SPECIAL PROCEEDINGS CASES
G.R. No. 160530 November 20, 2007
CYNTHIA V. NITTSCHER, petitioner, vs. DR. WERNER KARL JOHANN NITTSCHER
(Deceased), ATTY. ROGELIO P. NOGALES and THE REGIONAL TRIAL COURT OF
MAKATI (Branch 59), respondents.
Probate; Letters Testamentary; Forum Shopping; Pleadings and Practice; Where the
petition for the issuance of letters testamentary is but a mere continuation of the original
petition for the probate of the decedent’s will, it is not an initiatory pleading—hence, failure
to include a certification against forum shopping is not a ground for outright dismissal of
the said petition.—Revised Circular No. 28-91 and Administrative Circular No. 04-94 of the
Court require a certification against forum-shopping for all initiatory pleadings filed in court.
However, in this case, the petition for the issuance of letters testamentary is not an
initiatory pleading, but a mere continuation of the original petition for the probate of Dr.
Nittscher’s will. Hence, respondent’s failure to include a certification against forum
shopping in his petition for the issuance of letters testamentary is not a ground for outright
dismissal of the said petition.
Same; The authority of the probate court is limited to ascertaining whether the testator,
being of sound mind, freely executed the will in accordance with the formalities prescribed
by law—a widow’s claim of title to the properties forming part of her husband’s estate
should be settled in an ordinary action before the regular courts.—As a final word,
petitioner should realize that the allowance of her husband’s will is conclusive only as to
its due execution. The authority of the probate court is limited to ascertaining whether the
testator, being of sound mind, freely executed the will in accordance with the formalities
prescribed by law. Thus, petitioner’s claim of title to the properties forming part of her
husband’s estate should be settled in an ordinary action before the regular courts.
Nittscher vs. Nittscher, 537 SCRA 681, G.R. No. 160530 November 20, 2007
For review on certiorari are the Decision1 dated July 31, 2003 and Resolution2 dated
October 21, 2003 of the Court of Appeals in CA-G.R. CV No. 55330, which affirmed the
Order3 dated September 29, 1995 of the Regional Trial Court (RTC), Branch 59, Makati
City, in SP Proc. No. M-2330 for the probate of a will.
The facts are as follows.
On January 31, 1990, Dr. Werner Karl Johann Nittscher filed with the RTC of Makati City
a petition for the probate of his holographic will and for the issuance of letters testamentary
to herein respondent Atty. Rogelio P. Nogales.
On September 19, 1991, after hearing and with due notice to the compulsory heirs, the
probate court issued an order allowing the said holographic will, thus:
WHEREFORE, premises considered, the Holographic Will of the petitioner-
testator Dr. Werner J. Nittscher executed pursuant to the provision of the second
paragraph of Article 838 of the Civil Code of the Philippines on January 25, 1990
in Manila, Philippines, and proved in accordance with the provision of Rule 76 of
the Revised Rules of Court is hereby allowed.
SO ORDERED.4
On September 26, 1994, Dr. Nittscher died. Hence, Atty. Nogales filed a petition for letters
testamentary for the administration of the estate of the deceased. Dr. Nittscher’s surviving
spouse, herein petitioner Cynthia V. Nittscher, moved for the dismissal of the said petition.
However, the court in its September 29, 1995 Order denied petitioner’s motion to dismiss,
and granted respondent’s petition for the issuance of letters testamentary, to wit:
In view of all the foregoing, the motion to dismiss is DENIED. The petition for the
issuance of Letters Testamentary, being in order, is GRANTED.
Section 4, Rule 78 of the Revised 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 trust and gives
a bond as required by these rules." In the case at bar, petitioner Atty. Rogelio P.
Nogales of the R.P. Nogales Law Offices has been named executor under the
Holographic Will of Dr. Werner J. Nittscher. As prayed for, let Letters Testamentary
be issued to Atty. Rogelio P. Nogales, the executor named in the Will, without a
bond.
SO ORDERED.5
Petitioner moved for reconsideration, but her motion was denied for lack of merit. On May
9, 1996, Atty. Nogales was issued letters testamentary and was sworn in as executor.
Petitioner appealed to the Court of Appeals alleging that respondent’s petition for the
issuance of letters testamentary should have been dismissed outright as the RTC had no
jurisdiction over the subject matter and that she was denied due process.
The appellate court dismissed the appeal, thus:
WHEREFORE, the foregoing considered, the appeal is hereby DISMISSED and
the assailed Order is AFFIRMED in toto. The court a quo is ordered to proceed
with dispatch in the proceedings below.
SO ORDERED.6
1

Petitioner’s motion for reconsideration of the aforequoted decision was denied for lack of
merit. Hence, the present petition anchored on the following grounds:
I.
BOTH THE CA AND THE LOWER COURT ERRED IN NOT DISMISSING
OUTRIGHT THE PETITION FOR LETTERS … TESTAMENTARY FILED BY
ATTY. NOGALES WHEN, OBVIOUSLY, IT WAS FILED IN VIOLATION OF
REVISED CIRCULAR NO. 28-91 AND ADMINISTRATIVE CIRCULAR NO. 04-94
OF THIS HONORABLE COURT.
II.
THE CA ERRED IN NOT DECLARING THAT THE LOWER COURT [HAS] NO
JURISDICTION OVER THE SUBJECT MATTER OF THE PRESENT SUIT.
III.
THE CA ERRED IN CONCLUDING THAT SUMMONS WERE PROPERLY
ISSUED TO THE PARTIES AND ALL PERSONS INTERESTED IN THE
PROBATE OF THE HOLOGRAPHIC WILL OF DR. NITTSCHER.
IV.
THE CA ERRED IN CONCLUDING THAT THE PETITIONER WAS NOT
DEPRIVED OF DUE PROCESS OF LAW BY THE LOWER COURT.7
Petitioner contends that respondent’s petition for the issuance of letters testamentary
lacked a certification against forum-shopping. She adds that the RTC has no jurisdiction
over the subject matter of this case because Dr. Nittscher was allegedly not a resident of
the Philippines; neither did he leave real properties in the country. Petitioner claims that
the properties listed for disposition in her husband’s will actually belong to her. She insists
she was denied due process of law because she did not receive by personal service the
notices of the proceedings.
Respondent Atty. Nogales, however, counters that Dr. Nittscher did reside and own real
properties in Las Piñas, Metro Manila. He stresses that petitioner was duly notified of the
probate proceedings. Respondent points out that petitioner even appeared in court to
oppose the petition for the issuance of letters testamentary and that she also filed a motion
to dismiss the said petition. Respondent maintains that the petition for the issuance of
letters testamentary need not contain a certification against forum-shopping as it is merely
a continuation of the original proceeding for the probate of the will.
SPECIAL PROCEEDINGS CASES
We resolve to deny the petition.
As to the first issue, Revised Circular No. 28-918 and Administrative Circular No. 04-949 of
the Court require a certification against forum-shopping for all initiatory pleadings filed in
court. However, in this case, the petition for the issuance of letters testamentary is not an
initiatory pleading, but a mere continuation of the original petition for the probate of Dr.
Nittscher’s will. Hence, respondent’s failure to include a certification against forum-
shopping in his petition for the issuance of letters testamentary is not a ground for outright
dismissal of the said petition.
Anent the second issue, Section 1, Rule 73 of the Rules of Court provides:
SECTION 1. Where estate of deceased persons settled. – If the decedent is an
inhabitant of the Philippines at the time of his death, whether a citizen or an
alien, his will shall be proved, or letters of administration granted, and his
estate settled, in the Court of First Instance (now Regional Trial Court) 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 (now Regional Trial Court) of any
province in which he had estate. … (Emphasis supplied.)
In this case, the RTC and the Court of Appeals are one in their finding that Dr. Nittscher
was a resident of Las Piñas, Metro Manila at the time of his death. Such factual finding,
which we find supported by evidence on record, should no longer be disturbed. Time and
again we have said that reviews on certiorari are limited to errors of law. Unless there is a
showing that the findings of the lower court are totally devoid of support or are glaringly
erroneous, this Court will not analyze or weigh evidence all over again.10
Hence, applying the aforequoted rule, Dr. Nittscher correctly filed in the RTC of Makati
City, which then covered Las Piñas, Metro Manila, the petition for the probate of his will
and for the issuance of letters testamentary to respondent.
Regarding the third and fourth issues, we note that Dr. Nittscher asked for the allowance
of his own will. In this connection, Section 4, Rule 76 of the Rules of Court states:
SEC. 4. Heirs, devisees, legatees, and executors to be notified by mail or
personally. – …
If the testator asks for the allowance of his own will, notice shall be sent only to his
compulsory heirs.
In this case, records show that petitioner, with whom Dr. Nittscher had no child, and Dr.
Nittscher’s children from his previous marriage were all duly notified, by registered mail, of
2
 SPECIAL PROCEEDINGS CASES
the probate proceedings. Petitioner even appeared in court to oppose respondent’s
petition for the issuance of letters testamentary and she also filed a motion to dismiss the
said petition. She likewise filed a motion for reconsideration of the issuance of the letters
testamentary and of the denial of her motion to dismiss. We are convinced petitioner was
accorded every opportunity to defend her cause. Therefore, petitioner’s allegation that she
was denied due process in the probate proceedings is without basis.

As a final word, petitioner should realize that the allowance of her husband’s will is
conclusive only as to its due execution.11 The authority of the probate court is limited to
ascertaining whether the testator, being of sound mind, freely executed the will in
accordance with the formalities prescribed by law.12 Thus, petitioner’s claim of title to the
properties forming part of her husband’s estate should be settled in an ordinary action
before the regular courts.

WHEREFORE, the petition is DENIED for lack of merit. The assailed Decision dated July
31, 2003 and Resolution dated October 21, 2003 of the Court of Appeals in CA-G.R. CV
No. 55330, which affirmed the Order dated September 29, 1995 of the Regional Trial
Court, Branch 59, Makati City, in SP Proc. No. M-2330 are AFFIRMED.

No pronouncement as to costs.

SO ORDERED.

3

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.
Civil Law; Wills; Testate proceeding, proper where decedent died with two wills.—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).
Same; Same; Probate of will mandatory; Settlement in an intestate proceeding of an estate
of a person who died testate, anomalous; Consolidation of intestate case with testate
proceeding, proper; Case at bar.—The probate of the will is mandatory (Guevara vs.
Guevara, 74 Phil. 479 and 98 Phil. 249; Baluyot vs. Paño, 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. Roberts vs. Leonidas, 129 SCRA 33, No. L-55509 April 27, 1984
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).
SPECIAL PROCEEDINGS CASES
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
4

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
SPECIAL PROCEEDINGS CASES
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).
5
 SPECIAL PROCEEDINGS CASES
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. 1äw phï1.ñët

6

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.
1. Judiciary Act of 1948; Courts of First Instance; Jurisdiction over probate matters
defined.-
Under the Judiciary Act of 1948 (Section 44, paragraph [4]), Courts of First Instance have
original exclusive jurisdiction over "all matters of probate," that is, over special proceedings
for the settlement of the estate of deceased persons—whether they died testate or
intestate.
2. Special proceedings; Settlement of estate of deceased persons; Venue; General rule.-
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.
3. Special proceedings; Settlement of estate of deceased persons; Testate proceedings
enjoy priority over intestate proceedings.-
In accordance with settled jurisprudence in this jurisdiction. testate proceedings for the
Settlement of the estate of a deceased person take precedence over intestate proceedings
for the same purpose. Thus it has been held repeatedly that, if in the course of intestate
proceedings pending before a court of first instance it is found that the decedent had left a
last will, proceedings for 'the probate of the latter should replace the intestate proceedings
even if at that stage an administrator had already been appointed, the latter being required
to render final account and turn over the estate in his possession to the executor
subsequently appointed. This, however, is understood to be without prejudice ,that should
the alleged last will be rejected or is disapproved, the proceeding- shall continue as an
intestacy,
4. Special proceedings; Settlement of estate of deceased persons; Where intestate
proceedings had been commenced, the probate of will should be filed in same court;
Reasons.-
SPECIAL PROCEEDINGS CASES
Where intestate proceedings before a court of first instance had already been commenced,
the probate of the will should be filed in the same court, either in a separate special
proceeding or in an appropriate motion for said purpose filed in the already pending
intestate proceeding. This is especially true where the party seeking the probate of the will
had been informed or had knowledge of the pendency of the intestate proceedings. It is
not in accord with public policy and the orderly and inexpensive administration of justice to
unnecessarily multiply litigation, especially if several courts would be involved, which would
be the result if the probate of will were f iled in another court.
5. Special proceedings; Settlement of estate of deceased persons; Venue; Waiver of
improper venue by laches-
It is well settled in this jurisdiction that wrong venue is merely a waivable procedural defect,
and. such waiver may occur by laches where, a party had been served notice of the filing
of the probate petition for about a year and allowed the proceedings to continue for such
time before filing a motion to dismiss the same.
6. Special proceedings; Settlement of estate of deceased persons; Question of
acknowledgment as a natural child of testator may be presented to probate court.-
A party claiming to be an acknowledged natural child of testator is entitled to intervene in
proceedings for the probate of will of testator if it is still open, or to ask for its reopening if
it has already been closed, so as to be able to submit f or determination the question of
his acknowledgment as a 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.
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.
7

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
SPECIAL PROCEEDINGS CASES
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
8

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
SPECIAL PROCEEDINGS CASES
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.
9

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
SPECIAL PROCEEDINGS CASES
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.
10
 SPECIAL PROCEEDINGS CASES
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.

