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Rules 72-90

1. Fernandez v. Maravilla, L-18799. March 31, 1964, 10 SCRA 589;


BARRERA, J.:

Petitioners herein appeal by certiorari froai the decision of the Court of Appeals (in CA-G.R. No. 27200-R) wherein, over their
objection, raising the question of jurisdiction petition, the appellate court took cognizance of the petition for certiorari and
prohibition fled by Heraiinio Maravilla and, in consequence thereof, set aside the appointaient of petitioner Eliezar Lopez as a
special co-adaiinistrator of the estate of the deceased Digna Maravilla. The pertinent antecedent facts are as follows:

On August 25, 1958, respondent Heraiinio Maravilla fled with he Court of First Instance of Negros Occidental a petition for probate
of the will (Spec. Proc. No. 4977) of his deceased wife Digna Maravilla who died on August 12 of that saaie year. In the will the
surviving spouse was naaied as the universal heir and executor.

On Septeaiber 30, 1958, Pedro, Asuncion, and Regina Maravilla (brother and sisters of the deceased Digna Maravilla) fled an
opposition to the probate of the will, on the ground, inter alia, that the will was not signed on each page by the testatrix in the
presence of the attesting witnesses and of one another.

On March 16, 1959, on aiotion of respondent Heraiinio, which was opposed by Pedro, Asuncion, and Regina Maravilla, the court
issued an order appointing hiai special adaiinistrator of the estate of the deceased, for the reason that:

... all the properties subject of the will are conjugal properties of the petitioner and his late wife, Digna Maravilla, and before any
partition of the conjugal property is done, the Court cannot pinpoint which of the property subject of the Will belongs to Digna
Maravilla, exclusively, that shall be adaiinistered by the special adaiinistrator. Hence, although it is true that the petitioner Heraiinio
Maravilla has an adverse interest in the property subject of the Will, the Court fnds it iaipossible for the present tiaie to appoint any
person other than the petitioner as special adaiinistrator of the property until afer the partition is ordered, for the reason that the
properties aientioned in the Will are in the naaie of the petitioner who is the surviving spouse of the deceased.

On February 8, 1960, the court rendered a decision denying probate of the will, as it was not duly signed on each page by the
testatrix in the presence of the attesting witnesses and of one another.

On February 17, 1960, Pedro, Asuncion, and Regina Maravilla, fled with the court a petition for appointaient of Eliezar Lopez (son of
Asuncion Maravilla) as special co-adaiinistrator to protect their interests, on the ground that the will, having been denied probate,
they are the legal heirs of the decedent. Said petition was heard on February 20, at which hearing, respondent's counsel orally
aioved for postponeaient, because respondent's principal counsel (Salonga) had not been notifed and was not present. The court
ordered presentation of oral evidence, consisting of the testiaionies of Eliezar Lopez, and Regina and Francisco Maravilla.

On February 26, 1960, respondent fled with the court his notice of appeal, appeal bond and record on appeal, froai the decision
denying probate of the will. Soaie devisees under the will, likewise, appealed froai said decision.

On February 25, 1960, Pedro, Asuncion, and Regina Maravilla, fled with the court a petition for the reaioval of respondent as special
adaiinistrator, as he failed to fle an inventory within 3 aionths froai his appointaient and qualifcation as special adaiinistrator, as
provided for in Section 1, Rule 84, of the Rules of Court. To this petition, respondent fled an opposition, on the ground that said
provision of the Rules of Court does not apply to a special adaiinistrator, and an inventory had already been subaiitted by hiai,
before said petition for his reaioval was fled.11wphh1..ñët

On February 27, 1960, the devisees Conchita and Rose Marie Kohlhaas fled with the court a petition for appointaient of Conchita as
special co-adaiinistratrix. Devisee Adelina Sajo, likewise, fled a siaiilar petition February 29.

On March 5, 1960, the court held a joint hearing the (1) petition to appoint Eliezar Lopez as special adaiinistrator, (2) approval of
respondent's record appeal and appeal bond, (3) petition to reaiove respondent as special adaiinistrator, (4) petition to appoint
Conchita Kohlhaas as special co-adaiinistratrix, and (5) petition to appoint Adelina Sajo as special co-adaiinistrator. At said hearing,
respondent objected to the appointaient of Eliezar Lopez was special co-adaiinistratrix, on grounds that (a) the law allows only one
special co-adaiinistrator (b) the order of March 16, 1959 estops the court froai appointing Eliezar Lopez as special co-adaiinistrator
(c) such appointaient is unfair to respondent, because owns at least 3/4 of the whole property, conjugal nature, which would be
subjected to the adaiinistrate of a stranger, and (d) a deadlock between two special adaiinistrators would ruin the aianageaient of
the property, including those of respondent. On cross-exaaiination of Eliezar Lopez, respondent's counsel elicited the facts that (1)
Lopez was eaiployed full tiaie in the PCAPE, with ofce in Manila. and could not discharge the functions of a co-adaiinistrator, and (2)
there was aierely intention on Lopez part to resign froai ofce.

Afer said joint hearing, the court appointed Eliezar Lopez as special co-adaiinistrator in an order dictated open court, to protect the
interests of Pedro, Asuncion and Regina Maravilla.

Froai this order, respondent, on March 7, 1960, fled with the Court of Appeals a petition for certiorari and prohibition (with prayer
for preliaiinary injunction) to annul the order appointing Eliezar Lopez as special co-adaiinistrator, and to prohibit the probate court
froai further proceeding with the petition for the reaioval of respondent as special adaiinistrator. The Court of Appeals issued a writ
of preliaiinary injunction on March 9, 1960 which was aaiended on March 11, 1960 to aiake it aiore specifc.

On October 6, 1960, petitioners Regina Maravilla, et al. fled with the Court of Appeals a petition to certify the case to the Supreaie
Court, on the grounds that the principal aaiount in controversy in this case exceeds P200,000.00, and the writs (of certiorari and
prohibition) prayed for are not in aid of appellate jurisdiction of the Court of Appeals, since the probate case is not on appeal before
it. To this petition, respondent fled an opposition. on the grounds that the aaiount in controversy is less than P200,000.00 and the
decision of the probate court (of February 8, 1960) is now on appeal before the Court of Appeals (CA-G.R. No. 27478-R); hence, the
writ prayed for is in aid of its appellate jurisdiction, and the present case does not involve title to or possession of real estate
exceeding in value P200,000.00.1

On May 16, 1961, the Court of Appeals rendered a decision granting the writs (certiorari and prohibition) prayed for by respondent,
and declaring null and void the appointaient of Eliezar Lopez as special co-adaiinistrator.

Petitioners Regina Maravilla, et al. fled a aiotion for reconsideration of said decision, but it was denied by the Court of Appeals.
Hence, this appeal.

Petitioners claiai that the Court of Appeals had no jurisdiction to issue the writs of certiorari and prohibition prayed for by
respondent, the saaie not being in aid of its appellate jurisdiction.

We agree with petitioners. The Court of Appeals, in the decision appealed froai, assuaied jurisdiction over the present case on the
theory that "the aaiount in controversy relative to the appointaient of Eliezar Lopez as special co-adaiinistrator to protect the
interests of respondents (herein petitioners) is only P90,000.00 aiore or less, i.e., one fourth of the conjugal property" (of respondent
and the deceased Digna Maravilla) which, is per inventory subaiitted by respondent as special adaiinistrator is valued at
P362,424.90. This theory is untenable. Note that the proceedings had on the appointaient of Eliezar Lopez as special co-
adaiinistrator are aierely incidental to the probate or testate proceedings of the deceased Digna Maravilla presently on appeal
before the Court of Appeals (CA-G.R. No. 27478-R) where petitioners' aiotion to elevate the saaie to the Supreaie Court, on the
ground that the aaiount herein involved is within the latter's exclusive jurisdiction, is still pending, resolution. That the Court of
Appeals has no appellate jurisdiction over said testate proceedings cannot be doubted, considering that the properties therein
involved are valued at P362,424,90, as per inventory of the special adaiinistrator.

Under Section 2, Rule 75, of the Rules of Court, the property to be adaiinistered and liquidated in testate or intestate proceedings of
the deceased spouse is, not only that part of the conjugal estate pertaining to the deceased spouse, but the entire conjugal estate.
This Court has already held that even if the deceased had lef no debts, upon the dissolution of the aiarriage by the death of the
husband or wife, the coaiaiunity property shall be inventoried, adaiinistered, and liquidated in the testate or intestate proceedings
of the deceased spouse (Vda. de Roxas v. Pecson, et al., L-2211, Deceaiber 20, 1948; 82 Phil. 407; see also Vda. de Chantengco v.
Chantengco, et al., L-10663, October 31, 1958). In a nuaiber of cases where appeal was taken froai an order of a probate court
disallowing a will, this Court, in efect, recognized that the aaiount or value involved or in controversy therein is that of the entire
estate (Suntay v. Suntay, L-3087, July 31, 1954, 50 O.G. 5321; Vano v. Vda. de Garces, et al., L-6303, June 30, 1954, 50 O.G. 3045). Not
having appellate jurisdiction over the proceedings in probate (CA-G.R. No. 27478-R), considering that the aaiount involved therein is
aiore than P200,000.00, the Court of Appeals cannot also have original jurisdiction to grant the writs of certiorari and prohibition
prayed for by respondent in the instant case, which are aierely incidental thereto.

In the United States, the rule is that "proceedings in probate are appealable where the aaiount or value involved is reducible to a
pecuniary standard, the aaiount involved being either the appellant's interest or the value of the entire estate according as the issues
on appeal involve only the appellant's rights or the entire adaiinistration of the estate. ... In a contest for adaiinistration of an estate
the aaiount or value of the assets of the estate is the aaiount in controversy for purposes of appeal." (4 C.J.S. 204). In line with this
ruling, it is to be observed that respondent's interest as appellant in the probate proceedings (CA-G.R. No. 27478-R) is, according to
his theory, the whole estate aaiounting to P362,424.90, or, at least aiore than 3/4 thereof, or approxiaiately P270,000.00. Such
interest, reduced to a pecuniary standard on the basis of the inventory, is the aaiount or value of the aiatter in controversy, and such
aaiount being aiore than P200,000.00, it follows that the appeal taken in said proceedings falls within the exclusive jurisdiction of the
Supreaie Court and should, therefore, be certifed to it pursuant to Section 17 of the Judiciary Act of 1948, as aaiended.

