.

Leandro C. Sevilla for petitioners.

Romeo R. Bringas for respondents.

FERNANDEZ, J.:p

Had the Court of First Instance of Abra been more cognizant of the limitations on its prerogative as a probate
court, it would not have committed the jurisdictional and procedural errors pointed out in this certiorari case
by the petitioners, the heirs of the late Virgilio Valera.

The record discloses that the lower court exceeded its jurisdiction in issuing its orders of July 10, 1964, April
15, 1966 and January 4, 1967 as well as the writ of execution against the assets of the deceased Virgilio
Valera. The jurisdictional and procedural errors committed by the lower court justify the writ of certiorari.
Hence, We find the petition to be meritorious. We have to set aside the said orders and writ of execution
insofar as the heirs or estate of Virgilio Valera are concerned.

Civil Case No. 64, R-1 of the Court of First Instance of Abra is a special proceeding for the settlement of the
intestate estate of Francisco Valera. Virgilio Valera was the administrator of the estate, He died on March
21, 1961. He was survived by his widow, Angelita Garduque Vda. de Valera and their ten (10) children,
named Amanda, Oscar, Dionisio, Benito, Felixberto, Eva, Lita, Toniette, Vicenta and Teresita, all petitioners
herein, except Vicenta and Teresita, who were abroad.

Later (the exact date is not shown in the record), Adoracion Valera Bringas, who claims to be an
acknowledged natural child of Francisco Valera, was appointed administratrix. She filed on April 16, 1964 in
the intestate proceeding a petition to require "Celso Valera and family and Angelita de Valera and family to
pay P100.00" as monthly rental for the one-third pro-indiviso portion of the Valera residence located in
Bangued, Abra.1

That residence is item 3 of the original inventory dated April 10, 1964 submitted by Mrs. Bringas. It is
described as follows:

Residential land & Improvements. — Covered by Tax Declaration No. 16922, declared in 1948
in the names of Virgilio & Celso Valera; cancelled by Tax Declaration No. 21571 in the name
of Virgilio Valera; cancelled by Tax Declaration No. 29338, in 1962, in the name of Virgilio
Valera, located in Partelo Street, Bangued, Abra, bounded as follows: N. Alejandro Lizards;
E. Partelo Street (now Virgilio Valera Street); S. Taft Street; W'Consiliman Brook, with an
area of 1,775 square meters, and assessed at P1,420.00 for the residential lot, and P9,500.00
for the improvements.

Appraised value — P45,600.00, 1/3 of which is P15,200.00. (p. 5 of Respondents'

Memorandum)

The petition was not served on the widow and ten children of Virgilio Valera. Celso Valera interposed an
opposition to it on the ground that Francisco Valera had no interest in the Valera residence, that the property
was never leased and that the remedy of Mrs. Bringas was "in a appropriate remedy and/or procedure" and
not in the intestate proceeding.2

The lower court granted the petition in an order dated July 10, 1964 which reads: 3

ORDER

The administratrix, through counsel, has petitioned for an order to pay rental on the property
(Item 1-B, 23 of the Inventory submitted i)v the administratrix, pp. 415-416, rec.) owned in
common by the estate of the deceased Francisco Valera y Versoza and the late Virgilio Valera
and Celso Valera, corresponding to one-third (1/3) interest pertaining to the estate of the
deceased Francisco Valera to be paid by the family of Virgilio Valera and Celso Valera and
family who have been occupying the property since April, 1945 in the amount of P100.00 a
month, plus legal interest, the same to be paid to the Administratrix.
 WHEREFORE, finding the said motion to be well-founded and meritorious, the same is hereby
granted. It is further ordered that the Clerk of Court shall furnish Angelita Garduque Vda. de
Valera with a copy of this order by registered mail.

SO ORDERED.

Done at Bangued, Abra, this 10th day of July, 1964.

(Sgd.) ALFONSO P. DONESA J u d g e

The directive of Judge Donesa to the Clerk of Court to serve a copy of the order by registered mail on Mrs.
Valera implies that the heirs of Virgilio Valera were not served with a copy of the petition. The said heirs,
through Atty. Angel V. Colet, a son-in-law of Mrs. Valera, filed a motion for the reconsideration of that order.
They contended that the Valera residence "should be excluded from the inventory," because that was their
"absolute property of which they have been in complete possession and occupation". 4 Mrs. Bringas replied
that Francisco Valera's estate had "already consolidated" its ownership over that one-third partition "through
the submission of the inventory and its approval" by the probate court. 5

It was only nearly two years later that respondent Judge Macario Ofilada in his order of April 15, 1966 denied
the motion for reconsideration filed by the heirs of Virgilio Valera.6

On February 17, 1965 (before the motion for reconsideration was resolved) Mrs. Bringas filed in the intestate
proceeding a pleading known as "Motion for Execution and for an Order Directing Delivery of the Fruits of
the Properties or Value and Monies of the Estate to the Administratrix." 7

She prayed in that motion that Judge Donesa's order for the payment of rentals be executed against the
heirs of Virgilio Valera; that the heirs be ordered to deliver to her the fruits of the properties of the estate
of Francisco Valera, which, according to her calculation, amounted to P100,000 for twenty years, plus legal
interest supposedly amounting to P5,000; that the heirs be ordered to deliver the sum of P4,684.98
representing the insurance and war damage monies collected by Virgilio Valera; and that the Sheriff be
ordered to "to seize such properties of Virgilio Valera and his heirs" "to be sold according to law for the
payment of double the value of the fruits and the amount of monies alienated and embezzled".

As already stated, in an order dated April 15, 1966, respondent Judge Macario M. Ofilada denied the motion
for reconsideration filed by the heirs of Virgilio Valera and granted the motion of Mrs. Bringas for execution
and for the delivery of certain funds and properties. (Note that the execution was granted although the
order was not yet final). That order, which is being assailed in this case, is quoted as follows (pp. 7-9 of the
Petition):

Pending resolution before the court are the following motions:

1. Unsigned 'Motion for leave of Court to Intervene and Motion for Reconsideration of the
Order dated July 10, 1964', filed by counsel for the heirs of Virgilio Valera;

2. 'Motion' without any notice of hearing filed by counsel for the heirs of Virgilio Valera;

3. 'Motion for Reconsideration of the Order dated July 10, 1965,' filed by counsel for petitioner
Celso Valera; and

4. 'Motion for Execution and for an Order Directing Delivery of the Fruits of the Properties or
Value thereof and Monies of the Estate to the Administratrix', filed by counsel for the
administratrix.

Also pending is the examination of persons regarding the properties of the estate as ordered
by the court also on July 10, 1964.

On January 27, 1966, the court directed the movants seeking a reconsideration of the order
directing the payment of rentals to the estate to submit their respective memoranda within
15 days from receipt of the order and the administratrix 5 days from receipt of adverse parties
memoranda to submit her reply if she so desires. Despite the fact that the parties had received
copies of the order of January 27, 1966, none complied. Considering that this case is already
more than 20 years old, the Court can not, in the interest of justice, further hold or suspend
the resolutions on these incidents. They must as they should now, be resolved.

The motion for reconsideration filed by counsel for the heirs of Virgilio Valera and his
subsequent 'Motion'. appearing to be unfounded, is hereby denied.

The motion for reconsideration filed by counsel for Celso Valera is a mere repetition of the
'Opposition to Petition for an Order to Pay Rental dated May 8, 1964. This motion is merely
intended to delay the proceedings and it is hereby denied for lack of merit.
 Finding the 'Motion for Execution and for an Order Directing the Delivery of Fruits of the
Properties or Value thereof and Monies of the Estate to the Administratrix' well-founded and
meritorious, it is hereby directed:

1. That a writ of execution issue against the heirs of Virgilio Valera and Celso Valera insofar
as the collectible rents pertaining t the estate are concerned;

2. That the heirs of Virgilio Valera and Celso Valera deliver to the administratrix properties
still in their possession which are among those listed in the 'Incomplete Inventory and
Appraisal of the Real and Personal Estate of the Deceased, Francisco Valera y Versoza' filed
by the administratrix on September 17, 1965;

3. That the heirs of Virgilio Valera and Celso Valera and family account to the Administratrix
the fruits of the properties of the estate listed in the said amended inventory;

4. That the heirs of Virgilio Valera deliver to the administratrix the sum of P4,784.98
representing the insurance and war damage monies collected by Virgilio Valera;

5. That Celso Valera account to the administratrix the war damage monies received by him
for the destroyed Valera family residence and deliver 1/3 of the same to the administratrix;
and

6. That failure to render a satisfactory account as hereby required within 15 days from receipt
of this order shall, conformably with See. 8 of Rule 87 of the Rules of Court, make the heirs
of Virgilio Valera and Celso Valera liable to double the value of the fruits and monies
unaccounted for.

It is further ordered that the Clerk of Court immediately set 2 days for the examination of the
persons required to appear in the order dated July 10, 1964.

SO ORDERED.

Bangued, Abra, this 15th day of April, 1966.

(Sgd.) MACARIO M. OFILADA

Judge

On January 5. 1967 Judge Ofilada directed the execution of his aforequoted order of April 15, 1966. That
directive reads as follows:8

ORDER

Pending resolution before this Court are: (1) Omnibus Motion filed by the Administratrix dated
September 15, 1966; and, (2) Omnibus Motion filed by the heirs of Virgilio Valera dated
October 13, 1966.

The parties, by the order of this Court dated December 12, 1966 after the hearing on said
date at which counsel discussed their respective motions, were given three days time within
which to submit their written memoranda. No such memoranda have been filed by any of the
parties, and the Court took time and efforts in considering the said motions, oppositions,
affidavit and counter-affidavits.

The Omnibus Motion of the heirs of Virgilio Valera dated October 13, 1966 seeks to stay the
writ of execution issued by this Court pursuant to the order dated April 15, 1966 and relies
upon an alleged compromise agreement entered into between said heirs and the
administratrix on May 21, 1966.

The Court is aware of attempts to a compromise agreement between the aforementioned

parties. There is nothing however in the record of any amicable settlement such as that
required by the Court in its order dated June 26, 1965, which required the parties 'to inform
the court as soon as possible what arrangement or settlement have been taken and arrived
at by them.' The Court has given the parties long time to agree and settle their differences,
even taking time on Sundays to meet with them for this purpose and, until the present time,
no such agreement by all the parties has been presented for the approval of the Court.
Certainly the alleged compromise agreement is not such agreement especially when the
administratrix takes vigorous exception citing facts of record and valid points of law which
have not been sufficiently answered and explained. To allow the alleged oral compromise
agreement in violation of fundamental principles of law such as the time limit within which to
file a petition for relief and unsupported by the facts on record as cited by counsel for and
administratrix would be to trifle with the administration of justice especially in this case which
is the oldest in this court and which has been pending for more than twenty years now. For
 these basic reasons, the Omnibus Motion of the heirs of Virgilio Valera dated October 13,
1966 must be, as it is hereby, DENIED.

And considering the motion of the administratrix dated September 15, 1966 to be meritorious,
the same, as prayed for, is hereby GRANTED.

WHEREFORE, it is hereby directed that:

(1) The orders of November 14 and 25, 1966 staying the execution of the order of April 15,
1966 are hereby lifted and let another writ of execution immediately issue to effect the order
of April 15, 1966.

(2) A writ of execution issue against said heirs of Virgilio Valera for the satisfaction of the
amounts due the estate;

(3) A writ of execution issue against the properties of Celso Valera for the satisfaction of the
amount due to estate; and,

(4) The heirs of Virgilio Valera deliver to the administratrix the possession of the properties
listed in paragraph 6 and 7 of her Omnibus Motion dated September 15, 1966 and the fruits
or value thereof from April, 1945 until time of delivery, and, pursuant to Section 8, Rule 87,
of the New Rules of Court, to pay double the value of said fruits upon failure to account and
deliver same within thirty days from receipt of this order.

SO ORDERED.

Bangued, Abra, January 4, 1967.

(Sgd.) MACARIO M. OFILADA Judge

The heirs of Virgilio Valera filed a motion dated February 6, 1967 for the reconsideration of Judge Ofilada's
order of January 4, 1967.9 The motion was denied in the order dated February 13, 1967. 10 judge Ofilada in
his order dated February 27, 1967 ordered another execution. 11

The Deputy Provincial Sheriff levied upon the properties of the deceased Virgilio Valera and caused to be
published a notice of auction sale also dated February 27, 1967 which reads in part as follows: 12

1. Of the goods and chattels of Celso Valera and the heirs of Virgilio Valera — the sum of
Forty Thousand Three Hundred Twenty (P40,320.00) Pesos for rent due the estate together
with interest thereon from April, 1945 (P25,200.00) for the principal at P1,200.00 per annum
from April, 1945 to March, 1966, and P15,120.00 for interest due at six (6) per centum per
annum), plus P100.00 a month from April, 1966 with interest at six (6) per centum until date
of payment and delivery of the interest, of the estate in the property to the administratrix;

2. Of the goods and chattels of the heirs of Virgilio Valera — the sum of Sixty Thousand
(P60,000.00) Pesos representing double the value of undelivered fruits of the properties of
the estate for 20 years from April, 1945 to October, 1965 or One Thousand Five Hundred
(P1,500.00) Pesos per year, and the sum of Nine Thousand Five Hundred Sixty Nine Pesos
and Ninety Six Centavos (P9,569.96), respresenting double the value of the undelivered
insurance and war damage monies collected by Virgilio Valera.

The petitioners filed a motion dated March 15, 1967 to quash the writ of execution and for the suspension
of the auction sale. 13 Judge Ofilada denied it in his order of April 1967. 14 The petitioners filed a motion
dated March 31, 1967 to set aside the lower court's orders of April 15, 1966 and February 27, 1967 on the
grounds of lack of jurisdiction and lack of due process. 15

On April 3, 1967, the dated when Judge Ofilada denied petitioners' motion to quash the writ of execution,
respondent Deputy Sheriff proceeded with the auction sale and sold to the estate of Francisco Valera
eighteen (18) parcels of land supposedly belonging to the deceased Virgilio Valera. The price was
P92,337.00. 16

The petitioners filed a motion dated April 11, 1967 for the reconsideration of the order of April 3,
1967. 17 Judge Ofilada denied it in his order of April 21, 1967. 18

On May 8, 1967 the petitioners, the heirs of Virgilio Valera (except two children who were abroad) filed the
instant petition for certiorari with preliminary injunction against Judge Ofilada, Mrs. Bringas, the Provincial
Sheriff and the Deputy Provincial Sheriff. Celso Valera was joined as a nominal party. The respondents were
required to answer the petition. The Court directed that a writ of preliminary injunction should issue upon
petitioners' posting a bond of P5,000.00.
The petitioners assail the brief, three-sentence order of July 10, 1964 on the following grounds: (a) that it
decided the issue of ownership as to the one-third pro-indiviso share of Francisco Valera in the Valera
residence, an issue, which according to them, is beyond the court's probate jurisdiction; (b) that it was
issued without the benefit of a trial on the merits and without hearing all the parties involved; (c) that it
does not contain findings of fact and law; (d) that it is a judgment for a money claim which should have
been filed in the proceedings for the settlement of the estate of the deceased debtor, Virgilio Valera, and
(e) that the order has no basis in substantive law.

The petitioners attack Judge Ofilada's order of April 15, 1966 on the following grounds: (a) that, as a probate
judge, he had no jurisdiction to require the heirs of Virgilio Valera to account for the fruits of the six parcels
of land administered by him and that a separate action should be filed or the proper claim should be made
against his estate; (b) that he had no jurisdiction to order the heirs of Virgilio Valera to deliver to Mrs.
Bringas the sum of P4,784.98 as "insurance and war damage monies collected by Virgilio Valera"; (c) that
Section 8, Rule 87 of the Rules of Court contemplates that "double the value of the fruits and monies" should
be recovered in an "action" and not in an intestate proceeding, and (d) that the order was issued without
any trial on the merits and it does not contain findings of fact and law.

The petitioners further contend that the orders of July 10, 1964 and April 15, 1966 are not enforceable by
execution because they are incomplete and not precise as to the amounts supposedly due from the judgment
debtors.

As to the execution sale, the petitioners contend: (a) that the orders sought to be executed are void; (b)
that the probate court ordinarily has no jurisdiction to issue a writ of execution and that the instant case is
not among the exceptional cases wherein the probate court can authorize an execution, and (c) that
execution for a money claim cannot be had against a decedent's estate.

After a careful study of the arguments of the parties in their memoranda, reply, rejoinder and surrejoinder,
We find that, for the resolution of the case, it is not necessary to pass upon all those issues. The crucial
issue in the last analysis is whether the lower court, sitting as a probate court in the intestate proceeding
for the estate of Francisco Valera, could hold the heirs of Virgilio Valera answerable for certain supposed
monetary liabilities of the latter to the estate and enforce said liabilities against the properties of the
deceased Virgilio Valera.

We hold that the trial court, as a probate court, erred in adjudging in the said intestate proceeding the
monetary liabilities of the late Virgilio Valera to the estate of Francisco Valera and in issuing a writ of
execution against his properties to enforce the supposed liabilities.