11

G.R. No. L-57848 June 19, 1982
RAFAEL E. MANINANG and SOLEDAD L. MANINANG, petitioners, vs. COURT OF
APPEALS, HON. RICARDO L. PRONOVE, JR., as Judge of the Court of First
Instance of Rizal and BERNARDO S. ASENETA, respondents.
Civil Law; Wills and Succession; Probate; Probate of a will is mandatory; Reason.—
Generally, the probate of a Will is mandatory. The law enjoins the probate of the Will and
public policy requires it, because unless the Will is probated and notice thereof given to
the whole world, the right of a person to dispose of his property by Will may be rendered
nugatory.
Same; Same; Same; Probate of will does not look into its intrinsic validity.—Normally, the
probate of a will does not look into its intrinsic validity. “x x x The authentication of a will
decides no other question than such as touch upon the capacity of the testator and the
compliance with those requisites or solemnities which the law prescribes for the validity of
wills. It does not determine nor even by implication prejudge the validity or efficiency (sic)
of the provisions, these may be impugned as being vicious or null, notwithstanding its
authentication. The questions relating to these points remain entirely unaffected, and may
be raised even after the will has been authenticated x x x”
Same; Same; Preterition and disinheritance, distinguished.—“x x x Preterition ‘consists in
the omission in the testator’s will of the forced heirs or anyone of them, either because
they are not mentioned therein, or, though mentioned, they are neither instituted as heirs
nor are expressly disinherited.’ (Neri vs. Akutin, 72 Phil. 325). Disinheritance, in turn, ‘is a
testamentary disposition depriving any compulsory heir of his share in the legitime for a
cause authorized by law,’ (Justice J.B.L. Reyes and R.C. Puno, ‘An Outline of Philippine
Civil Law’, 1956 ed., Vol. III, p. 8, citing cases) Disinheritance is always, ‘voluntary’,
preterition, upon the other hand, is presumed to be ‘involuntary’ (Sanchez Roman,
Estudios de Derecho Civil 2nd edition, Volumen 2.o, p. 1131).”
Same; Same; Same; Effects of preterition and disinheritance.—Preterition under Article
854 of the New Civil Code ‘shall annul the institution of heir.’ This annulment is in toto,
unless in the will there are, in addition, testamentary dispositions in the form of devices or
legacies. In ineffective disinheritance under Article 918 of the same Code, such
disinheritance shall also ‘annul the institution of heirs’, but only ‘insofar as it may prejudice
the person disinherited’, which last phrase was omitted in the case of preterition (III
Tolentino, Civil Code of the Philippines, 1961 Edition, p. 172). Better stated yet, in
disinheritance the nullity is limited to that portion of the estate of which the disinherited
heirs have been illegally deprived.”
Same; Same; Will should not be denied legality based on dubious grounds.—As held in
the case of Vda. de Precilla vs. Narciso, “x x x it is as important a matter of public interest
SPECIAL PROCEEDINGS CASES
that a purported will is not denied legalization on dubious grounds. Otherwise, the very
institution of testamentary succession will be shaken to its foundation, x x x”
Same; Remedial Law; Special Civil Action; Certiorari; Act done by a probate court in
excess of its jurisdiction correctible by certiorari; Certiorari available where appeal not a
speedy remedy.—Coming now to the procedural aspect, suffice it to state that in view of
our finding that respondent Judge had acted in excess of his jurisdiction in dismissing the
Testate Case, Certiorari is a proper remedy. An act done by a Probate Court in excess of
its jurisdiction may be corrected by Certiorari. And even assuming the existence of the
remedy of appeal, we harken to the rule that in the broader interests of justice, a petition
for Certiorari may be entertained, particularly where appeal would not afford speedy and
adequate relief. Maninang vs. Court of Appeals, 114 SCRA 478, No. L-57848 June 19,
1982
A Petition to Review the Decision of April 28, 1981 of respondent Appellate Court in CA-
G.R. No. 12032-R entitled "Rafael E. Maninang and Soledad L. Maninang vs. Hon. Ricardo
Pronove, Judge of the Court of First Instance of Rizal, Pasig, Branch XI, and Bernardo S.
Aseneta".
Pertinent to the controversy are the following antecedental facts:
On May 21, 1977, Clemencia Aseneta, single, died at the Manila Sanitarium Hospital at
age 81. She left a holographic will, the pertinent portions of which are quoted hereunder:
xxx xxx xxx
It is my will that all my real properties located in Manila, Makati, Quezon
City, Albay and Legaspi City and all my personal properties shagllbe
inherited upon my death by Dra. Soledad L. Maninang with whose family I
have lived continuously for around the last 30 years now. Dra. Maninang
and her husband Pamping have been kind to me. ... I have found peace
and happiness with them even during the time when my sisters were still
alive and especially now when I am now being troubled by my nephew
Bernardo and niece Salvacion. I am not incompetent as Nonoy would like
me to appear. I know what is right and wrong. I can decide for myself. I do
not consider Nonoy as my adopted son. He has made me do things against
my will.
xxx xxx xxx
12

On June 9, 1977, petitioner Soledad Maninang filed a Petition for probate of the Will of the
decedent with the Court of First Instance-Branch IV, Quezon City (Sp. Proc. No. Q-23304,
hereinafter referred to as the Testate Case).
On July 25, 1977, herein respondent Bernardo Aseneta, who, as the adopted son, claims
to be the sole heir of decedent Clemencia Aseneta, instituted intestate proceedings with
the Court of First Instance-Branch XI, Pasig, Rizal (Sp. Proc. No. 8569, called hereinafter
the Intestate Case" for brevity).
On December 23, 1977, the Testate and Intestate Cases were ordered consolidated
before Branch XI, presided by respondent Judge.
Respondent Bernardo then filed a Motion to Dismiss the Testate Case on the ground that
the holographic will was null and void because he, as the only compulsory heir, was
preterited and, therefore, intestacy should ensue. In support of said Motion to Dismiss,
respondent Bernardo cited the cases of Neri vs. Akutin (72 Phil. 322); Nuguid vs.
Nuguid (17 SCRA 449), and Ramos vs. Baldovino (2 CA Rep. 2nd, 878). 1
In her Opposition to said Motion to Dismiss, petitioner Soledad averred that it is still the rule
that in a case for probate of a Will, the Court's area of inquiry is limited to an examination of
and resolution on the extrinsic validity of the will; and that respondent Bernardo was effectively
disinherited by the decedent. 2
On September 8, 1980, the lower Court ordered the dismissal of the Testate Case in this
wise:
For reasons stated in the motion to dismiss filed by petitioner Bernardo S.
Aseneta which the Court finds meritorious, the petition for probate of will
filed by Soledad L. Maninang and which was docketed as Sp. Proc. No. Q-
23304 is DISMISSED, without pronouncement as to costs.
On December 19, 1980, the lower Court denied reconsideration for lack of merit and in the
same Order appointed Bernardo as the administrator of the intestate estate of the
deceased Clemencia Aseneta "considering that he is a forced heir of said deceased while
oppositor Soledad Maninang is not, and considering further that Bernardo Aseneta has
not been shown to be unfit to perform the duties of the trust. "
Petitioners Maninang resorted to a certiorari Petition before respondent Court of Appeals
alleging that the lower Court exceeded its jurisdiction in issuing the Orders of dismissal of
the Testate Case (September 8, 1980) and denial of reconsideration (December 19, 1980).
SPECIAL PROCEEDINGS CASES
On April 28, 1981, respondent Court denied certiorari and ruled that the trial Judge's Order
3
of dismissal was final in nature as it finally disposed of the Testate Case and, therefore, appeal
was the proper remedy, which petitioners failed to avail of. Continuing, it said that even granting
that the lower Court committed errors in issuing the questioned Orders, those are errors of
judgment reviewable only by appeal and not by Certiorari. 'Thus, this Petition before us.
We find that the Court a quo a quo acted in excess of its jurisdiction when it dismissed the
Testate Case. Generally, the probate of a Will is mandatory.
No will shall pass either real or personal property unless it is proved and
allowed in accordance with the Rules of Court. 4
The law enjoins the probate of the Will and public policy requires it, because unless the Will is
probated and notice thereof given to the whole world, the right of a person to dispose of his
property by Will may be rendered nugatory. 5
Normally, the probate of a Will does not look into its intrinsic validity.
... The authentication of a will decides no other question than such as touch
upon the capacity of the testator and the compliance with those requisites
or solemnities which the law prescribes for the validity of wills. It does not
determine nor even by implication prejudge the validity or efficiency (sic)
of the provisions, these may be impugned as being vicious or null,
notwithstanding its authentication. The que0stions relating to these points
remain entirely unaffected, and may be raised even after the will has been
authenticated .... 6
Opposition to the intrinsic validity or legality of the provisions of the will
cannot be entertained in Probate proceeding because its only purpose is
merely to determine if the will has been executed in accordance with the
requirements of the law. 7
Respondent Bernardo, however, relies on the pronouncement in Nuguid vs. Nuguid 8,
reading:
In a proceeding for the probate of a will, the Court's area of inquiry is limited
to an examination of, and resolution on, the extrinsic validity of the will, the
due execution thereof, the testatrix's testamentary capacity and the
compliance with the requisites or solemnities prescribed by law. The
intrinsic validity of the will normally comes only after the court has declared
that the will has been duly authenticated. However, where practical
considerations demand that the intrinsic validity of the will be passed upon,
13

even before it is probated, the Court should meet that issue. (Emphasis
supplied)
Our ruling in Balanay vs. Hon. Martinez 9 had a similar thrust:
The trial court acted correctly in passing upon the will's intrinsic validity
even before its formal validity had been established. The probate of a will
might become an Idle ceremony if on its face it appears to be intrinsically
void. Where practical considerations demand that the intrinsic validity of
the will be passed upon, even before it is probated, the court should meet
the issue.
The Nuguid and the Balanay cases provide the exception rather than the rule. The intrinsic
validity of the Wills in those cases was passed upon even before probate because
"practical considerations" so demanded. Moreover, for the parties in the Nuguid case, the
"meat of the controversy" was the intrinsic validity of the Will; in fact, the parties in that
case "shunted aside the question of whether or not the Will should be allowed probate."
Not so in the case before us now where the probate of the Will is insisted on by petitioners
and a resolution on the extrinsic validity of the Will demanded.
Moreover, in the Nuguid case, this Court ruled that the Will was intrinsically invalid as it
completely preterited the parents of the testator. In the instant case, a crucial issue that
calls for resolution is whether under the terms of the decedent's Will, private respondent
had been preterited or disinherited, and if the latter, whether it was a valid disinheritance.
Preterition and disinheritance are two diverse concepts.
... Preterition "consists in the omission in the testator's will of the forced
heirs or anyone of them, either because they are not mentioned therein,
or, though mentioned, they are neither instituted as heirs nor are expressly
disinherited." (Neri vs. Akutin, 72 Phil. 325). Disinheritance, in turn, "is a
testamentary disposition depriving any compulsory heirs of his share in the
legitimate for a cause authorized by law." (Justice J.B.L. Reyes and R.C.
Puno, "An Outline of Philippine Civil Law", 1956 ed., Vol. III, p. 8, citing
cases) Disinheritance is always "voluntary", preterition upon the other
hand, is presumed to be "involuntary" (Sanchez Roman, Estudios de
Derecho Civil 2nd edition, Volume 2.o p. 1131). 10
The effects of preterition and disinheritance are also totally different.
... The effects flowing from preterition are totally different from those of
disinheritance. Pretention under Article 854 of the New Civil Code shall
annul the institution of heir. This annulment is in toto, unless in the wail
SPECIAL PROCEEDINGS CASES
there are, in addition, testamentary dispositions in the form of devises or
legacies. In ineffective disinheritance under Article 918 of the same Code,
such disinheritance shall also "annul the institution of heirs", but only
"insofar as it may prejudice the person disinherited", which last phrase was
omitted in the case of preterition (III Tolentino, Civil Code of the Philippines,
1961 Edition, p. 172). Better stated yet, in disinheritance the nullity is
limited to that portion of the estate of which the disinherited heirs have
been illegally deprived. 11
By virtue of the dismissal of the Testate Case, the determination of that controversial issue has
not been thoroughly considered. We gather from the assailed Order of the trial Court that its
conclusion was that respondent Bernardo has been preterited We are of opinion, however, that
from the face of the Will, that conclusion is not indubitable.
As held in the case of Vda. de Precilla vs. Narciso 12
... it is as important a matter of public interest that a purported will is not
denied legalization on dubious grounds. Otherwise, the very institution of
testamentary succession will be shaken to its foundation, ...
Coming now to the procedural aspect, suffice it to state that in view of our finding that
respondent Judge had acted in excess of his jurisdiction in dismissing the Testate Case,
certiorari is a proper remedy. An act done by a Probate Court in excess of its jurisdiction
may be corrected by Certiorari. 13 And even assuming the existence of the remedy of appeal,
we harken to the rule that in the broader interests of justice, a petition for certiorari may be
entertained, particularly where appeal would not afford speedy and adequate relief.
WHEREFORE, the Decision in question is set aside and the Orders of the Court of First
Instance-Branch XI, Rizal, dated September 8, 1980 and December 19, 1980, are nullified.
Special Proceeding No. Q-23304 is hereby remanded to said Court of First Instance-
Branch XI. Rizal, therein to be reinstated and consolidated with Special Proceeding No.
8569 for further proceedings.
No pronouncement as to costs.
SO ORDERED.
14

G.R. No. L-23445 June 23, 1966
REMEDIOS NUGUID, petitioner and appellant, vs. FELIX NUGUID and PAZ SALONGA
NUGUID, oppositors and appellees.
1. Wills; Succession; Probate of will; Court’s area of inquiry is limited to extrinsic validity of
will; When Court may rule on intrinsic validity.-
In a proceeding for the probate of a will, the court’s area of inquiry is limited to an
examination of, and resolution on, the extrinsic validity of the will, the due execution
thereof, the testatrix’s testamentary capacity and the com- pliance with the requisites or
solemnities prescribed by law. The intrinsic validity of the will normally comes only after
the court has declared that the will has been duly authenticated. However, where practical
considerations demand that the intrinsic validity of the will be passed upon, even before it
is probated, the Court should meet that issue.
2. Wills; Preterition; Omission of forced heirs in the will.-
Where the deceased left no descendants, legitimate or illegitimate, but she left forced heirs
in the direct ascending line—her parents, and her holographic will does not explicitly
disinherit them but simply omits their names altogether, the case is one of preterition of
the parents, not a case of ineffective disinheritance.
3. Wills; Preterition distinguished from disinheritance.-
Preterition “consists in the omission in the testator’s will of the forced heirs or anyone of
them, either because they are not mentioned therein, or, though mentioned, they are
neither instituted as heirs nor are expressly disinherited.” (Neri vs. Akutin, 72 Phil., 325).
Disinheritance, in turn, “is a testamentary disposition depriving any compulsory heir of his
share in the legitime for a cause authorized by law.” (Justice J.B.L. Reyes and R.C. Puno,
“An Outline of Philippine Civil Law”, 1966 ed., Vol. III, p. 8, citing cases.) Disinheritance is
always “voluntary”; preterition, upon the other hand, is presumed to be “involuntary”
(Sánchez Román, Estudios de Derecho Civil, 2nd edition, Volumen 2.o, p. 1131).
4. Wills; Effects flowing from preterition and disinheritance.-
The effects flowing from preterition are totally different from those of disinheritance.
Preterition under Article 854 of the New Civil Code “shall annul the institution of heir”. This
annulment is in toto, unless in the will there are, in addition, testamentary dispositions in
the form of devises or legacies. In ineffective disinheritance under Article 918 of the same
Code, such disinheritance shall also “annul the institution of heirs”, but only “insofar as it
may prejudice the person disinherited”, which last phrase was omitted in the case of
preterition (III Tolentino, Civil Code of the Philippines, 1961 Edition, p. 172). Better stated
SPECIAL PROCEEDINGS CASES
yet, in disinheritance the nullity is limited to that portion of the estate of which the
disinherited heirs have been illegally deprived.
5. Wills; When institution of heirs is void.-
Where the onesentence will institutes the petitioner as the sole, universal heir and preterits
the parents of the testatrix, and it contains no specif ic legacies or bequests, such universal
institution of petitioner, by itself, is void. And intestate succession ensues.
6. Wills; When legacies and devises merit consideration.-
Legacies and devises merit consideration only when they are so expressly given as such
in a will. Nothing in Article 854 of the New Civil Code suggests that the mere institution of
a universal heir in a will—void because of preterition—would give the heir so instituted a
share in the inheritance. As to him, the will is inexistent. There must be, in addition to such
institution, a testamentary disposition granting him bequests or legacies apart and
separate from the nullified institution of heir.
7. Wills; Institution of heirs cannot be considered a legacy.-
If every case of institution of heirs may be made to fall into the concept of legacies and
betterments reducing the bequest accordingly, then the provisions of Articles 814 and 851
of the old Civil Code, regarding total or partial nullity of the institution, would be absolutely
meaningless and will never have any application at all. And the remaining provisions
contained in said articles concerning the reduction of inofficious legacies or betterments
would be a surplusage because they would be absorbed by Article 817 of the same Code.
Rosario Nuguid, a resident of Quezon City, died on December 30, 1962, single, without
descendants, legitimate or illegitimate. Surviving her were her legitimate parents, Felix
Nuguid and Paz Salonga Nuguid, and six (6) brothers and sisters, namely: Alfredo,
Federico, Remedios, Conrado, Lourdes and Alberto, all surnamed Nuguid.
On May 18, 1963, petitioner Remedios Nuguid filed in the Court of First Instance of Rizal
a holographic will allegedly executed by Rosario Nuguid on November 17, 1951, some 11
years before her demise. Petitioner prayed that said will be admitted to probate and that
letters of administration with the will annexed be issued to her.
On June 25, 1963, Felix Nuguid and Paz Salonga Nuguid, concededly the legitimate father
and mother of the deceased Rosario Nuguid, entered their opposition to the probate of her
will. Ground therefor, inter alia, is that by the institution of petitioner Remedios Nuguid as
universal heir of the deceased, oppositors — who are compulsory heirs of the deceased
15