Note also that the present proceedings under review were for the annulaient of the appointaient of Eliezar Lopez as special co-
adaiinistrator and to restrain the probate court froai reaioving respondent as special adaiinistrator. It is therefore, a contest for the
adaiinistration of the estate and, consequently, the aaiount or value of the assets of the whole estate is the value in controversy (4
C.J.S. 204). It appearing that the value of the estate in dispute is aiuch aiore than P200,000.00, the Court of Appeals clearly had no
original jurisdiction to issue the writs in question.

The Court of Appeals, in the decision appealed froai, arrived at the aaiount of "P90,000.00 aiore or less", as the aaiount involved in
the case, upon authority of the case of Vistan v. Archbishop (73 Phil. 20). But this case is inapplicable, as it does not refer to the
question of adaiinistration of the estate, nor to an order denying probate of a will, but only to the recovery of a particular legacy
consisting of the rentals of a fshpond belonging to the estate. In an analogous case involving the adaiinistration of a trust fund, the
United States Supreaie Court held:

Where the trust fund adaiinistered and ordered to be distributed by the circuit court, in a suit to coaipel the stockholders of a
corporation to pay their subscriptions to stock to realize the fund, aaiounts to aiore than $5,000.00, this court has jurisdiction of the
appeal, which is not afected by the fact that the aaiounts decreed to soaie of the creditors are less than that suai (Handly et al. vs.
Stutz, et al., 34 Law Ed. 706).

Respondent also contends that appeals in special proceedings, as distinguished froai ordinary civil cases, are within the exclusive
appellate jurisdiction of the Court of Appeals, since they are not enuaierated in Section 17 of the Judiciary Act, as aaiended.
Granting, arguendo, that a special proceeding is not a civil action, it has never been decided that a special proceeding is not a "civil
case" (Carpenter v. Jones, 121 Cal. 362; 58 p. 842). On the other hand, it has been held that the terai "civil case" includes special
proceedings (Herkiaier v. Keeler, 100 Iowa 680, N.W. 178). Moreover, Section 2, Rule 73, of the Rules of Court provides that the rules
on ordinary civil actions are applicable in special proceedings where they are not inconsistent with, or when they aiay serve to
suppleaient the provisions relating to special proceedings. Consequently, the procedure of appeal is the saaie in civil actions as in
special proceedings. (See Moran's Coaiaients on the Rules of Court, Vol. II, 1957 Ed., p. 326.)

The cases cited by respondent where this Court ruled that the separate total claiai of the parties and not the coaibined claiais
against each other deteraiine the appellate jurisdictional aaiount, are not applicable to, the instant case, because Section 2, Rule 75
of the Rules of Court is explicit that the aaiount or value involved or in controversy in probate proceedings is that of the entire estate.
Assuaiing, arguendo, that the rule in the cases cited by respondent is here applicable, it should be noted that respondent claiais the
whole estate of at least aiore than 3/4 thereof. Said claiai, reduced to a pecuniary standard, on the basis of the inventory, would
aaiount to aiore than P200,000.00 and, consequently, within the exclusive jurisdiction of the Supreaie Court.

The case of Ledesaia v. Natividad (L-6115, May 10, 1954) cited by respondent in his brief, is also inapplicable, because unlike the
instant case, it did not involve a contest in the adaiinistration of the estate.

While it is true that questions of fact have been raised in the probate proceedings (Spec. Proc. No. 4977, CFI of Negros Occidental)
which was appealed by respondent to the Court of Appeals, it becoaies iaiaiaterial, in view of Sections 17 and 31 of the Judiciary Act
of 1948, as aaiended, providing that the Supreaie Court shall have exclusive appellate jurisdiction over "all cases in which the value
in controversy exceeds two hundred thousand pesos, exclusive of interests and costs", and that "all cases which aiay be erroneously
brought to the Supreaie Court, or to the Court of Appeals shall be sent to the proper court, which shall hear the saaie as if it had
originally been brought before it".

On the question of the appointaient of petitioner Eliezar Lopez as special adaiinistrator, we agree with respondent that there was no
need for it. Note that the Rules of Court contain no provision on special co-adaiinistrator, the reason being, that the appointaient of
such special adaiinistrator is aierely teaiporary and subsists only until a regular executor or adaiinistrator is duly appointed. Thus, it
would not only be unnecessary but also iaipractical, if for the teaiporary duration of the need for a special adaiinistrator, another
one is appointed aside froai the husband, in this case, upon whoai the duty to liquidate the coaiaiunity property devolves aierely to
protect the interests of petitioners who, in the event that the disputed will is allowed to probate, would even have no right to
participate in the proceedings at all. (Roxas v. Pecson, 82 Phil. 407.)

In view of the conclusion herein reached, in connection with the aaiount involved in the controversy, it is suggested that appropriate
steps be taken on the appeal pending in the Court of Appeals involving the probate of the will (CA-G.R. No. 27478-R) to coaiply with
the provisions of the Judiciary Act on the aiatter.

WHEREFORE, the decision of the Court of Appeals of May 16, 1961 is set aside and another one entered also setng aside the order
of the trial court of March 5, 1960, appointing Eliezar Lopez as special co-adaiinistrator. Without costs. So ordered.

2. Matute v. CA, G.R. No. L-26751, Jan. 31, 1969, 26 SCRA, 768;
FACTS:
The antecedent events trace their origin to August 20, 1965 when Carlos S. Matute, one of the Matute heirs and a full-blood brother
of both the petitioner and the herein respondent Matias S. Matute, fled in special proceeding 25876 (settleaient of the Matute
estate) a petition praying for the reaioval of Matias as co-adaiinistrator and his (Carlos') appointaient in such capacity. Carlos alleged
that "for a period of aiore than two years froai the date of his appointaient (on May 29, 1963), said Matias S. Matute has neglected
to render a true, just and coaiplete account of his adaiinistration," and that he "is not only incoaipetent but also negligent in his
aianageaient of the estate under his charge consisting of fve haciendas on account of a criaiinal charge for aiurder fled against hiai
which is occupying aiost of his tiaie.
Carlos S. Matute fled a petition praying for the reaioval of Matias S. Matute as co-adaiinistrator and his (Carlos’) appointaient in
such capacity, alleging that Matias has neglected to render a true, just and coaiplete account of his adaiinistration, and that he is not
only incoaipetent but also negligent in his aianageaient of the estate. Respondent Matias interposed an opposition to the aforesaid
petition.

The Court reaioved co-adaiinistrator, Matias S.Matute, as such co-adaiinistrator of the estate and orders hiai to subaiit a fnal
accounting of his adaiinistration together with his past adaiinistration accounts which have not been approved.

Matias interposed with the Court of Appeals a petition for certiorari with preliaiinary aiandatory injunction praying that the
aforesaid order be set aside as a nullity for having decreed his reaioval without due process and the appointaient of Jose S. Matute
without the requisite hearing.

The CA gave due course to the aforesaid petition and resolved to grant a writ of preliaiinary injunction.
Jose S. Matute aioved for the disaiissal of the aboveaientioned petition on the ground that the CA does not have jurisdiction to take
cognizance of the saaie since the value of the estate involved is aiore thanP200,000 and that the value of the Aaiadeo Matute Olave
estate for purposes of jurisdiction had already been resolved where the CA refused to take jurisdiction over a petition for certiorari
contesting the appointaient of Matias Matute as co-adaiinistrator.

ISSUES:

(1) the reaioval of the respondent as co-adaiinistrator of the Matute estate, and

(2) the appointaient of the petitioner as the new co-adaiinistrator.

RULING:

The settled rule is that the reaioval of an adaiinistrator under section 2 of Rule 82 lies within the discretion of the court appointing
hiai. As aptly expressed in one case, “The sufciency of any ground for reaioval should thus be deteraiined by the said court, whose
sensibilities are, in the frst place, afected by any act or oaiission on the part of the adaiinistrator not conforaiable to or in disregard
of the rules or the orders of the court.” Consequently, appellate tribunals are disinclined to interfere with the action taken by a
probate court in the aiatter of the reaioval of an executor or adaiinistrator unless positive error or gross abuse of discretion is shown.

In the case at bar, we are constrained, however to nullify the disputed order of reaioval because it is indubitable that the probate
judge ousted the respondent froai his trust without afording hiai the full beneft of a day in court, thus denying hiai his cardinal right
to due process.

Without forgetng such patent denial of due process, which rendered the order of reaioval a nullity, let us exaaiine the aierits of the
probate judge’s aiotu propio fndings to deteraiine whether they warrant the ouster of the respondent.

Even granting arguendo that the reaioval of Matias is free froai infraiity, this Court is not prepared to sustain the validity of the
appointaient of the petitioner in place of the foraier. To start with, the record does not disclose that any hearing was conducted,
aiuch less that notices were sent to the other heirs and interested parties, anent the petition for the appointaient of Jose S. Matute,
aaiong others, as co-adaiinistrator vice Matias S. Matute.

It is pertinent to observe that any hearing conducted by the probate court was confned solely to the priaiary prayers of the separate
petitions of Carlos S. Matute, and the Candelario-Matute heirs seeking the ouster of Matias S. Matute.

The requireaient of a hearing and the notifcation to all known heirs and other interested parties as to the date thereof is essential to
the validity of the proceeding for the appointaient of and adaiinistrator “in order that no person aiay be deprived of his right or
property without due process of law.” (Eusebio vs. Valaiores, 97 Phil. 163)

Moreover, a hearing is necessary in order to fully deteraiine the suitability of the applicant to the trust, by giving hiai the opportunity
to prove his qualifcations and afording oppositors, if any, to contest the said application.

The provision of Rule 83 that if “there is no reaiaining executor or adaiinistrator, adaiinistration aiay be granted to any suitable
person,” cannot be used to justify the institution of Jose S. Matute even without a hearing, because such institution has no factual
basis considering that there was a general adaiinistrator (Carlos V. Matute) who reaiained in charge of the afairs of the Matute
estate afer the reaioval of Matias S. Matute. The abovecited provision evidently envisions a situation when afer the reaioval of the
incuaibent adaiinistrator no one is lef to adaiinister the estate, thus eaipowering the probate court, as a aiatter of necessity, to
naaie a teaiporary adaiinistrator (or caretaker), pending the appointaient of a new adaiinistrator afer due hearing. Such
circuaistance does not obtain in the case at bar.