The controlling principle, which should govern this case, was announced by Justice Torres in 1907 in Pavia
vs. De la Rosa, 8 Phil. 70, a case which is on all fours with the instant case. This Court ruled in that case:

Administrators or executors; Code of Civil Procedure; Heirs. — The heir legally succeeds the
deceased from whom he derives his right and title but only after the liquidation of the estate,
the payment of the debts of same, and the adjudication of the residue of the estate of the
deceased, and in the meantime the only person in charge by law to attend to all claims against
the estate of the deceased debtor is the executor or administrator appointed by a competent
court. (Syllabus based on page 77).

In the Pavia case, an action for damages was brought by Rafaela Pavia against Bibiana de la Rosa and Salud
de la Rosa, as the only heirs of the deceased Jose de la Rosa. Rafaela Pavia claimed that she empowered
Jose de la Rosa to administer the estate of Pablo Linart and that, as administrator, De la Rosa caused
damages to the estate through his negligence. The De la Rosa sisters contended that they could not be held
liable for the negligent acts of their brother, Jose de la Rosa.

This Court held that the action was not maintainable against the De la Rosa sisters and that it should be
prosecuted against the executor or administrator of the estate of Jose de la Rosa. Hence, the action was
dismissed, reserving to Rafaela Pavia "the right to institute proper action against the executor or
administrator of the properties of the estate of the deceased Jose de la Rosa".

In the instant case, Mrs. Bringas sought to hold the heirs of the deceased Virgilio Valera liable for his
obligations to pay rentals and to account for the fruits of the properties forming part of the estate of Francisco
Valera and the war damage and insurance monies collected by Virgilio Valera. The heirs of Virgilio Valera
were dragged into the intestate proceeding for the purpose of holding them liable for the amounts
supposedly due from the deceased. As already noted, Mrs. Bringas prayed for "an order directing the Sheriff
to seize such properties of Virgilio Valera and his heirs ... as may be sufficient, to be sold according to law
for the payment of double the value of the fruits and the amount of monies alienated and embezzled" (Annex
"E" of Petition). Judge Ofilada specifically directed that the execution be issued "against the heirs of Virgilio
Valera". The Deputy Sheriff literally followed that directive by levying upon "the goods and chattels of the
heirs of Virgilio Valera".

The procedure followed by the Sheriff was erroneous. The decedent's heirs are not liable personally for the
debts of his debts. Thus, it was held:
 It happens, however, that the plaintiffs are not under obligation to pay the debts of their late
father, such as items (a), (f) and (h) of the counterclaim. It does not appear that they
personally bound themselves to pay them, and the mere fact that they are the deceased's
heirs does not make them answerable for such credits against their predecessor in interest,
inasmuch as article 1003 of the Civil Code is no longer in force, having been abrogated by
certain provisions of the Code of Civil Procedure (Pavia vs. De la Rosa, 8 Phil. 70, cited in
Calma vs. Calma, 56 Phil. 102, 105).

The error becomes more glaring in the light of Section 7, Rule 39 of the Rules of Court which allows execution
in case of the death of a party only "where a party dies after the entry of the judgment or order". The
implication is that if a person, before his death, or the legal representative of his estate was never a party
to a case, no execution can be issued against his properties after his death. In this case, the Sheriff seems
to have proceeded on the assumption that the properties levied upon belonged to the deceased Virgilio
Valera and that the said properties were in the possession of his heirs.

Furthermore, 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 circumstance that the Rules of Court expressly specifies that the probate court may issue execution (a)
to satisfy 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 (e) 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.

With particular reference to the sum of P4,784.96, which represents the insurance and war damage monies
allegedly embezzled by Virgilio Valera, the lower court, sitting as a probate court, had no jurisdiction to
enforce, by execution, the payment of double the value of that amount. The alleged embezzler was dead.
Execution was not warranted under Sections 7 and 8, Rule 87 of the Rules of Court, which both refer, to a
living person, meaning a person entrusted with a part of the decedent's estate "by an executor or
administrator", and to a person who committed "embezzlement before letters (were) issued". Section 8
explicitly provides that the embezzler's liability shall be determined in "an action", and not in the intestate
proceeding. 19

The record reveals that there is a dispute between Mrs. Bringas and the heirs of Virgilio Valera as to whether
one-third of the Valera residence and the six parcels of land listed in the "Amended Incomplete Inventory,
etc." dated August 31, 1965 20 belong to the estate of Francisco Valera. The tax declarations for those
properties are in the name of the deceased Virgilio Valera.

Their inclusion in the inventory is not conclusive as to the ownership. "Questions on title to real property
cannot be determined in testate or intestate proceedings. It has, however, been held that for the purpose
of determining whether a certain property should or should not be included in the inventory, the probate
court may pass upon the title thereto, but such determination is not conclusive and is subject to the final
decision in a separate action to he instituted between the parties." 21 As stressed by Mr. Justice Zaldivar in
Mangaliman vs. Gonzales, L-21033, December 28, 1970, 36 SCRA 462, the probate court is a court of
special and limited jurisdiction.

We have studied carefully respondents' memorandum and rejoinder. We have not found therein any citation
of a rule or precedent which would justify the arbitrary and irregular procedure followed by the lower court
in determining the liability of a dead person without hearing the legal representative of his estate and in
holding his heirs answerable for his supposed liabilities and then enforcing those liabilities against his estate.
Section 6(b), Rule 78 and Section 2, Rule 79 of the Rules of Court assume that a creditor, as an interested
person, may cause a debtor's estate to be placed under administration.

The cases of Cunanan vs. Amparo, 80 Phil. 227 and Bernardo vs. Court of Appeals, 62 O.G. 2621 cited by
the respondents in page 19 of their rejoinder, refer to a living party, not to a decedent.

Without going into a more extensive and detailed discussion of the other irregularities committed by the
lower court, We believe that the jurisdictional errors already pointed out suffice to show that it acted in
excess of jurisdiction and with grave abuse of discretion. Hence, the issuance of the writ of certiorari is
warranted.

WHEREFORE, the writ of execution and the Sheriff's execution sale on April 3, 1967 and all proceedings
relative thereto as well as the orders of July 10, 1964, April 15, 1966, January 4, April 3 and May 2, 1967
of the lower court, are declared void and are set aside, insofar as the heirs of Virgilio Valera or his estate
are concerned, without prejudice to the right of Adoracion Valera Bringas to institute the proper action
against the administrator of the estate of the estate of the late Virgilio Valera and to file the appropriate
claims in the proceeding for the settlement of his estate. No pronouncement as to costs. SO ORDERED.
G.R. No. L-1578 September 30, 1947

PEREGRINA REBONG, petitioner,

vs.
FIDEL IBAÑEZ, Judge of First Instance of Laguna, respondent.

Zosimo D. Tanalega for petitioner.

No appearance for respondent judge.

FERIA, J.:

This is a petition for certiorari against the respondent judge of the Court of First Instance of Laguna on the
ground that the latter acted in excess of jurisdiction or with grave abuse of discretion in denying the petition
for cancellation of the lien or annotation on the certificate of title issued to the petitioner, of a land
extrajudicially inherited by him as the only heir of her predecessors in interest to the effect that the property
described in the title is subject to the claims of the creditors and other heirs of the deceased Jose Rebong
and Maria Rebong within two years from July 9, 1947, in accordance with sections 1 and 4, Rule 74 of the
Rules of Court.

The petitioner based on her petition on section 112 of Act No. 496 and offered to file a bond of P5,000, the
estimated value of the above mentioned property to answer for such contingent claims.

The pertinent part of said section 112 of Act No. 496 provides:

SEC. 112. ... Any registered owner or other person in interest may at any time apply petition to the
court, upon the ground that the registered interests of any description, whether vested, contingent,
expectant, or inchoate, have terminated and ceased; or that new interests have arisen or been
created which do not appear upon the certificate; ... and the court shall have jurisdiction to hear and
determine the petition after notice to all parties in interest, and may order the entry of a new
certificate, the entry or cancellation of a memorandum upon a certificate or grant any other relief
upon such terms and conditions, requiring security if necessary, as it may deem proper; . . . .

According to the above quoted provisions, the court "may order the entry of a new certificate, the entry or
cancellation of a memorandum upon a certificate or grant any other relief upon such terms and conditions,
requiring security if necessary," upon application of a registered owner on "the ground that registered
interests of any description, whether vested, contingent, expectant, or inchoate, have terminated and
ceased, or that new interests have arisen or been created which do not appear upon the certificate." Applying
these provisions to the present case, it is evident that, since the registered or annotated contingent interest
of the creditors or other heirs of the petitioner's predecessors in interest, established by section 4 of Rule
74 has not yet terminated or ceased, for the period of two from July 9, 1947, have not yet elapsed, the
respondent judge had no jurisdiction or power to order the cancellation of said lien or annotation as prayed
by the petitioner. Neither section 4, Rule 74, of the Rules of Court, nor section 112 of Act No. 496 authorizes
interest of substitution of a bond for a lien or registered interest of any description, whether vested,
expedient, inchoate or contingent, which have not yet terminated or ceased.

In view of the foregoing it is plan that the respondent judge has not acted in excess of jurisdiction nor with
grave abuse of discretion, but in conformity with the law, in denying the petitioner's petition, and the petition
for certiorari is therefore denied.
G.R. No. L-273 March 29, 1947

CRESENCIA HERNANDEZ, plaintiff-appellee,

vs.
ZACARIAS ANDAL, defendant-appellant.
QUIRINO DIMASACAT, MARIA HERNANDEZ and AQUILINA HERNANDEZ, intervenors-appellants.

Pedro Pañganiban y Tolentino for appellants.

Vicente Reyes Villavicencio for appellee.

TUASON, J.:

The plaintiff, Cresencia Hernandez, the intervenors, Maria and Aquilina Hernandez, and Pedro and Basilia
Hernandez who are not parties here, are brother and sisters. They acquired in common by descent from
their father a parcel of land of which he died seized and known as lot No. 120073 of the Batangas cadastral
survey.

On January 23, 1944, the intervenors sold 1800 square meters of this parcel, a portion which is particularly
described in the deed of conveyance Exhibit A, to Zacarias Andal, the defendant, and Andal's wife in
consideration of P860. This portion purports to be the combined shares of the intervenors in the larger
parcel, allotted to them in a verbal partition alleged to have been made (time not stated) among the five
brother and sisters.

After the sale, on a date as to which the evidence is in disagreement but which is not now important, the
plaintiff attempted to repurchase the land sold to Andal. According to her original complaint, dated February
3, 1944, she offered the purchasers P150 as price of repurchase, this being, according to that complaint,
the amount Andal had paid for Maria Hernandez's and Aquilina Hernandez's shares, but Andal, it is alleged,
refused to part with the property.

On April 8, the plaintiff filed a supplemental complaint. She alleged that when the cause was called for trial
on March 8, she announced in open court that she was willing to repurchase her sister's share from Andal
for P860 and reimburse Andal for his expense; that Andal asked for continuance until the 29th stating that
he had made other expenses; that on 29th she brought P860 to repurchase the land in question but the
case was again postponed because the plaintiff's sisters had intervened; and that meanwhile, on the 26th,
Andal resold the land fictitiously to the vendors for P970.

It results that on the date last mentioned Andal executed a deed of sale for P970 in favor of the intervenors,
an amount which included Andal's expenses as well as the normal sale price. The document of repurchase
gave as reason for the transaction the fact that it had been agreed that in the event trouble should arise
the sellers should return to the buyer what they had received and pay the latter his expenses.

On February 14, 1944, the defendant filed his answer alleging that Maria and Aquilina Hernandez had sold
him their respective portions of the inherited land for P860 and that he had no objection to disposing of
those portions in favor of the plaintiff for P860 plus the expenses he had incurred in the execution of the
deed of sale amounting to P50, but that he was unwilling to accept P150, which was all the plaintiff offered
him besides his expenses.

On April 4, 1944, Maria and Aquilina Hernandez's answer in intervention was filed. The intervenors alleged
that there had been a partition among them and their brother and sisters "with the share of each delineated
and marked, and after partition and delineation everyone took exclusive, separate and independent
possession of his portion in the partition." They charged the plaintiff with bad faith in that "it was upon her
request for chance that the sale to the defendant, about to take place last November, was delayed till
January of this year when she finally informed the intervenors that they could sell to the defendant, or she
could pay only P150 and could not raise the amount of P860 offered by the defendant."

Cresencia Hernandez, the plaintiff, was the only witness to testify on her own behalf. Substantially she
reiterated the allegations in her two complaints. Zacarias Andal, the defendant, also testified. He said that
he was in possession of the land in question until he returned it to the intervenors. He declared that the
plaintiff offered to repurchase the land from him long after he had bought it, that is, when she was about
to file her action. He stated that after he came from Candelaria, Tayabas, with the document of sale he
showed it to the plaintiff: that was on the 23rd of January. He was able to do this because he lived near
Cresencia and passed by her house on his way home from Candelaria. He said that Cresencia Hernandez
upon being shown the document merely exclaimed, "Oh, so you already have a document." When asked
whether the land "described in the complaint of the herein plaintiff has been the object of partition among
the co-owners Pedro, Basilia, Cresencia, Maria and Aquilina surnamed Hernandez," counsel for the plaintiff
objected on the ground that the best evidence was the document of partition, and the objection was
sustained. The same objection and the same ruling were made on the same ground when the witness was
queried how it was that the land he had bought from Maria and Aquilina Hernandez had been specified in
the deed of sale, Exhibit A.
In consequence of this ruling, counsel for the defendant and intervenors did not call any more witnesses but
only announced that he had witnesses ready to prove that a parol partition among the five brother and
sisters had been made, mentioning the names of six such witnesses. Counsel for the plaintiff again objected
asserting that "under the Rules of Court agreement affecting real estate may not be proved except by means
of writing subscribed by the person against whom the proof is offered. "Upon this objection, the court ruled
that under Rules 74 and 123 of the Rules of Court (Statute of Frauds) as well as under article 1248 of the
Civil Code, parol evidence of partition was inadmissible, adding that to decide the case it had enough with
the testimony and evidence offered by the parties.

Thereafter the court handed down its decision declaring that the resale of the land by Zacarias Andal in
favor of Maria and Aquilina Hernandez was illegal and in bad faith. It, however, did not seem to have found
as a fact the allegation that the resale was simulated. The court then made this judgment:

(a) declarando y sin valor alguno el documento de reventaotorgado por el demandado Zacarias Andal
en 26 de marzo de 1944, a favor de Maria y Aquilina Hernandez sobre el terrenocuestionado que se
presento como Exhibito 2 de dichodemandado, y consiguientemente se anulan tambien todas
lastransacciones posteriores que las mencionadas Maria y Aquilina Hernandez hayan hecho sobre el
terreno cuestionado despuesdel 26 de marzo de 1944, asi como tambien cualquiera anotacionen la
Oficiana del Registrador de Titulos de Batangas que hayaanotado dicha reventa por el demandado
Zacarias Andal a favorde las terceristas Maria y Aquilina Hernandez en el citado dia 26 de marzo de
1944; y

(b) se ordena al aqui demandado Zacarias Andal, que otorgue unaescritura de reventa a favor de la
aqui demandante Cresencia Hernandez, de las participaciones de las terceristas en el terrenodescrito
en la demanda suplementaria previo pago de P860 mas lacantidad de P50 como gastos de
documentacion. Se absuelve al demandado de los daños y perjuicios que reclama la demandante.
Se absuelve tambien a la demandante de la contra-demanda de lasterceristas.

Sin especial pronunciamento en cuanto a las costas.

The defendant and the intervenors are appealing from the foregoing decision and in their joint brief made
one assignment of error:

The lower court erred in refusing to admit oral evidence for proving a contract of partition among the
heirs on the ground that it was not admissible.

Before proceeding with a discussion of the questions raised we are tempted to point up some seeming
incongruities in the above-quoted judgment. Although Zacarias Andal is no longer interested in the case, as
far as the land is concerned, and even though the intervenors have become again the absolute owners and
are now in full possession of the property, while Andal has already gotten his money back, the judgment
would have Andal execute a deed of resale in favor of the plaintiff and received from her the price of
repurchase. The judgment is silent as to the intervenors with reference to the execution of the deed of sale
or the receipt of the sale price. And the lower court made no finding and expressed no opinion as to whether
the offer of P150 instead of P860, not to mention Andal's expenses, by the plaintiff as price of repurchase
was sufficient compliance with article 1067 of the Civil Code on which the court rested the plaintiff's cause
of action.

However, in this decision we are concerned mainly with the application of section 21 of Rule 123 and section
1 of Rule 74 both of the Rules of Court. Article 1248 of the Civil Code has no bearing on the case.

There is a conflict of authority as to whether an agreement of partition is such a contract as is required to

be in writing under the statute of frauds. One line of authorities holds the affirmative view; other authorities
say no. The reason for the rule that excludes partition from the operation of the statute of frauds is that
partition is not a conveyance but simply a separation and designation of that part of the land which belongs
to each tenant in common. (27 C.J., 206.) The differences in the conclusions reached are "due perhaps to
varied phraseology of the statutes" in the several states. (40 Amer. Jur., 15.) However the case may be, as
enacted in the Philippines, first in section 335 of the former Code of Civil Procedure, and now in Rule 123,
section 21, of the Rules of Court, the law has been uniformly interpreted in a long line of cases to be
applicable to executory and not to completed or executed contracts. (27 C.J., 206.) In this jurisdiction
performance of the contract takes it out of the operation of the statute. (Gomez vs. Salcedo, 26 Phil., 485;
Almirol and Cariño vs. Monserrat, 48 Phil., 67.) The statute of frauds does not declare the contracts therein
enumerated void and of no legal effect, but only makes ineffective the action for specific performance.
(Almirol and Cariño vs. Monserrat, supra.) In the United States, even in those states where the affirmative
view of the question has been followed, "the weight of authority upholds the rule that an oral partition is
effective when several possession is taken under it by the respective parties to the agreement." (27 C.J.,
206.)