in the direct ascending line — were illegally preterited and that in consequence the
institution is void.
On August 29, 1963, before a hearing was had on the petition for probate and objection
thereto, oppositors moved to dismiss on the ground of absolute preterition.
On September 6, 1963, petitioner registered her opposition to the motion to dismiss. 1äwphï1.ñët
The court's order of November 8, 1963, held that "the will in question is a complete nullity
and will perforce create intestacy of the estate of the deceased Rosario Nuguid" and
dismissed the petition without costs.
A motion to reconsider having been thwarted below, petitioner came to this Court on
appeal.
1. Right at the outset, a procedural aspect has engaged our attention. The case is for the
probate of a will. The court's area of inquiry is limited — to an examination of, and
resolution on, the extrinsic validity of the will. The due execution thereof, the testatrix's
testamentary capacity, and the compliance with the requisites or solemnities by law
prescribed, are the questions solely to be presented, and to be acted upon, by the court.
Said court at this stage of the proceedings — is not called upon to rule on
the intrinsic validity or efficacy of the provisions of the will, the legality of any devise or
legacy therein.1
A peculiar situation is here thrust upon us. The parties shunted aside the question of
whether or not the will should be allowed probate. For them, the meat of the case is the
intrinsic validity of the will. Normally, this comes only after the court has declared that the
will has been duly authenticated.2 But petitioner and oppositors, in the court below and
here on appeal, travelled on the issue of law, to wit: Is the will intrinsically a nullity?
We pause to reflect. If the case were to be remanded for probate of the will, nothing will
be gained. On the contrary, this litigation will be protracted. And for aught that appears in
the record, in the event of probate or if the court rejects the will, probability exists that the
case will come up once again before us on the same issue of the intrinsic validity or nullity
of the will. Result: waste of time, effort, expense, plus added anxiety. These are the
practical considerations that induce us to a belief that we might as well meet head-on the
issue of the validity of the provisions of the will in question.3 After all, there exists a
justiciable controversy crying for solution.
2. Petitioner's sole assignment of error challenges the correctness of the conclusion below
that the will is a complete nullity. This exacts from us a study of the disputed will and the
applicable statute.
SPECIAL PROCEEDINGS CASES
Reproduced hereunder is the will:
Nov. 17, 1951
I, ROSARIO NUGUID, being of sound and disposing mind and memory, having amassed
a certain amount of property, do hereby give, devise, and bequeath all of the property
which I may have when I die to my beloved sister Remedios Nuguid, age 34, residing with
me at 38-B Iriga, Q.C. In witness whereof, I have signed my name this seventh day of
November, nineteen hundred and fifty-one.
(Sgd.) Illegible
T/ ROSARIO NUGUID
The statute we are called upon to apply in Article 854 of the Civil Code which, in part,
provides:
ART. 854. The preterition or omission of one, some, or all of the compulsory heirs
in the direct line, whether living at the time of the execution of the will or born after
the death of the testator, shall annul the institution of heir; but the devises and
legacies shall be valid insofar as they are not inofficious. ...
Except for inconsequential variation in terms, the foregoing is a reproduction of Article 814
of the Civil Code of Spain of 1889, which is similarly herein copied, thus —
Art. 814. The preterition of one or all of the forced heirs in the direct line, whether
living at the time of the execution of the will or born after the death of the testator,
shall void the institution of heir; but the legacies and betterments4 shall be valid, in
so far as they are not inofficious. ...
A comprehensive understanding of the term preterition employed in the law becomes a
necessity. On this point Manresa comments:
La pretericion consiste en omitar al heredero en el testamento. O no se le nombra
siquiera o aun nombrandole como padre, hijo, etc., no se le instituya heredero ni
se le deshereda expresamente ni se le asigna parte alguna de los bienes,
resultando privado de un modo tacito de su derecho a legitima.
Para que exista pretericion, con arreglo al articulo 814, basta que en el testamento
omita el testador a uno cualquiera de aquellos a quienes por su muerte
corresponda la herencia forzosa.
16

Se necesita, pues, a) Que la omision se refiera a un heredero forzoso. b) Que la
omision sea completa; que el heredero forzoso nada reciba en el testamento.
It may now appear trite bat nonetheless helpful in giving us a clear perspective of the
problem before us, to have on hand a clear-cut definition of the word annul:
To "annul" means to abrogate, to make void ... In re Morrow's Estate, 54 A. 342,
343, 204 Pa. 484.6
The word "annul" as used in statute requiring court to annul alimony provisions of
divorce decree upon wife's remarriage means to reduce to nothing; to annihilate;
obliterate; blot out; to make void or of no effect; to nullify; to abolish. N.J.S.A. 2:50
— 38 (now N.J.S. 2A:34-35). Madden vs. Madden, 40 A. 2d 611, 614, 136 N..J
Eq. 132.7
ANNUL. To reduce to nothing; annihilate; obliterate; to make void or of no effect;
to nullify; to abolish; to do away with. Ex parte Mitchell, 123 W. Va. 283, 14 S.E.
2d. 771, 774.8
And now, back to the facts and the law. The deceased Rosario Nuguid left no descendants,
legitimate or illegitimate. But she left forced heirs in the direct ascending line her parents,
now oppositors Felix Nuguid and Paz Salonga Nuguid. And, the will completely omits both
of them: They thus received nothing by the testament; tacitly, they were deprived of their
legitime; neither were they expressly disinherited. This is a clear case of preterition. Such
preterition in the words of Manresa "anulara siempre la institucion de heredero, dando
caracter absoluto a este ordenamiento referring to the mandate of Article 814, now 854 of
the Civil Code.9 The one-sentence will here institutes petitioner as the sole, universal heir
— nothing more. No specific legacies or bequests are therein provided for. It is in this
posture that we say that the nullity is complete. Perforce, Rosario Nuguid died intestate.
Says Manresa:
En cuanto a la institucion de heredero, se anula. Lo que se anula deja de existir,
en todo o en parte? No se añade limitacion alguna, como en el articulo 851, en el
que se expresa que se anulara la institucion de heredero en cuanto prejudique a
la legitima del deseheredado Debe, pues, entenderse que la anulacion es
completa o total, y que este articulo como especial en el caso que le motiva rige
con preferencia al 817. 10
The same view is expressed by Sanchez Roman: —
La consecuencia de la anulacion o nulidad de la institucion de heredero por
pretericion de uno, varios o todos los forzosos en linea recta, es la apertura de la
SPECIAL PROCEEDINGS CASES
sucesion intestada total o parcial. Sera total, cuando el testador que comete la
pretericion, hubiese dispuesto de todos los bienes por titulo universal de herencia
en favor de los herederos instituidos, cuya institucion se anula, porque asi lo exige
la generalidad del precepto legal del art. 814, al determinar, como efecto de la
pretericion, el de que "anulara la institucion de heredero." ... 11
Really, as we analyze the word annul employed in the statute, there is no escaping the
conclusion that the universal institution of petitioner to the entire inheritance results
in totally abrogating the will. Because, the nullification of such institution of universal heir
— without any other testamentary disposition in the will — amounts to a declaration that
nothing at all was written. Carefully worded and in clear terms, Article 854 offers no leeway
for inferential interpretation. Giving it an expansive meaning will tear up by the roots the
fabric of the statute. On this point, Sanchez Roman cites the "Memoria annual del Tribunal
Supreme, correspondiente a 1908", which in our opinion expresses the rule of
interpretation, viz:
... El art. 814, que preceptua en tales casos de pretericion la nulidad de la
institucion de heredero, no consiente interpretacion alguna favorable a la persona
instituida en el sentido antes expuesto aun cuando parezca, y en algun caso
pudiera ser, mas o menos equitativa, porque una nulidad no significa en Derecho
sino la suposicion de que el hecho o el acto no se ha realizado, debiendo por lo
tanto procederse sobre tal base o supuesto, y consiguientemente, en un
testamento donde falte la institucion, es obligado llamar a los herederos forzosos
en todo caso, como habria que llamar a los de otra clase, cuando el testador no
hubiese distribudo todos sus bienes en legados, siendo tanto mas obligada esta
consecuencia legal cuanto que, en materia de testamentos, sabido es, segun tiene
declarado la jurisprudencia, con repeticion, que no basta que sea conocida la
voluntad de quien testa si esta voluntad no aparece en la forma y en las
condiciones que la ley ha exigido para que sea valido y eficaz, por lo que
constituiria una interpretacion arbitraria, dentro del derecho positivo, reputar como
legatario a un heredero cuya institucion fuese anulada con pretexto de que esto
se acomodaba mejor a la voluntad del testador, pues aun cuando asi fuese, sera
esto razon para modificar la ley, pero no autoriza a una interpretacion contraria a
sus terminos y a los principios que informan la testamentifaccion, pues no porque
parezca mejor una cosa en el terreno del Derecho constituyente, hay razon para
convereste juicio en regla de interpretacion, desvirtuando y anulando por este
procedimiento lo que el legislador quiere establecer. 12
3. We should not be led astray by the statement in Article 854 that, annullment
notwithstanding, "the devises and legacies shall be valid insofar as they are not
inofficious". Legacies and devises merit consideration only when they are so expressly
given as such in a will. Nothing in Article 854 suggests that the mere institution of a
universal heir in a will — void because of preterition — would give the heir so instituted a
17

share in the inheritance. As to him, the will is inexistent. There must be, in addition to such
institution, a testamentary disposition granting him bequests or legacies apart and
separate from the nullified institution of heir. Sanchez Roman, speaking of the two
component parts of Article 814, now 854, states that preterition annuls the institution of the
heir "totalmente por la pretericion"; but added (in reference to legacies and bequests) "pero
subsistiendo ... todas aquellas otras disposiciones que no se refieren a la institucion de
heredero ... . 13 As Manresa puts it, annulment throws open to intestate succession the
entire inheritance including "la porcion libre (que) no hubiese dispuesto en virtud de
legado, mejora o donacion. 14
As aforesaid, there is no other provision in the will before us except the institution of
petitioner as universal heir. That institution, by itself, is null and void. And, intestate
succession ensues.
4. Petitioner's mainstay is that the present is "a case of ineffective disinheritance rather
than one of preterition". 15From this, petitioner draws the conclusion that Article 854 "does
not apply to the case at bar". This argument fails to appreciate the distinction between
pretention and disinheritance.
Preterition "consists in the omission in the testator's will of the forced heirs or anyone of
them, either because they are not mentioned therein, or, though mentioned, they are
neither instituted as heirs nor are expressly disinherited." 16 Disinheritance, in turn, "is
a testamentary disposition depriving any compulsory heir of his share in the legitime for a
cause authorized by law. " 17 In Manresa's own words: "La privacion expresa de la legitima
constituye la desheredacion. La privacion tacita de la misma se
denomina pretericion." 18 Sanchez Roman emphasizes the distinction by stating that
disinheritance "es siempre voluntaria"; preterition, upon the other hand, is presumed to be
"involuntaria". 19 Express as disinheritance should be, the same must be supported by a
legal cause specified in the will itself. 20
The will here does not explicitly disinherit the testatrix's parents, the forced heirs. It simply
omits their names altogether. Said will rather than be labeled ineffective disinheritance is
clearly one in which the said forced heirs suffer from preterition.
On top of this is the fact that the effects flowing from preterition are totally different from
those of disinheritance. Preterition under Article 854 of the Civil Code, we repeat, "shall
annul the institution of heir". This annulment is in toto, unless in the will there are, in
addition, testamentary dispositions in the form of devises or legacies. In ineffective
disinheritance under Article 918 of the same Code, such disinheritance shall also "annul
the institution of heirs", put only "insofar as it may prejudice the person disinherited", which
last phrase was omitted in the case of preterition. 21 Better stated yet, in disinheritance the
nullity is limited to that portion of the estate of which the disinherited heirs have been
illegally deprived. Manresa's expressive language, in commenting on the rights of the
SPECIAL PROCEEDINGS CASES
preterited heirs in the case of preterition on the one hand and legal disinheritance on the
other, runs thus: "Preteridos, adquiren el derecho a todo; desheredados, solo les
corresponde un tercio o dos tercios, 22 el caso. 23
5. Petitioner insists that the compulsory heirs ineffectively disinherited are entitled to
receive their legitimes, but that the institution of heir "is not invalidated," although the
inheritance of the heir so instituted is reduced to the extent of said legitimes. 24
This is best answered by a reference to the opinion of Mr. Chief Justice Moran in
the Neri case heretofore cited, viz:
But the theory is advanced that the bequest made by universal title in favor of the
children by the second marriage should be treated as legado and mejora and,
accordingly, it must not be entirely annulled but merely reduced. This theory, if
adopted, will result in a complete abrogation of Articles 814 and 851 of the Civil
Code. If every case of institution of heirs may be made to fall into the concept of
legacies and betterments reducing the bequest accordingly, then the provisions of
Articles 814 and 851 regarding total or partial nullity of the institution, would. be
absolutely meaningless and will never have any application at all. And the
remaining provisions contained in said article concerning the reduction of
inofficious legacies or betterments would be a surplusage because they would be
absorbed by Article 817. Thus, instead of construing, we would be destroying
integral provisions of the Civil Code.
The destructive effect of the theory thus advanced is due mainly to a failure to
distinguish institution of heirs from legacies and betterments, and a general from a
special provision. With reference to article 814, which is the only provision material
to the disposition of this case, it must be observed that the institution of heirs is
therein dealt with as a thing separate and distinct from legacies or betterments.
And they are separate and distinct not only because they are distinctly and
separately treated in said article but because they are in themselves different.
Institution of heirs is a bequest by universal title of property that is undetermined.
Legacy refers to specific property bequeathed by a particular or special title. ... But
again an institution of heirs cannot be taken as a legacy. 25
The disputed order, we observe, declares the will in question "a complete nullity". Article
854 of the Civil Code in turn merely nullifies "the institution of heir". Considering, however,
that the will before us solely provides for the institution of petitioner as universal heir, and
nothing more, the result is the same. The entire will is null.
Upon the view we take of this case, the order of November 8, 1963 under review is hereby
affirmed. No costs allowed. So ordered.
18