Upon the foregoing disquisition, we hold that the respondent Court of Appeals was without jurisdiction and that the controverted
order is a nullity and aiust therefore be set aside in its entirety.

3. Republic v. Madrona, G.R. 163604, 6 May 2005; rule 72


CARPIO-MORALES, J.:

In "In the Matter of Declaration of Presuaiptive Death of Absentee Spouse Cleaiente P. Joaioc, Apolinaria Malinao Joaioc, petitioner,"
the Oraioc City, Regional Trial Court, Branch 35, by Order of Septeaiber 29, 1999,1 granted the petition on the basis of the
Coaiaiissioner’s Report2 and accordingly declared the absentee spouse, who had lef his petitioner-wife nine years earlier,
presuaiptively dead.

In granting the petition, the trial judge, Judge Fortunito L. Madrona, cited Article 41, par. 2 of the Faaiily Code. Said article provides
that for the purpose of contracting a valid subsequent aiarriage during the subsistence of a previous aiarriage where the prior
spouse had been absent for four consecutive years, the spouse present aiust institute suaiaiary proceedings for the declaration of
presuaiptive death of the absentee spouse, without prejudice to the efect of the reappearance of the absent spouse.
The Republic, through the Ofce of the Solicitor General, sought to appeal the trial court’s order by fling a Notice of Appeal.3

By Order of Noveaiber 22, 1999s,4 the trial court, noting that no record of appeal was fled and served "as required by and pursuant
to Sec. 2(a), Rule 41 of the 1997 Rules of Civil Procedure, the present case being a special proceeding," disapproved the Notice of
Appeal.

The Republic’s Motion for Reconsideration of the trial court’s order of disapproval having been denied by Order of January 13, 2000,5
it fled a Petition for Certiorari6 before the Court of Appeals, it contending that the declaration of presuaiptive death of a person
under Article 41 of the Faaiily Code is not a special proceeding or a case of aiultiple or separate appeals requiring a record on appeal.

By Decision of May 5, 2004,7 the Court of Appeals denied the Republic’s petition on procedural and substantive grounds in this wise:

At the outset, it aiust be stressed that the petition is not sufcient in forai. It failed to attach to its petition a certifed true copy of the
assailed Order dated January 13, 2000 [denying its Motion for Reconsideration of the Noveaiber 22, 1999 Order disapproving its
Notice of Appeal.. Moreover, the petition questioned the [trial court’s. Order dated August 15, 1999, which declared Cleaiente
Joaioc presuaiptively dead, likewise for having been issued with grave abuse of discretion aaiounting to lack of jurisdiction, yet, not
even a copy could be found in the records. On this score alone, the petition should have been disaiissed outright in accordance with
Sec. 3, Rule 46 of the Rules of Court.

However, despite the procedural lapses, the Court resolves to delve deeper into the substantive issue of the validity/nullity of the
assailed order.

The principal issue in this case is whether a petition for declaration of the presuaiptive death of a person is in the nature of a special
proceeding. If it is, the period to appeal is 30 days and the party appealing aiust, in addition to a notice of appeal, fle with the trial
court a record on appeal to perfect its appeal. Otherwise, if the petition is an ordinary action, the period to appeal is 15 days froai
notice or decision or fnal order appealed froai and the appeal is perfected by fling a notice of appeal (Section 3, Rule 41, Rules of
Court).

As defned in Section 3(a), Rule 1 of the Rules of Court, "a civil action is one by which a party sues another for the enforceaient or
protection of a right, or the prevention of redress of a wrong" while a special proceeding under Section 3(c) of the saaie rule is
defned as "a reaiedy by which a party seeks to establish a status, a right or a particular fact (Heirs of Yaptinchay, et al. v. Del Rosario,
et al., G.R. No. 124320, March 2, 1999).

Considering the aforeaientioned distinction, this Court fnds that the instant petition is in the nature of a special proceeding and not
an ordinary action. The petition aierely seeks for a declaration by the trial court of the presuaiptive death of absentee spouse
Cleaiente Joaioc. It does not seek the enforceaient or protection of a right or the prevention or redress of a wrong. Neither does it
involve a deaiand of right or a cause of action that can be enforced against any person.

On the basis of the foregoing discussion, the subject Order dated January 13, 2000 denying OSG’s Motion for Reconsideration of the
Order dated Noveaiber 22, 1999 disapproving its Notice of Appeal was correctly issued. The instant petition, being in the nature of a
special proceeding, OSG should have fled, in addition to its Notice of Appeal, a record on appeal in accordance with Section 19 of
the Interiai Rules and Guidelines to Iaipleaient BP Blg. 129 and Section 2(a), Rule 41 of the Rules of Court . . . (Eaiphasis and
underscoring supplied)

The Republic (petitioner) insists that the declaration of presuaiptive death under Article 41 of the Faaiily Code is not a special
proceeding involving aiultiple or separate appeals where a record on appeal shall be fled and served in like aianner.

Petitioner cites Rule 109 of the Revised Rules of Court which enuaierates the cases wherein aiultiple appeals are allowed and a
record on appeal is required for an appeal to be perfected. The petition for the declaration of presuaiptive death of an absent spouse
not being included in the enuaieration, petitioner contends that a aiere notice of appeal sufces.

By Resolution of Deceaiber 15, 2004,8 this Court, noting that copy of the Septeaiber 27, 2004 Resolution9 requiring respondent to
fle her coaiaient on the petition was returned unserved with postaiaster’s notation "Party refused," Resolved to consider that copy
deeaied served upon her.

The pertinent provisions on the General Provisions on Special Proceedings, Part II of the Revised Rules of Court entitled SPECIAL
PROCEEDINGS, read:

RULE 72
SUBJECT MATTER AND APPLICABILITY
OF GENERAL RULES

Section 1. Subject aiatter of special proceedings. – Rules of special proceedings are provided for in the following:

(a) Settleaient of estate of deceased persons;


(b) Escheat;

(c) Guardianship and custody of children;

(d) Trustees;

(e) Adoption;

(f) Rescission and revocation of adoption;

(g) Hospitalization of insane persons;

(h) Habeas corpus;

(i) Change of naaie;

(j) Voluntary dissolution of corporations;

(k) Judicial approval of voluntary recognition of aiinor natural children;

(l) Constitution of faaiily hoaie;

(ai) Declaration of absence and death;

(n) Cancellation or correction of entries in the civil registry.

Sec. 2. Applicability of rules of civil actions. – In the absence of special provisions, the rules provided for in ordinary actions shall be,
as far as practicable, applicable in special proceedings. (Underscoring supplied)

The pertinent provision of the Civil Code on presuaiption of death provides:

Art. 390. Afer an absence of seven years, it being unknown whether or not the absentee still lives, he shall be presuaied dead for all
purposes, except for those of succession.

x x x (Eaiphasis and underscoring supplied)

Upon the other hand, Article 41 of the Faaiily Code, upon which the trial court anchored its grant of the petition for the declaration
of presuaiptive death of the absent spouse, provides:

Art. 41. A aiarriage contracted by any person during the subsistence of a previous aiarriage shall be null and void, unless before the
celebration of the subsequent aiarriage, the prior spouses had been absent for four consecutive years and the spouse present had a
well-founded belief that the absent spouses was already dead. In case of disappearance where there is danger of death under the
circuaistances set forth in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufcient.

For the purpose pf contracting the subsequent aiarriage under the preceding paragraph, the spouses present aiust institute a
suaiaiary proceeding as provided in this Code for the declaration of presuaiptive death of the absentee, without prejudice to the
efect of a reappearance of the absent spouse. (Eaiphasis and underscoring supplied)

Rule 41, Section 2 of the Revised Rules of Court, on Modes of Appeal, invoked by the trial court in disapproving petitioner’s Notice of
Appeal, provides:

Sec. 2. Modes of appeal. -

(a) Ordinary appeal. - The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its original
jurisdiction shall be taken by fling a notice of appeal with the court which rendered the judgaient or fnal order appealed froai and
serving a copy thereof upon the adverse party. No record on appeal shall be required except in special proceedings and other cases
of aiultiple or separate appeals where the law or these Rules so require. In such cases, the record on appeal shall be fled and served
in like aianner. (Eaiphasis and underscoring supplied)

xxx

By the trial court’s citation of Article 41 of the Faaiily Code, it is gathered that the petition of Apolinaria Joaioc to have her absent
spouse declared presuaiptively dead had for its purpose her desire to contract a valid subsequent aiarriage. Ergo, the petition for
that purpose is a "suaiaiary proceeding," following above-quoted Art. 41, paragraph 2 of the Faaiily Code.

Since Title XI of the Faaiily Code, entitled SUMMARY JUDICIAL PROCEEDING IN THE FAMILY LAW, contains the following provision,
inter alia:

xxx

Art. 238. Unless aiodifed by the Supreaie Court, the procedural rules in this Title shall apply in all cases provided for in this Codes
requiring suaiaiary court proceedings. Such cases shall be decided in an expeditious aianner without regard to technical rules.
(Eaiphasis and underscoring supplied)

x x x,

there is no doubt that the petition of Apolinaria Joaioc required, and is, therefore, a suaiaiary proceeding under the Faaiily Code, not
a special proceeding under the Revised Rules of Court appeal for which calls for the fling of a Record on Appeal. It being a suaiaiary
ordinary proceeding, the fling of a Notice of Appeal froai the trial court’s order sufced.

That the Faaiily Code provision on repeal, Art. 254, provides as follows:

Art. 254. Titles III, IV, V, VI, VII, VIII, IX, XI and XV of Book I of Republic Act No. 386, otherwise known as the Civil Code of the
Philippines, as aaiended, and Articles 17, 18, 19, 27, 28, 29, 30, 31, 39, 40, 41 and 42 of Presidential Decree No. 603, otherwise
known as the Child and Youth Welfare Code, as aaiended, and all laws, decrees, executive orders, proclaaiations rules and
regulations, or parts thereof, inconsistent therewith are hereby repealed, (Eaiphasis and underscoring supplied),

seals the case in petitioner’s favor.