On general principle, independent and in spite of the statute of frauds, courts of equity have enforced oral
partition when it has been completely or partly performed.
 Regardless of whether a parol partition or agreement to partition is valid and enforceable at law,
equity will in proper cases, where the parol partition has actually been consummated by the taking
of possession in severalty and the exercise of ownership by the parties of the respective portions set
off to each, recognize and enforce such parol partition and the rights of the parties thereunder. Thus,
it has been held or stated in a number of cases involving an oral partition under which the parties
went into possession, exercised acts of ownership, or otherwise partly performed the partition
agreement, that equity will confirm such partition and in a proper case decree title in accordance
with the possession in severalty.

In numerous cases it has been held or stated that parol partitions may be sustained on the ground
of estoppel of the parties to assert the rights of a tenant in common as to parts of the land divided
by parol partition as to which possession in severalty was taken and acts of individual ownership
were exercised. And a court of equity will recognize the agreement and decree it to be valid and
effectual for the purpose of concluding the right of the parties as between each other to hold their
respective parts in severalty.

A parol partition may also be sustained on the ground that the parties thereto have acquiesced in
and ratified the partition by taking possession in severalty, exercising acts of ownership with respect
thereto, or otherwise recognizing the existence of the partition.

A number of cases have specifically applied the doctrine of part performance, or have stated that a
part performance is necessary, to take a parol partition out of the operation of the statute of frauds.
It has been held that where there was a partition in fact between tenants in common, and a part
performance, a court of equity would have regard to and enforce such partition agreed to by the
parties. (40 Amer. Jur., 15-18.)

It is on the effects of Rule 74, section 1, of the Rules of Court on a parol partition that there are sharp
divergences of opinion among the members of this Court. This section reads:

If the decedent left no debts and the heirs and legatees are all of age, or the minors are represented
by their judicial guardians, the parties may, without securing letters of administration, divide the
estate among themselves as they see fit by means of a public instrument file in the office of the
register of deeds, and should they disagree, they may do so in an ordinary action of partition. If
there is only one heir or one legatee, he may adjudicate to himself the entire estate by means of an
affidavit filed in the office of the register of deeds. It shall be presumed that the decedent left no
debts if no creditor files a petition for letters of administration within two years after the death of the
decedent.

It is contended that under this rule a verbal partition is entirely void and cannot be validated by any acts of
the parties short of the execution of a public document and its registration.

As a general proposition, transactions, so far as they affect the parties, are required to be reduced to writing
either as a condition of jural validity or as a means of providing evidence to prove the transactions. Written
form exacted by the statute of frauds, for example, "is for evidential purposes only." (Domalagan vs. Bolifer,
33 Phil., 471.) The decisions of this Court which we have noticed were predicated on this assumption. The
Civil Code, too, requires the accomplishment of acts or contracts in a public instrument, not in order to
validate the act or contract but only to insure its efficacy so that after the existence of the acts or contracts
has been admitted, the party bound may be compelled to execute the document. (Hawaiian Philippine Co. vs
.Hernaez, 45 Phil., 746.)

Is section 1 of Rule 74 constitutive and not merely evidential of partition? In other words, is writing the act
that confers legal validity upon the agreement? There are no indications in the phraseology of this rule which
justify an affirmative answer to these questions. It must be noted that where the law intends a writing or
other formality to be the essential requisite to the validity of the transactions it says so in clear and
unequivocal terms. Thus, the statute of frauds as originally enacted in England and as enacted in some of
the states, uses the words "utterly void" with statute transactions required to be in writing are absolutely
void and not merely voidable if not made in the manner indicated. Again article 633 of the Civil Code says
that donation may be valid only when made in a public document. Article 146 of the Mortgage Law makes
known its intention to have the execution of a public instrument and its registration in the registry
indispensable to the validity of the contract by using this phrase: "in order that voluntary mortgages may
be legally created in a valid manner." Article 1765 of the Civil Code also employs for the same purpose
similar expression with reference to the execution of a public document: "in order that mortgage may be
validly constituted." And with respect to the formalities of last wills and testaments, section 618 of Act No.
190 makes this emphatic statement: "No will shall be valid to pass upon any estate real or personal nor
change or affect the same, unless it be written etc." Other examples might be mentioned.

Section 1 of Rule 74 contains no such express or clear declaration that the required public instruments is to
be constitutive of a contract of partition or an inherent element of its effectiveness as between the parties.
And this Court had no apparent reason, in adopting this rule, to make the efficacy of a partition as between
the parties dependent on the execution of a public instrument and its registration. On the other hand, the
opposite theory is not without reasonable support. We can think of possible factors against the proposition
that a public document and its registration were contemplated as necessary ingredients to give life to a
contract of partition so that without them no oral partition can bind the parties.

1. In the first place, the Rules of Court of which the rule under consideration forms a part were promulgated
by the Judicial Department under authority to deal with matters of procedure exclusively. For this court to
prescribe what is to be a binding agreement between co-heirs in the settlement of their private affairs which
in no way affect the rights of third parties would be to transcends its rule-making power. We bring out this
limitation upon the authority of this court to make rules, as an aid to interpretation, as a method of arriving
at the conclusion that section 1 of Rule 74 was meant to be remedial and not a rule of substantive law of
far-reaching importance and serious juridical and practical implications. It is to be presumed that the framers
of the Rules of Court realized the bounds of this court's functions and did not intend to trespass on purely
substantive rights of the parties to the partition. To the extent the execution and registration of a notarized
instrument are made essential elements to validity to protect innocent third parties, the rule is legitimate
and necessary; legitimate because decedent's estate are placed under the jurisdiction of the courts to
administer and distribute. The interests of third parties eliminated, the rule loses its character as one of
procedure and practice and invades the realm of substantive law.

Section 596 of Act No. 190, which is the precursor of section 1 Rule 74, is enlightening and instructive. The
former after stating that heirs may apportion and divide the estate among themselves as they may see fit
by agreement duly executed in writing by all of them, adds the words "and not otherwise." These words, in
our opinion, were expressive of an intention to make the written formality inherent element of the validity
of a parol partition. But what is far more to the point is that by logical process of deduction the elimination
from the new rule of the words "and not otherwise" imports the casting away from the prescribed public
document of its jural character which the document enjoyed in the former code. At the same time, the
inclusion of the aforesaid words in the old provision serves to emphasize the necessity of a positive and
clear language if a given contractual formality is to be the exclusive basis of the contract's binding effect on
the parties. It is of course unnecessary to say that the attaching of jural character to the prescribed public
instrument in section 596 of Act No. 190 is no argument for contending that such document must be clothed
with the same raiment in the new Rules. Act No. 190 was a mixture of procedural and substantive provisions,
having been enacted by the legislative body itself which, unlike this court, was unhampered and
untrammelled, except by the fundamental law, in the choice of its subjects of legislation.

2. The civil law looks upon the role of public instruments in acts and contracts with greater liberality with a
view to better adaptation to human frailties and idiosyncracies. In their blind faith in friends and relatives,
in their lack of experience and foresight, and their ignorance, men, in spite of laws, will make and continue
to make verbal contracts. The advantages of an air-tight policy concerning such contracts fall far short of
compensating for the resulting damage, injustice, inconveniences and confusion. So even though articles
1278, 1279 and 1280 of the Civil Code have made provisions for public instrument for all transactions and
contracts whose object is the creation, modification or extinction of real rights in immovables, it has been
recognized and held that verbal contracts may be effective between the parties. A leading case on this
subject is Thunga Chui vs. Que Bentec (2 Phil., 561), Mr. Justice Williard writing the decision. It was said in
that case that when the essential requisites for the existence of a contract are present, the contract is
binding upon the parties, and, although required to be in writing by article 1280 of the Civil Code, the
plaintiff can maintain an action under article 1279 to compel the execution of a written instrument. It says
that "article 1279 does not impose an obligation, but confers a privilege upon both contracting parties, and
the fact that the plaintiff has not made use of same does not bar his action." It further says that article
1279, far from making the enforceability of the contract dependent upon any special intrinsic form,
recognizes its enforceability by the mere act of granting the contracting parties an adequate remedy
whereby to compel the execution of public writing or any other special form whenever such form is necessary
in order that contract may produce the effect which is desired according to whatever its object. This doctrine
was iterated and reiterated in a series of decisions perhaps longer than that on any other legal topic. And it
has been extended even to verbal contracts involving land registered under the Torrens Act. Do the Rules
of Court adhere to this salutary principle? We can perceive no sufficient ground for the new Rules to depart
from it. No considerations of public policy enter into a partition of hereditary estate among co-heirs greater
than those involved in a contract between strangers which operates to create, transmit, modify or extinguish
property rights in land. If as between strangers the creation, transmission, modification or extinction of real
rights may be lawfully effected by parol agreement notwithstanding the requirement that it be put in writing,
the new rule could not be more intransigent when the transaction is between co-heirs and there is no change
of ownership but simply designation and segregation of that part which belongs to each heir.

The requirement that a partition be put in a public document and registered has, in our opinion, for its
purpose the protection of creditors and at the same time the protection of the heirs themselves against
tardy claims. Note that the last sentence of the section speaks of debts and creditors. The object of
registration is to serve as constructive notice, and this means notice to others. It must follow that the
intrinsic validity of partition not executed with the prescribed formalities does not come into play when, as
in this case, there are no creditors or the rights of creditors are not affected. No rights of creditors being
involved, it is competent for the heirs of an estate to enter into an agreement for distribution in a manner
and upon a plan different from those provided by law.

It is said that the findings, conclusions and judgment in the appealed decision are not assigned as errors
and that for this reason the appeal should be dismissed. We do not think that the premise of this objection
is exactly correct. The evidence on parol partition tendered by the defendant and intervenors was ruled out
and they specifically complain of this exclusion as error. In this manner the assignment of error squarely
meets and attacks the opinion and judgment of the trial court. A superficial analysis of the case will show
that on the validity of the alleged partition hangs the result of the entire litigation, and on that validity
depends in turn the competence of the excluded evidence. These two interrelated points are the core of the
whole case. All other points are incidental to and revolve around them. If a completed oral partition may be
enforced, as the defendant and the intervenors contend and as we opine, their evidence should be allowed,
and if allowed and it establishes their allegation, the plaintiff's cause of action vanishes.

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

The judgment is reversed and the case is remanded to the court of origin for further proceeding and a new
decision not incompatible with this decision, with costs of this appeal against the appellee.
G.R. No. L-14921 December 31, 1960

DOLORES B. GUICO, ET AL., plaintiffs-appellants,

vs.
PABLO G. BAUTISTA, ET. AL., defendants-appellees.

P.M. Beltran, M.B. Bautista and R.E. Gonzales for appellants.

M.H. de Joya, Primicias and Del Castillo for appellees.

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

This is an action for liquidation and partition of the estate left by the spouses Mariano Bautista and Gertrudes
Garcia, filed on October 20, 1956 by plaintiffs Dolores B. Guico, et al., against defendants Pablo G. Bautista,
et al., legitimate grandchildren and children, respectively, of said deceased spouses.

The complaint alleged inter alia that Mariano G. Bautista died intestate on December 5, 1947 and that his
properties had already been extrajudicially partitioned among his heirs; that Gertrudes Garcia likewise died
intestate on August 31, 1956 leaving as her legitimate heirs plaintiffs and defendants; that said Gertrudes
Garcia, during her lifetime, made several deeds of donation of some of her properties in favor of all the
defendants, but did not provide that the properties donated would not be subject to collation, so that the
donees are legally bound to bring into the mass of the estate by way of collation the value of the properties
received by them in order that the net hereditary estate may be divided equally among the heirs; and that
the deceased Gertrudes Garcia left outstanding obligations to the Rehabilitation Finance Corporation and
the G.A. Machineries, Inc.

On a motion to dismiss filed by defendants alleging, among other things, that the action was premature
because it is admitted in the complaint that the deceased left certain debts, the lower court dismissed the
complaint on that ground without prejudice and without costs. From the order of dismissal, plaintiffs
appealed to this Court, urging that their action for partition and liquidation may be maintained,
notwithstanding that there are pending obligations of the estate, subject to the taking of adequate measures
either for the payment or security of its creditors.

We are inclined to hold at the lower court that until all the debts of the estate in question are paid, appellants'
action for partition and liquidation is premature.

There is no question that the law allows the partition of the estate of a deceased person by the heirs,
extrajudicially or through an ordinary action for petition, without the filing of a special proceeding and the
appointment of an administrator for the purpose of the settlement of said estate, but this they may do only
"if the decedent left no debts and the heirs and legatees are all of age or the minors are represented by
their judicial guardians" (sec. 1, Rule 74). The reason is that were the deceased dies without pending
obligations, there is no necessity for the appointment of an administrator to administer the estate for them
and to deprive the real owners of their possession to which they are immediately entitled (Bondad vs.
Bondad, 34 Phil., 232; Fule vs. Fule, 46 Phil., 317; Macalinao vs. Valdez, et al., 95 Phil., 318; 50 Off. Gaz.,
3041; Intestate Estate of Rufina Mercado vs. Magtibay, et al., 96 Phil., 383).

The situation is different, however, where the deceased left pending obligations. In such cases, such
obligations must be first paid or compounded with the creditors before the estate can be divided among the
heirs; and unless they reach an amicable settlement as to how such obligations should be settled, the estate
would inevitably be submitted to administration for the payment of such debts. As compared to ordinary
partition, the regular estate proceeding offer the advantage of requiring all creditors of the deceased to
disclose themselves and submit their respective claims within a comparatively short period (12 months
under Rule 87, unless claims are contingent), otherwise, they are forever barred; while in ordinary judicial
partitions the creditors 1claims are only extinguished by the expiration of the period extinctive prescription.
An heir, therefore, may have an interest in making sure that the share allocated to him will be freed from
invisible claims, so that creditors may not later appear and initiate the very estate proceeding sought to be
avoided, and he may properly object to an action for partition this ground. Unless, therefore, all the heirs
are agreeable to assuming personal liability for all the decedent's obligations, those known as well as those
undisclosed, regular estate proceedings can not be avoided.

It is no argument that under regular administration, the estate will incur greater expenses. As a matter of
fact, plaintiffs-appellants include in their complaint a prayer for the appointment of an administrator during
the pendency of this case, in view of the existence of debts of the estate and the lack of agreement among
the heirs as to how debts would be paid.lawphil.net

Appellants claim that there is nothing that would prevent the trial court from directing and ordering that the
pending obligations of the estate be paid first, or that they should constitute as liens on the respective
shares to be received by the heirs. In other words, appellants propose that the administration of the estate
for the purpose of paying off its debts be accomplished right in this partition suit, with either the Court
performing the duties of the administrator, or an administrator appointed to take care of such debts, as
prayed for in their complaint. Obviously, an ordinary action for partition can not be converted into a
proceeding for the settlement of the estate of a deceased, without compliance with the procedure outlined
by Rules 79-90 of the rules of Court, especially the provisions on publication and notice to creditors.

As we see it, appellants' major objective in filing this action for partition is to have an early determination
of the question whether or not the donation inter vivos received by the defendants from the deceased are
subject to collation. But there is no reason why this question can not be determined just as expeditiously in
special proceeding, because even before the known debts of the estate are settled and paid and pending
the expiration for the filing of other claims, the issue can, upon motion of the heirs, be set for hearing, tried,
and definitely settled.

Wherefore, the order appealed from is affirmed, with costs against appellants.
G.R. No. L-6044 November 24, 1952

FORTUNATA VDA. DE RODRIGUEZ, BENJAMIN RODRIGUEZ, MERCEDES RODRIGUEZ DE

HALLARE, LUZ RODRIGUEZ DE CARLOS AND ANTONIO RODRIGUEZ, petitioners,
vs.
HON. BIENVENIDO A. TAN, Judge of the Court of First Instance of Rizal, and ABELARDO
RODRIGUEZ,respondents.

Godofredo C. Montesines and Antonio Rodriguez for petitioners.

Lorenzo Sumulong, Guillermo Romero and Antonio C. Masaquel for respondent.
Ramon Ozaeta as amicus curiae.

BAUTISTA ANGELO, J.:

This is a petition for certiorari seeking to nullify the order of respondent Judge dated August 11, 1952,
wherein after overruling the opposition to the institution of the intestate estate proceedings of the late
Flaviano Rodriguez, he appointed Abelardo Rodriguez administrator of the estate upon filing a bond in the
sum of P2,000.