G.R. No. 156407 January 15, 2014
THELMA M. ARANAS, Petitioner, vs. TERESITA V. MERCADO, FELIMON V.
MERCADO, CARMENCITA M. SUTHERLAND, RICHARD V. MERCADO, MA.
TERESITA M. ANDERSON, and FRANKLIN L. MERCADO, Respondents.
Civil Law; Succession; The approval of the inventory and the concomitant determination
of the ownership as basis for inclusion or exclusion from the inventory were provisional
and subject to revision at anytime during the course of the administration proceedings.—
The assailed order of March 14, 2001 denying Teresita’s motion for the approval of the
inventory and the order dated May 18, 2001 denying her motion for reconsideration were
interlocutory. This is because the inclusion of the properties in the inventory was not yet a
final determination of their ownership. Hence, the approval of the inventory and the
concomitant determination of the ownership as basis for inclusion or exclusion from the
inventory were provisional and subject to revision at anytime during the course of the
administration proceedings.
Remedial Law; Civil Procedure; Appeals; The final judgment rule embodied in the first
paragraph of Section 1, Rule 41, Rules of Court, which also governs appeals in special
proceedings, stipulates that only the judgments, final orders (and resolutions) of a court of
law “that completely disposes of the case, or of a particular matter therein when declared
by these Rules to be appealable” may be the subject of an appeal in due course.—An
appeal would not be the correct recourse for Teresita, et al. to take against the assailed
orders. The final judgment rule embodied in the first paragraph of Section 1, Rule 41, Rules
of Court, which also governs appeals in special proceedings, stipulates that only the
judgments, final orders (and resolutions) of a court of law “that completely disposes of the
case, or of a particular matter therein when declared by these Rules to be appealable” may
be the subject of an appeal in due course. The same rule states that an interlocutory order
or resolution (interlocutory because it deals with preliminary matters, or that the trial on the
merits is yet to be held and the judgment rendered) is expressly made non-appealable.
Same; Same; Same; Multiple Appeals; Multiple appeals are permitted in special
proceedings as a practical recognition of the possibility that material issues may be finally
determined at various stages of the special proceedings.—Multiple appeals are permitted
in special proceedings as a practical recognition of the possibility that material issues may
be finally determined at various stages of the special proceedings. Section 1, Rule 109 of
the Rules of Court enumerates the specific instances in which multiple appeals may be
resorted to in special proceedings, viz.: Section 1. Orders or judgments from which appeals
may be taken.—An interested person may appeal in special proceedings from an order or
judgment rendered by a Court of First Instance or a Juvenile and Domestic Relations
Court, where such order or judgment: (a) Allows or disallows a will; (b) Determines who
are the lawful heirs of a deceased person, or the distributive share of the estate to which
such person is entitled; (c) Allows or disallows, in whole or in part, any claim against the
estate of a deceased person, or any claim presented on behalf of the estate in offset to a
SPECIAL PROCEEDINGS CASES
claim against it; (d) Settles the account of an executor, administrator, trustee or guardian;
(e) Constitutes, in proceedings relating to the settlement of the estate of a deceased
person, or the administration of a trustee or guardian, a final determination in the lower
court of the rights of the party appealing, except that no appeal shall be allowed from the
appointment of a special administrator; and (f) Is the final order or judgment rendered in
the case, and affects the substantial rights of the person appealing, unless it be an order
granting or denying a motion for a new trial or for reconsideration.
Civil Law; Succession; Settlement of Estates Deceased Persons; Under Section 6(a), Rule
78 of the Rules of Court, the letters of administration may be granted at the discretion of
the court to the surviving spouse, who is competent and willing to serve when the person
dies intestate.—Under Section 6(a), Rule 78 of the Rules of Court, the letters of
administration may be granted at the discretion of the court to the surviving spouse, who
is competent and willing to serve when the person dies intestate. Upon issuing the letters
of administration to the surviving spouse, the RTC becomes duty-bound to direct the
preparation and submission of the inventory of the properties of the estate, and the
surviving spouse, as the administrator, has the duty and responsibility to submit the
inventory within three months from the issuance of letters of administration pursuant to
Rule 83 of the Rules of Court.
Same; Same; Same; The objective of the Rules of Court in requiring the inventory and
appraisal of the estate of the decedent is “to aid the court in revising the accounts and
determining the liabilities of the executor or the administrator, and in making a final and
equitable distribution (partition) of the estate and otherwise to facilitate the administration
of the estate.”—The objective of the Rules of Court in requiring the inventory and appraisal
of the estate of the decedent is “to aid the court in revising the accounts and determining
the liabilities of the executor or the administrator, and in making a final and equitable
distribution (partition) of the estate and otherwise to facilitate the administration of the
estate.” Hence, the RTC that presides over the administration of an estate is vested with
wide discretion on the question of what properties should be included in the inventory.
According to Peralta v. Peralta, 71 Phil. 66 (1940), the CA cannot impose its judgment in
order to supplant that of the RTC on the issue of which properties are to be included or
excluded from the inventory in the absence of “positive abuse of discretion,” for in the
administration of the estates of deceased persons, “the judges enjoy ample discretionary
powers and the appellate courts should not interfere with or attempt to replace the action
taken by them, unless it be shown that there has been a positive abuse of discretion.” As
long as the RTC commits no patently grave abuse of discretion, its orders must be
respected as part of the regular performance of its judicial duty.
Remedial Law; Civil Procedure; Courts; Jurisdiction; There is no dispute that the
jurisdiction of the trial court as an intestate court is special and limited.—There is no dispute
that the jurisdiction of the trial court as an intestate court is special and limited. The trial
court cannot adjudicate title to properties claimed to be a part of the estate but are claimed
19

to belong to third parties by title adverse to that of the decedent and the estate, not by
virtue of any right of inheritance from the decedent. All that the trial court can do regarding
said properties is to determine whether or not they should be included in the inventory of
properties to be administered by the administrator. Such determination is provisional and
may be still revised.
Same; Evidence; Notarized Documents; A notarized deed of sale only enjoyed the
presumption of regularity in favor of its execution, but its notarization did not per se
guarantee the legal efficacy of the transaction under the deed, and what the contents
purported to be.—The fact that the deed of absolute sale executed by Emigdio in favor of
Mervir Realty was a notarized instrument did not sufficiently justify the exclusion from the
inventory of the properties involved. A notarized deed of sale only enjoyed the presumption
of regularity in favor of its execution, but its notarization did not per se guarantee the legal
efficacy of the transaction under the deed, and what the contents purported to be. The
presumption of regularity could be rebutted by clear and convincing evidence to the
contrary. As the Court has observed in Suntay v. Court of Appeals: x x x. Though the
notarization of the deed of sale in question vests in its favor the presumption of regularity,
it is not the intention nor the function of the notary public to validate and make binding an
instrument never, in the first place, intended to have any binding legal effect upon the
parties thereto. The intention of the parties still and always is the primary consideration in
determining the true nature of a contract.
Civil Law; Land Titles; The Torrens system is not a mode of acquiring titles to lands; it is
merely a system of registration of titles to lands.—The fact that the properties were already
covered by Torrens titles in the name of Mervir Realty could not be a valid basis for
immediately excluding them from the inventory in view of the circumstances admittedly
surrounding the execution of the deed of assignment. This is because: The Torrens system
is not a mode of acquiring titles to lands; it is merely a system of registration of titles to
lands. However, justice and equity demand that the titleholder should not be made to bear
the unfavorable effect of the mistake or negligence of the State’s agents, in the absence
of proof of his complicity in a fraud or of manifest damage to third persons. The real
purpose of the Torrens system is to quiet title to land and put a stop forever to any question
as to the legality of the title, except claims that were noted in the certificate at the time of
registration or that may arise subsequent thereto. Otherwise, the integrity of the Torrens
system shall forever be sullied by the ineptitude and inefficiency of land registration
officials, who are ordinarily presumed to have regularly performed their duties.
Same; Succession; Collation; Article 1061 of the Civil Code required every compulsory
heir and the surviving spouse, to “bring into the mass of the estate any property or right
which he (or she) may have received from the decedent, during the lifetime of the latter,
by way of donation, or any other gratuitous title, in order that it may be computed in the
determination of the legitime of each heir, and in the account of the partition.”—Article 1061
of the Civil Code required every compulsory heir and the surviving spouse, herein Teresita
SPECIAL PROCEEDINGS CASES
herself, to “bring into the mass of the estate any property or right which he (or she) may
have received from the decedent, during the lifetime of the latter, by way of donation, or
any other gratuitous title, in order that it may be computed in the determination of the
legitime of each heir, and in the account of the partition.” Section 2, Rule 90 of the Rules
of Court also provided that any advancement by the decedent on the legitime of an heir
“may be heard and determined by the court having jurisdiction of the estate proceedings,
and the final order of the court thereon shall be binding on the person raising the questions
and on the heir.” Rule 90 thereby expanded the special and limited jurisdiction of the RTC
as an intestate court about the matters relating to the inventory of the estate of the
decedent by authorizing it to direct the inclusion of properties donated or bestowed by
gratuitous title to any compulsory heir by the decedent.
Same; Same; The determination of which properties should be excluded from or included
in the inventory of estate properties was well within the authority and discretion of the
Regional Trial Court (RTC) as an intestate court.—The determination of which properties
should be excluded from or included in the inventory of estate properties was well within
the authority and discretion of the RTC as an intestate court. In making its determination,
the RTC acted with circumspection, and proceeded under the guiding policy that it was
best to include all properties in the possession of the administrator or were known to the
administrator to belong to Emigdio rather than to exclude properties that could turn out in
the end to be actually part of the estate. As long as the RTC commits no patent grave
abuse of discretion, its orders must be respected as part of the regular performance of its
judicial duty. Grave abuse of discretion means either that the judicial or quasi-judicial
power was exercised in an arbitrary or despotic manner by reason of passion or personal
hostility, or that the respondent judge, tribunal or board evaded a positive duty, or virtually
refused to perform the duty enjoined or to act in contemplation of law, such as when such
judge, tribunal or board exercising judicial or quasi-judicial powers acted in a capricious or
whimsical manner as to be equivalent to lack of jurisdiction. Aranas vs. Mercado, 713
SCRA 194, G.R. No. 156407 January 15, 2014
The probate court is authorized to determine the issue of ownership of properties for
purposes of their inclusion or exclusion from the inventory to be submitted by the
administrator, but its determination shall only be provisional unless the interested parties
are all heirs of the decedent, or the question is one of collation or advancement, or the
parties consent to the assumption of jurisdiction by the probate court and the rights of third
parties are not impaired. Its jurisdiction extends to matters incidental or collateral to the
settlement and distribution of the estate, such as the determination of the status of each
heir and whether property included in the inventory is the conjugal or exclusive property of
the deceased spouse.
Antecedents
20

Emigdio S. Mercado (Emigdio) died intestate on January 12, 1991, survived by his second
wife, Teresita V. Mercado (Teresita), and their five children, namely: Allan V. Mercado,
Felimon V. Mercado, Carmencita M. Sutherland, Richard V. Mercado, and Maria Teresita
M. Anderson; and his two children by his first marriage, namely: respondent Franklin L.
Mercado and petitioner Thelma M. Aranas (Thelma).
Emigdio inherited and acquired real properties during his lifetime. He owned corporate
shares in Mervir Realty Corporation (Mervir Realty) and Cebu Emerson Transportation
Corporation (Cebu Emerson). He assigned his real properties in exchange for corporate
stocks of Mervir Realty, and sold his real property in Badian, Cebu (Lot 3353 covered by
Transfer Certificate of Title No. 3252) to Mervir Realty.
On June 3, 1991, Thelma filed in the Regional Trial Court (RTC) in Cebu City a petition for
the appointment of Teresita as the administrator of Emigdio’s estate (Special Proceedings
No. 3094-CEB).1 The RTC granted the petition considering that there was no opposition.
The letters of administration in favor of Teresita were issued on September 7, 1992.
As the administrator, Teresita submitted an inventory of the estate of Emigdio on
December 14, 1992 for the consideration and approval by the RTC. She indicated in the
inventory that at the time of his death, Emigdio had "left no real properties but only personal
properties" worth ₱6,675,435.25 in all, consisting of cash of ₱32,141.20; furniture and
fixtures worth ₱20,000.00; pieces of jewelry valued at ₱15,000.00; 44,806 shares of stock
of Mervir Realty worth ₱6,585,585.80; and 30 shares of stock of Cebu Emerson worth
₱22,708.25.2
Claiming that Emigdio had owned other properties that were excluded from the inventory,
Thelma moved that the RTC direct Teresita to amend the inventory, and to be examined
regarding it. The RTC granted Thelma’s motion through the order of January 8, 1993.
On January 21, 1993, Teresita filed a compliance with the order of January 8,
1993,3 supporting her inventory with copies of three certificates of stocks covering the
44,806 Mervir Realty shares of stock;4 the deed of assignment executed by Emigdio on
January 10, 1991 involving real properties with the market value of ₱4,440,651.10 in
exchange for 44,407 Mervir Realty shares of stock with total par value of
₱4,440,700.00;5 and the certificate of stock issued on January 30, 1979 for 300 shares of
stock of Cebu Emerson worth ₱30,000.00.6
On January 26, 1993, Thelma again moved to require Teresita to be examined under oath
on the inventory, and that she (Thelma) be allowed 30 days within which to file a formal
opposition to or comment on the inventory and the supporting documents Teresita had
submitted.
SPECIAL PROCEEDINGS CASES
On February 4, 1993, the RTC issued an order expressing the need for the parties to
present evidence and for Teresita to be examined to enable the court to resolve the motion
for approval of the inventory.7
On April 19, 1993, Thelma opposed the approval of the inventory, and asked leave of court
to examine Teresita on the inventory.
With the parties agreeing to submit themselves to the jurisdiction of the court on the issue
of what properties should be included in or excluded from the inventory, the RTC set dates
for the hearing on that issue.8
Ruling of the RTC
After a series of hearings that ran for almost eight years, the RTC issued on March 14,
2001 an order finding and holding that the inventory submitted by Teresita had excluded
properties that should be included, and accordingly ruled:
WHEREFORE, in view of all the foregoing premises and considerations, the Court hereby
denies the administratrix’s motion for approval of inventory. The Court hereby orders the
said administratrix to re-do the inventory of properties which are supposed to constitute as
the estate of the late Emigdio S. Mercado by including therein the properties mentioned in
the last five immediately preceding paragraphs hereof and then submit the revised
inventory within sixty (60) days from notice of this order.
The Court also directs the said administratrix to render an account of her administration of
the estate of the late Emigdio S. Mercado which had come to her possession. She must
render such accounting within sixty (60) days from notice hereof.
SO ORDERED.9
On March 29, 2001, Teresita, joined by other heirs of Emigdio, timely sought the
reconsideration of the order of March 14, 2001 on the ground that one of the real properties
affected, Lot No. 3353 located in Badian, Cebu, had already been sold to Mervir Realty,
and that the parcels of land covered by the deed of assignment had already come into the
possession of and registered in the name of Mervir Realty.10 Thelma opposed the motion.
On May 18, 2001, the RTC denied the motion for reconsideration,11 stating that there was
no cogent reason for the reconsideration, and that the movants’ agreement as heirs to
submit to the RTC the issue of what properties should be included or excluded from the
inventory already estopped them from questioning its jurisdiction to pass upon the issue.
Decision of the CA
21