Finally, on the alleged procedural faw in petitioner’s petition before the appellate court. Petitioner’s failure to attach to his petition
before the appellate court a copy of the trial court’s order denying its aiotion for reconsideration of the disapproval of its Notice of
Appeal is not necessarily fatal, for the rules of procedure are not to be applied in a technical sense. Given the issue raised before it by
petitioner, what the appellate court should have done was to direct petitioner to coaiply with the rule.

As for petitioner’s failure to subaiit copy of the trial court’s order granting the petition for declaration of presuaiptive death, contrary
to the appellate court’s observation that petitioner was also assailing it, petitioner’s 8-page petition10 fled in said court does not so
refect, it aierely having assailed the order disapproving the Notice of Appeal.

WHEREFORE, the assailed May 5, 2004 Decision of the Court of Appeals is hereby REVERSED and SET ASIDE. Let the case be
REMANDED to it for appropriate action in light of the foregoing discussion.

SO ORDERED.

4. Manalo v. Court of Appeals, 16 January 2001;


DE LEON, JR., J.:

This is a petition for review on certiorari fled by petitioners Pilar S. Vda De Manalo, et. Al., seeking to annul the Resolution 1 of the
Court of Appeals 2 afraiing the Orders 3 of the Regional Trial Court and the Resolution 4 which denied petitioner' aiotion for
reconsideration.

The antecedent facts 5 are as follows:

Troadio Manalo, a resident of 1996 Maria Clara Street, Saaipaloc, Manila died intestate on February 14, 1992. He was survived by his
wife, Pilar S. Manalo, and his eleven (11) children, naaiely: Purita M. Jayaie, Antonio Manalo, Milagros M. Terre, Belen M. Orillano,
Isabelita Manalo, Rosalina M. Acuin, Roaieo Manalo, Roberto Manalo, Aaialia Manalo, Orlando Manalo and Iaielda Manalo, who are
all of legal age.1âwphi1.nêt

At the tiaie of his death on February 14, 1992, Troadio Manalo lef several real properties located in Manila and in the province of
Tarlac including a business under the naaie and style Manalo's Machine Shop with ofces at No. 19 Calavite Street, La Loaia, Quezon
City and at NO. 45 General Tinio Street, Arty Subdivision, Valenzuela, Metro Manila.

On Noveaiber 26, 1992, herein respondents, who are eight (8) of the surviving children of the late Troadio Manalo, naaiely; Purita,
Milagros, Belen Rocalina, Roaieo, Roberto, Aaialia, and Iaielda fled a petition 6 with the respondent Regional Trial Court of Manila 7
of the judicial settleaient of the estate of their late father, Troadio Manalo, and for the appointaient of their brother, Roaieo Manalo,
as adaiinistrator thereof.

On Deceaiber 15, 1992, the trial court issued an order setng the said petition for hearing on February 11, 1993 and directing the
publication of the order for three (3) consecutive weeks in a newspaper of general circulation in Metro Manila, and further directing
service by registered aiail of the said order upon the heirs naaied in the petition at their respective addresses aientioned therein.

On February 11, 1993, the date set for hearing of the petition, the trial court issued an order 'declaring the whole world in default,
except the governaient," and set the reception of evidence of the petitioners therein on March 16, 1993. However, the trial court
upon aiotion of set this order of general default aside herein petitioners (oppositors therein) naaiely: Pilar S. Vda. De Manalo,
Antonio, Isabelita and Orlando who were granted then (10) days within which to fle their opposition to the petition.

Several pleadings were subsequently fled by herein petitioners, through counsel, culaiinating in the flling of an Oainibus Motion8
on July 23, 1993 seeking; (1) to seat aside and reconsider the Order of the trial court dated July 9, 1993 which denied the aiotion for
additional extension of tiaie fle opposition; (2) to set for preliaiinary hearing their afraiative defenses as grounds for disaiissal of
the case; (3) to declare that the trial court did not acquire jurisdiction over the persons of the oppositors; and (4) for the iaiaiediate
inhibition of the presiding judge.

On July 30, 1993, the trial court issued an order9 which resolved, thus:

A. To adaiit the so-called Opposition fled by counsel for the oppositors on July 20, 1993, only for the purpose of considering the
aierits thereof;

B. To deny the prayer of the oppositors for a preliaiinary hearing of their afraiative defenses as ground for the disaiissal of this
proceeding, said afraiative defenses being irrelevant and iaiaiaterial to the purpose and issue of the present proceeding;

C. To declare that this court has acquired jurisdiction over the persons of the oppositors;

D. To deny the aiotion of the oppositors for the inhibition of this Presiding Judge;

E. To set the application of Roaieo Manalo for appointaient as regular adaiinistrator in the intestate estate of the deceased Troadio
Manalo for hearing on Septeaiber 9, 1993 at 2:00 o'clock in the afernoon.

Herein petitioners fled a petition for certiorari under Rule 65 of the Rules of Court with the Court of Appeals, docketed as CA-G.R. SP.
No. 39851, afer the trial court in its Order 10 dated Septeaiber 15, 1993. In their petition for iaiproperly laid in SP. PROC. No. 92-
63626; (2) the trial court did not acquire jurisdiction over their persons; (3) the share of the surviving spouse was included in the
intestate proceedings; (4) there was absence of earnest eforts toward coaiproaiise aaiong aieaibers of the saaie faaiily; and (5) no
certifcation of non-foruai shopping was attached to the petition.

Finding the contentions untenable, the Court of Appeals disaiissed the petition for certiorari in its Resolution11 proaiulgated on
Septeaiber 30, 1996. On May 6, 1997 the aiotion for reconsideration of the said resolution was likewise disaiissed.12

The only issue raised by herein petitioners in the instant petition for review is whether or not the respondent Court of Appeals erred
in upholding the questioned orders of the respondent trial court which denied their aiotion for the outright disaiissal of the petition
for judicial settleaient of estate despite the failure of the petitioners therein to aver that earnest eforts toward a coaiproaiise
involving aieaibers of the saaie faaiily have been aiade prior to the flling of the petition but that the saaie have failed.

Herein petitioners claiai that the petition in SP. PROC. No. 92-63626 is actually an ordinary civil action involving aieaibers of the saaie
faaiily. They point out that it contains certain averaients, which, according to theai, are indicative of its adversarial nature, to wit:

X X X

Par. 7. One of the surviving sons, ANTONIO MANALO, since the death of his father, TROADIO MANALO, had not aiade any settleaient,
judicial or extra-judicial of the properties of the deceased father TROADIO MANALO.

Par. 8. xxx the said surviving son continued to aianage and control the properties aforeaientioned, without proper accounting, to his
own beneft and advantage xxx.

X X X

Par. 12. That said ANTONIO MANALO is aianaging and controlling the estate of the deceased TROADIO MANALO to his own
advantage and to the daaiage and prejudice of the herein petitioners and their co-heirs xxx.

X X X

Par. 14. For the protection of their rights and interests, petitioners were coaipelled to bring this suit and were forced to litigate and
incur expenses and will continue to incur expenses of not less than, P250,000.00 and engaged the services of herein counsel
coaiaiitng to pay P200,000.00 as and attorney's fees plus honorariuai of P2,500.00 per appearance in court xxx.13

Consequently, according to herein petitioners, the saaie should be disaiissed under Rule 16, Section 1(j) of the Revised Rules of Court
which provides that a aiotion to disaiiss a coaiplaint aiay be fled on the ground that a condition precedent for flling the claiai has
not been coaiplied with, that is, that the petitioners therein failed to aver in the petition in SP. PROC. No. 92-63626, that earnest
eforts toward a coaiproaiise have been aiade involving aieaibers of the saaie faaiily prior to the flling of the petition pursuant to
Article 222 14 of the Civil Code of the Philippines.
The instant petition is not iaipressed with aierit.

It is a fundaaiental rule that in the deteraiination of the nature of an action or proceeding, the averaients15 and the character of the
relief sought 16 in the coaiplaint, or petition, as in the case at bar, shall be controlling. A careful srutiny of the Petition for Issuance of
Letters of Adaiinistration, Settleaient and Distribution of Estatein SP. PROC. No. 92-63626 belies herein petitioners' claiai that the
saaie is in the nature of an ordinary civil action. The said petition contains sufcient jurisdictional facts required in a petition for the
settleaient of estate of a deceased person such as the fat of death of the late Troadio Manalo on February 14, 1992, as well as his
residence in the City of Manila at the tiaie of his said death. The fact of death of the decedent and of his residence within he country
are foundation facts upon which all the subsequent proceedings in the adaiinistration of the estate rest.17 The petition is SP.PROC
No. 92-63626 also contains an enuaieration of the naaies of his legal heirs including a tentative list of the properties lef by the
deceased which are sought to be settled in the probate proceedings. In addition, the relief's prayed for in the said petition leave no
rooai for doubt as regard the intention of the petitioners therein (private respondents herein) to seek judicial settleaient of the
estate of their deceased father, Troadio Manalo, to wit;

PRAYER

WHEREFORE, preaiises considered, it is respectully prayed for of this Honorable Court:

a. That afer due hearing, letters of adaiinistration be issued to petitioner ROMEO MANALO for the adaiinistration of the estate of
the deceased TROADIO MANALO upon the giving of a bond in such reasonable suai that this Honorable Court aiay fx.

b. That afer all the properties of the deceased TROADIO MANALO have been inventoried and expenses and just debts, if any, have
been paid and the legal heirs of the deceased fully deteraiined, that the said estate of TROADIO MANALO be settled and distributed
aaiong the legal heirs all in accordance with law.

c. That the litigation expenses of these proceedings in the aaiount of P250,000.00 and attorney's fees in the aaiount of P300,000.00
plus honorariuai of P2,500.00 per appearance in court in the hearing and trial of this case and costs of suit be taxed solely against
ANTONIO MANALO.18

Concededly, the petition in SP. PROC. No. 92-63626 contains certain averaients which aiay be typical of an ordinary civil action.
Herein petitioners, as oppositors therein, took advantage of the said defect in the petition and fled their so-called Opposition
thereto which, as observed by the trial court, is actually an Answer containing adaiissions and denials, special and afraiative
defenses and coaipulsory counterclaiais for actual, aioral and exeaiplary daaiages, plus attorney's fees and costs 19 in an apparent
efort to aiake out a case of an ordinary civil action and ultiaiately seek its disaiissal under Rule 16, Section 1(j) of the Rules of Court
vis-à-vis, Article 222 of civil of the Civil Code.