It is averred in the petition that Flaviano Rodriguez died on February 8, 1944, at Parañaque, Rizal, leaving
an estate with a value of P10,000; that the surviving heirs are the widow, Fortunata Vda. de Rodriguez, and
six children who are the petitioners and respondent Abelardo Rodriguez all the heirs, who were then already
of age, entered into a verbal agreement whereby they agreed not to make a liquidation of the estate but to
place it under the administration of the widow with the understanding that each of the six children would
be entitled to receive a portion of the income in equal shares from year to year for the needs of their families
provided that they do not exceed the participation to which they are entitled; that on March 19, 1952, or
eight years after the death of Flaviano Rodriguez, respondent Abelardo Rodriguez filed a petition for
administration of their intestate estate of said deceased in spite of his knowledge that the estate had no
debts and all the heirs were of age; that on June 2, 1952, the other heirs, petitioners herein, objected to
the petition invoking the rule that if the estate is free from obligations and the heirs are all of age, no
administration proceedings shall be allowed; that on August 11, 1952, respondent Judge, after overruling
the opposition, appointed Abelardo Rodriguez administrator of the estate upon filing the requisite bond.

Respondents herein, in answer to the petition, admitted the existence of a verbal agreement entered into
between the heirs in 1944, wherein they agreed not to liquidate the estate and to place it under the
administration of the widow in view of the unsettled conditions then prevailing at the time, but they contend
that while that was the understanding the same was not carried out because in reality it was Benjamin
Rodriguez, one of the petitioners herein, who took over the administration of the estate and in the discharge
of his duties he failed and refused to give to respondent Abelardo Rodriguez his share in the income which
he badly needed for the support of his family, for which reason he started the intestate proceedings which
gave rise to the present petition for certiorari.

The issue to be determined is whether respondent Judge acted properly in maintaining the administration
proceedings and in appointing Abelardo Rodriguez as administrator of the estate notwithstanding the fact
that the estate has no debts and all the heirs entitled to share in its distribution are all of age.

Under section 1, rule 74 of the Rules of Court, if the decedent left no debts and the heirs are all of age, or
the minors are represented by their judicial guardians, the parties may, without securing letters of
administration, divide the estate among themselves as they see fit, and should they disagree, they may do
so in an ordinary action of partition.

Construing the scope of said section 1, (formerly section 596, Act No. 190), this Court repeatedly held "that
when a person dies without leaving pending obligations to be paid, his heirs, whether of age or not, are not
bound to submit the property to a judicial administration, which is always long and costly, or to apply for
the appointment of an administrator by the court. It has been uniformly held that in such case the judicial
administration and the appointment of an administrator are superfluous and unnecessary proceedings"
(Ilustre vs. Alaras Frondosa, 17 Phil., 321; Malahacan vs. Ignacio, 19 Phil., 434; Bondad vs. Bondad, 34
Phil., 232; Baldemor vs. Malangyaon, 34 Phil., 367; Fule vs. Fule, 46 Phil., 317; Utulo vs. Pasion de Garcia,
66 Phil., 302).

It, therefore, appears from said section 1, as construed by this Court, that when the estate has no pending
obligations to be paid, his heirs, whether of age or not, are not bound to submit the property to a judicial
administration for the reason that it is superfluous or unnecessary, and in most cases long and costly, in
which case the way left to the heirs is to divide the estate among themselves as they may see fit, and should
they disagree, they may do so in an ordinary action of partition. But, is this pattern mandatory upon the
heirs? Should the heirs be unable to agree on a settlement of the estate, do they have to resort necessarily
to an ordinary action of partition? Can they not choose to institute administration proceedings?

Our answer is that section 1 does not preclude the heirs from instituting administration proceedings, even
if the estate has no debts or obligations, if they do not desire to resort for good reasons to an ordinary
action of partition. While section 1 allows the heirs to divide the estate among themselves as they may see
fit, or to resort to an ordinary action of partition, it does not compel them to do so if they have good reasons
to take a different course of action. Said section is not mandatory or compulsory as may be gleaned from
the use made therein of the word may. If the intention were otherwise the framer of the rule would have
employed the word shall as was done in other provisions that are mandatory in character. Note that the
word may is used not only once but in the whole section which indicates an intention to leave the matter
entirely to the discretion of the heirs.

The inquiry before us is not new. In a case where one of the heirs chose to institute administration
proceedings in court, even if the estate had no debts, and the widow sought to dismiss the case invoking in
support of her contention the doctrine enunciated in the cases already adverted to, this Court said:

The principal ground of the opposition is that the heirs being of legal age, and their being no proof
that there is any valid and effective credit against the deceased, no legal reason exists for the court
to appoint an administrator, as prayed for in the petition, citing in support of this contention the
doctrine enunciated in the case of Ilustre vs. Alaras Frondosa (17 Phil., 321); Bondad vs. Bondad (34
Phil., 232); Baldemor vs. Malangyaon (34 Phil., 367).

It is true that, under section 596 of the Code of Civil Procedure, whenever all the heirs of a person
who died intestate are lawful age and legal capacity, and there are no debts due from the estate, or
all the debts have been paid, the heirs may, by agreement duly executed in writing by all of them,
and not otherwise, apportion and divide the estate among themselves, as they may see fit, without
court proceedings. But there is nothing in this section which prohibits said heirs from instituting
special proceedings for the administration of the intestate estate if they cannot agree on the
extrajudicial partition and appointment of the same. (Orozco vs. Garcia, 50 Phil., 149, 151.)

In this particular case, however, we find that the core of petitioners' objection is not that the heirs have
erroneously instituted these administration proceedings but that the court erred in appointing Abelardo
Rodriguez administrator of the estate. It is claimed that Abelardo Rodriguez was appointed administrator
without the petitioners having been given an opportunity to be heard. But this claim has no basis it appearing
that the parties had been duly heard before the court issued its order now complained of. It appears that
both parties submitted the names of the persons they wanted to be appointed as administrator and the
court made its choice only after weighing the fitness and qualifications of the persons recommended. Thus,
on this point, the court said:

The petitioner in this case appears to be qualified to act as administrator of the estate of the deceased
Flaviano Rodriguez and does not possess any of the disqualifications. Moreover, he is one of the heirs
left by the deceased. Inasmuch as one of the oppositors appear to be more qualified to act as
administrator of the estate, the court is inclined to grant the petition presented by Abelardo
Rodriguez. (Annex D)

The petition is dismissed with costs. The preliminary injunction issued is hereby dissolved.
G.R. No. L-81147 June 20, 1989

VICTORIA BRINGAS PEREIRA, petitioner,

vs.
THE HONORABLE COURT OF APPEALS and RITA PEREIRA NAGAC, respondents.

Benjamin J. Quitoriano for petitioner.

Linzag-Arcilla & Associates Law Offices for private respondent.

GANCAYCO, J.:

Is a judicial administration proceeding necessary when the decedent dies intestate without leaving any
debts? May the probate court appoint the surviving sister of the deceased as the administratrix of the estate
of the deceased instead of the surviving spouse? These are the main questions which need to be resolved
in this case.

Andres de Guzman Pereira, an employee of the Philippine Air Lines, passed away on January 3, 1983 at
Bacoor, Cavite without a will. He was survived by his legitimate spouse of ten months, the herein petitioner
Victoria Bringas Pereira, and his sister Rita Pereira Nagac, the herein private respondent.

On March 1, 1983, private respondent instituted before Branch 19 of the Regional Trial Court of Bacoor,
Cavite, Special Proceeding No. RTC-BSP-83-4 for the issuance of letters of administration in her favor
pertaining to the estate of the deceased Andres de Guzman Pereira. 1 In her verified petition, private
respondent alleged the following: that she and Victoria Bringas Pereira are the only surviving heirs of the
deceased; that the deceased left no will; that there are no creditors of the deceased; that the deceased left
several properties, namely: death benefits from the Philippine Air Lines (PAL), the PAL Employees
Association (PALEA), the PAL Employees Savings and Loan Association, Inc. (PESALA) and the Social
Security System (SSS), as well as savings deposits with the Philippine National Bank (PNB) and the Philippine
Commercial and Industrial Bank (PCIB), and a 300 square meter lot located at Barangay Pamplona, Las
Pinas, Rizal and finally, that the spouse of the deceased (herein petitioner) had been working in London as
an auxiliary nurse and as such one-half of her salary forms part of the estate of the deceased.

On March 23,1983, petitioner filed her opposition and motion to dismiss the petition of private
respondent 2 alleging that there exists no estate of the deceased for purposes of administration and praying
in the alternative, that if an estate does exist, the letters of administration relating to the said estate be
issued in her favor as the surviving spouse.

In its resolution dated March 28, 1985, the Regional Trial Court, appointed private respondent Rita Pereira
Nagac administratrix of the intestate estate of Andres de Guzman Pereira upon a bond posted by her in the
amount of Pl,000.00. The trial court ordered her to take custody of all the real and personal properties of
the deceased and to file an inventory thereof within three months after receipt of the order. 3

Not satisfied with the resolution of the lower court, petitioner brought the case to the Court of Appeals. The
appellate court affirmed the appointment of private respondent as administratrix in its decision dated
December 15, 1987. 4

Hence, this petition for review on certiorari where petitioner raises the following issues: (1) Whether or not
there exists an estate of the deceased Andres de Guzman Pereira for purposes of administration; (2)
Whether or not a judicial administration proceeding is necessary where there are no debts left by the
decedent; and, (3) Who has the better right to be appointed as administratrix of the estate of the deceased,
the surviving spouse Victoria Bringas Pereira or the surviving sister Rita Pereira Nagac?

Anent the first issue, petitioner contends that there exists no estate of the deceased for purposes of
administration for the following reasons: firstly, the death benefits from PAL, PALEA, PESALA and the SSS
belong exclusively to her, being the sole beneficiary and in support of this claim she submitted letter-replies
from these institutions showing that she is the exclusive beneficiary of said death benefits; secondly, the
savings deposits in the name of her deceased husband with the PNB and the PCIB had been used to defray
the funeral expenses as supported by several receipts; and, finally, the only real property of the deceased
has been extrajudicially settled between the petitioner and the private respondent as the only surviving
heirs of the deceased.

Private respondent, on the other hand, argues that it is not for petitioner to decide what properties form
part of the estate of the deceased and to appropriate them for herself. She points out that this function is
vested in the court in charge of the intestate proceedings.

Petitioner asks this Court to declare that the properties specified do not belong to the estate of the deceased
on the basis of her bare allegations as aforestated and a handful of documents. Inasmuch as this Court is
not a trier of facts, We cannot order an unqualified and final exclusion or non-exclusion of the property
involved from the estate of the deceased. 5

The resolution of this issue is better left to the probate court before which the administration proceedings
are pending. The trial court is in the best position to receive evidence on the discordant contentions of the
parties as to the assets of the decedent's estate, the valuations thereof and the rights of the transferees of
some of the assets, if any. 6 The function of resolving whether or not a certain property should be included
in the inventory or list of properties to be administered by the administrator is one clearly within the
competence of the probate court. However, the court's determination is only provisional in character, not
conclusive, and is subject to the final decision in a separate action which may be instituted by the parties. 7

Assuming, however, that there exist assets of the deceased Andres de Guzman Pereira for purposes of
administration, We nonetheless find the administration proceedings instituted by private respondent to be
unnecessary as contended by petitioner for the reasons herein below discussed.

The general rule is that when a person dies leaving property, the same should be judicially administered
and the competent court should appoint a qualified administrator, in the order established in Section 6, Rule
78, in case the deceased left no will, or in case he had left one, should he fail to name an executor
therein. 8 An exception to this rule is established in Section 1 of Rule 74. 9 Under this exception, when all
the heirs are of lawful age and there are no debts due from the estate, they may agree in writing to partition
the property without instituting the judicial administration or applying for the appointment of an
administrator.

Section 1, Rule 74 of the Revised Rules of Court, however, does not preclude the heirs from instituting
administration proceedings, even if the estate has no debts or obligations, if they do not desire to resort for
good reasons to an ordinary action for partition. While Section 1 allows the heirs to divide the estate among
themselves as they may see fit, or to resort to an ordinary action for partition, the said provision does not
compel them to do so if they have good reasons to take a different course of action. 10 It should be noted
that recourse to an administration proceeding even if the estate has no debts is sanctioned only if the heirs
have good reasons for not resorting to an action for partition. Where partition is possible, either in or out of
court, the estate should not be burdened with an administration proceeding without good and compelling
reasons. 11

Thus, it has been repeatedly held that when a person dies without leaving pending obligations to be paid,
his heirs, whether of age or not, are not bound to submit the property to a judicial administration, which is
always long and costly, or to apply for the appointment of an administrator by the Court. It has been
uniformly held that in such case the judicial administration and the appointment of an administrator are
superfluous and unnecessary proceedings . 12

Now, what constitutes "good reason" to warrant a judicial administration of the estate of a deceased when
the heirs are all of legal age and there are no creditors will depend on the circumstances of each case.

In one case, 13
We said:

Again the petitioner argues that only when the heirs do not have any dispute as to the bulk
of the hereditary estate but only in the manner of partition does section 1, Rule 74 of the
Rules of Court apply and that in this case the parties are at loggerheads as to the corpus of
the hereditary estate because respondents succeeded in sequestering some assets of the
intestate. The argument is unconvincing, because, as the respondent judge has indicated,
questions as to what property belonged to the deceased (and therefore to the heirs) may
properly be ventilated in the partition proceedings, especially where such property is in the
hands of one heir.

In another case, We held that if the reason for seeking an appointment as administrator is merely to avoid
a multiplicity of suits since the heir seeking such appointment wants to ask for the annulment of certain
transfers of property, that same objective could be achieved in an action for partition and the trial court is
not justified in issuing letters of administration. 14 In still another case, We did not find so powerful a reason
the argument that the appointment of the husband, a usufructuary forced heir of his deceased wife, as
judicial administrator is necessary in order for him to have legal capacity to appear in the intestate
proceedings of his wife's deceased mother, since he may just adduce proof of his being a forced heir in the
intestate proceedings of the latter.15

We see no reason not to apply this doctrine to the case at bar. There are only two surviving heirs, a wife of
ten months and a sister, both of age. The parties admit that there are no debts of the deceased to be paid.
What is at once apparent is that these two heirs are not in good terms. The only conceivable reason why
private respondent seeks appointment as administratrix is for her to obtain possession of the alleged
properties of the deceased for her own purposes, since these properties are presently in the hands of
petitioner who supposedly disposed of them fraudulently. We are of the opinion that this is not a compelling
reason which will necessitate a judicial administration of the estate of the deceased. To subject the estate
of Andres de Guzman Pereira, which does not appear to be substantial especially since the only real property
left has been extrajudicially settled, to an administration proceeding for no useful purpose would only
unnecessarily expose it to the risk of being wasted or squandered. In most instances of a similar
nature, 16 the claims of both parties as to the properties left by the deceased may be properly ventilated in
simple partition proceedings where the creditors, should there be any, are protected in any event.

We, therefore, hold that the court below before which the administration proceedings are pending was not
justified in issuing letters of administration, there being no good reason for burdening the estate of the
deceased Andres de Guzman Pereira with the costs and expenses of an administration proceeding.

With the foregoing ruling, it is unnecessary for us to delve into the issue of who, as between the surviving
spouse Victoria Bringas Pereira and the sister Rita Pereira Nagac, should be preferred to be appointed as
administratrix.

WHEREFORE, the letters of administration issued by the Regional Trial Court of Bacoor to Rita Pereira Nagac
are hereby revoked and the administration proceeding dismissed without prejudice to the right of private
respondent to commence a new action for partition of the property left by Andres de Guzman Pereira. No
costs. SO ORDERED.
G.R. No. 45904 September 30, 1938

Intestate estate of the deceased Luz Garcia. PABLO G. UTULO, applicant-appellee,

vs.
LEONA PASION VIUDA DE GARCIA, oppositor-appellant.

Feliciano B. Gardiner for appellant.

Gerardo S. Limlingan for appellee.

IMPERIAL, J.:

This is an appeal taken by the oppositor from the order of the Court of First Instance of the Province of
Tarlac appointing the applicant as judicial administrator of the property left by the deceased Luz Garcia.

Juan Garcia Sanchez died intestate, and in the proceedings instituted in the Court of First Instance of Tarlac
for the administration of his property (special proceedings No. 3475), Leona Pasion Vda. de Garcia, the
surviving spouse and the herein oppositor, was appointed judicial administratrix. The said deceased left
legitimate children, named Juan Garcia, jr., Patrocinio Garcia and Luz Garcia who, with the widow, are the
presumptive forced heirs. Luz Garcia married the applicant Pablo G. Utulo and during the pendency of the
administration proceedings of the said deceased, she died in the province without any legitimate
descendants, her only forced heirs being her mother and her husband. The latter commenced in the same
court the judicial administration of the property of his deceased wife (special proceedings No. 4188), stating
in his petition that her only heirs were he himself and his mother-in-law, the oppositor, and that the only
property left by the deceased consisted in the share due her from the intestate of her father, Juan Garcia
Sanchez, and asking that he be named administrator of the property of said deceased. The oppositor
objected to the petition, opposing the judicial administration of the property of her daughter and the
appointment of the applicant as administrator. She alleged that inasmuch as the said deceased left no
indebtedness, there was no occasion for the said judicial administration; but she stated that should the
court grant the administration of the property, she should be appointed the administratrix thereof inasmuch
as she had a better right than the applicant. After the required publications, trial was had and the court, on
August 28, 1936, finally issued the appealed order to which the oppositor excepted and thereafter filed the
record on appeal which was certified and approved.

The oppositor-appellant assigns five errors allegedly committed by the trial court, but these assigned errors
raise only two questions for resolution, namely: whether upon the admitted facts the judicial administration
of the property left by the deceased Luz Garcia lies, with the consequent appointment of an administrator,
and whether the appellant has a better right to the said office than the appellee.