Alleging that the RTC thereby acted with grave abuse of discretion in refusing to approve
the inventory, and in ordering her as administrator to include real properties that had been
transferred to Mervir Realty, Teresita, joined by her four children and her stepson Franklin,
assailed the adverse orders of the RTC promulgated on March 14, 2001 and May 18, 2001
by petition for certiorari, stating:
I of the Civil Code, to the effect that the sale made through a public instrument was
THE HONORABLE RESPONDENT JUDGE HAS COMMITTED GRAVE ABUSE OF
JURISDICTION (sic) AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN
HOLDING THAT THE REAL PROPERTY WHICH WAS SOLD BY THE LATE EMIGDIO
S. MERCADO DURING HIS LIFETIME TO A PRIVATE CORPORATION (MERVIR
REALTY CORPORATION) BE INCLUDED IN THE INVENTORY OF THE ESTATE OF
THE LATE EMIGDIO S. MERCADO.
II
THE HONORABLE RESPONDENT JUDGE HAS COMMITTED GRAVE ABUSE OF
JURISDICTION (sic) AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN
HOLDING THAT REAL PROPERTIES WHICH ARE IN THE POSSESSION OF AND
ALREADY REGISTERED IN THE NAME (OF) PRIVATE CORPORATION (MERVIR
REALTY CORPORATION) BE INCLUDED IN THE INVENTORY OF THE ESTATE OF
THE LATE EMIGDIO S. MERCADO.
III
THE HONORABLE RESPONDENT JUDGE HAS COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN HOLDING
THAT PETITIONERS ARE NOW ESTOPPED FROM QUESTIONING ITS JURISDICTION
IN PASSING UPON THE ISSUE OF WHAT PROPERTIES SHOULD BE INCLUDED IN
THE INVENTORY OF THE ESTATE OF THE LATE EMIGDIO MERCADO.12
On May 15, 2002, the CA partly granted the petition for certiorari, disposing as follows:13
WHEREFORE, FOREGOING PREMISES CONSIDERED, this petition is GRANTED
partially. The assailed Orders dated March 14, 2001 and May 18, 2001 are hereby
reversed and set aside insofar as the inclusion of parcels of land known as Lot No. 3353
located at Badian, Cebu with an area of 53,301 square meters subject matter of the Deed
of Absolute Sale dated November 9, 1989 and the various parcels of land subject matter
of the Deeds of Assignment dated February 17, 1989 and January 10, 1991 in the revised
inventory to be submitted by the administratrix is concerned and affirmed in all other
respects.
SPECIAL PROCEEDINGS CASES
SO ORDERED.
The CA opined that Teresita, et al. had properly filed the petition for certiorari because the
order of the RTC directing a new inventory of properties was interlocutory; that pursuant
to Article 1477 of the Civil Code, to the effect that the ownership of the thing sold "shall be
transferred to the vendee" upon its "actual and constructive delivery," and to Article 1498
equivalent to the delivery of the object of the sale, the sale by Emigdio and Teresita had
transferred the ownership of Lot No. 3353 to Mervir Realty because the deed of absolute
sale executed on November 9, 1989 had been notarized; that Emigdio had thereby ceased
to have any more interest in Lot 3353; that Emigdio had assigned the parcels of land to
Mervir Realty as early as February 17, 1989 "for the purpose of saving, as in avoiding
taxes with the difference that in the Deed of Assignment dated January 10, 1991, additional
seven (7) parcels of land were included"; that as to the January 10, 1991 deed of
assignment, Mervir Realty had been "even at the losing end considering that such parcels
of land, subject matter(s) of the Deed of Assignment dated February 12, 1989, were again
given monetary consideration through shares of stock"; that even if the assignment had
been based on the deed of assignment dated January 10, 1991, the parcels of land could
not be included in the inventory "considering that there is nothing wrong or objectionable
about the estate planning scheme"; that the RTC, as an intestate court, also had no power
to take cognizance of and determine the issue of title to property registered in the name of
third persons or corporation; that a property covered by the Torrens system should be
afforded the presumptive conclusiveness of title; that the RTC, by disregarding the
presumption, had transgressed the clear provisions of law and infringed settled
jurisprudence on the matter; and that the RTC also gravely abused its discretion in holding
that Teresita, et al. were estopped from questioning its jurisdiction because of their
agreement to submit to the RTC the issue of which properties should be included in the
inventory.
The CA further opined as follows:
In the instant case, public respondent court erred when it ruled that petitioners are
estopped from questioning its jurisdiction considering that they have already agreed to
submit themselves to its jurisdiction of determining what properties are to be included in
or excluded from the inventory to be submitted by the administratrix, because actually, a
reading of petitioners’ Motion for Reconsideration dated March 26, 2001 filed before public
respondent court clearly shows that petitioners are not questioning its jurisdiction but the
manner in which it was exercised for which they are not estopped, since that is their right,
considering that there is grave abuse of discretion amounting to lack or in excess of limited
jurisdiction when it issued the assailed Order dated March 14, 2001 denying the
administratrix’s motion for approval of the inventory of properties which were already titled
and in possession of a third person that is, Mervir Realty Corporation, a private corporation,
which under the law possessed a personality distinct and separate from its stockholders,
22

and in the absence of any cogency to shred the veil of corporate fiction, the presumption
of conclusiveness of said titles in favor of Mervir Realty Corporation should stand
undisturbed.
Besides, public respondent court acting as a probate court had no authority to determine
the applicability of the doctrine of piercing the veil of corporate fiction and even if public
respondent court was not merely acting in a limited capacity as a probate court, private
respondent nonetheless failed to adjudge competent evidence that would have justified
the court to impale the veil of corporate fiction because to disregard the separate
jurisdictional personality of a corporation, the wrongdoing must be clearly and convincingly
established since it cannot be presumed.14
On November 15, 2002, the CA denied the motion for reconsideration of Teresita, et al.15
Issue
Did the CA properly determine that the RTC committed grave abuse of discretion
amounting to lack or excess of jurisdiction in directing the inclusion of certain properties in
the inventory notwithstanding that such properties had been either transferred by sale or
exchanged for corporate shares in Mervir Realty by the decedent during his lifetime?
Ruling of the Court
The appeal is meritorious.
I The assailed order of March 14, 2001 denying Teresita’s motion for the approval of the
Was certiorari the proper recourse
to assail the questioned orders of the RTC?
The first issue to be resolved is procedural. Thelma contends that the resort to the special
civil action for certiorari to assail the orders of the RTC by Teresita and her co-respondents
was not proper.
Thelma’s contention cannot be sustained.
The propriety of the special civil action for certiorari as a remedy depended on whether the
assailed orders of the RTC were final or interlocutory in nature. In Pahila-Garrido v.
Tortogo,16 the Court distinguished between final and interlocutory orders as follows:
The distinction between a final order and an interlocutory order is well known. The first
disposes of the subject matter in its entirety or terminates a particular proceeding or action,
SPECIAL PROCEEDINGS CASES
leaving nothing more to be done except to enforce by execution what the court has
determined, but the latter does not completely dispose of the case but leaves something
else to be decided upon. An interlocutory order deals with preliminary matters and the trial
on the merits is yet to be held and the judgment rendered. The test to ascertain whether
or not an order or a judgment is interlocutory or final is: does the order or judgment leave
something to be done in the trial court with respect to the merits of the case? If it does, the
order or judgment is interlocutory; otherwise, it is final.
The order dated November 12, 2002, which granted the application for the writ of
preliminary injunction, was an interlocutory, not a final, order, and should not be the subject
of an appeal. The reason for disallowing an appeal from an interlocutory order is to avoid
multiplicity of appeals in a single action, which necessarily suspends the hearing and
decision on the merits of the action during the pendency of the appeals. Permitting multiple
appeals will necessarily delay the trial on the merits of the case for a considerable length
of time, and will compel the adverse party to incur unnecessary expenses, for one of the
parties may interpose as many appeals as there are incidental questions raised by him
and as there are interlocutory orders rendered or issued by the lower court. An
interlocutory order may be the subject of an appeal, but only after a judgment has been
rendered, with the ground for appealing the order being included in the appeal of the
judgment itself.
The remedy against an interlocutory order not subject of an appeal is an appropriate
special civil action under Rule 65, provided that the interlocutory order is rendered without
or in excess of jurisdiction or with grave abuse of discretion. Then is certiorari under Rule
65 allowed to be resorted to.
inventory and the order dated May 18, 2001 denying her motion for reconsideration were
interlocutory. This is because the inclusion of the properties in the inventory was not yet a
final determination of their ownership. Hence, the approval of the inventory and the
concomitant determination of the ownership as basis for inclusion or exclusion from the
inventory were provisional and subject to revision at anytime during the course of the
administration proceedings.
In Valero Vda. De Rodriguez v. Court of Appeals,17 the Court, in affirming the decision of
the CA to the effect that the order of the intestate court excluding certain real properties
from the inventory was interlocutory and could be changed or modified at anytime during
the course of the administration proceedings, held that the order of exclusion was not a
final but an interlocutory order "in the sense that it did not settle once and for all the title to
the San Lorenzo Village lots." The Court observed there that:
The prevailing rule is that for the purpose of determining whether a certain property should
or should not be included in the inventory, the probate court may pass upon the title thereto
23

but such determination is not conclusive and is subject to the final decision in a separate
action regarding ownership which may be instituted by the parties (3 Moran’s Comments
on the Rules of Court, 1970 Edition, pages 448-9 and 473; Lachenal vs. Salas, L-42257,
June 14, 1976, 71 SCRA 262, 266).18 (Bold emphasis supplied)
To the same effect was De Leon v. Court of Appeals,19 where the Court declared that a
"probate court, whether in a testate or intestate proceeding, can only pass upon questions
of title provisionally," and reminded, citing Jimenez v. Court of Appeals, that the "patent
reason is the probate court’s limited jurisdiction and the principle that questions of title or
ownership, which result in inclusion or exclusion from the inventory of the property, can
only be settled in a separate action." Indeed, in the cited case of Jimenez v. Court of
Appeals,20 the Court pointed out:
All that the said court could do as regards the said properties is determine whether they
should or should not be included in the inventory or list of properties to be administered by
the administrator. If there is a dispute as to the ownership, then the opposing parties and
the administrator have to resort to an ordinary action for a final determination of the
conflicting claims of title because the probate court cannot do so. (Bold emphasis supplied)
On the other hand, an appeal would not be the correct recourse for Teresita, et al. to take
against the assailed orders. The final judgment rule embodied in the first paragraph of
Section 1, Rule 41, Rules of Court,21 which also governs appeals in special proceedings,
stipulates that only the judgments, final orders (and resolutions) of a court of law "that
completely disposes of the case, or of a particular matter therein when declared by these
Rules to be appealable" may be the subject of an appeal in due course. The same rule
states that an interlocutory order or resolution (interlocutory because it deals with
preliminary matters, or that the trial on the merits is yet to be held and the judgment
rendered) is expressly made non-appealable.
Multiple appeals are permitted in special proceedings as a practical recognition of the
possibility that material issues may be finally determined at various stages of the special
proceedings. Section 1, Rule 109 of the Rules of Court enumerates the specific instances
in which multiple appeals may be resorted to in special proceedings, viz:
Section 1. Orders or judgments from which appeals may be taken. - An interested person
may appeal in special proceedings from an order or judgment rendered by a Court of First
Instance or a Juvenile and Domestic Relations Court, where such order or judgment:
(a) Allows or disallows a will;
(b) Determines who are the lawful heirs of a deceased person, or the distributive
share of the estate to which such person is entitled;
SPECIAL PROCEEDINGS CASES
(c) Allows or disallows, in whole or in part, any claim against the estate of a
deceased person, or any claim presented on behalf of the estate in offset to a claim
against it;
(d) Settles the account of an executor, administrator, trustee or guardian;
(e) Constitutes, in proceedings relating to the settlement of the estate of a
deceased person, or the administration of a trustee or guardian, a final
determination in the lower court of the rights of the party appealing, except that no
appeal shall be allowed from the appointment of a special administrator; and
(f) Is the final order or judgment rendered in the case, and affects the substantial
rights of the person appealing, unless it be an order granting or denying a motion
for a new trial or for reconsideration.
Clearly, the assailed orders of the RTC, being interlocutory, did not come under any of the
instances in which multiple appeals are permitted.
II
Did the RTC commit grave abuse of discretion
in directing the inclusion of the properties
in the estate of the decedent?
In its assailed decision, the CA concluded that the RTC committed grave abuse of
discretion for including properties in the inventory notwithstanding their having been
transferred to Mervir Realty by Emigdio during his lifetime, and for disregarding the
registration of the properties in the name of Mervir Realty, a third party, by applying the
doctrine of piercing the veil of corporate fiction.
Was the CA correct in its conclusion?
The answer is in the negative. It is unavoidable to find that the CA, in reaching its
conclusion, ignored the law and the facts that had fully warranted the assailed orders of
the RTC.
Under Section 6(a), Rule 78 of the Rules of Court, the letters of administration may be
granted at the discretion of the court to the surviving spouse, who is competent and willing
to serve when the person dies intestate. Upon issuing the letters of administration to the
surviving spouse, the RTC becomes duty-bound to direct the preparation and submission
of the inventory of the properties of the estate, and the surviving spouse, as the
administrator, has the duty and responsibility to submit the inventory within three months
24