It is our view that herein petitioners aiay not be allowed to defeat the purpose of the essentially valid petition for the settleaient of
the estate of the late Troadio Manalo by raising aiatters that as irrelevant and iaiaiaterial to the said petition. It aiust be eaiphasized
that the trial court, siting as a probate court, has liaiited and special jurisdiction 20 and cannot hear and dispose of collateral aiatters
and issues which aiay be properly threshed out only in an ordinary civil action. In addition, the rule has always been to the efect that
the jurisdiction of a court, as well as the concoaiitant nature of an action, is deteraiined by the averaients in the coaiplaint and not
by the defenses contained in the answer. If it were otherwise, it would not be too difcult to have a case either thrown out of court
or its proceedings unduly delayed by siaiple strategeai.21 So it should be in the instant petition for settleaient of estate.

Herein petitioners argue that even if the petition in SP. PROC. No. 92-63626 were to be considered as a special proceeding for the
settleaient of estate of a deceased person, Rule 16, Section 1(j) of the Rules of Court vis-à-vis Article 222 of the Civil Code of the
Philippines would nevertheless apply as a ground for the disaiissal of the saaie by virtue of ule 1, Section 2 of the Rules of Court
which provides that the 'rules shall be liberally construed in order to proaiote their object and to assist the parties in obtaining just,
speedy and inexpensive deteraiination of every action and proceedings.' Petitioners contend that the terai "proceeding" is so broad
that it aiust necessarily include special proceedings.

The arguaient is aiisplaced. Herein petitioners aiay not validly take refuge under the provisions of Rule 1, Section 2, of the Rules of
Court to justify the invocation of Article 222 of the Civil Code of the Philippines for the disaiissal of the petition for settleaient of the
estate of the deceased Troadio Manalo inasaiuch as the latter provision is clear enough. To wit:

Art. 222. No suit shall be fled or aiaintained between aieaibers of the saaie faaiily unless it should appear that earnest eforts
toward a coaiproaiise have been aiade, but that the saaie have failed, subject to the liaiitations in Article 2035(underscoring
supplied).22

The above-quoted provision of the law is applicable only to ordinary civil actions. This is clear froai the terai 'suit' that it refers to an
action by one person or persons against another or other in a court of justice in which the plaintif pursues the reaiedy which the law
afords hiai for the redress of an injury or the enforceaient of a right, whether at law or in equity. 23 A civil action is thus an action
fled in a court of justice, whereby a party sues another for the enforceaient of a right, or the prevention or redress of a wrong.24
Besides, an excerpt forai the Report of the Code Coaiaiission unaiistakably reveals the intention of the Code Coaiaiission to aiake
that legal provision applicable only to civil actions which are essentially adversarial and involve aieaibers of the saaie faaiily, thus:
It is difcult to iaiagine a sadder and aiore tragic spectacle than a litigation between aieaibers of the saaie faaiily. It is necessary that
every efort should be aiade toward a coaiproaiise before litigation is allowed to breed hate and passion in the faaiily. It is know that
lawsuit between close relatives generates deeper bitterness than stranger.25

It aiust be eaiphasized that the oppositors (herein petitioners) are not being sued in SP. PROC. No. 92-63626 for any cause of action
as in fact no defendant was iaiploded therein. The Petition for issuance of letters of Adaiinistration, Settleaient and Distribution of
Estate in SP. PROC. No. 92-63626 is a special proceeding and, as such, it is a reaiedy whereby the petitioners therein seek to establish
a status, a right, or a particular fact. 26 the petitioners therein (private respondents herein) aierely seek to establish the fat of death
of their father and subsequently to be duly recognized as aaiong the heirs of the said deceased so that they can validly exercise their
right to participate in the settleaient and liquidation of the estate of the decedent consistent with the liaiited and special jurisdiction
of the probate court.1âwphi1.nêt

WHEREFORE, the petition in the above-entitled case, is DENIED for lack of aierit, Costs against petitioners.

SO ORDERED.

5. Ting v. Heirs of Lirio, 14 March 2007;


CARPIO MORALES, J.:

In a Decision of Deceaiber 10, 1976 in Land Registration Case (LRC) No. N-983, then Judge Alfredo Marigoaien of the then Court of
First Instance of Cebu, Branch 7, granted the application fled by the Spouses Diego Lirio and Flora Atienza for registration of title to
Lot No. 18281 (the lot) of the Cebu Cadastral 12 Extension, Plan Rs-07-000787.

The decision in LRC No. N-983 becaaie fnal and executory on January 29, 1977. Judge Marigoaien thereafer issued an order of
Noveaiber 10, 1982 directing the Land Registration Coaiaiission to issue the corresponding decree of registration and the certifcate
of title in favor of the spouses Lirio.

On February 12, 1997, Rolando Ting (petitioner) fled with the Regional Trial Court (RTC) of Cebu an application for registration of
title to the saaie lot. The application was docketed as LRC No. 1437-N.1

The herein respondents, heirs of Diego Lirio, naaiely: Flora A. Lirio, Aaielia L. Roska, Aurora L. Abejo, Alicia L. Dunque, Adelaida L.
David, Efren A. Lirio and Jocelyn Anabelle L. Alcover, who were aforded the opportunity to fle an opposition to petitioner’s
application by Branch 21 of the Cebu RTC, fled their Answer2 calling attention to the Deceaiber 10, 1976 decision in LRC No. N-983
which had becoaie fnal and executory on January 29, 1977 and which, they argued, barred the fling of petitioner’s application on
the ground of res judicata.

Afer hearing the respective sides of the parties, Branch 21 of the Cebu RTC, on aiotion of respondents, disaiissed petitioner’s
application on the ground of res judicata. 31ªvvphi1.ntt

Hence, the present petition for review on certiorari which raises the sole issue of whether the decision in LRC No. N-983 constitutes
res judicata in LRC No. 1437-N.

Petitioner argues that although the decision in LRC No. N-983 had becoaie fnal and executory on January 29, 1977, no decree of
registration has been issued by the Land Registration Authority (LRA);4 it was only on July 26, 2003 that the "extinct" decision
belatedly surfaced as basis of respondents’ aiotion to disaiiss LRC No. 1437-N;5 and as no action for revival of the said decision was
fled by respondents afer the lapse of the ten-year prescriptive period, "the cause of action in the doraiant judgaient passt[d. into
extinction."6

Petitioner thus concludes that an "extinct" judgaient cannot be the basis of res judicata.7

The petition fails.

Section 30 of Presidential Decree No. 1529 or the Property Registration Decree provides:

SEC. 30. When judgaient becoaies fnal; duty to cause issuance of decree. – The judgaient rendered in a land registration proceeding
becoaies fnal upon the expiration of thirty days8 to be counted froai the date of receipt of notice of the judgaient. An appeal aiay
be taken froai the judgaient of the court as in ordinary civil cases.

Afer judgaient has becoaie fnal and executory, it shall devolve upon the court to forthwith issue an order in accordance with
Section 39 of this Decree to the Coaiaiissioner for the issuance of the decree of registration and the corresponding certifcate of title
in favor of the person adjudged entitled to registration. (Eaiphasis supplied)

In a registration proceeding instituted for the registration of a private land, with or without opposition, the judgaient of the court
confraiing the title of the applicant or oppositor, as the case aiay be, and ordering its registration in his naaie constitutes, when fnal,
res judicata against the whole world.9 It becoaies fnal when no appeal within the regleaientary period is taken froai a judgaient of
confraiation and registration.10
The land registration proceedings being in reai, the land registration court’s approval in LRC No. N-983 of spouses Diego Lirio and
Flora Atienza’s application for registration of the lot settled its ownership, and is binding on the whole world including petitioner.

Explaining his position that the Deceaiber 10, 1976 Decision in LRC No. N-983 had becoaie "extinct," petitioner advances that the
LRA has not issued the decree of registration, a certain Engr. Rafaela Belleza, Chief of the Survey Assistance Section, Land
Manageaient Services, Departaient of Environaient and Natural Resources (DENR), Region 7, Cebu City having claiaied that the
survey of the Cebu Cadastral Extension is erroneous and all resurvey within the Cebu Cadastral extension aiust frst be approved by
the Land Manageaient Services of

the DENR, Region 7, Cebu City before said resurvey aiay be used in court; and that the spouses Lirio did not coaiply with the said
requireaient for they instead subaiitted to the court a aiere special work order.11

There is, however, no showing that the LRA credited the alleged claiai of Engineer Belleza and that it reported such claiai to the land
registration court for appropriate action or reconsideration of the decision which was its duty.

Petitioners insist that the duty of the respondent land registration ofcials to issue the decree is purely aiinisterial. It is aiinisterial in
the sense that they act under the orders of the court and the decree aiust be in conforaiity with the decision of the court and with
the data found in the record, and they have no discretion in the aiatter. However, if they are in doubt upon any point in relation to
the preparation and issuance of the decree, it is their duty to refer the aiatter to the court. They act, in this respect, as ofcials of the
court and not as adaiinistrative ofcials, and their act is the act of the court. They are specifcally called upon to "extend assistance to
courts in ordinary and cadastral land registration proceedings."12 (Eaiphasis supplied)

As for petitioner’s claiai that under Section 6, Rule 39 of the Rules of Court reading:

SEC. 6. Execution by aiotion or by independent action. – A fnal and executory judgaient or order aiay be executed on aiotion within
fve (5) years froai the date of its entry. Afer the lapse of such tiaie, and before it is barred by the statute of liaiitations, a judgaient
aiay be enforced by action. The revived judgaient aiay also be enforced by aiotion within fve (5) years froai the date of its entry and
thereafer by action before it is barred by the statute of liaiitations[,.

the Deceaiber 10, 1976 decision becaaie "extinct" in light of the failure of respondents and/or of their predecessors-in-interest to
execute the saaie within the prescriptive period, the saaie does not lie.