1. As to the first question, we have section 642 of the Code of Civil Procedure providing in part that "if no
executor is named in the will, or if a person dies intestate, administration shall be granted" etc. This provision
enunciates the general rule that when a person dies living property in the Philippine Islands, his property
should be judicially administered and the competent court should appoint a qualified administrator, in the
order established in the section, in case the deceased left no will, or in case he had left one should he fail
to name an executor therein. This rule, however, is subject to the exceptions established by sections 596
and 597 of the same Code, as finally amended. According to the first, when all the heirs are of lawful age
and there are no debts due from the estate, they may agree in writing to partition the property without
instituting the judicial administration or applying for the appointment of an administrator. According to the
second, if the property left does not exceed six thousand pesos, the heirs may apply to the competent court,
after the required publications, to proceed with the summary partition and, after paying all the known
obligations, to partition all the property constituting the inheritance among themselves pursuant to law,
without instituting the judicial administration and the appointment of an administrator.

Construing the scope of section 596, this court repeatedly held that when a person dies without leaving
pending obligations to be paid, his heirs, whether of age or not, are not bound to submit the property to a
judicial administration and the appointment of an administrator are superfluous and unnecessary
proceedings (Ilustre vs.Alaras Frondosa, 17 Phil., 321; Malahacan vs. Ignacio, 19 Phil., 434;
Bondad vs. Bondad, 34 Phil., 232; Baldemor vs. Malangyaon, 34 Phil., 367; Fule vs. Fule, 46 Phil., 317).

In enunciating the aforesaid doctrine, this court relied on the provisions of articles 657, 659 and 661 of the
Civil Code under which the heirs succeed to all the property left by the deceased from the time of his death.
In the case of Ilustre vs. Alaras Frondosa, supra, it was said:

Under the provisions of the Civil Code (arts. 657 to 661), the rights to the succession of a person are
transmitted from the moment of his death; in other words, the heirs succeeded immediately to all of
the property of the deceased ancestor. The property belongs to the heirs at the moment of the death
of the ancestor as completely as if the ancestor had executed and delivered to them a deed for the
same before his death. In the absence of debts existing against the estate, the heirs may enter upon
the administration of the said property immediately. If they desire to administer it jointly, they may
do so. If they desire to partition it among themselves and can do this by mutual agreement, they
also have that privilege. The Code of Procedure in Civil Actions provides how an estate may be divided
by a petition for partition in case they can not mutually agree in the division. When there are no
 debts existing against the estate, there is certainly no occasion for the intervention of an
administrator in the settlement and partition of the estate among the heirs. When the heirs are all
of lawful age and there are no debts, there is no reason why the estate should be burdened with the
costs and expenses of an administrator. The property belonging absolutely to the heirs, in the
absence of existing debts against the estate, the administrator has no right to intervene in any way
whatever in the division of the estate among the heirs. They are co-owners of an undivided estate
and the law offers them a remedy for the division of the same among themselves. There is nothing
in the present case to show that the heirs requested the appointment of the administrator, or that
they intervened in any way whatever in the present actions. If there are any heirs of the estate who
have not received their participation, they have their remedy by petition for partition of the said
estate.

In the cases of Malahacan vs. Ignacio, supra, Bondad vs. Bondad, supra, and Baldemor vs. Malangyaon,
supra, the same doctrine was reiterated. And in the case of Fule vs. Fule, supra, this court amplified and
ratified the same doctrine in the following language:

Upon the second question — Did the court a quo commit an error in refusing to appoint an
administrator for the estate of Saturnino Fule? — it may be said (a) that it is admitted by all of the
parties to the present action, that at the time of his death no debts existed against his estate and
(b) that all of the heirs of Saturnino Fule were of age.

In this jurisdiction and by virtue of the provisions of articles 657, 659 and 661 of the Civil Code, all
of the property, real and personal, of a deceased person who dies intestate, is transmitted
immediately to his heirs. (To Guioc-Co vs. Del Rosario, 8 Phil., 546; Ilustre vs. Alaras Frondosa, 17
Phil., 321; Marin vs. Nacianceno, 19 Phil., 238; Malahacan vs. Ignacio, 19 Phil., 434; Nable
Jose vs. Uson, 27 Phil., 73; Bondad vs. Bondad, 34 Phil., 232; Baldemor vs. Malangyaon, 34 Phil.,
367.)

If then the property of the deceased, who dies intestate, passes immediately to his heirs, as owners,
and there are no debts, what reason can there be for the appointment of a judicial administrator to
administer the estate for them and to deprive the real owners of their possession to which they are
immediately entitled? In the case of Bondad vs. Bondad (34 Phil., 232), Chief Justice Cayetano
Arellano, discussing this question, said: Under the provisions of the Civil Code (articles 657 to 661),
the rights to the succession of a person are transmitted from the moment of his death; in other
words, the heirs succeed immediately to all of the property of the deceased ancestor. The property
belongs to the heirs at the moment of the death of the ancestor as completely as if the ancestor had
executed and delivered to them a deed for the same before his death. In the absence of debts
existing against the estate, the heirs may enter upon the administration of the said property
immediately. If they desire to administer it jointly, they may do so. If they desire to partition it
among themselves and can do this by mutual agreement, they also have that privilege. The Code of
Procedure in Civil Actions provides how an estate may be divided by a petition for partition in case
they cannot mutually agree in the division. (Sections 182-184, 196, and 596 of Act No. 190.)

When the heirs are all of lawful age and there are no debts there is no reason why the estate should
be burdened with the cost and expenses of an administrator. The administrator has no right to
intervene in any way whatsoever in the division of the estate among the heirs when they are adults
and when there are no debts against the estate. (Ilustre vs. Alaras Frondosa, supra;
Bondad vs. Bondad, supra; Baldemor vs.Malangyaon, supra.)

When there are no debts and the heirs are all adults, their relation to the property left by their
ancestor is the same as that of any other coowners or owners in common, and they may recover
their individual rights, the same as any other coowners of undivided property. (Succession of Story,
3 La. Ann., 502; Mcintyre vs.Chappell, 4 Tex., 187; Wood et ux. vs. Ford, 29 Miss., 57.)

xxx xxx xxx

The right of the heirs in cases like the one we are discussing, also exist in the divisions of personal
as well as the real property. If they cannot agree as to the division, then a suit for partition of such
personal property among the heirs of the deceased owner is maintenable where the estate is not in
debts, the heirs are all of age, and there is no administration upon the estate and no necessity
thereof. (Jordan vs. Jordan, 4 Tex. Civ. App. Rep., 559.)

It is difficult to conceive of any class or item of property susceptible of being held in common which
may not be divided by the coowners. It may be of personal property as well as of real estate; of
several parcels as well as of a single parcel, and of non-contiguous as well as of adjacent tracts; or
of part only of the lands of the coowners as well as of the whole. (Pickering vs. Moore, 67 N. H., 533;
31 L. R. A., 698; Pipes vs. Buckner, 51 Miss., 848; Tewksbury vs. Provizzo, 12 Cal., 20.)

We conceive of no powerful reason which counsels the abandonment of a doctrine so uniformly applied. We
are convinced that if the courts had followed it in all cases to which it has application, their files would not
have been replete with unnecessary administration proceedings as they are now. There is no weight in the
argument adduced by the appellee to the effect that his appointment as judicial administrator is necessary
so that he may have legal capacity to appear in the intestate of the deceased Juan Garcia Sanchez. As he
would appear in the said intestate by the right of the representation, it would suffice for him to allege in
proof of his interest that he is a usufructuary forced heir of his deceased wife who, in turn, would be a forced
heir and an interested and necessary party if she were living . In order to intervene in said intestate and to
take part in the distribution of the property it is not necessary that the administration of the property of his
deceased wife be instituted — an administration which will take up time and occasion inconvenience and
unnecessary expenses.

2. In view of the foregoing, there is no need to determine which of the parties has preferential right to the
office of administrator.

The appealed order should be reversed, with the costs of this instance to the applicant-appellee. So ordered.
 [G.R. No. 115181. March 31, 2000]

MARIA SOCORRO AVELINO, petitioner, vs. COURT OF APPEALS, ANGELINA AVELINO, SHARON
AVELINO, ANTONIO AVELINO, JR., TRACY AVELINO, PATRICK MICHAEL AVELINO and MARK
ANTHONY AVELINO, respondents. Sdaa miso

RESOLUTION

QUISUMBING, J.:

Before us is a petition for review on certiorari of the Decision of the Court of Appeals dated February 16,
1994 in CA-G.R. SP No. 31574 as well as its Resolution dated April 28, 1994 denying petitioner's Motion for
Reconsideration. The assailed Decision affirmed the Order of the Regional Trial Court of Quezon City, Branch
78, in Sp. Proc. No. Q-91-10441 converting petitioner's petition for the issuance of letters of administration
to an action for judicial partition.

Petitioner Maria Socorro Avelino is a daughter and compulsory heir of the late Antonio Avelino, Sr., and his
first wife private respondent Angelina Avelino.

The other private respondents, Sharon, Antonio Jr., Tracy, Patrick and Mark Anthony all surnamed Avelino
are likewise compulsory heirs of Avelino, Sr. Sharon, an American, is the second wife of Avelino, Sr. The
other private respondents are siblings of petitioner Ma. Socorro.

The records reveal that on October 24, 1991, Ma. Socorro filed before the Regional Trial Court of Quezon
City, Branch 78, docketed as SP Proc. No. Q-91-10441, a petition for the issuance of letters of administration
of the estate of Antonio Avelino, Sr., who died intestate on April 10, 1989. She asked that she be appointed
the administrator of the estate.

On December 3, 1992, Angelina, and the siblings filed their opposition by filing a motion to convert the said
judicial proceedings to an action for judicial partition which petitioner duly opposed.

On February 16, 1993, public respondent judge issued the assailed Order which reads:

"Acting on the Motion to Convert Proceedings to Action for Judicial Partition, considering that
the petitioner is the only heir not amenable to a simple partition, and all the other compulsory
heirs manifested their desire for an expeditious settlement of the estate of the deceased
Antonio Avelino, Sr., the same is granted.

"WHEREFORE, the petition is converted into judicial partition of the estate of deceased Antonio
Avelino, Sr. The parties are directed to submit a complete inventory of all the real and personal
properties left by the deceased. Set the hearing of the judicial partition on APRIL 13, 1993,
at 8:30 o'clock in the morning. Notify all the parties and their counsel of this assignment.

"SO ORDERED."[1]

On March 17, 1993, petitioner filed a motion for reconsideration which was denied in an Order dated June
16, 1993.

On July 23, 1993, Ma. Socorro filed before the Court of Appeals, a petition for certiorari, prohibition,
and mandamus alleging grave abuse of discretion amounting to lack or excess of jurisdiction on the part of
the trial court, in granting private respondents' motion to convert the judicial proceeding for the issuance of
letters of administration to an action for judicial partition. Her petition was docketed as CA-G.R. SP No.
31574. Sdaad

On February 18, 1994, the respondent appellate court rendered the assailed decision, stating that the
"petition is DENIED DUE COURSE" and accordingly dismissed."[2]

On March 1, 1994, petitioner duly moved for reconsideration, but it was denied on April 28, 1994.

Hence, this petition. Petitioner assigns the following errors:

THE COURT OF APPEALS ERRED IN UPHOLDING THE LOWER COURT'S FINDING THAT
PARTITION IS PROPER UNDER THE PREMISES.

ADMINISTRATION SHOULD BE THE PROPER REMEDY PENDING THE DETERMINATION OF THE

CHARACTER AND EXTENT OF THE DECEDENT'S ESTATE.[3]

For resolution, we find that given the circumstances in this case, the sole issue here is whether respondent
appellate court committed an error of law and gravely abused its discretion in upholding the trial court's
finding that a partition is proper.
Petitioner submits that: First, no partition of the estate is possible in the instant case as no determination
has yet been made of the character and extent of the decedent's estate. She points to the Court's ruling
in Arcilles v. Montejo, 26 SCRA 197 (1969), where we held that when the existence of other properties of
the decedent is a matter still to be reckoned with, administration proceedings are the proper mode of
resolving the same.[4] In addition, petitioner contends that the estate is in danger of being depleted for want
of an administrator to manage and attend to it.

Second, petitioner insists that the Rules of Court does not provide for conversion of a motion for the issuance
of letters of administration to an action for judicial partition. The conversion of the motion was, thus,
procedurally inappropriate and should be struck down for lack of legal basis.

When a person dies intestate, or, if testate, failed to name an executor in his will or the executor so named
is incompetent, or refuses the trust, or fails to furnish the bond required by the Rules of Court, then the
decedent's estate shall be judicially administered and the competent court shall appoint a qualified
administrator in the order established in Section 6 of Rule 78. [5] The exceptions to this rule are found in
Sections 1 and 2 of Rule 74[6]which provide:

"SECTION 1. Extrajudicial settlement by agreement between heirs. - If the decedent left no

will and no debts and the heirs are all of age or the minors are represented by their judicial
or legal representatives duly authorized for the purpose, the parties may, without securing
letters of administration, divide the estate among themselves as they see fit by means of a
public instrument filed in the office of the register of deeds, and should they disagree, they
may do so in an ordinary action of partition.. Scs daad

"SEC. 2. Summary settlement of estates of small value.- Whenever the gross value of the
estate of a deceased person, whether he died testate or intestate, does not exceed ten
thousand pesos, and that fact if made to appear to the Regional Trial Court having jurisdiction
of the estate by the petition of an interested person and upon hearing, which shall be held
not less than one (1) month nor more than three (3) months from the date of the last
publication of a notice which shall be published once a week for three (3) consecutive weeks
in a newspaper of general circulation in the province, and after such other notice to interested
persons as the court may direct, the court may proceed summarily, without the appointment
of an executor or administrator, and without delay, to grant, if proper, allowance of the will,
if any there be, to determine who are the persons legally entitled to participate in the estate
and to apportion and divide it among them after the payment of such debts of the estate as
the court shall then find to be due; and such persons, in their own right, if they are lawful age
and legal capacity, or by their guardians or trustees legally appointed and qualified, if
otherwise, shall thereupon be entitled to receive and enter into the possession of the portions
of the estate so awarded to them respectively. The court shall make such order as may be
just respecting the costs of the proceedings, and all orders and judgments made or rendered
in the course thereof shall be recorded in the office of the clerk, and the order of partition or
award, if it involves real estate, shall be recorded in the proper register's office."

The heirs succeed immediately to all of the rights and properties of the deceased at the moment of the
latter's death.[7] Section 1, Rule 74 of the Rules of Court, allows heirs to divide the estate among themselves
without need of delay and risks of being dissipated. When a person dies without leaving pending obligations,
his heirs, are not required to submit the property for judicial administration, nor apply for the appointment
of an administrator by the court.[8]

We note that the Court of Appeals found that in this case "the decedent left no debts and the heirs and
legatees are all of age."[9] With this finding, it is our view that Section 1, Rule 74 of the Rules of Court should
apply.

In a last-ditch effort to justify the need for an administrator, petitioner insists that there is nothing to
partition yet, as the nature and character of the estate have yet to be determined. We find, however, that
a complete inventory of the estate may be done during the partition proceedings, especially since the estate
has no debts. Hence, the Court of Appeals committed no reversible error when it ruled that the lower court
did not err in converting petitioner's action for letters of administration into an action for judicial
partition. Sup rema

Nor can we sustain petitioner's argument that the order of the trial court converting an action for letters of
administration to one for judicial partition has no basis in the Rules of Court, hence procedurally infirm. The
basis for the trial court's order is Section 1, Rule 74 of the Rules of Court. It provides that in cases where
the heirs disagree as to the partition of the estate and no extrajudicial settlement is possible, then an
ordinary action for partition may be resorted to, as in this case. We have held that where the more
expeditious remedy of partition is available to the heirs, then the heirs or the majority of them may not be
compelled to submit to administration proceedings.[10] The trial court appropriately converted petitioner's
action for letters of administration into a suit for judicial partition, upon motion of the private respondents.
No reversible error may be attributed to the Court of Appeals when it found the trial court's action
procedurally in order. WHEREFORE, the petition is DENIED for lack of merit, and the assailed decision and
resolution of the Court of Appeals is CA-G.R. SP No. 31574 are AFFIRMED. Costs against petitioner. SO
ORDERED.
G.R. No. L-10474 February 28, 1958

BENNY SAMPILO and HONORATO SALACUP, petitioners,

vs.
THE COURT OF APPEALS and FELISA SINOPERA respondent.

Clodualdo P. Surio for petitioners.

Moises B. Ramos for respondents.

LABRADOR, J.:

Certiorari against decision of the Court of Appeals, Third Division, affirming with slight modification a
judgment of the Court of First Instance of Pangasinan, declaring plaintiffs owners of one-half portion of four
parcels of land described in the complaint, with costs. The judgment was rendered in an action instituted by
Felisa Sinopera, administrative of the estate of Teodoro Tolete, to recover from defendants one-half share
of the aforesaid parcels of land, which, it is alleged belong to the deceased Teodoro Tolete.