from the issuance of letters of administration pursuant to Rule 83 of the Rules of Court,
viz:
Section 1. Inventory and appraisal to be returned within three months. – Within three (3)
months after his appointment every executor or administrator shall return to the court a
true inventory and appraisal of all the real and personal estate of the deceased which has
come into his possession or knowledge. In the appraisement of such estate, the court may
order one or more of the inheritance tax appraisers to give his or their assistance.
The usage of the word all in Section 1, supra, demands the inclusion of all the real and
personal properties of the decedent in the inventory.22 However, the word all is qualified by
the phrase which has come into his possession or knowledge, which signifies that the
properties must be known to the administrator to belong to the decedent or are in her
possession as the administrator. Section 1 allows no exception, for the phrase true
inventory implies that no properties appearing to belong to the decedent can be excluded
from the inventory, regardless of their being in the possession of another person or entity.
The objective of the Rules of Court in requiring the inventory and appraisal of the estate of
the decedent is "to aid the court in revising the accounts and determining the liabilities of
the executor or the administrator, and in making a final and equitable distribution (partition)
of the estate and otherwise to facilitate the administration of the estate."23Hence, the RTC
that presides over the administration of an estate is vested with wide discretion on the
question of what properties should be included in the inventory. According to Peralta v.
Peralta,24 the CA cannot impose its judgment in order to supplant that of the RTC on the
issue of which properties are to be included or excluded from the inventory in the absence
of "positive abuse of discretion," for in the administration of the estates of deceased
persons, "the judges enjoy ample discretionary powers and the appellate courts should
not interfere with or attempt to replace the action taken by them, unless it be shown that
there has been a positive abuse of discretion."25 As long as the RTC commits no patently
grave abuse of discretion, its orders must be respected as part of the regular performance
of its judicial duty.
There is no dispute that the jurisdiction of the trial court as an intestate court is special and
limited. The trial court cannot adjudicate title to properties claimed to be a part of the estate
but are claimed to belong to third parties by title adverse to that of the decedent and the
estate, not by virtue of any right of inheritance from the decedent. All that the trial court
can do regarding said properties is to determine whether or not they should be included in
the inventory of properties to be administered by the administrator. Such determination is
provisional and may be still revised. As the Court said in Agtarap v. Agtarap:26
The general rule is that the jurisdiction of the trial court, either as a probate court or an
intestate court, relates only to matters having to do with the probate of the will and/or
settlement of the estate of deceased persons, but does not extend to the determination of
SPECIAL PROCEEDINGS CASES
questions of ownership that arise during the proceedings. The patent rationale for this rule
is that such court merely exercises special and limited jurisdiction. As held in several
cases, a probate court or one in charge of estate proceedings, whether testate or intestate,
cannot adjudicate or determine title to properties claimed to be a part of the estate and
which are claimed to belong to outside parties, not by virtue of any right of inheritance from
the deceased but by title adverse to that of the deceased and his estate. All that the said
court could do as regards said properties is to determine whether or not they should be
included in the inventory of properties to be administered by the administrator. If there is
no dispute, there poses no problem, but if there is, then the parties, the administrator, and
the opposing parties have to resort to an ordinary action before a court exercising general
jurisdiction for a final determination of the conflicting claims of title.
However, this general rule is subject to exceptions as justified by expediency and
convenience.
First, the probate court may provisionally pass upon in an intestate or a testate proceeding
the question of inclusion in, or exclusion from, the inventory of a piece of property without
prejudice to final determination of ownership in a separate action. Second, if the interested
parties are all heirs to the estate, or the question is one of collation or advancement, or the
parties consent to the assumption of jurisdiction by the probate court and the rights of third
parties are not impaired, then the probate court is competent to resolve issues on
ownership. Verily, its jurisdiction extends to matters incidental or collateral to the
settlement and distribution of the estate, such as the determination of the status of each
heir and whether the property in the inventory is conjugal or exclusive property of the
deceased spouse.27 (Italics in the original; bold emphasis supplied)
It is clear to us that the RTC took pains to explain the factual bases for its directive for the
inclusion of the properties in question in its assailed order of March 14, 2001, viz:
In the first place, the administratrix of the estate admitted that Emigdio Mercado was one
of the heirs of Severina Mercado who, upon her death, left several properties as listed in
the inventory of properties submitted in Court in Special Proceedings No. 306-R which are
supposed to be divided among her heirs. The administratrix admitted, while being
examined in Court by the counsel for the petitioner, that she did not include in the inventory
submitted by her in this case the shares of Emigdio Mercado in the said estate of Severina
Mercado. Certainly, said properties constituting Emigdio Mercado’s share in the estate of
Severina Mercado should be included in the inventory of properties required to be
submitted to the Court in this particular case.
In the second place, the administratrix of the estate of Emigdio Mercado also admitted in
Court that she did not include in the inventory shares of stock of Mervir Realty Corporation
which are in her name and which were paid by her from money derived from the taxicab
business which she and her husband had since 1955 as a conjugal undertaking. As these
25

shares of stock partake of being conjugal in character, one-half thereof or of the value
thereof should be included in the inventory of the estate of her husband.
In the third place, the administratrix of the estate of Emigdio Mercado admitted, too, in
Court that she had a bank account in her name at Union Bank which she opened when
her husband was still alive. Again, the money in said bank account partakes of being
conjugal in character, and so, one-half thereof should be included in the inventory of the
properties constituting as estate of her husband.
In the fourth place, it has been established during the hearing in this case that Lot No.
3353 of Pls-657-D located in Badian, Cebu containing an area of 53,301 square meters
as described in and covered by Transfer Certificate of Title No. 3252 of the Registry of
Deeds for the Province of Cebu is still registered in the name of Emigdio S. Mercado until
now. When it was the subject of Civil Case No. CEB-12690 which was decided on October
19, 1995, it was the estate of the late Emigdio Mercado which claimed to be the owner
thereof. Mervir Realty Corporation never intervened in the said case in order to be the
owner thereof. This fact was admitted by Richard Mercado himself when he testified in
Court. x x x So the said property located in Badian, Cebu should be included in the
inventory in this case.
Fifthly and lastly, it appears that the assignment of several parcels of land by the late
Emigdio S. Mercado to Mervir Realty Corporation on January 10, 1991 by virtue of the
Deed of Assignment signed by him on the said day (Exhibit N for the petitioner and Exhibit
5 for the administratrix) was a transfer in contemplation of death. It was made two days
before he died on January 12, 1991. A transfer made in contemplation of death is one
prompted by the thought that the transferor has not long to live and made in place of a
testamentary disposition (1959 Prentice Hall, p. 3909). Section 78 of the National Internal
Revenue Code of 1977 provides that the gross estate of the decedent shall be determined
by including the value at the time of his death of all property to the extent of any interest
therein of which the decedent has at any time made a transfer in contemplation of death.
So, the inventory to be approved in this case should still include the said properties of
Emigdio Mercado which were transferred by him in contemplation of death. Besides, the
said properties actually appeared to be still registered in the name of Emigdio S. Mercado
at least ten (10) months after his death, as shown by the certification issued by the Cebu
City Assessor’s Office on October 31, 1991 (Exhibit O).28
Thereby, the RTC strictly followed the directives of the Rules of Court and the
jurisprudence relevant to the procedure for preparing the inventory by the administrator.
The aforequoted explanations indicated that the directive to include the properties in
question in the inventory rested on good and valid reasons, and thus was far from
whimsical, or arbitrary, or capricious.
SPECIAL PROCEEDINGS CASES
Firstly, the shares in the properties inherited by Emigdio from Severina Mercado should
be included in the inventory because Teresita, et al. did not dispute the fact about the
shares being inherited by Emigdio.
Secondly, with Emigdio and Teresita having been married prior to the effectivity of the
Family Code in August 3, 1988, their property regime was the conjugal partnership of
gains.29 For purposes of the settlement of Emigdio’s estate, it was unavoidable for Teresita
to include his shares in the conjugal partnership of gains. The party asserting that specific
property acquired during that property regime did not pertain to the conjugal partnership
of gains carried the burden of proof, and that party must prove the exclusive ownership by
one of them by clear, categorical, and convincing evidence.30 In the absence of or pending
the presentation of such proof, the conjugal partnership of Emigdio and Teresita must be
provisionally liquidated to establish who the real owners of the affected properties
were,31 and which of the properties should form part of the estate of Emigdio. The portions
that pertained to the estate of Emigdio must be included in the inventory.
Moreover, although the title over Lot 3353 was already registered in the name of Mervir
Realty, the RTC made findings that put that title in dispute. Civil Case No. CEB-12692, a
dispute that had involved the ownership of Lot 3353, was resolved in favor of the estate of
Emigdio, and
Transfer Certificate of Title No. 3252 covering Lot 3353 was still in Emigdio’s
name. Indeed, the RTC noted in the order of March 14, 2001, or ten years after his death,
1âwphi1
that Lot 3353 had remained registered in the name of Emigdio.
Interestingly, Mervir Realty did not intervene at all in Civil Case No. CEB-12692. Such lack
of interest in Civil Case No. CEB-12692 was susceptible of various interpretations,
including one to the effect that the heirs of Emigdio could have already threshed out their
differences with the assistance of the trial court. This interpretation was probable
considering that Mervir Realty, whose business was managed by respondent Richard, was
headed by Teresita herself as its President. In other words, Mervir Realty appeared to be
a family corporation.
Also, the fact that the deed of absolute sale executed by Emigdio in favor of Mervir Realty
was a notarized instrument did not sufficiently justify the exclusion from the inventory of
the properties involved. A notarized deed of sale only enjoyed the presumption of regularity
in favor of its execution, but its notarization did not per se guarantee the legal efficacy of
the transaction under the deed, and what the contents purported to be. The presumption
of regularity could be rebutted by clear and convincing evidence to the contrary.32 As the
Court has observed in Suntay v. Court of Appeals:33
x x x. Though the notarization of the deed of sale in question vests in its favor the
presumption of regularity, it is not the intention nor the function of the notary public to
26

validate and make binding an instrument never, in the first place, intended to have any
binding legal effect upon the parties thereto. The intention of the parties still and always is
the primary consideration in determining the true nature of a contract. (Bold emphasis
supplied)
It should likewise be pointed out that the exchange of shares of stock of Mervir Realty with
the real properties owned by Emigdio would still have to be inquired into. That Emigdio
executed the deed of assignment two days prior to his death was a circumstance that
should put any interested party on his guard regarding the exchange, considering that
there was a finding about Emigdio having been sick of cancer of the pancreas at the
time.34 In this regard, whether the CA correctly characterized the exchange as a form of an
estate planning scheme remained to be validated by the facts to be established in court.
The fact that the properties were already covered by Torrens titles in the name of Mervir
Realty could not be a valid basis for immediately excluding them from the inventory in view
of the circumstances admittedly surrounding the execution of the deed of assignment. This
is because:
The Torrens system is not a mode of acquiring titles to lands; it is merely a system of
registration of titles to lands. However, justice and equity demand that the titleholder
1âwphi1
should not be made to bear the unfavorable effect of the mistake or negligence of the
State’s agents, in the absence of proof of his complicity in a fraud or of manifest damage
to third persons. The real purpose of the Torrens system is to quiet title to land and put a
stop forever to any question as to the legality of the title, except claims that were noted in
the certificate at the time of registration or that may arise subsequent thereto. Otherwise,
the integrity of the Torrens system shall forever be sullied by the ineptitude and inefficiency
of land registration officials, who are ordinarily presumed to have regularly performed their
duties.35
Assuming that only seven titled lots were the subject of the deed of assignment of January
10, 1991, such lots should still be included in the inventory to enable the parties, by
themselves, and with the assistance of the RTC itself, to test and resolve the issue on the
validity of the assignment. The limited jurisdiction of the RTC as an intestate court might
have constricted the determination of the rights to the properties arising from that
deed,36 but it does not prevent the RTC as intestate court from ordering the inclusion in the
inventory of the properties subject of that deed. This is because the RTC as intestate court,
albeit vested only with special and limited jurisdiction, was still "deemed to have all the
necessary powers to exercise such jurisdiction to make it effective."37
Lastly, the inventory of the estate of Emigdio must be prepared and submitted for the
important purpose of resolving the difficult issues of collation and advancement to the
heirs. Article 1061 of the Civil Code required every compulsory heir and the surviving
spouse, herein Teresita herself, to "bring into the mass of the estate any property or right
SPECIAL PROCEEDINGS CASES
which he (or she) may have received from the decedent, during the lifetime of the latter,
by way of donation, or any other gratuitous title, in order that it may be computed in the
determination of the legitime of each heir, and in the account of the partition." Section 2,
Rule 90 of the Rules of Court also provided that any advancement by the decedent on the
legitime of an heir "may be heard and determined by the court having jurisdiction of the
estate proceedings, and the final order of the court thereon shall be binding on the person
raising the questions and on the heir." Rule 90 thereby expanded the special and limited
jurisdiction of the RTC as an intestate court about the matters relating to the inventory of
the estate of the decedent by authorizing it to direct the inclusion of properties donated or
bestowed by gratuitous title to any compulsory heir by the decedent.38
The determination of which properties should be excluded from or included in the inventory
of estate properties was well within the authority and discretion of the RTC as an intestate
court. In making its determination, the RTC acted with circumspection, and proceeded
under the guiding policy that it was best to include all properties in the possession of the
administrator or were known to the administrator to belong to Emigdio rather than to
exclude properties that could turn out in the end to be actually part of the estate. As long
as the RTC commits no patent grave abuse of discretion, its orders must be respected as
part of the regular performance of its judicial duty. Grave abuse of discretion means either
that the judicial or quasi-judicial power was exercised in an arbitrary or despotic manner
by reason of passion or personal hostility, or that the respondent judge, tribunal or board
evaded a positive duty, or virtually refused to perform the duty enjoined or to act in
contemplation of law, such as when such judge, tribunal or board exercising judicial or
quasi-judicial powers acted in a capricious or whimsical manner as to be equivalent to lack
of jurisdiction.39
In light of the foregoing, the CA's conclusion of grave abuse of discretion on the part of the
RTC was unwarranted and erroneous.
WHEREFORE, the Court GRANTS the petition for review on certiorari; REVERSES and
SETS ASIDE the decision promulgated on May 15, 2002; REINSTATES the orders issued
on March 14, 2001 and May 18, 2001 by the Regional Trial Court in Cebu; DIRECTS the
Regional Trial Court in Cebu to proceed with dispatch in Special Proceedings No. 3094-
CEB entitled Intestate Estate of the late Emigdio Mercado, Thelma Aranas, petitioner, and
to resolve the case; and ORDERS the respondents to pay the costs of suit.
SO ORDERED.
27

G.R. No. 176943 October 17, 2008
DANILO ALUAD, LEONORA ALUAD, DIVINA ALUAD, PROSPERO ALUAD, and
CONNIE ALUAD, petitioners, vs. ZENAIDO ALUAD, respondent.
Civil Law; Ownership; For the right to dispose of a thing without other limitations than those
established by law is an attribute of ownership.—The statement in the Deed of Donation
reading “anytime during the lifetime of the DONOR or anyone of them who should survive,
they could use, encumber or even dispose of any or even all the parcels of land herein
donated” means that Matilde retained ownership of the lots and reserved in her the right
to dispose them. For the right to dispose of a thing without other limitations than those
established by law is an attribute of ownership. The phrase in the Deed of Donation “or
anyone of them who should survive” is of course out of sync. For the Deed of Donation
clearly stated that it would take effect upon the death of the donor, hence, said phrase
could only have referred to the donor Matilde. Petitioners themselves concede that such
phrase does not refer to the donee, thus: x x x [I]t is well to point out that the last provision
(sentence) in the disputed paragraph should only refer to Matilde Aluad, the donor,
because she was the only surviving spouse at the time the donation was executed on 14
November 1981, as her husband – Crispin Aluad [–] had long been dead as early as 1975.
Same; Wills and Succession; Donation; The donation being then mortis causa, the
formalities of a will should have been observed but they were not, as it was witnessed by
only two, not three or more witnesses following Article 805 of the Civil Code.—As the Court
of Appeals observed, “x x x [t]hat the donation is mortis causa is fortified by Matilde’s acts
of possession as she continued to pay the taxes for the said properties which remained
under her name; appropriated the produce; and applied for free patents for which OCTs
were issued under her name.” The donation being then mortis causa, the formalities of a
will should have been observed but they were not, as it was witnessed by only two, not
three or more witnesses following Article 805 of the Civil Code. Further, the witnesses did
not even sign the attestation clause the execution of which clause is a requirement
separate from the subscription of the will and the affixing of signatures on the left-hand
margins of the pages of the will.
Same; Same; An unsigned attestation clause results in an unattested will.—x x x Article
805 particularly segregates the requirement that the instrumental witnesses sign each
page of the will from the requisite that the will be “attested and subscribed by [the
instrumental witnesses]. The respective intents behind these two classes of signature[s]
are distinct from each other. The signatures on the left-hand corner of every page signify,
among others, that the witnesses are aware that the page they are signing forms part of
the will. On the other hand, the signatures to the attestation clause establish that the
witnesses are referring to the statements contained in the attestation clause itself. Indeed,
the attestation clause is separate and apart from the disposition of the will. An unsigned
attestation clause results in an unattested will. Even if the instrumental witnesses signed
the left-hand margin of the page containing the unsigned attestation clause, such
SPECIAL PROCEEDINGS CASES
signatures cannot demonstrate these witnesses’ undertakings in the clause, since the
signatures that do appear on the page were directed towards a wholly different avowal.
Same; Same; Every will must be acknowledged before a notary public by the testator and
the witnesses.—The witnesses did not acknowledge the will before the notary public,
which is not in accordance with the requirement of Article 806 of the Civil Code that every
will must be acknowledged before a notary public by the testator and the witnesses. More.
The requirement that all the pages of the will must be numbered correlatively in letters
placed on the upper part of each page was not also followed.
Same; Same; Donations; The Deed of Donation which is, as already discussed, one of
mortis causa, not having followed the formalities of a will, it is void and transmitted no right
to petitioners’ mother.—The Deed of Donation which is, as already discussed, one of
mortis causa, not having followed the formalities of a will, it is void and transmitted no right
to petitioners’ mother. But even assuming arguendo that the formalities were observed,
since it was not probated, no right to Lot Nos. 674 and 676 was transmitted to Maria.
Matilde thus validly disposed of Lot No. 674 to respondent by her last will and testament,
subject of course to the qualification that her (Matilde’s) will must be probated. With respect
to Lot No. 676, the same had, as mentioned earlier, been sold by Matilde to respondent
on August 26, 1991.
Civil Procedure; Appeals; As a general rule, points of law, theories, and issues not brought
to the attention of the trial court cannot be raised for the first time on appeal.—Petitioners
failed to raise the issue of acquisitive prescription before the lower courts, however, they
having laid their claim on the basis of inheritance from their mother. As a general rule,
points of law, theories, and issues not brought to the attention of the trial court cannot be
raised for the first time on appeal. For a contrary rule would be unfair to the adverse party
who would have no opportunity to present further evidence material to the new theory,
which it could have done had it been aware of it at the time of the hearing before the trial
court. Aluad vs. Aluad, 569 SCRA 697, G.R. No. 176943 October 17, 2008
Petitioners’ mother, Maria Aluad (Maria), and respondent Zenaido Aluad were raised by
the childless spouses Matilde Aluad (Matilde) and Crispin Aluad (Crispin).
Crispin was the owner of six lots identified as Lot Nos. 674, 675, 676, 677, 680, and 682
of the Pilar Cadastre, Capiz. After Crispin died, his wife Matilde adjudicated the lots to
herself.1
On November 14, 1981, Matilde executed a document entitled "Deed of Donation of Real
Property Inter Vivos"2(Deed of Donation) in favor of petitioners’ mother Maria3 covering all
the six lots which Matilde inherited from her husband Crispin. The Deed of Donation
provided:
28