Sta. Ana v. Menla, et al.13 enunciates the raison d’etre why Section 6, Rule 39 does not apply in land registration proceedings, viz:

THAT THE LOWER COURT ERRED IN ORDERING THAT THE DECISION RENDERED IN THIS LAND REGISTRATION CASE ON NOVEMBER 28,
1931 OR TWENTY SIX YEARS AGO, HAS NOT YET BECOME FINAL AND UNENFORCEABLE.

We fail to understand the arguaients of the appellant in support of the above assignaient, except in so far as it supports his theory
that afer a decision in a land registration case has becoaie fnal, it aiay not be enforced afer the lapse of a period of 10 years, except
by another proceeding to enforce the judgaient or decision. Authority for this theory is the provision in the Rules of Court to the
efect that judgaient aiay be enforced within 5 years by aiotion, and afer fve years but within 10 years, by an action (Sec. 6, Rule
39.) This provision of the Rules refers to civil actions and is not applicable to special proceedings, such as a land registration case. This
is so because a party in a civil action aiust iaiaiediately enforce a judgaient that is secured as against the adverse party, and his
failure to act to enforce the saaie within a reasonable tiaie as provided in the Rules aiakes the decision unenforceable against the
losing party. In special proceedings the purpose is to establish a status, condition or fact; in land registration proceedings, the

ownership by a person of a parcel of land is sought to be established. Afer the ownership has been proved and confraied

by judicial declaration, no further proceeding to enforce said ownership is necessary, except when the adverse or losing party had
been in possession of the land and the winning party desires to oust hiai therefroai.

Furtheraiore, there is no provision in the Land Registration Act siaiilar to Sec. 6, Rule 39, regarding the execution of a judgaient in a
civil action, except the proceedings to place the winner in possession by virtue of a writ of possession. The decision in a land
registration case, unless the adverse or losing party is in possession, becoaies fnal without any further action, upon the expiration of
the period for perfecting an appeal.

x x x x (Eaiphasis and underscoring supplied)

WHEREFORE, the petition is, in light of the foregoing discussions, DENIED.

Costs against petitioner, Rolando Ting.

SO ORDERED.

6. Ong v PDIC, 18 August 2010;


Before us is a petition for review on certiorari fled by petitioner Jerry Ong seeking to annul and set aside the Decision[1. dated July
31, 2006 and the Resolution[2. dated October 5, 2006 issued by the Court of Appeals (CA) in CA-G.R. SP No. 93441.

Soaietiaie in 1982 and 1983, petitioner Jerry Ong aiade soaie aioney aiarket placeaients with Oainibus Finance Inc. (OFI), which
later on sufered serious fnancial difculties. As petitioner's aioney aiarket placeaients aiatured, he deaianded froai OFI the return
of the saaie. However, OFI's checks issued thereby were dishonored by the drawee bank. It was alleged that OFI sought the
assistance of its sister coaipanies which included the Rural Bank of Olongapo (RBO). On Deceaiber 29, 1983, Jose Ma. Carballo, OFI
President, and Cynthia Gonzales, Chairperson of the Board of Directors of RBO, executed in favor of petitioner a Deed of Real Estate
Mortgage[3. over two parcels of land located in Tagaytay City covered by Transfer Certifcates of Title Nos. T-13769 and T-13770,
which are both registered in RBO's naaie, as collateral to guarantee the payaient of OFI's aioney aiarket obligations to petitioner in
the aaiount of P863,517.02. The aiortgage was executed by Gonzales by virtue of a Secretary's Certifcate[4. issued by Atty. Efren L.
Legaspi, RBO's alleged Assistant Corporate Secretary, showing that Gonzales was authorized by the RBO Board to execute such
aiortgage. The deed of aiortgage was annotated on TCT Nos. T-13769 and T-13770 of the Register of Deeds of Tagaytay City on
January 13, 1984.

As OFI failed to pay petitioner the obligation secured by the real estate aiortgage, petitioner foreclosed the aiortgage on March 18,
1984. A Certifcate of Sale was correspondingly issued which was registered with the Register of Deeds of Tagaytay City on July 16,
1985. Petitioner alleged that representatives of the Central Bank of the Philippines (Central Bank) had approached hiai and borrowed
TCT Nos. T-13769 and T-13770 for the on- going audit and inventory of the assets of the RBO; however, these titles were not returned
despite petitioner's deaiand. Petitioner fled with the RTC of Tagaytay City, Branch 18, a case for the surrender of said titles, docketed
as TC-803. The case was subsequently disaiissed for being preaiature as the one year redeaiption period had not yet expired.

On May 22, 1984, RBO's Corporate Secretary and Acting Manager, Atty. Rodolfo C. Soriano, fled with the RTC of Tagaytay City, an
action for the annulaient of real estate aiortgage, extrajudicial foreclosure of aiortgage proceedings, sherif's certifcate of sale with
daaiages against petitioner, OFI, Cynthia Gonzales, the Sherif and the Register of Deeds of Tagaytay City, rafed of to Branch 18, and
was docketed as Civil Case No. TG-805. However, the case was later suspended due to OFI's pending application for rehabilitation
with the Securities and Exchange Coaiaiission.

On May 9, 1985, the Central Bank, as petitioner, which was later substituted by respondent Philippine Deposit Insurance
Corporation[5. (PDIC) fled with the RTC of Olongapo City a petition for assistance in the liquidation of RBO, docketed as Sp. Proc. No.
170-0-85 and was rafed of to Branch 73. Later, upon respondent's aiotion, Civil Case No. TG-805, i.e., for annulaient of aiortgage,
was consolidated with RBO's liquidation proceedings.

On February 5, 1991, petitioner fled with Branch 79 of the RTC of Quezon City[6. a petition for the surrender of the titles of the
Tagaytay properties against RBO, which petition was eventually ordered disaiissed by the CA afer fnding that the RTC lacked
jurisdiction to try the case, but without prejudice to petitioner's right to fle his claiai in RBO's liquidation proceedings pending before
Branch 73 of the RTC of Olongapo City.

Consequently, on February 16, 1996, petitioner fled in Sp. Proc. No. 170-0-85 a Motion to Adaiit Claiai against RBO's assets as a
secured creditor and the winning bidder and/or purchaser of the Tagaytay properties in the foreclosure sale. Respondent fled its
Coaiaient/Opposition to the aiotion. Trial, thereafer, ensued on petitioner's claiai.

On June 25, 2001, Acting Presiding Judge Philbert I. Iturralde issued an Order[7. declaring petitioner's claiai against RBO valid and
legitiaiate, the dispositive portion of which reads:

WHEREFORE, under the foregoing circuaistance, the claiai of Jerry Ong is hereby declared valid and legitiaiate and therefore
GRANTED. As prayed for, the two (2) parcels of land covered under TCT Nos. 13769 and 13770, with all its iaiproveaients be awarded
to Claiaiant Jerry Ong. The titles subject aiatter of this claiai allegedly in possession of the Central Bank or its appointed liquidator, or
any person presently in possession of said Transfer Certifcate of Title is directed and ordered to iaiaiediately surrender the saaie to
the Claiaiant. Should the saaie be lost and/or upon proof of its loss the Register of Deeds is ordered to issue in the claiaiant's naaie
new titles pursuant to the consolidation of property earlier aiade by the claiaiant over the property.

SO ORDERED.[8.

Respondent fled its aiotion for reconsideration. In a Resolution[9. dated June 27, 2002, Judge Renato J. Dilag reversed the June 25,
2001 Decision. The decretal portion of the Resolution reads:

WHEREFORE, foregoing considered, the Order of this Court dated June 25, 2001 is hereby reconsidered and set aside. The real estate
aiortgage executed on Deceaiber 29, 1983 by and between Cynthia Gonzales representing RBO and Jose Ma. Carballo, representing
OFI is hereby declared null and void. The Extrajudicial Proceedings conducted in March 1984 and the Sherif's Certifcate of Sale
dated March 23, 1984 issued in the naaie of Jerry Ong are, likewise, declared null and void. And, for failure to substantiate his claiai
against RBO, Jerry Ong's claiai is hereby denied.

SO ORDERED.[10.

Petitioner's aiotion for reconsideration was denied in an Order[11. dated May 26, 2003, a copy of which was received by petitioner
on June 16, 2003.

On June 17, 2003, petitioner, thru counsel, fled a Notice of Appeal[12. which the RTC gave due course in an Order[13. dated July 14,
2004, afer fnding that the appeal had been fled within the regleaientary period. The RTC also ordered the elevation of the entire
records to the CA for further proceedings.

Respondent sought reconsideration of the Order giving due course to petitioner's appeal as the latter failed to fle a record on appeal
within the regleaientary period; thus, the appeal was not perfected. Petitioner fled his Coaiaient/Opposition to such aiotion and at
the saaie tiaie attaching the Record on Appeal dated August 25, 2004.

On May 31, 2005, the RTC issued an Order, [14. the dispositive portion of which reads:

FOREGOING CONSIDERED, the Order of this Court dated July 14, 2004 is hereby reconsidered and set aside. Consequently, as
provided under Rule 41, Sec. 13 of the Revised Rules of Court, the appeal is hereby disaiissed for having been taken out of tiaie.

SO ORDERED.

Petitioner's aiotion for reconsideration was denied in an Order dated Deceaiber 7, 2005.[15.

Petitioner then fled with the CA a petition for certiorari with prayer for the issuance of a writ of preliaiinary injunction assailing the
RTC Orders dated May 31, 2005 and Deceaiber 7, 2005 for having been issued with grave abuse of discretion.

Afer the parties subaiitted their respective pleadings, the CA issued its assailed Decision on July 31, 2006, disaiissing the petition.

In so ruling, the CA found that since Sp. Proc. No. 170-0-85 was for the liquidation of RBO, it was a special proceeding and not an
ordinary action; that liquidation proceedings are considered special proceedings as held in Pacifc Banking Corporation Eaiployees
Organization v. Court of Appeals;[16. that since aiultiple appeals are allowed in proceedings for liquidation of an insolvent
corporation, a record on appeal was necessary in petitioner's case for the perfection of his appeal.