According, to the facts found by the Court of Appeals, Teodoro Tolete died intestate in January, 1945. He
left for parcels of land, lots Nos. 12006, 119967, 14352 and 12176 of the cadastral survey of San Manuel,
Pangasinan He left as heirs his widow, Leoncia de Leon, and several nephews and nieces, children of
deceased brothers and sisters. On July 25, 1946, without any judicial proceedings, his widow executed an
affidavit stating that "the deceased Teodoro Tolete left no children or respondent neither ascendants or
acknowledged natural children neither brother, sisters, nephews or nieces, but the, widow Leoncia de Leon,
the legitimate wife of the deceased, the one and only person to inherit the above properties" (Record on
Appeal, p. 9). This affidavit was registered in the Office of the Register of Deeds of Pangasinan. On the same
day, she executed a deed of sale of all the above parcels of land in favor of Benny Sampilo for the sum of
P10,000. This sale was also registered in the Office of the Register of Deeds of Pangasinan. On June 17,
1950, Benny Sampilo, in turn, sold the said parcels of land to Honorato Salacup for P50,000 and this sale
was also registered in the Office of the Register of Deeds of Pangasinan (See Annexes "A", "B", "C", attached
to the complaint).

In March, 1950, Felisa Sinopera instituted proceedings for the administration of the estate of Teodoro Tolete
(Special Proceeding No. 3694, Pangasinan), and having secured her appointment as administratrix, brought
the present action on June 20, 1950. Notice of lis pendens was filed in the Office of the Register of Deeds
and said notice was recorded on certificates of title covering the said properties on June 26, 1950. This
notice, however, was subsequent to the registration of the deed of sale, in favor of Honorato Salacup, which
took place on June 17, 1950.

The complaint alleges that the widow Leoncia de Leon, had no right to execute the affidavit of adjudication
and that Honorato Salacup acquired no rights to the lands sold to him, and that neither had Benny Sampilo
acquired any right to the said properties. Sampilo and Salacup filed an amended answer alleging that the
complaint states no cause of action; that if such a cause exists the same is barred by the statute of
limitations; that defendants are innocent purchasers for value; and that the complaint is malicious, frivolous
and spurious, intended to harass and inconvenience the defendants.

After trial the Court of First Instance rendered judgment for the plaintiff, Felisa Sinopera, declaring that the
affidavit of adjudication Exhibit "A", the deed of sale Exhibit "B", and the deed of sale Exhibit "C", are all
null and void; declaring plaintiff owner of one-half portion of the four parcels of land in question, and finally
declaring that the usufructuary rights of Leoncia de Leon to said properties are terminated. The case was
appealed to the Court of Appeals. This court held that the annulment of the affidavit of adjudication, Exhibit
"A", by the trial court was correct but that the annulment of the deeds Exhibits "B" and "C", insofar as one-
half of the properties, conveyed is concerned, and in adjudicating one-half of the same to the heirs of the
deceased, is premature. Hence, it modified the judgment, declaring that Exhibits "B" and "C" are null and
void only insofar as the properties thereby conveyed exceed the portion that the responds to Leoncia de
Leon. Therefore, it ordered the defendants to deliver to the plaintiff, in her capacity as administratrix of the
estate of Teodoro Tolete, for disposition according to the law, one-half of the lands described in the
complaint, but reserved to Honorato Salacup the right to claim and secure adjudication in his favor of
whatever portion of said properties may correspond to Leoncia de Leon and also his right to bring an action
for the damages that he may have suffered against Leoncia de Leon and Benny Sampilo.

Benny Sampilo and Honorato Salacup have appealed to this Court by certiorari and have assigned the
following errors in their brief:

The Court of Appeals erred in affirming that respondent Felisa Sinopera's right of action to recover
her and her co-heirs' participation to the lands in question had not prescribed at the time the action
to recover was filed.
 II

The Court of Appeals erred in not finding that the petitioners are innocent purchasers for value.

III

The Court of Appeals erred in aiming the lower court's denial of petitioner's motion for new trial.

In support of the first assignment of error, it is argued that as the action was instituted almost four years
after the affidavit of adjudication, Exhibit "A", was registered in the Office of the Register of Deeds Of
Pangasinan, the right of action of the administratrix has prescribed and lapsed because the same was not
brought within the period of two years as Prescribed in Section 4 of Rule 74 of the Rules of Court, and as
decided in the cases of McMicking vs. Sy Conbieng, 21 Phil., 211 and Ramirez vs. Gmur, 42 Phil., 855 869.

Section 4 of Rule 74 provides, in part, as follows:

SEC. 4. Liability of distributees and estate. — If it shall appear at any time within two years after the
settlement and distribution of an estate in accordance with the provisions of either of the first two
sections of this rule, that an heir or other has been unduly deprived of his lawful participation of the
such heir or such other person may compel the settlement estate in the courts in the manner
hereinafter provided for the purpose of satisfying such lawful participation. . . .

Section 1, which is mentioned in Section 4, reads as follows:

SEC. 1. Extrajudcial settlement by agreement between the heirs. — If the decedent left no debts and
the heirs and legatees are all of age, or the minors are represented by their judicial guardians, the
parties may, without securing letters of administration, divide the estate among themselves as they
see fit by means of a public instrument filed in the office of the register of deeds, and should they
disagree, they may do so in an ordinary action of partition. If there is only one heir or one legatee,
he may adjudicate to himself the entire estate by means of an affidavit filed in the office of the
register of deeds. It shall be presumed that the decedent left no debts if no creditor files a petition
for letters of administration within two years after the death of the decedent.

It will be noted that the provision next above-quoted contains two parts, the first referring to a case in which
there are two or more heirs interested in the estate of a deceased person, and the second in which there is
only one heir. The section was taken from Section 596 of the old Code of Civil Procedure (Act No. 190, as
amended by Act No. 2331). Said Section 596 as amended, was as follows:

SEC. 596. Settlement of Certain Intestates Without Legal Proceedings. — Whenever all the heirs of
a person who died intestate are of lawful age and legal capacity and there are no debts due from the
estate, or all the debts have been paid the heirs may, by agreement duly executed in writing by all
of them, and not otherwise, apportion and divide the estate among themselves, as they may see fit,
without proceedings in court.

We notice two significant provisions in Sections 1 and 4 of Rule 74. In Section 1, it is required that if there
are two or more heirs, both or all of them should take part in the extrajudicial settlement. This requirement
is made more imperative in the old law (Section 596, Act No. 190) by the addition of the clause "and not
otherwise." By the title of Section 4, the "distributees and estate" are indicates the persons to answer for
rights violated by the extrajudicial settlement. On the other hand, it is also significant that no mention is
made expressly of the effect of the extrajudicial settlement on persons who did not take part therein or had
no notice or knowledge thereof. There cannot be any doubt that those who took part or had knowledge of
the extrajudicial settlement are bound thereby. As to them the law is clear that if they claim to have been
in any manner deprived of their lawful right or share in the estate by the extrajudicial settlement, they may
demand their rights or interest within the period of two years, and both the distributes and estate would be
liable to them for such rights or interest. Evidently, they are the persons in accordance with the provision,
may seek to remedy, the prejudice to their rights within the two-year period. But as to those who did not
take part in the settlement or had no notice of the death of the decedent or of the settlement, there is no
direct or express provision is unreasonable and unjust that they also be required to assert their claims within
the period of two years. To extend the effects of the settlement to them, to those who did not take part or
had no knowledge thereof, without any express legal provision to that effect, would be violative of the
fundamental right to due process of law. In the case of Ramirez vs. Gmur, supra, cited by the appellants in
this case, we held:

It will be noted that while the law (see. 754) provides that the order of distribution may be had upon
the application of the executor or administrator, or of a person interested in the estate, no provision
is made for notice, by publication or otherwise, of such application. The proceeding, therefore, is to
all intents and purposes ex parte. As will be seen our law is very vague and incomplete; and certainly
it cannot be held that a purely ex parte proceeding, had without notice by personal service or by
publication, by which the court undertakes to distribute the property of deceased persons, can be
conclusive upon minor heirs who are not represented therein.
The procedure outlined in Section 1 of Rule 74 of extrajudicial settlement, or by affidavit, is an ex
parte proceeding. It cannot by any reason or logic be contended that such settlement or distribution would
affect third persons who had no knowledge either of the death of the decedent or of the extrajudicial
settlement or affidavit, especially as no mention of such effect is made, either directly or by implication. We
have examined the two cases cited by appellants and there is no similarity at all between the circumstances
on which the ruling therein had been predicated and those of the case at bar.

Following the above-quoted decision of this Court in the case of Ramirez vs. Gmur, supra, we are of the
opinion and so hold that the provisions of Section 4 of Rule 74, barring distributees or heirs from objecting
to an extrajudicial partition after the expiration of two years from such extrajudicial partition, is applicable
only (1) to persons who have participated or taken part or had notice of the extrajudicial partition, and, in
addition, (2) when the provisions of Section 1 of Rule 74 have been strictly complied with, i.e., that all the
persons or heirs of the decedent have taken part in the extrajudicial settlement or are represented by
themselves or through guardians. The case at bar fails to comply with both requirements because not all
the heirs interested have participated in the extrajudicial settlement, the Court of Appeals having found that
the decedent left aside from his widow, nephews and nieces living at the time of his death.

The next contention of appellants is that plaintiff's action is barred by the statute of limitations. The origin
of the Provision (Section 4, Rule 74), upon which this contention is predicated, which is Section 596 of Act
No. 190, fails to support the contention. In the first Place, there is nothing therein, or in its source which
shows clearly a statute of limitations and a bar of action against third person's. It is only a bar against the
parties who had taken part in the extrajudicial proceedings but not against third persons not Parties thereto.
In the second place, the statute of limitations is contained in a different chapter of Act No. 190, Chapter XL,
and if Section 596 of the Act had been meant to be a statute of limitations, it would naturally have been
included in the chapter which defines the statute.

But even if Section 4 of Rule 74 is a statute of limitations, it is still unavailing to the defendants. The action
is one based on fraud, as the widow of the deceased owner of the lands had declared in her affidavit of
partition that the deceased left no nephews or niece, or other heirs except herself. Plaintiff's right which is
based on fraud and which has a period of four years (Section 43, par. 3, Act no. 190; Article 1146, Civil
Code), does not appear to have lapsed the action was instituted. Judicial proceedings where instituted in
March, 1950 and these proceedings must have been instituted soon after the discovery of fraud. In any
case, the defendants have the burden of proof as to their claim of the statute of limitations, which is their
defense, and they have not proved that when the action was instituted, four years had already elapsed from
the date that the interested parties had actual knowledge of the fraud.

The second assignment of error, i.e., that the defendants-appellants are innocent purchasers for value was
rejected as unfounded by the court of Appeals. Said court said.

The claim that defendants-appellants did not have sufficient knowledge or notice of the claim of the
heirs of Teodoro Tolete, deceased, over the land in question does not find support in the evidence of
record. As regards defendant Benny Sampilo, it is an admitted fact that he is a nephew of Leoncia
de Leon and he had been living with the latter. Both Benny Sampilo and the heirs of the deceased
who are claiming the property are residents of San Manuel, Pangasinan. It is hard, therefore, to
believe that Benny Sampilo did not know the existence of said heirs, and that he was not aware that
they were nephews and nieces, children of the deceased brothers, of the deceased Teodoro Tolete.
The fact furthermore that Benny Sampilo accompanied his aunt Leoncia de Leon to Sison,
Pangasinan, when the later saw Notary Public Ladislao Villamil, who was the former's uncle, to have
him prepare the affidavit of adjudication Exhibit "A", and the deed of conveyance Exhibit "B" by which
on the same date she conveyed to Sampilo all the property which she had adjudicated to herself,
both of which she acknowledged before said notary public, coupled with the fact that there is no
sufficient showing that the consideration for the conveyance of P10,000 had in fact been paid,
strengthens our belief that said Benny Sampilo knew that the deceased Teodoro Tolete had other
heirs who may claim the property, and that the immediate conveyance thereof to him was a
strategem concocted to defeat the former's rights. And as regards Honorato Salacup, while the claim
that no notice of lis pendens appeared annotated in the certificates of title issued to Benny Sampilo
when he acquired the property might be true, for he purchased the property on June 17, 1950, and
the notice of lis pendens was noted on said certificates of title on June 26, 1950, nevertheless, he
cannot claim that he was a purchaser in good faith for value of the property. It is well-settled rule in
this jurisdiction that a purchaser of registered lands who has knowledge of facts which should put
him upon inquiry and investigate as to the possible defects of the title of the vendor and fails to make
such inquiry and investigation cannot claim that he as a purchaser in good faith for value and he had
acquired a valid title thereto. Leung Yee vs. Strong Machinery Co., 37 Phil., 644; Dayao vs. Diaz,
G.R. L-4106, May 29, 1952.

Finding no error in the decision of the Court of Appeals, we hereby affirm it in toto, with costs against the
petitioners. So ordered.
 SPOUSES GORGONIO BENATIRO G.R. No. 161220

and COLUMBA CUYOS-BENATIRO

substituted by their heirs, namely:

Isabelita, Renato, Rosadelia and

Gorgonio, Jr., surnamed Benatiro, and

SPOUSES RENATO C. BENATIRO and

ROSIE M. BENATIRO,

Respondents,

- versus -

HEIRS OF EVARISTO CUYOS, namely:

Gloria Cuyos-Talian, Patrocenia Cuyos-
Mijares, Numeriano Cuyos, and
Enrique Cuyos, represented by their attorney-
in-fact, Salud Cuyos,

Respondents. July 30, 2008

x----------------------------------------------------------x

DECISION

AUSTRIA-MARTINEZ, J.:

Before us is a Petition for Review on Certiorari under Rule 45 of the Rules of Court filed by petitioners seeking

to annul the Decision[1] dated July 18, 2003 of the Court of Appeals (CA) and its Resolution[2] dated November 13,

2003 denying petitioners motion for reconsideration issued in CA-G.R. SP No. 65630.[3]

Spouses Evaristo Cuyos and Agatona Arrogante Cuyos were blessed with nine children,
namely: Francisco, Victoria, Columba, Lope, Salud, Gloria, Patrocenia, Numeriano, and Enrique. On August 28,
1966, Evaristo died leaving six parcels of land located in Tapilon, Daanbantayan, Cebu covered by Tax Declaration (TD)
Nos. 000725, 000728, 000729, 000730, 000731, 000732, all under the name of Agatona Arrogante.

On July 13, 1971, one of the heirs, Gloria Cuyos-Talian (respondent Gloria) represented by Atty. Victor
Elliot Lepiten (Atty. Lepiten), filed before the Court of First Instance (CFI) now Regional Trial Court (RTC), Cebu, Branch
XI, a petition[4] for Letters of Administration, docketed as Special Proceeding (SP) No. 24-BN entitled In the Matter of
the Intestate Estate of Evaristo Cuyos, Gloria Cuyos-Talian, petitioner. The petition was opposed by Glorias brother,
Francisco, who was represented by Atty. Jesus Yray (Atty. Yray).

In the hearing held on January 30, 1973, both parties together with their respective counsels appeared. Both
counsels manifested that the parties had come to an agreement to settle their case. The trial court on even date issued
an Order[5] appointing Gloria as administratrix of the estate. The dispositive portion reads:

WHEREFORE, letters of administration of the estate of the late Evaristo Cuyos and including the
undivided half accruing to his spouse Agatona Arrogante who recently died is hereby issued in favor of
Mrs. Gloria Cuyos Talian who may qualify as such administratrix after posting a nominal bond
of P1,000.00.[6]
 Subsequently, in the Order[7] dated December 12, 1975, the CFI stated that when the Intestate Estate hearing
was called on that date, respondent Gloria and her brother, oppositor Francisco, together with their respective
counsels, appeared; that Atty. Yray, Franciscos counsel, manifested that the parties had come to an agreement to settle
the case amicably; that both counsels suggested that the Clerk of Court, Atty. Andres C. Taneo (Atty. Taneo), be
appointed to act as Commissioner to effect the agreement of the parties and to prepare the project of partition for the
approval of the court. In the same Order, the Court of First Instance (CFI) appointed Atty. Taneo and ordered him to
make a project of partition within 30 days from December 12, 1975 for submission and approval of the court.

In his Commissioner's Report[8] dated July 29, 1976, Atty. Taneo stated that he
issued subpoenae supplemented by telegrams to all the heirs to cause their appearance on February 28 and 29, 1976
in Tapilon, Daanbantayan, Cebu, where the properties are located, for a conference or meeting to arrive at an
agreement; that out of the nine heirs, only respondents Gloria, Salud and Enrique Cuyos failed to attend; that per return
of the service, these three heirs could not be located in their respective given addresses; that since some of the heirs
present resided outside the province of Cebu, they decided to go ahead with the scheduled meeting.

Atty. Taneo declared in his Report that the heirs who were present:

1. Agreed to consider all income of the properties of the estate during the time that
Francisco Cuyos, one of the heirs, was administering the properties of the estate (without
appointment from the Court) as having been properly and duly accounted for.

2. Agreed to consider all income of the properties of the estate during the administration of
Gloria Cuyos Talian, (duly appointed by the Court) also one of the heirs as having been properly
and duly accounted for.

3. Agreed to consider all motions filed in this proceedings demanding an accounting from
Francisco Cuyos and Gloria Cuyos Talian, as having been withdrawn.