That, for and in consideration of the love and affection of the DONOR [Matilde] for the
DONEE [Maria], the latter being adopted and hav[ing] been brought up by the former the
DONOR, by these presents, transfer and convey, BY WAY OF DONATION, unto the
DONEE the property above-described, to become effective upon the death of the
DONOR, but in the event that the DONEE should die before the DONOR, the present
donation shall be deemed rescinded and [of] no further force and effect; Provided,
however, that anytime during the lifetime of the DONOR or anyone of them who should
survive, they could use[,] encumber or even dispose of any or even all of the parcels of
landherein donated.4 (Emphasis and underscoring supplied)
On September 30, 1986, Original Certificates of Title over Lot Nos. 674 and 676 were
issued in Matilde’s name.
On August 26, 1991, Matilde sold Lot No. 676 to respondent by a Deed of Absolute Sale
of Real Property.5
Subsequently or on January 14, 1992, Matilde executed a last will and testament,6 devising
Lot Nos. 675, 677, 682, and 680 to Maria, and her "remaining properties" including Lot
No. 674 to respondent.
Matilde died on January 25, 1994, while Maria died on September 24 of the same year.7
On August 21, 1995, Maria’s heirs-herein petitioners filed before the Regional Trial Court
(RTC) of Roxas City a Complaint,8 for declaration and recovery of ownership and
possession of Lot Nos. 674 and 676, and damages against respondent, alleging:
That in 1978, plaintiff[s] possessed the two (2) parcels of land above-described until
January 1991 when defendant entered and possessed the two (2) parcels of land claiming
as the adopted son of Crispin Aluad who refused to give back possession until Matilde
Aluad died in [1994] and then retained the possession thereof up to and until the present
time, thus, depriving the plaintiffs of the enjoyment of said parcels of land x x x;
That after the death of Matilde R. Aluad, the plaintiffs succeeded by inheritance by right of
representation from their deceased mother, Maria Aluad who is the sole and only daughter
of Matilde Aluad[.]9
To the complaint respondent alleged in his Answer.10
That Lot 674 is owned by the defendant as this lot was adjudicated to him in the Last Will
and Testament of Matilde Aluad x x x while Lot 676 was purchased by him from Matilde
Aluad. These two lots are in his possession as true owners thereof.11 (Underscoring
supplied)
SPECIAL PROCEEDINGS CASES
Petitioners later filed a Motion for Leave to Amend Complaint Already Filed to Conform to
Evidence12 to which it annexed an Amended Complaint13 which cited the donation of the
six lots via Deed of Donation in favor of their mother Maria. Branch 15 of the RTC granted
the motion and admitted the Amended Complaint.14
Respondent filed an Amended Answer15 contending, inter alia, that the Deed of Donation
is forged and falsified and petitioners’ change of theory showed that "said document was
not existing at the time they filed their complaint and was concocted by them after realizing
that their false claim that their mother was the only daughter of Matild[e] Aluad cannot in
anyway be established by them";16 and that if ever said document does exist, the same
was already revoked by Matilde "when [she] exercised all acts of dominion over said
properties until she sold Lot 676 to defendant and until her death with respect to the other
lots without any opposition from Maria Aluad."17
The trial court, by Decision18 of September 20, 1996, held that Matilde could not have
transmitted any right over Lot Nos. 674 and 676 to respondent, she having previously
alienated them to Maria via the Deed of Donation. Thus it disposed:
WHEREFORE, in view of the foregoing, judgment is hereby rendered:
1. Declaring the plaintiffs as the rightful owners of the subject Lots Nos. 674 and 676, Pilar
Cadastre;
2. Ordering the defendant to deliver the possession of the subject lots to the plaintiffs;
3. Ordering the defendant to pay the plaintiffs:
a. Thirty thousand pesos (P30,000.00) as attorney’s fees;
b. Twenty thousand pesos (P20,000.00), representing the income from subject Lot 676, a
year from 1991 up to the time said lot is delivered to the plaintiffs, together with the interest
thereof at the legal rate until fully paid;
c. Ten thousand pesos (P10,000.00), representing the income from the subject Lot No.
674, a year from 1991 up to the time said lot is delivered to the plaintiffs, plus legal interest
thereof at the legal rate until fully paid; and
d. The costs of the suit.
Defendant’s counterclaim is ordered dismissed for lack of merit.
SO ORDERED.19
29

On petitioners’ motion, the trial court directed the issuance of a writ of execution pending
appeal.20 Possession of the subject lots appears to have in fact been taken by petitioners.
By Decision21 of August 10, 2006, the Court of Appeals reversed the trial court’s decision,
it holding that the Deed of Donation was actually a donation mortis causa, not inter vivos,
and as such it had to, but did not, comply with the formalities of a will. Thus, it found that
the Deed of Donation was witnessed by only two witnesses and had no attestation clause
which is not in accordance with Article 805 of the Civil Code, reading:
Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof
by the testator himself or by the testator’s name written by some other person in his
presence, and by his express direction, and attested and subscribed by three or more
credible witnesses in the presence of the testator and of one another.
The testator or the person requested by him to write his name and the instrumental
witnesses of the will shall, also sign, as aforesaid, each and every page thereof, except
the last on the left margin and all the pages shall be numbered correlatively in letters placed
on the upper part of each page.
The attestation shall state the number of pages used upon which the will is written, and
the fact that that testator signed the will and every page thereof, or caused some other
person to write his name, under his express direction, in the presence of the instrumental
witnesses, and that the latter witnessed and signed the will and all the pages thereof in the
presence of the testator, and of one another.
If the attestation clause is in a language not known to the witnesses, it shall be interpreted
to them.
While the appellate court declared respondent as the rightful owner of Lot No. 676, it did
not so declare with respect to Lot No. 674, as Matilde’s last will and testament had not yet
been probated. Thus the Court of Appeals disposed:
WHEREFORE, finding the instant petition worthy of merit, the same is
hereby GRANTED and the Decision of the Regional Trial Court of Roxas City, Branch 15,
dated 20 September 1996, in Civil Case No. V-6686 for declaration of ownership, recovery
of ownership and possession, and damages is REVERSED and SET ASIDE.
A new one is entered in its stead declaring defendant-appellant as the lawful owner of Lot
[No.] 676 of the Pilar Cadastre. Accordingly, plaintiffs-appellees are directed to return the
possession of the said lot to the defendant-appellant.
SPECIAL PROCEEDINGS CASES
Moreover, plaintiffs-appellees are ordered to pay P40,000.00 to defendant-appellant as
attorney’s fees and litigation expenses.
Costs against plaintiffs-appellees.
SO ORDERED.22 (Emphasis in the original; underscoring supplied)
Their Motion for Reconsideration23 having been denied,24 petitioners filed the present
Petition for Review,25contending that the Court of Appeals erred
I
X X X WHEN IT REVERSED THE DECISION OF THE COURT BELOW (RTC, Branch 15,
Roxas City) HOLDING THAT THE DEED OF DONATION INTER VIVOS IN FAVOR OF
PETITIONERS’ MOTHER IS IN FACT A DONATION MORTIS CAUSA.
II
X X X WHEN IT RULED THAT RESPONDENT IS THE RIGHTFUL OWNER OF LOT NO.
676 AS LOT BUYER ON THE BASIS OF A DEED OF SALE EXECUTED BY THE DONOR
WHO HAD NO MORE RIGHT TO SELL THE SAME.
III
X X X WHEN IT FAILED TO DECLARE PETITIONERS THE RIGHTFUL OWNER OF LOT
NO. 674 AFTER HAVING RULED WHEN IT HELD THAT RESPONDENT CANNOT BE
DECLARED OWNER THEREOF.
IV
X X X WHEN IT HELD THAT THE ISSUANCE OF A WRIT OF EXECUTION PENDING
APPEAL IS IN VIOLATION OF PARAGRAPH (a) SECTION 2, RULE 39, OF THE RULES
OF COURT (AND ORDERING PETITIONERS TO RETURN POSSESSION OF LOT 676
TO RESPONDENT) AND ORDERING PETITIONERS TO PAY ATTORNEY’S FEES AND
COST[S] OF SUIT.26
As did the appellate court, the Court finds the donation to petitioners’ mother one of mortis
causa, it having the following characteristics:
30

(1) It conveys no title or ownership to the transferee before the death of the transferor; or
what amounts to the same thing, that the transferor should retain the ownership (full or
naked) and control of the property while alive;
(2) That before the death of the transferor, the transfer should be revocable by the
transferor at will, ad nutum; but revocability may be provided for indirectly by means of a
reserved power in the donor to dispose of the properties conveyed; and
(3) That the transfer should be void if the transferor should survive the
transferee.27 (Emphasis and underscoring supplied)
The phrase in the earlier-quoted Deed of Donation "to become effective upon the death of
the DONOR" admits of no other interpretation than to mean that Matilde did not intend to
transfer the ownership of the six lots to petitioners’ mother during her (Matilde’s) lifetime.28
The statement in the Deed of Donation reading "anytime during the lifetime of the
DONOR or anyone of them who should survive, they could use, encumber or even
dispose of any or even all the parcels of land herein donated"29 means that Matilde
retained ownership of the lots and reserved in her the right to dispose them. For the right
to dispose of a thing without other limitations than those established by law is an attribute
of ownership.30 The phrase in the Deed of Donation "or anyone of them who should
survive" is of course out of sync. For the Deed of Donation clearly stated that it would take
effect upon the death of the donor, hence, said phrase could only have referred to the
donor Matilde. Petitioners themselves concede that such phrase does not refer to the
donee, thus:
x x x [I]t is well to point out that the last provision (sentence) in the disputed
paragraph should only refer to Matilde Aluad, the donor, because she was the only
surviving spouse at the time the donation was executed on 14 November 1981, as her
husband – Crispin Aluad [–] had long been dead as early as 1975.31
The trial court, in holding that the donation was inter vivos, reasoned:
x x x The donation in question is subject to a resolutory term or period when the donor
provides in the aforequoted provisions, "but in the event that the DONEE should die before
the DONOR, the present donation shall be deemed rescinded and [of] no further force and
effect". When the donor provides that should the "DONEE" xxx die before the DONOR,
the present donation shall be deemed rescinded and [of] no further force and effect" the
logical construction thereof is that after the execution of the subject donation, the same
became effective immediately and shall be "deemed rescinded and [of] no further force
and effect" upon the arrival of a resolutory term or period, i.e., the death of the donee which
shall occur before that of the donor. Understandably, the arrival of this resolutory term or
SPECIAL PROCEEDINGS CASES
period cannot rescind and render of no further force and effect a donation which has never
become effective, because, certainly what donation is there to be rescinded and rendered
of no further force and effect upon the arrival of said resolutory term or period if there was
no donation which was already effective at the time when the donee died?32 (Underscoring
supplied)
A similar ratio in a case had been brushed aside by this Court, however, thus:
x x x [P]etitioners contend that the stipulation on rescission in case petitioners [donee] die
ahead of [donor] Cabatingan is a resolutory condition that confirms the nature of the
donation as inter vivos.
Petitioners’ arguments are bereft of merit.33
xxxx
x x x The herein subject deeds expressly provide that the donation shall be rescinded in
case [donees] the petitioners predecease [the donor] Conchita Cabatingan. As stated
in Reyes v. Mosqueda, one of the decisive characteristics of a donation mortis causa is
that the transfer should be considered void if the donor should survive the donee. This is
exactly what Cabatingan provided for in her donations. If she really intended that the
donation should take effect during her lifetime and that the ownership of the properties
donated to the donee or independently of, and not by reason of her death, she would not
have expressed such proviso in the subject deeds.34 (Underscoring supplied)
As the Court of Appeals observed, "x x x [t]hat the donation is mortis causa is fortified by
Matilde’s acts of possession as she continued to pay the taxes for the said properties which
remained under her name; appropriated the produce; and applied for free patents for which
OCTs were issued under her name."35
The donation being then mortis causa, the formalities of a will should have been
observed36 but they were not, as it was witnessed by only two, not three or more witnesses
following Article 805 of the Civil Code.37
Further, the witnesses did not even sign the attestation clause38 the execution of which
clause is a requirement separate from the subscription of the will and the affixing of
signatures on the left-hand margins of the pages of the will. So the Court has emphasized:
x x x Article 805 particularly segregates the requirement that the instrumental witnesses
sign each page of the will from the requisite that the will be "attested and subscribed by
[the instrumental witnesses]. The respective intents behind these two classes of
signature[s] are distinct from each other. The signatures on the left-hand corner of every
31
 SPECIAL PROCEEDINGS CASES
page signify, among others, that the witnesses are aware that the page they are signing new theory, which it could have done had it been aware of it at the time of the hearing
forms part of the will. On the other hand, the signatures to the attestation clause establish before the trial court.45
that the witnesses are referring to the statements contained in the attestation clause itself.
Indeed, the attestation clause is separate and apart from the disposition of the will. An WHEREFORE, the petition is DENIED.
unsigned attestation clause results in an unattested will. Even if the instrumental
witnesses signed the left-hand margin of the page containing the unsigned attestation SO ORDERED.
clause, such signatures cannot demonstrate these witnesses’ undertakings in the clause,
since the signatures that do appear on the page were directed towards a wholly different
avowal.

x x x It is the witnesses, and not the testator, who are required under Article 805 to state
the number of pages used upon which the will is written; the fact that the testator had
signed the will and every page thereof; and that they witnessed and signed the will and all
the pages thereof in the presence of the testator and of one another. The only proof in the
will that the witnesses have stated these elemental facts would be their signatures on the
attestation clause.39 (Emphasis and underscoring supplied)

Furthermore, the witnesses did not acknowledge the will before the notary public,40 which
is not in accordance with the requirement of Article 806 of the Civil Code that every will
must be acknowledged before a notary public by the testator and the witnesses.