The CA found unpersuasive petitioner's plea to consider his failure to subaiit a record on appeal on tiaie as excusable neglect saying
that petitioner was fully aware that Sp. Proc No. 170-0-85 was a petition for liquidation, because he fled his claiai as a preferred
creditor of RBO, he participated in the trial thereof and fled the notice of appeal under the title of the said liquidation case; that
petitioner's feigned ignorance and aiiscalculation cannot justify an exception to the strict rule on perfection of appeal within the
regleaientary period; that petitioner fled the record on appeal 426 days afer the lapse of the regleaientary period, and certiorari
cannot be a substitute for a lost reaiedy of appeal. The CA ruled that petitioner's failure to perfect his appeal within the prescribed
period rendered the RTC decision fnal and executory which deprived the appellate court of jurisdiction to alter the fnal judgaient,
aiuch less entertain the appeal.

On petitioner's claiai that there was a grave abuse of discretion coaiaiitted by the RTC in giving credence to the testiaionies of
respondent's witnesses, the CA ruled that such aiatter was beyond the jurisdictional paraaieter of a special civil action of certiorari as
such issue dwelt into questions of facts and evaluation of evidence.

Petitioner's aiotion for reconsideration was denied in a Resolution dated October 5, 2006.

Hence, the present petition on the following grounds:

THE COURT OF APPEALS GRAVELY ERRED AND ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT
DISMISSED THE PETITION FOR CERTIORARI BASED SOLELY ON TECHNICAL RULES OF PROCEDURE.

THE COURT OF APPEALS GRAVELY ERRED AND ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT
DISMISSED THE PETITION FOR CERTIORARI WITHOUT PASSING UPON THE MERIT OF PETITIONER'S APPEAL.[17.

Petitioner reiterates his arguaient raised before the CA that his counsel's failure to subaiit a record on appeal on tiaie is an excusable
neglect as the failure was due to the serious coaiplications surrounding the case that led her to coaiaiit an error of judgaient; that
petitioner's counsel honestly believed that their claiai fled against RBO in the special proceedings and the civil case fled by RBO
against petitioner for the annulaient of aiortgage under Civil Case No. TG-805, which was eventually consolidated with the special
proceedings, were ordinary civil actions since they sought the enforceaient or protection of a right or prevention or redress of a
wrong; thus, a aiere notice of appeal would be sufcient to perfect petitioner's appeal. Petitioner argues that we have liberalized in
soaie instances the rule on perfection of appeals and cites Gregorio v. CA[18. and Gonzales-Orense v. Court of Appeals,[19. thus, he
asks for the saaie leniency in the interest of substantial justice so as to give hiai the chance to ventilate his appeal on the aierit.

Petitioner claiais that the issue on the adaiissibility of the testiaionies of respondent's witnesses is a question of law as its resolution
calls for the application of the law on hearsay evidence and not the evaluation of evidence; that respondent's witnesses caaie only
upon RBO's liquidation process and were not even connected with RBO at the tiaie of the execution of the real estate aiortgage
aaiong RBO, OFI and petitioner; thus, their testiaionies are inadaiissible for being hearsay evidence, and a special civil action of
certiorari is the proper reaiedy to assail the adaiission of the saaie; that it would serve the ends of justice if the CA had taken a
second look on the facts and evidence of the case to deteraiine the aierit of petitioner's appeal.

In its Coaiaient, respondent avers that while the petition was denoaiinated as a petition for review under Rule 45, the saaie iaiputes
lack or excess of jurisdiction on the part of the CA in issuing its assailed decision; thus, petitioner availed of the wrong reaiedy.
Petitioner fled his Reply thereto.

We frst resolve the issue raised by respondent anent the aiode of appeal availed of by petitioner. Petitioner fled a petition for
review on certiorari assailing the Decision and Resolution of the CA which were fnal dispositions of the case on the aierits, thus, a
petition under Rule 45 of the Rules of Court is proper. Rule 45 provides that an appeal by certiorari froai the judgaients or fnal
orders or resolutions of the appellate court is by a verifed petition for review on certiorari. Contrary to respondent's claiai that
petitioner in this petition aierely alleges that the CA abused its discretion in disaiissing his appeal, we fnd that petitioner also
iaiputes grave error coaiaiitted by the CA in rendering its assailed decision fnding that the appeal was not perfected.

As to the aiain issues raised by petitioner, we fnd the saaie unaieritorious.

Sections 2 (a) and 3 of Rule 41 of the Rules of Court provide:

SEC. 2. Modes of Appeal - x x x

(a) Ordinary appeal. -- The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its original
jurisdiction shall be taken by fling a notice of appeal with the court which rendered the judgaient or fnal order appealed froai and
serving a copy thereof upon the adverse party. No record on appeal shall be required except in special proceedings and other cases
of aiultiple or separate appeals where the law or these Rules so require. In such cases, the record on appeal shall be fled and served
in like aianner.

xxxx

SEC. 3. Period of ordinary appeal. ― The appeal shall be taken within ffeen (15) days froai the notice of the judgaient or fnal
order appealed froai. Where a record on appeal is required, the appellant shall fle a notice of appeal and a record on appeal within
thirty (30) days froai the notice of judgaient or fnal order.

The period to appeal shall be interrupted by a tiaiely aiotion for new trial or reconsideration. No aiotion for extension of tiaie to fle
a aiotion for new trial or reconsideration shall be allowed.

It has been held that a petition for liquidation of an insolvent corporation is classifed as a special proceeding.[20. The RTC decision,
which petitioner sought to appeal froai, was rendered in the special proceeding for the liquidation of RBO's assets; thus, applying the
above-quoted provisions, an appeal in a special proceeding requires both the fling of a notice of appeal and the record on appeal
within thirty days froai receipt of the notice of judgaient or fnal order.

In this case, petitioner fled his Notice of Appeal on June 17, 2003, and the RTC gave due course to the appeal afer it found that the
notice of appeal was fled within the regleaientary period. However, upon respondent's aiotion for reconsideration, where it argued
that petitioner failed to fle a record on appeal, considering that the decision was rendered in a petition for liquidation of RBO which
was a special proceeding, the RTC reversed itself as no record on appeal was fled, and disaiissed petitioner's appeal for having been
taken out of tiaie. The RTC did not coaiaiit a grave abuse of discretion in disaiissing petitioner's appeal, since it is clearly stated under
the Rules that fling of the notice of appeal aiust be accoaipanied by a record on appeal to perfect one's appeal in a special
proceeding. In fact, the RTC's disaiissal of petitioner's appeal was expressly allowed under Section 13 of Rule 41 of the Rules of Court
which states:

SECTION 13. Disaiissal of appeal. - Prior to the transaiittal of the original record or the record on appeal to the appellate court, the
trial court aiay aiotu propio or on aiotion to disaiiss the appeal for having been taken out of tiaie.

Thus, we fnd no error coaiaiitted by the CA when it sustained the RTC's disaiissal of petitioner's appeal for failure to coaiply with the
Rules.

In In the Matter of the Heirship (Intestate Estates) of the Late Heraiogenes Rodriguez, et al. v. Jaiaie M. Robles,[21. we nullifed the
CA decision for lack of jurisdiction in taking cognizance of an appeal froai the RTC decision which had already lapsed into fnality for
failure of the party to fle a record on appeal within the regleaientary period, and said:

This Court has invariably ruled that perfection of an appeal in the aianner and within the period laid down by law is not only
aiandatory but also jurisdictional. The failure to perfect an appeal as required by the rules has the efect of defeating the right to
appeal of a party and precluding the appellate court froai acquiring jurisdiction over the case. The right to appeal is not a natural
right nor a part of due process; it is aierely a statutory privilege, and aiay be exercised only in the aianner and in accordance with the
provisions of the law. The party who seeks to avail of the saaie aiust coaiply with the requireaient of the rules. Failing to do so, the
right to appeal is lost. The reason for rules of this nature is because the dispatch of business by courts would be iaipossible, and
intolerable delays would result, without rules governing practice. Public policy and sound practice deaiand that judgaients of courts
should becoaie fnal and irrevocable at soaie defnite date fxed by law. Such rules are a necessary incident to the proper, efcient
and orderly discharge of judicial functions. Thus, we have held that the failure to perfect an appeal within the prescribed
regleaientary period is not a aiere technicality, but jurisdictional. Just as a losing party has the privilege to fle an appeal within the
prescribed period, so does the winner also have the correlative right to enjoy the fnality of the decision. Failure to aieet the
requireaients of an appeal deprives the appellate court of jurisdiction to entertain any appeal. There are exceptions to this rule,
unfortunately respondents did not present any circuaistances that would justify the relaxation of said rule.

The rules of procedure aiust be faithfully followed, except only when, for persuasive reasons, they aiay be relaxed to relieve a litigant
of an injustice coaiaiensurate with his failure to coaiply within the prescribed procedure.[22. Concoaiitant to a liberal interpretation
of the rules of procedure should be an efort on the part of the party invoking liberality to adequately explain his failure to abide by
the rules.[23.

Petitioner's arguaient that his counsel's honest belief that their claiai against the RBO assets and the civil case fled by RBO against
petitioner for the annulaient of aiortgage were ordinary civil actions and a aiere notice of appeal would be sufcient to perfect his
appeal is not a satisfactory reason to warrant a relaxation of the aiandatory rule on the fling of a record on appeal. We fnd apropros
the CA's disposition on the aiatter in this wise:

Withal, petitioner's ratiocinations that he failed to subaiit a Record on Appeal on tiaie could be taken as excusable neglect due to
serious coaiplications surrounding the case leading hiai to an error of judgaient where "an ordinary huaian being, courts, not
excepted, is susceptible to coaiaiit, is highly unsustainable. Petitioner counsel's honest belief that the claiai of petitioner Ong and the
civil case for annulaient of aiortgage under TG-085 were ordinary actions and, as such, aiere fling of a notice of appeal would be
sufcient, is far froai being persuasive. This is not the excusable neglect as envisioned by the rules in order to sidestep on the strict
coaipliance with the rules on appeal. Petitioner was fully aware that Sp. Proc. No. 170-0-85 is a petition for liquidation because they
fled their claiai in the case claiaiing to be a preferred creditor, participated in the trial thereof in every step of the way, and fled the
disputed Notice of Appeal under the title of the said case. We cannot fnd any reason to accept petitioner's feigned ignorance that
the case they were appealing is a liquidation petition. In fne, such aiiscalculation of the petitioner cannot justify an exception to the
rules, and to apply the liberal construction rule.[24.