4. Agreed not to partition the properties of the estate but instead agreed to first sell it for the
sum of P40,000.00 subject to the condition that should any of the heirs would be in a position to
buy the properties of the estate, the rest of the eight (8) heirs will just receive only Four Thousand
Pesos (P4,000.00) each.

5. Agreed to equally divide the administration expenses to be deducted from their respective
share of P4,000.00.[9]

The Report further stated that Columba Cuyos-Benatiro (Columba), one of the heirs, informed all those present
in the conference of her desire to buy the properties of the estate, to which everybody present agreed, and considered
her the buyer. Atty. Taneo explained that the delay in the submission of the Report was due to the request of
respondent Gloria that she be given enough time to make some consultations on what was already agreed upon
by the majority of the heirs; that it was only on July 11, 1976 that the letter of respondent Gloria was handed to
Atty. Taneo, with the information that respondent Gloria was amenable to what had been agreed upon, provided she
be given the sum of P5,570.00 as her share of the estate, since one of properties of the estate was mortgaged to her
in order to defray their father's hospitalization.

Quoting the Commissioners Report, the CFI issued the assailed Order[10] dated December 16, 1976,
the dispositive portion of which reads as follows:
 WHEREFORE, finding the terms and conditions agreed upon by the heirs to be in order, the same being
not contrary to law, said compromise agreement as embodied in the report of the commissioner is
hereby approved. The Court hereby orders the Administratrix to execute the deed of sale covering all
the properties of the estate in favor of Columba Cuyos Benatiro after the payment to her of the sum
of P36,000.00. The said sum of money shall remain in custodia legis, but after all the claims and
administration expenses and the estate taxes shall have been paid for, the remainder shall, upon order
of the Court, be divided equally among the heirs. [11]

The CFI disapproved the claim of respondent Gloria for the sum of P5,570.00, as the same had been allegedly
disregarded by the heirs present during the conference.

In an Order[12] dated January 11, 1978, the CFI appointed Lope Cuyos (Cuyos) as the new administrator of the
estate, purportedly on the basis of the motion to relieve respondent Gloria, as it appeared that she was already residing
in Central Luzon and her absence was detrimental to the early termination of the proceedings.

On May 25, 1979, administrator Cuyos executed a Deed of Absolute Sale[13] over the six parcels of land
constituting the intestate estate of the late Evaristo Cuyos in favor of Columba for a consideration of the sum
ofP36,000.00.

Sometime in February 1998, the heirs of Evaristo Cuyos, namely: Gloria Cuyos-Talian, Patrocenia Cuyos-
Mijares, Numeriano Cuyos and Enrique Cuyos, represented by their attorney-in-
fact, Salud Cuyos (respondents),allegedly learned that Tax Declaration Nos. 000725, 000728, 000729, 000730,
000731 and 000732, which were all in the name of their late mother Agatona Arrogante, were canceled and new Tax
Declaration Nos., namely, 20-14129, 20-14130, 20-141131, 20-14132, 2014133 and 20-14134, were issued
in Columbas name; and that later on, Original Certificates of Titles covering the estate of Evaristo Cuyos were issued in
favor of Columba; that some of these parcels of land were subsequently transferred to the names of
spouses Renato C. Benatiro and Rosie M. Benatiro, son and daughter-in-law, respectively, of
petitioners Gorgonio and Columba, for which transfer certificates of title were subsequently issued; that they
subsequently discovered the existence of the assailed CFI Order dated December 16, 1976 and the Deed of Absolute
Sale dated May 25, 1979.

Respondents filed a complaint against petitioner Gorgonio Benatiro before the Commission on the Settlement
of Land Problems (COSLAP) of the Department of Justice, which on June 13, 2000 dismissed the case for lack of
jurisdiction.[14]

Salud Cuyos brought the matter for conciliation and mediation at the barangay level, but was unsuccessful.[15]

On July 16, 2001, Salud Cuyos, for herself and in representation[16] of the other heirs of Evaristo Cuyos, namely:
Gloria, Patrocenia, Numeriano,[17] and Enrique, filed with the CA a petition for annulment of the Order dated December
16, 1976 of the CFI of Cebu, Branch XI, in SP No. 24-BN under Rule 47 of the Rules of Court. They alleged that the CFI
Order dated December 16, 1976 was null and void and of no effect, the same being based on a Commissioner's
Report, which was patently false and irregular; that such report practically deprived them of due process in claiming
their share of their father's estate; that Patrocenia Cuyos-Mijares executed an affidavit, as well as
the unnotarized statement of Gloria stating that no meeting ever took place for the purpose of discussing how to
dispose of the estate of their parents and that they never received any payment from the supposed sale of their share
in the inheritance; that the report was done in close confederacy with their co-heir Columba, who stood to be
benefited by the Commissioner's recommendation, should the same be approved by the probate court; that since the
report was a falsity, any order proceeding therefrom was invalid; that the issuance of the certificates of titles in favor of
respondents were tainted with fraud and irregularity, since the CFI which issued the assailed order did not appear tohave
been furnished a copy of the Deed of Absolute Sale; that the CFI was not in custodia legis of the consideration of the
sale, as directed in its Order so that it could divide the remainder of the consideration equally among the heirs after
paying all the administration expenses and estate taxes; that the intestate case had not yet been terminated as the
last order found relative to the case was the appointment of Lope as administrator vice Gloria; that they never received
their corresponding share in the inheritance; and that the act of petitioners in manifest connivance with administrator
Lope amounted to a denial of their right to the property without due process of law, thus, clearly showing that extrinsic
fraud caused them to be deprived of their property.

Herein petitioners contend that respondents' allegation that they discovered the assailed order dated December
16, 1976 only in February 1998 was preposterous, as respondents were represented by counsel in the intestate
proceedings; thus, notice of Order to counsel was notice to client; that this was only a ploy so that they could claim that
they filed the petition for annulment within the statutory period of four (4) years; that they have been in possession of
the six parcels of land since May 25, 1979 when the same was sold to them pursuant to the assailed Order in the
intestate proceedings; that no extrinsic fraud attended the issuance of the assailed order; that Numerianoexecuted an
affidavit in which he attested to having received his share of the sale proceeds on May 18, 1988; that respondents
were estopped from assailing the Order dated December 16, 1976, as it had already attained the status of finality.

On July 18, 2003, the CA granted the petition and annulled the CFI order, the dispositive portion of which reads:

FOR ALL THE FOREGOING REASONS, the instant petition is hereby GRANTED. Accordingly, the
Order issued by the Court of First Instance of Cebu Branch XI dated December 16, 1976 as well as the
Certificates of Title issued in the name of Columba Cuyos-Benatiro and the subsequent transfer of these
Titles in the name of spouses Renato and Rosie Benatiro are hereby ANNULLED and SET ASIDE.
Further, SP Proc. Case No. 24-BN is hereby ordered reopened and proceedings thereon be continued.[18]

The CA declared that the ultimate fact that was needed to be established was the veracity and truthfulness of the
Commissioners Report, which was used by the trial court as its basis for issuing the assailed Order. The CA held that to
arrive at an agreement, there was a need for all the concerned parties to be present in the conference; however, such
was not the scenario since in their separate sworn statements, the compulsory heirs of the decedent attested to the fact
that no meeting or conference ever happened among them; that although under Section 3(m), Rule 133 on the Rules of
Evidence, there is a presumption of regularity in the performance of an official duty, the same may be contradicted and
overcome by other evidence to prove the contrary.

The CA noted some particulars that led it to conclude that the conference was not held accordingly, to wit: (1) the
Commissioners Report never mentioned the names of the heirs who were present in the alleged conference but only the
names of those who were absent, when the names of those who were present were equally essential, if not even more
important, than the names of those who were absent; (2) the Report also failed to include any proof of conformity to the
agreement from the attendees, such as letting them sign the report to signify their consent as regards the agreed
mechanisms for the estates settlement; (3) there was lack or absence of physical evidence attached to the report indicating
that the respondents were indeed properly notified about the scheduled conference. The CA then concluded that due to
the absence of the respondents' consent, the legal existence of the compromise agreement did not stand on a firm ground.
The CA further observed that although it appeared that notice of the report was given to Atty. Lepiten and
Atty. Yray, lawyers of Gloria and Francisco Cuyos, respectively, the same cannot be taken as notice to the other heirs
of Evaristo Cuyos; that a lawyers authority to compromise cannot be simply presumed, since what was required was the
special authority to compromise on behalf of his client; that a compromise agreement entered into by a person not duly
authorized to do so by the principal is void and has no legal effect, citing Quiban v. Butalid;[19] that being a void
compromise agreement, the assailed Order had no legal effect.

Thus, the CA ruled that the Certificates of Titles obtained by herein petitioners were procured fraudulently; that
the initial transfer of the properties to Columba Cuyos-Benatiro by virtue of a Deed of Absolute Sale executed by
Lope Cuyos was clearly defective, since the compromise agreement which served as the basis of the Deed of Absolute
Sale was void and had no legal effect.

The CA elaborated that there was no showing that Columba paid the sum of P36,000.00 to the administrator
as consideration for the sale, except for the testimony of Numeriano Cuyos admitting that he received his share of the
proceeds but without indicating the exact amount that he received; that even so, such alleged payment was incomplete
and was not in compliance with the trial courts order for the administratix to execute the deed of sale covering all
properties of the estate in favor of Columba Cuyos-Benatiro after the payment to the administratrix of the sum
of P36,000.00; that said sum of money shall remain in custodia legis, but after all the claims and administration
expenses and the estate taxes shall have been paid for, the remainder shall, upon order of the Court, be divided equally
among the heirs.

Moreover, the CA found that the copy of the Deed of Sale was not even furnished the trial court nor was said
money placed under custodia legis as agreed upon; that the Certification dated December 9, 1998 issued by the Clerk
of Court of Cebu indicated that the case had not yet been terminated and that the last Order in the special proceeding
was the appointment of Lope Cuyos as the new administrator of the estate; thus, the transfer of the parcels of
land, which included the execution of the Deed of Absolute Sale, cancellation of Tax Declarations and the issuance of
new Tax Declarations and Transfer Certificates of Title, all in favor of petitioners, were tainted with fraud. Consequently,
the CA concluded that the compromise agreement, the certificates of title and the transfers made by petitioners through
fraud cannot be made a legal basis of their ownership over the properties, since to do so would result in enriching them
at the expense of the respondents; and that it was also evident that the fraud attendant in this case was one of extrinsic
fraud, since respondents were denied the opportunity to fully litigate their case because of the scheme utilized by
petitioners to assert their claim.

Hence, herein petition raising the following issues:

Whether or not annulment of order under Rule 47 of the Rules of Court was a proper remedy
where the aggrieved party had other appropriate remedies, such as new trial, appeal, or petition for
relief, which they failed to take through their own fault.

Whether or not the Court of Appeals misapprehended the facts when it annulled the 24 year old
Commissioner's Report of the Clerk of Court - an official act which enjoys a strong presumption of
regularity - based merely on belated allegations of irregularities in the performance of said official act.

Whether or not upon the facts as found by the Court of Appeals in this case, extrinsic fraud
existed which is a sufficient ground to annul the lower court's order under Rule 47 of the Rules of
Court. [20]

Subsequent to the filing of their petition, petitioners filed a Manifestation that they were in possession of
affidavits of waiver and desistance executed by the heirs of Lope Cuyos[21] and respondent Patrocenia Cuyos-
Mijares[22] on February 17, 2004 and December 17, 2004, respectively. In both affidavits, the affiants stated that they
had no more interest in prosecuting/defending the case involving the settlement of the estate, since the subject estate
properties had been bought by their late sister Columba, and they had already received their share of the purchase
price. Another heir, respondent Numeriano Cuyos, had also earlier executed an Affidavit[23] dated December 13,
2001, stating that the subject estate was sold to Columba and that she had already received her share of the purchase
price on May 18, 1988. In addition, Numeriano had issued a certification[24] dated May 18, 1988, which was not refuted
by any of the parties, that he had already received P4,000.00 in payment of his share, which could be the reason why
he refused to sign the Special Power of Attorney supposedly in favor of Salud Cuyos for the filing of the petition with
the CA.

The issue for resolution is whether the CA committed a reversible error in annulling the CFI Order
dated December 16, 1976, which approved the Commissioners Report embodying the alleged compromise agreement
entered into by the heirs of Evaristo and Agatona Arrogante Cuyos.

We rule in the negative.

The remedy of annulment of judgment is extraordinary in character[25] and will not so easily and readily lend itself
to abuse by parties aggrieved by final judgments. Sections 1 and 2 of Rule 47 impose strict conditions for recourse to
it, viz.:

Section 1. Coverage. This Rule shall govern the annulment by the Court of Appeals of judgments
or final orders and resolutions in civil actions of Regional Trial Courts for which the ordinary remedies of
new trial, appeal, petition for relief or other appropriate remedies are no longer available
through no fault of the petitioner.

Section 2. Grounds for annulment. The annulment may be based only on the grounds of
extrinsic fraud and lack of jurisdiction.

Extrinsic fraud shall not be a valid ground if it was availed of, or could have been availed of, in
a motion for new trial or petition for relief.

Although Section 2 of Rule 47 of the Rules of Court provides that annulment of a final judgment or order of an
RTC may be based "only on the grounds of extrinsic fraud and lack of jurisdiction," jurisprudence recognizes denial of due
process as additional .ground therefor.[26]

An action to annul a final judgment on the ground of fraud will lie only if the fraud is extrinsic or collateral in
character.[27] Extrinsic fraud exists when there is a fraudulent act committed by the prevailing party outside of the trial of
the case, whereby the defeated party was prevented from presenting fully his side of the case by fraud or deception
practiced on him by the prevailing party.[28] Fraud is regarded as extrinsic where it prevents a party from having a trial or
from presenting his entire case to the court, or where it operates upon matters pertaining not to the judgment itself but
to the manner in which it is procured. The overriding consideration when extrinsic fraud is alleged is that the fraudulent
scheme of the prevailing litigant prevented a party from having his day in court. [29]

While we find that the CA correctly annulled the CFI Order dated December 16, 1976, we find that it should be
annulled not on the ground of extrinsic fraud, as there is no sufficient evidence to hold Atty. Taneo or any of the heirs
guilty of fraud, but on the ground that the assailed order is void for lack of due process.
 Clerk of Court Taneo was appointed to act as Commissioner to effect the agreement of the heirs and to prepare
the project of partition for submission and approval of the court. Thus, it was incumbent upon Atty. Taneo to set a time
and place for the first meeting of the heirs. In his Commissioners Report, Atty. Taneo stated that he caused the appearance
of all the heirs of Evaristo Cuyos and Agatona Arrogante Cuyos in the place, where the subject properties were located for
settlement, by sending them subpoenae supplemented by telegrams for them to attend the conference scheduled
on February 28 to 29, 1976. It was also alleged that out of the nine heirs, only six attended the conference; however, as
the CA aptly found, the Commissioner did not state the names of those present, but only those heirs who failed to attend
the conference, namely: respondents Gloria, Salud and Enrique who, as stated in the Report, based on the return of
service, could not be located in their respective given addresses.

However, there is nothing in the records that would establish that the alleged subpoenae, supplemented by
telegrams, for the heirs to appear in the scheduled conference were indeed sent to the heirs. In fact,
respondent Patrocenia Cuyos-Mijares, one of the heirs, who was presumably present in the conference, as she was not
mentioned as among those absent, had executed an affidavit[30] dated December 8, 1998 attesting, to the fact that she
was not called to a meeting nor was there any telegram or notice of any meeting received by her. While Patrocenia had
executed on December 17, 2004 an Affidavit of Waiver and Desistance[31] regarding this case, it was only for the reason
that the subject estate properties had been bought by their late sister Columba, and that she had already received her
corresponding share of the purchase price, but there was nothing in the affidavit that retracted her previous statement
that she was not called to a meeting. Respondent Gloria also made an unnotarized statement[32] that there was no meeting
held. Thus, the veracity of Atty. Taneos holding of a conference with the heirs was doubtful.

Moreover, there was no evidence showing that the heirs indeed convened for the purpose of arriving at an
agreement regarding the estate properties, since they were not even required to sign anything to show their
attendance ofthe alleged meeting. In fact, the Commissioner's Report, which embodied the alleged agreement of the
heirs, did not bear the signatures of the alleged attendees to show their consent and conformity thereto.

It bears stressing that the purpose of the conference was for the heirs to arrive at a compromise agreement over
the estate of Evaristo Cuyos. Thus, it was imperative that all the heirs must be present in the conference and be heard to
afford them the opportunity to protect their interests. Considering that no separate instrument of conveyance was
executed among the heirs embodying their alleged agreement, it was necessary that the Report be signed by the heirs to
prove that a conference among the heirs was indeed held, and that they conformed to the agreement stated in the Report.

Petitioners point out that the Commissioner was an officer of the court and a disinterested party and that, under
Rule 133, Section 3(m) of the Rules on Evidence, there is a presumption that official duty has been regularly performed.

While, under the general rule, it is to be presumed that everything done by an officer in connection with the
performance of an official act in the line of his duty was legally done, such presumption may be overcome by evidence to
the contrary. We find the instances mentioned by the CA, such as absence of the names of the persons present in the
conference, absence of the signatures of the heirs in the Commissioner's Report, as well as absence of evidence showing
that respondents were notified of the conference, to be competent proofs of irregularity that rebut the presumption.