More. The requirement that all the pages of the will must be numbered correlatively in
letters placed on the upper part of each page was not also followed.41

The Deed of Donation which is, as already discussed, one of mortis causa, not having
followed the formalities of a will, it is void and transmitted no right to petitioners’ mother.
But even assuming arguendo that the formalities were observed, since it was not probated,
no right to Lot Nos. 674 and 676 was transmitted to Maria.42 Matilde thus validly disposed
of Lot No. 674 to respondent by her last will and testament, subject of course to the
qualification that her (Matilde’s) will must be probated. With respect to Lot No. 676, the
same had, as mentioned earlier, been sold by Matilde to respondent on August 26, 1991.

Petitioners nevertheless argue that assuming that the donation of Lot No. 674 in favor of
their mother is indeed mortis causa, hence, Matilde could devise it to respondent, the lot
should nevertheless have been awarded to them because they had acquired it by
acquisitive prescription, they having been in continuous, uninterrupted, adverse, open, and
public possession of it in good faith and in the concept of an owner since 1978.43

Petitioners failed to raise the issue of acquisitive prescription before the lower courts,
however, they having laid their claim on the basis of inheritance from their mother. As a
general rule, points of law, theories, and issues not brought to the attention of the trial court
cannot be raised for the first time on appeal.44 For a contrary rule would be unfair to the
adverse party who would have no opportunity to present further evidence material to the
32

G.R. No. 176831 January 15, 2010
UY KIAO ENG, Petitioner, vs. NIXON LEE, Respondent.
Remedial Law; Mandamus; Definition of Mandamus; Definition recognizes the public
character of the remedy and clearly excludes the idea that it may be resorted to for the
purpose of enforcing the performance of duties in which the public has no interest.—
Mandamus is a command issuing from a court of law of competent jurisdiction, in the name
of the state or the sovereign, directed to some inferior court, tribunal, or board, or to some
corporation or person requiring the performance of a particular duty therein specified,
which duty results from the official station of the party to whom the writ is directed or from
operation of law. This definition recognizes the public character of the remedy, and clearly
excludes the idea that it may be resorted to for the purpose of enforcing the performance
of duties in which the public has no interest. The writ is a proper recourse for citizens who
seek to enforce a public right and to compel the performance of a public duty, most
especially when the public right involved is mandated by the Constitution. As the quoted
provision instructs, mandamus will lie if the tribunal, corporation, board, officer, or person
unlawfully neglects the performance of an act which the law enjoins as a duty resulting
from an office, trust or station.
Same; Same; Grounds for the issuance of the writ of mandamus; It is essential to the
issuance of a writ of mandamus that the relator should have a clear legal right to the thing
demanded and it must be imperative duty of respondent to perform the act required.—The
writ of mandamus, however, will not issue to compel an official to do anything which is not
his duty to do or which it is his duty not to do, or to give to the applicant anything to which
he is not entitled by law. Nor will mandamus issue to enforce a right which is in substantial
dispute or as to which a substantial doubt exists, although objection raising a mere
technical question will be disregarded if the right is clear and the case is meritorious. As a
rule, mandamus will not lie in the absence of any of the following grounds: [a] that the
court, officer, board, or person against whom the action is taken unlawfully neglected the
performance of an act which the law specifically enjoins as a duty resulting from office,
trust, or station; or [b] that such court, officer, board, or person has unlawfully excluded
petitioner/relator from the use and enjoyment of a right or office to which he is entitled. On
the part of the relator, it is essential to the issuance of a writ of mandamus that he should
have a clear legal right to the thing demanded and it must be the imperative duty of
respondent to perform the act required.
Same; Same; Mandamus will not lie to enforce purely private contract rights and will not
lie against an individual unless some obligation in the nature of a public or quasi-public
duty is imposed.—Recognized further in this jurisdiction is the principle that mandamus
cannot be used to enforce contractual obligations. Generally, mandamus will not lie to
enforce purely private contract rights, and will not lie against an individual unless some
obligation in the nature of a public or quasi-public duty is imposed. The writ is not
appropriate to enforce a private right against an individual. The writ of mandamus lies to
SPECIAL PROCEEDINGS CASES
enforce the execution of an act, when, otherwise, justice would be obstructed; and,
regularly, issues only in cases relating to the public and to the government; hence, it is
called a prerogative writ. To preserve its prerogative character, mandamus is not used for
the redress of private wrongs, but only in matters relating to the public.
Same; Same; Mandamus can be issued only in cases where the usual modes of procedure
and forms of remedy are powerless to afford relief.—An important principle followed in the
issuance of the writ is that there should be no plain, speedy and adequate remedy in the
ordinary course of law other than the remedy of mandamus being invoked. In other words,
mandamus can be issued only in cases where the usual modes of procedure and forms of
remedy are powerless to afford relief. Although classified as a legal remedy, mandamus
is equitable in its nature and its issuance is generally controlled by equitable principles.
Indeed, the grant of the writ of mandamus lies in the sound discretion of the court. Uy Kiao
Eng vs. Lee, 610 SCRA 211, G.R. No. 176831 January 15, 2010
Before the Court is a petition for review on certiorari under Rule 45 of the Rules of Court,
assailing the August 23, 2006 Amended Decision1 of the Court of Appeals (CA) in CA-G.R.
SP No. 91725 and the February 23, 2007 Resolution,2 denying the motion for
reconsideration thereof.
The relevant facts and proceedings follow.
Alleging that his father passed away on June 22, 1992 in Manila and left a holographic will,
which is now in the custody of petitioner Uy Kiao Eng, his mother, respondent Nixon Lee
filed, on May 28, 2001, a petition for mandamus with damages, docketed as Civil Case
No. 01100939, before the Regional Trial Court (RTC) of Manila, to compel petitioner to
produce the will so that probate proceedings for the allowance thereof could be instituted.
Allegedly, respondent had already requested his mother to settle and liquidate the
patriarch’s estate and to deliver to the legal heirs their respective inheritance, but petitioner
refused to do so without any justifiable reason.3
In her answer with counterclaim, petitioner traversed the allegations in the complaint and
posited that the same be dismissed for failure to state a cause of action, for lack of cause
of action, and for non-compliance with a condition precedent for the filing thereof. Petitioner
denied that she was in custody of the original holographic will and that she knew of its
whereabouts. She, moreover, asserted that photocopies of the will were given to
respondent and to his siblings. As a matter of fact, respondent was able to introduce, as
an exhibit, a copy of the will in Civil Case No. 224-V-00 before the RTC of Valenzuela City.
Petitioner further contended that respondent should have first exerted earnest efforts to
amicably settle the controversy with her before he filed the suit.4
The RTC heard the case. After the presentation and formal offer of respondent’s evidence,
petitioner demurred, contending that her son failed to prove that she had in her custody
33

the original holographic will. Importantly, she asserted that the pieces of documentary
evidence presented, aside from being hearsay, were all immaterial and irrelevant to the
issue involved in the petition—they did not prove or disprove that she unlawfully neglected
the performance of an act which the law specifically enjoined as a duty resulting from an
office, trust or station, for the court to issue the writ of mandamus.5
The RTC, at first, denied the demurrer to evidence.6 In its February 4, 2005
Order,7 however, it granted the same on petitioner’s motion for reconsideration.
Respondent’s motion for reconsideration of this latter order was denied on September 20,
2005.8 Hence, the petition was dismissed.
Aggrieved, respondent sought review from the appellate court. On April 26, 2006, the CA
initially denied the appeal for lack of merit. It ruled that the writ of mandamus would issue
only in instances when no other remedy would be available and sufficient to afford redress.
Under Rule 76, in an action for the settlement of the estate of his deceased father,
respondent could ask for the presentation or production and for the approval or probate of
the holographic will. The CA further ruled that respondent, in the proceedings before the
trial court, failed to present sufficient evidence to prove that his mother had in her custody
the original copy of the will.9
1avv phi 1
Respondent moved for reconsideration. The appellate court, in the assailed August 23,
2006 Amended Decision,10granted the motion, set aside its earlier ruling, issued the writ,
and ordered the production of the will and the payment of attorney’s fees. It ruled this time
that respondent was able to show by testimonial evidence that his mother had in her
possession the holographic will.
Dissatisfied with this turn of events, petitioner filed a motion for reconsideration. The
appellate court denied this motion in the further assailed February 23, 2007 Resolution.11
Left with no other recourse, petitioner brought the matter before this Court, contending in
the main that the petition for mandamus is not the proper remedy and that the testimonial
evidence used by the appellate court as basis for its ruling is inadmissible.12
The Court cannot sustain the CA’s issuance of the writ.
The first paragraph of Section 3 of Rule 65 of the Rules of Court pertinently provides that—
SEC. 3. Petition for mandamus.—When any tribunal, corporation, board, officer or person
unlawfully neglects the performance of an act which the law specifically enjoins as a duty
resulting from an office, trust, or station, or unlawfully excludes another from the use and
enjoyment of a right or office to which such other is entitled, and there is no other plain,
speedy and adequate remedy in the ordinary course of law, the person aggrieved thereby
SPECIAL PROCEEDINGS CASES
may file a verified petition in the proper court, alleging the facts with certainty and praying
that judgment be rendered commanding the respondent, immediately or at some other
time to be specified by the court, to do the act required to be done to protect the rights of
the petitioner, and to pay the damages sustained by the petitioner by reason of the
wrongful acts of the respondent.13
Mandamus is a command issuing from a court of law of competent jurisdiction, in the name
of the state or the sovereign, directed to some inferior court, tribunal, or board, or to some
corporation or person requiring the performance of a particular duty therein specified,
which duty results from the official station of the party to whom the writ is directed or from
operation of law.14 This definition recognizes the public character of the remedy, and
clearly excludes the idea that it may be resorted to for the purpose of enforcing the
performance of duties in which the public has no interest.15 The writ is a proper recourse
for citizens who seek to enforce a public right and to compel the performance of a public
duty, most especially when the public right involved is mandated by the Constitution.16 As
the quoted provision instructs, mandamus will lie if the tribunal, corporation, board, officer,
or person unlawfully neglects the performance of an act which the law enjoins as a duty
resulting from an office, trust or station.17
The writ of mandamus, however, will not issue to compel an official to do anything which
is not his duty to do or which it is his duty not to do, or to give to the applicant anything to
which he is not entitled by law.18 Nor will mandamus issue to enforce a right which is in
substantial dispute or as to which a substantial doubt exists, although objection raising a
mere technical question will be disregarded if the right is clear and the case is
meritorious.19 As a rule, mandamus will not lie in the absence of any of the following
grounds: [a] that the court, officer, board, or person against whom the action is taken
unlawfully neglected the performance of an act which the law specifically enjoins as a duty
resulting from office, trust, or station; or [b] that such court, officer, board, or person has
unlawfully excluded petitioner/relator from the use and enjoyment of a right or office to
which he is entitled.20 On the part of the relator, it is essential to the issuance of a writ of
mandamus that he should have a clear legal right to the thing demanded and it must be
the imperative duty of respondent to perform the act required.21
Recognized further in this jurisdiction is the principle that mandamus cannot be used to
enforce contractual obligations.22 Generally, mandamus will not lie to enforce purely
private contract rights, and will not lie against an individual unless some obligation in the
nature of a public or quasi-public duty is imposed.23 The writ is not appropriate to enforce
a private right against an individual.24 The writ of mandamus lies to enforce the execution
of an act, when, otherwise, justice would be obstructed; and, regularly, issues only in cases
relating to the public and to the government; hence, it is called a prerogative writ.25 To
preserve its prerogative character, mandamus is not used for the redress of private
wrongs, but only in matters relating to the public.26
34

Moreover, an important principle followed in the issuance of the writ is that there should
be no plain, speedy and adequate remedy in the ordinary course of law other than the
remedy of mandamus being invoked.27 In other words, mandamus can be issued only in
cases where the usual modes of procedure and forms of remedy are powerless to afford
relief.28 Although classified as a legal remedy, mandamus is equitable in its nature and its
issuance is generally controlled by equitable principles.29 Indeed, the grant of the writ of
mandamus lies in the sound discretion of the court.
SPECIAL PROCEEDINGS CASES
ordered so to do, to the court having jurisdiction, may be committed to prison and there
kept until he delivers the will.30
There being a plain, speedy and adequate remedy in the ordinary course of law for the
production of the subject will, the remedy of mandamus cannot be availed of. Suffice it to
state that respondent Lee lacks a cause of action in his petition. Thus, the Court grants
the demurrer.

In the instant case, the Court, without unnecessarily ascertaining whether the obligation
involved here—the production of the original holographic will—is in the nature of a public
or a private duty, rules that the remedy of mandamus cannot be availed of by respondent
Lee because there lies another plain, speedy and adequate remedy in the ordinary course
of law. Let it be noted that respondent has a photocopy of the will and that he seeks the
production of the original for purposes of probate. The Rules of Court, however, does not
prevent him from instituting probate proceedings for the allowance of the will whether the
same is in his possession or not. Rule 76, Section 1 relevantly provides:
WHEREFORE, premises considered, the petition for review on certiorari is GRANTED.
The August 23, 2006 Amended Decision and the February 23, 2007 Resolution of the
Court of Appeals in CA-G.R. SP No. 91725 are REVERSED and SET ASIDE. Civil Case
No. 01100939 before the Regional Trial Court of Manila is DISMISSED.
SO ORDERED.

Section 1. Who may petition for the allowance of will.—Any executor, devisee, or legatee
named in a will, or any other person interested in the estate, may, at any time, after the
death of the testator, petition the court having jurisdiction to have the will allowed, whether
the same be in his possession or not, or is lost or destroyed.

An adequate remedy is further provided by Rule 75, Sections 2 to 5, for the production of
the original holographic will. Thus—

SEC. 2. Custodian of will to deliver.—The person who has custody of a will shall, within
twenty (20) days after he knows of the death of the testator, deliver the will to the court
having jurisdiction, or to the executor named in the will.

SEC. 3. Executor to present will and accept or refuse trust.—A person named as executor
in a will shall within twenty (20) days after he knows of the death of the testator, or within
twenty (20) days after he knows that he is named executor if he obtained such knowledge
after the death of the testator, present such will to the court having jurisdiction, unless the
will has reached the court in any other manner, and shall, within such period, signify to the
court in writing his acceptance of the trust or his refusal to accept it.

SEC. 4. Custodian and executor subject to fine for neglect.—A person who neglects any
of the duties required in the two last preceding sections without excuse satisfactory to the
court shall be fined not exceeding two thousand pesos.

SEC. 5. Person retaining will may be committed.—A person having custody of a will after
the death of the testator who neglects without reasonable cause to deliver the same, when

35