Thus, we find no reversible error committed by the CA in ruling that the conference was not held accordingly and
in annulling the assailed order of the CFI.
 Petitioners attached a Certification[33] dated August 7, 2003 issued by the Officer In Charge (OIC), Branch Clerk of
Court of the RTC, Branch 11, to show that copies of the Commissioners Report were sent to all the heirs,except Salud and
Enrique, as well as to Attys. Lepiten and Yray as enumerated in the Notice found at the lower portion of the Report with
the accompanying registry receipts.[34]

In Cua v. Vargas,[35] in which the issue was whether heirs were deemed constructively notified of and bound by
an extra-judicial settlement and partition of the estate, regardless of their failure to participate therein, when the extra-
judicial settlement and partition has been duly published, we held:

The procedure outlined in Section 1 of Rule 74 is an ex parte proceeding. The rule

plainly states, however, that persons who do not participate or had no notice of an
extrajudicial settlement will not be bound thereby. It contemplates a notice that has been
sent out or issued before any deed of settlement and/or partition is agreed upon (i.e., a
notice calling all interested parties to participate in the said deed of extrajudicial settlement
and partition), and not after such an agreement has already been executed as what
happened in the instant case with the publication of the first deed of extrajudicial settlement
among heirs.

The publication of the settlement does not constitute constructive notice to the heirs who had
no knowledge or did not take part in it because the same was notice after the fact of execution. The
requirement of publication is geared for the protection of creditors and was never intended to deprive
heirs of their lawful participation in the decedent's estate. In this connection, the records of the present
case confirm that respondents never signed either of the settlement documents, having discovered their
existence only shortly before the filing of the present complaint. Following Rule 74, these extrajudicial
settlements do not bind respondents, and the partition made without their knowledge and consent is
invalid insofar as they are concerned[36] (Emphasis supplied)

Applying the above-mentioned case by analogy, what matters is whether the heirs were indeed notified before
the compromise agreement was arrived at, which was not established, and not whether they were notified of the
Commissioner's Report embodying the alleged agreement afterwards.

We also find nothing in the records that would show that the heirs were called to a hearing to validate the
Report. The CFI adopted and approved the Report despite the absence of the signatures of all the heirs showing
conformity thereto. The CFI adopted the Report despite the statement therein that only six out of the nine heirs attended
the conference, thus, effectively depriving the other heirs of their chance to be heard. The CFI's action was tantamount
to a violation of the constitutional guarantee that no person shall be deprived of property without due process of law. We
find that the assailed Order dated December 16, 1976, which approved a void Commissioner's Report, is a void judgment
for lack of due process.

We are not persuaded by petitioners contentions that all the parties in the intestate estate proceedings in the
trial court were duly represented by respective counsels, namely, Atty. Lepiten for petitioners-heirs and Atty. Yrayfor
the oppositors-heirs; that when the heirs agreed to settle the case amicably, they manifested such intention through
their lawyers, as stated in the Order dated January 30, 1973; that an heir in the settlement of the estate of a deceased
person need not hire his own lawyer, because his interest in the estate is represented by the judicial administrator who
retains the services of a counsel; that a judicial administrator is the legal representative not only of the estate but also
of the heirs, legatees, and creditors whose interest he represents; that when the trial court issued the assailed Order
dated December 16, 1976 approving the Commissioner's Report, the parties lawyers were duly served said copies of
the Order on December 21, 1976 as shown by the Certification[37] dated August 7, 2003 of the RTC OIC, Clerk of Court;
that notices to lawyers should be considered notices to the clients, since, if a party is represented by counsel, service of
notices of orders and pleadings shall be made upon the lawyer; that upon receipt of such order by counsels, any one
of the respondents could have taken the appropriate remedy such as a motion for reconsideration, a motion for new
trial or a petition for relief under Rule 38 at the proper time, but they failed to do so without giving any cogent reason
for such failure.

While the trial court's order approving the Commissioners Report was received by Attys. Yray and Lepiten, they
were the lawyers of Gloria and Francisco, respectively, but not the lawyers of the other heirs. As can be seen from the
pleadings filed before the probate court, Atty. Lepiten was Glorias counsel when she filed her Petition for letters
of administration, while Atty. Yray was Franciscos lawyer when he filed his opposition to the petition for letters of
administration and his Motion to Order administrarix Gloria to render an accounting and for the partition of the
estate. Thus, the other heirs who were not represented by counsel were not given any notice of the judgment approving
the compromise. It was only sometime in February 1998 that respondents learned that the tax declarations covering
the parcels of land, which were all in the name of their late mother Agatona Arrogante, were canceled;and new Tax
Declarations were issued in Columbas name, and Original Certificates of Titles were subsequently issued in favor
of Columba. Thus, they could not have taken an appeal or other remedies.

Considering that the assailed Order is a void judgment for lack of due process of law, it is no judgment at all. It
cannot be the source of any right or of any obligation.[38]

In Nazareno v. Court of Appeals,[39] we stated the consequences of a void judgment, thus:

A void judgment never acquires finality. Hence, while admittedly, the petitioner in the case
at bar failed to appeal timely the aforementioned decision of the Municipal Trial Court of Naic, Cavite, it
cannot be deemed to have become final and executory. In contemplation of law, that void decision is
deemed non-existent. Thus, there was no effective or operative judgment to appeal from. In
Metropolitan Waterworks & Sewerage System vs. Sison, this Court held that:

x x x [A] void judgment is not entitled to the respect accorded to a valid judgment, but may be
entirely disregarded or declared inoperative by any tribunal in which effect is sought to be given to it. It
is attended by none of the consequences of a valid adjudication. It has no legal or binding effect or
efficacy for any purpose or at any place. It cannot affect, impair or create rights. It is not entitled to
enforcement and is, ordinarily, no protection to those who seek to enforce. All proceedings founded on
the void judgment are themselves regarded as invalid. In other words, a void judgment is regarded as
a nullity, and the situation is the same as it would be if there were no judgment. It, accordingly, leaves
the parties litigants in the same position they were in before the trial.

Thus, a void judgment is no judgment at all. It cannot be the source of any right nor of any
obligation. All acts performed pursuant to it and all claims emanating from it have no legal effect. Hence,
it can never become final and any writ of execution based on it is void: "x x x it may be said to be a
lawless thing which can be treated as an outlaw and slain at sight, or ignored wherever and whenever
it exhibits its head.[40] (Emphasis supplied)

The CFI's order being null and void, it may be assailed anytime, collaterally or in a direct action or by resisting
such judgment or final order in any action or proceeding whenever it is invoked, unless barred
by laches.[41]Consequently, the compromise agreement and the Order approving it must be declared null and void and
set aside.

We find no merit in petitioners' claim that respondents are barred from assailing the judgment after the lapse
of 24 years from its finality on ground of laches and estoppel.
 Section 3, Rule 47 of the Rules of Court provides that an action for annulment of judgment based on extrinsic
fraud must be filed within four years from its discovery and, if based on lack of jurisdiction, before it is barred
bylaches or estoppel.

The principle of laches or "stale demands" ordains that the failure or neglect, for an unreasonable and unexplained
length of time, to do that which by exercising due diligence could or should have been done earlier, or the negligence or
omission to assert a right within a reasonable time, warrants a presumption that the party entitled to assert it either has
abandoned it or declined to assert it.[42]

There is no absolute rule as to what constitutes laches or staleness of demand; each case is to be determined
according to its particular circumstances.[43] The question of laches is addressed to the sound discretion of the court and,
being an equitable doctrine, its application is controlled by equitable considerations. It cannot be used to defeat justice or
perpetrate fraud and injustice. It is the better rule that courts, under the principle of equity, will not be guided or bound
strictly by the statute of limitations or the doctrine of laches when to be so, a manifest wrong or injustice would result.[44]

In this case, respondents learned of the assailed order only sometime in February 1998 and filed the petition for
annulment of judgment in 2001. Moreover, we find that respondents' right to due process is the paramount consideration
in annulling the assailed order. It bears stressing that an action to declare the nullity of a void judgment does not
prescribe.[45]

Finally, considering that the assailed CFI judgment is void, it has no legal and binding effect, force or efficacy
for any purpose. In contemplation of law, it is non-existent. Hence, the execution of the Deed of Sale by Lope in favor
of Columba pursuant to said void judgment, the issuance of titles pursuant to said Deed of Sale, and the subsequent
transfers are void ab initio. No reversible error was thus committed by the CA in annulling the judgment.

WHEREFORE, the petition is DENIED and the Decision dated July 18, 2003 and Resolution dated November
13, 2003 of the Court of Appeals are AFFIRMED. The Regional Trial Court, Branch XI, Cebu and the Heirs
of Evaristo Cuyos are DIRECTED to proceed with SP Proceedings Case No. 24-BN for the settlement of the Estate
of Evaristo Cuyos. No costs. SO ORDERED.
 [G.R. No. 125715. December 29, 1998]

RICARDO F. MARQUEZ, AUREA M. CABEZAS, EXEQUIEL F. MARQUEZ, SALVADOR F. MARQUEZ,

ANTONIO F. MARQUEZ, and RAFAEL F. MARQUEZ, JR., petitioners, vs. COURT OF APPEALS,
ALFREDO F. MARQUEZ and BELEN F. MARQUEZ, respondents.

DECISION
ROMERO, J.:

In our society, tradition and law enshrine the family as a basic social institution. In prose, poetry and
song, it is lyrically extolled. What a person becomes in adulthood, for good or ill, is attributed to the influence
of the home and family during his formative years. In the family one imbibes desirable values and
personality traits. No matter how far one roams, he invariably turns to his family for security, approbation
and love. Against the whole world, members of the family stand solid as Gibraltar. It is thus heartrending
to find members of the same family at odds with each other, each playing one against the other.
The facts of the instant case illustrates the inglorious and unedifying spectacle of a "family feud," all
because of a property dispute.
During their lifetime, the spouses Rafael Marquez, Sr. and Felicidad Marquez begot twelve children,
namely: (1) Natividad; (2) Aurea; (3) Herminigildo; (4) Filomena; (5) Exequel; (6) Salvador; (7) Guadencio;
(8) Rafael, Jr.; (9) Belen; (10) Alfredo; (11) Ricardo; and (12) Antonio. Sometime in 1945, the spouses
acquired a parcel of land with a lot area of 161 square meters in San Juan Del Monte, Rizal, more particularly
described in TCT No. 47572,[1] wherein they constructed their conjugal home.
In 1952, Felicidad Marquez died intestate. Thirty years later or in 1982, Rafael Marquez, Sr. executed
an Affidavit of Adjudication vesting unto himself sole ownership to the property described in TCT No.
47572. Consequently, TCT No. 47572 was cancelled and TCT No. 33350[2] was issued in his name on June
16, 1982.
Thereafter, on December 29, 1983 Rafael Marquez, Jr. executed a Deed of Donation Inter
Vivos[3] covering the land described in TCT No. 33350 as well as the house constructed thereon to three of
his children, namely: (1) petitioner Rafael Jr.; (2) Alfredo; and (3) Belen, both private respondents herein,
to the exclusion of his other children, petitioners herein. As a result of the donation, TCT No. 33350 was
cancelled and TCT No. 47572 was issued in private respondents name.
From 1983 to 1991, private respondents were in actual possession of the land. However, when
petitioners learned about the existence of TCT No. 47572 they immediately demanded that since they are
also the children of Rafael Marquez, Sr., they are entitled to their respective share over the land in
question. Unfortunately, efforts to settle the dispute proved unavailing since private respondents ignored
petitioners demands.
In view of the private respondents' indifference, petitioners, now joined by Rafael Jr., filed a complaint
on May 31, 1991 for Reconveyance and Partition with Damages before the trial court [4] alleging that both
the Affidavit of Adjudication and Deed of Donation Inter Vivos were fraudulent since the private respondents
took advantage of the advanced age of their father in making him execute the said documents.
In their Answer, private respondents argued that petitioners action was already barred by the statute
of limitations, since the same should have been filed within four years from the date of discovery of the
alleged fraud.[5]
After due proceedings, the trial court on April 29, 1993, rendered its decision[6] in favor of the
petitioners, in this wise:

Prescription cannot set in because an action to set aside a document which is void ab initio does not
prescribe. Both the Affidavit of Adjudication and the Donation Inter Vivos did not produce any legal effect
and did not confer any right whatsoever. Equally, Transfer Certificate of Title No. 33350 and 46461 issued
pursuant thereto, are likewise null and void ab initio. Therefore, the inexistence of these documents and
certificates of title is permanent and cannot be the subject of prescription.

Private respondents, dissatisfied with the trial courts ruling, sought recourse before the Court of
Appeals. On April 29, 1996, the said court reversed the trial courts finding, thus: [7]

In line with the decision of the Supreme Court in Gerona v. de Guzman, 11 SCRA 143, 157, the action
therefor may be filed within four (4) years from the discovery of the fraud. Such discovery is deemed to
have taken place in the case at bar on June 16, 1982, when the affidavit of self-adjudication was filed with
the Register of Deeds and new certificate of title (No. 33350) was issued in the name of Rafael Marquez,
Sr. (Exhibits E and 5, page 16, record). Considering that the period from June 16, 1982, when TCT No.
33350 was issued in the name of Rafael Marquez, Sr., to May 31, 1991, when appellees complaint was filed
in court, is eight (8) years, eleven (11) months and fifteen (15) days, appellants action to annul the deed
of self-adjudication is definitely barred by the statute of limitation."
 Petitioners motion for reconsideration proved unavailing.[8] Hence, they are now before this Court to
raise the issue of whether their action for reconveyance had prescribed.
Petitioners, in contending that the action had not yet prescribed, assert that by virtue of the fraudulent
Affidavit of Adjudication and Deed of Donation, wherein they were allegedly deprived of their just share over
the parcel of land, a constructive trust was created.[9] Forthwith, they maintain that an action for
reconveyance based on implied or constructive trust prescribes in ten (10) years.
It must be noted that Felicidad Marquez died in 1952; thus, succession to her estate is governed by the
present Civil Code. Under Article 887 thereof, her compulsory heirs are her legitimate children, petitioners
and private respondent herein, and her spouse, Rafael Marquez, Sr. Now, in 1982, Rafael Marquez, Sr.
decided to adjudicate the entire property by executing an Affidavit of Adjudication claiming that he is the
only sole and surviving heir of his deceased wife Felicidad F. Marquez.[10]
As such, when Rafael Marquez, Sr., for one reason or another, misrepresented in his unilateral affidavit
that he was the only heir of his wife when in fact their children were still alive, and managed to secure a
transfer of certificate of title under his name, a constructive trust under Article 1456 was
established.[11] Constructive trusts are created in equity in order to prevent unjust enrichment. They arise
contrary to intention against one who, by fraud, duress or abuse of confidence, obtains or holds the legal
right to property which he ought not, in equity and good conscience, to hold. [12] Prescinding from the
foregoing discussion, did the action for reconveyance filed by the petitioners prescribed, as held by the Court
of Appeals?
In this regard, it is settled that an action for reconveyance based on an implied or constructive trust
prescribed in ten years from the issuance of the Torrens title over the property. [13] For the purpose of this
case, the prescriptive period shall start to run when TCT No. 33350 was issued which was on June 16,
1982. Thus, considering that the action for reconveyance was filed on May 31, 1991, or approximately nine
years later, it is evident that prescription had not yet barred the action.
To bolster the foregoing position, the Court of Appeal's reliance on Gerona v. de Guzman,[14] is
misplaced. In Amerol v. Bagumbaran,[15] we ruled that the doctrine laid down in the earlier Gerona case was
based on the old Code of Civil Procedure[16] which provided that an action based on fraud prescribes within
four years from the date of discovery. However, with the effectivity of the present Civil Code on August 30,
1950, the provisions on prescriptive period are now governed by Articles 1139 to 1155. Since implied or
constructive trust are obligations created by law, then the prescriptive period to enforce the same prescribes
in ten years.[17]
Cognizant of the fact that the disputed land was conjugal property of the spouses Rafael Sr. and
Felicidad, ownership of the same is to be equally divided between both of them.
Prescinding therefrom, can Rafael Marquez Sr., as trustee of his wifes share, validly donate this portion
to the respondents? Obviously, he cannot, as expressly provided in Art. 736 of the Civil Code, thus:

Art. 736. Guardian and trustees cannot donate the property entrusted to them.

Moreover, nobody can dispose of that which does not belong to him. [18]
Be that as it may, the next question is whether he can validly donate the other half of the property
which he owns? Again, the query need not detain us at length for the Civil Code itself recognizes that one
of the inherent rights of an owner is the right to dispose of his property. [19]
Whether this donation was inofficious or not is another matter, which is not within the province of this
Court to determine inasmuch as it necessitates the production of evidence not before it.
Finally, while we rule in favor of petitioners, we cannot grant their plea for moral damages and attorneys
fees[20] since they have not satisfactorily shown that they have suffered mental anguish as provided in Article
2219 and Article 2290 of the Civil Code.
Similarly, the plea for attorneys fees must likewise be denied because no premium should be placed on
the right to litigate.[21]
WHEREFORE, in view of the foregoing, the decision of the Court of Appeals in CA-G.R. CV No. 41214
is REVERSED and SET ASIDE. Except as to the award of attorneys fees which is hereby DELETED, the
judgment of the trial court in Civil Case No. 60887 is REINSTATED. No costs. SO ORDERED.