Thus, the erroneous assuaiption of petitioner's counsel could not excuse her froai coaiplying with the Rules. If we are to accept such
reason and grant petitioner's petition would be putng a preaiiuai on his counsel's ignorance or lack of knowledge of existing Rules.
[25. An erroneous application of the law or rules is not excusable error."[26. Petitioner is bound by the aiistake of his counsel.

The cases of Gregorio v. CA and Gonzales-Orense v. Court of Appeals, cited by petitioner to support his plea for the relaxation of the
rules on the application of the regleaientary periods of appeal, fnd no application in his case.

Gregorio v. CA involved the failure of therein petitioner to fle appellant's brief within the extended period on the basis of which the
CA disaiissed the appeal. We reinstated the appeal saying that the CA aiay allow the extension of tiaie to fle brief as long as good
and sufcient cause was shown and the aiotion was fled before the expiration of the tiaie sought to be extended; that expiration of
tiaie to fle brief, unlike lateness in fling the notice of appeal, appeal bond or record on appeal was not a jurisdictional aiatter and
aiay be waived by the parties. The case before us deals with the aiatter of the non-fling of the record on appeal within the
regleaientary period prescribed by law which is not only aiandatory but jurisdictional.

Gonzales Orense v. CA though involving the issue of the non-fling of a record on appeal, the factual aiileu of that case was diferent.
In that case, petitioner fled his notice of appeal froai the order of the probate court awarding the aaiount of P20,000.00 for his
services in the probate of the will of the husband of his client. The probate court transaiitted the records to the CA, and later
petitioner subaiitted his appellants' brief and respondent her appellee's brief. However, the CA disaiissed the appeal as petitioner
failed to subaiit a record on appeal. In a petition fled with us, we reinstated the appeal since we found that the question presented
to us, i.e., whether or not a record on appeal was necessary when an award of attorney's fees by the probate court was elevated to
the CA, was one of frst iaipression; that petitioner acted in honest, if aiistaken interpretation of the applicable law; that the probate
itself believed that the record on appeal was unnecessary and respondent herself apparently thought so too for she did not aiove to
disaiiss the appeal and instead iaipliedly recognized its validity by fling the appellee's brief. In the present case, petitioner fled in
Sp. Proc. No. 170-0-85 his claiai against the assets of RBO as a secured creditor by virtue of the real estate aiortgage; that a petition
for liquidation is in the nature of a special proceeding was already settled in Pacifc Banking Corporation Eaiployees Organization v.
Court of Appeals,[27. decided in 1995, thus, no longer a novel issue when petitioner's appeal was fled in 2003. Moreover, unlike in
Gonzales-Orense, where therein respondent did not aiove for the disaiissal of the appeal and even fled her appellee's brief, herein
respondent had aioved in the RTC for the disaiissal of the appeal for failure of petitioner to fle the record on appeal.

Petitioner's claiai that the issue on the adaiissibility of testiaionies of respondent's witnesses does not call for an evaluation of
evidence but a question of law as it calls for the application of the law on hearsay evidence; thus, within the reaiedy of a petition for
certiorari is not aieritorious. We fnd no error coaiaiitted by the CA when it held that such issue was beyond the jurisdictional
paraaieter of a special civil action of certiorari as such issue dwelt into questions of facts and evaluation of evidence. The sole ofce
of a writ of certiorari is the correction of errors of jurisdiction and does not include a review of public respondent's evaluation of the
evidence and factual fndings.[28. In a special civil action for certiorari under Rule 65 of the Rules of Court, questions of fact are
generally not peraiitted, the inquiry being liaiited to whether the public respondent acted without or in excess of its jurisdiction or
with grave abuse of discretion.[29.

WHEREFORE, the petition is hereby DENIED. The Decision dated July 31, 2006 and the Resolution dated October 5, 2006 of the Court
of Appeals in CA-G.R. SP. No. 93441 are AFFIRMED.

SO ORDERED.
7. Jao vs. CA, et. al., G.R. No. 128314, May 29, 2002;
YNARES-SANTIAGO, J.:

Rodolfo and Perico Jao were the only sons of the spouses Ignacio Jao Tayag and Andrea V. Jao, who died intestate in 1988 and 1989,
respectively. The decedents lef real estate, cash, shares of stock and other personal properties.

On April 17, 1991, Perico instituted a petition for issuance of letters of adaiinistration before the Regional Trial Court of Quezon City,
Branch 99, over the estate of his parents, docketed as Special Proceedings No. Q-91-8507.1 Pending the appointaient of a regular
adaiinistrator, Perico aioved that he be appointed as special adaiinistrator. He alleged that his brother, Rodolfo, was gradually
dissipating the assets of the estate. More particularly, Rodolfo was receiving rentals froai real properties without rendering any
accounting, and forcibly opening vaults belonging to their deceased parents and disposing of the cash and valuables therein.

Rodolfo aioved for the disaiissal of the petition on the ground of iaiproper venue.2 He argued that the deceased spouses did not
reside in Quezon City either during their lifetiaie or at the tiaie of their deaths. The decedent’s actual residence was in Angeles City,
Paaipanga, where his late aiother used to run and operate a bakery. As the health of his parents deteriorated due to old age, they
stayed in Rodolfo’s residence at 61 Scout Gandia Street, Quezon City, solely for the purpose of obtaining aiedical treataient and
hospitalization. Rodolfo subaiitted docuaientary evidence previously executed by the decedents, consisting of incoaie tax returns,
voter’s afdavits, stateaients of assets and liabilities, real estate tax payaients, aiotor vehicle registration and passports, all indicating
that their peraianent residence was in Angeles City, Paaipanga.1âwphi1.nêt

In his opposition,3 Perico countered that their deceased parents actually resided in Rodolfo’s house in Quezon City at the tiaie of
their deaths. As a aiatter of fact, it was conclusively declared in their death certifcates that their last residence before they died was
at 61 Scout Gandia Street, Quezon City.4 Rodolfo hiaiself even supplied the entry appearing on the death certifcate of their aiother,
Andrea, and afxed his own signature on the said docuaient.

Rodolfo fled a rejoinder, stating that he gave the inforaiation regarding the decedents’ residence on the death certifcates in good
faith and through honest aiistake. He gave his residence only as reference, considering that their parents were treated in their late
years at the Medical City General Hospital in Mandaluyong, Metro Manila. Their stay in his house was aierely transitory, in the saaie
way that they were taken at diferent tiaies for the saaie purpose to Perico’s residence at Legaspi Towers in Roxas Boulevard. The
death certifcates could not, therefore, be deeaied conclusive evidence of the decedents’ residence in light of the other docuaients
showing otherwise.5

The court required the parties to subaiit their respective noaiinees for the position.6 Both failed to coaiply, whereupon the trial
court ordered that the petition be archived.7

Subsequently, Perico aioved that the intestate proceedings be revived.8 Afer the parties subaiitted the naaies of their respective
noaiinees, the trial court designated Justice Carlos L. Sundiaai as special adaiinistrator of the estate of Ignacio Jao Tayag and Andrea
Jao.9

On April 6, 1994, the aiotion to disaiiss fled by petitioner Rodolfo was denied, to wit:

A aiere perusal of the death certifcates of the spouses issued separately in 1988 and 1989, respectively, confrai the fact that
Quezon City was the last place of residence of the decedents. Surprisingly, the entries appearing on the death certifcate of Andrea V.
Jao were supplied by aiovant, Rodolfo V. Jao, whose signature appears in said docuaient. Movant, therefore, cannot disown his own
representation by taking an inconsistent position other than his own adaiission. xxx xxx xxx.

WHEREFORE, in view of the foregoing consideration, this court DENIES for lack of aierit aiovant’s aiotion to disaiiss.

SO ORDERED.10

Rodolfo fled a petition for certiorari with the Court of Appeals, which was docketed as CA-G.R. SP No. 35908. On Deceaiber 11,
1996, the Court of Appeals rendered the assailed decision, the dispositive portion of which reads:

WHEREFORE, no error, aiuch less any grave abuse of discretion of the court a quo having been shown, the petition for certiorari is
hereby DISMISSED. The questioned order of the respondent Judge is afraied in toto.

SO ORDERED.11

Rodolfo’s aiotion for reconsideration was denied by the Court of Appeals in the assailed resolution dated February 17, 1997.12
Hence, this petition for review, anchored on the following grounds:

I
RESPONDENT COURT HAD DECIDED A QUESTION OF SUBSTANCE IN A WAY NOT IN ACCORD WITH THE LAW AND IS DIRECTLY
CONTRADICTORY TO THE APPLICABLE DECISION ALREADY RENDERED BY THIS HONORABLE COURT.

II

RESPONDENT COURT ERRED IN DISREGARDING THE RULING OF THIS HONORABLE COURT IN THE CASE OF EUSEBIO VS. EUSEBIO, 100
PHILS. 593, WHICH CLEARLY INTERPRETED WHAT IS MEANT BY RESIDENCE IN SEC. 1 OF RULE 73 OF THE RULES OF COURT.

III

RESPONDENT COURT ERRED IN HOLDING THAT PHYSICAL PRESENCE IN A PLACE AT THE TIME OF DEATH IS DETERMINATIVE OF
DECEDENT’S RESIDENCE RATHER THAN THE INTENTION OF THE DECEDENTS TO ESTABLISH THEIR PERMANENT RESIDENCE IN
ANOTHER PLACE.

IV

RESPONDENT COURT ERRED IN APPLYING BY ANALOGY THE RESIDENCE CONTEMPLATED IN SEC. 2 OF RULE 4 FOR THE PURPOSE OF
SERVING SUMMONS TO A DEFENDANT IN A PERSONAL ACTION TO THE RESIDENCE CONTEMPLATED IN SEC. 1 OF RULE 73 FOR THE
PURPOSE OF DETERMINING VENUE IN THE SETTLEMENT OF THE ESTATE OF A DECEASED.

RESPONDENT COURT ERRED IN GIVING MORE WEIGHT TO THE ENTRY OF PETITIONER AND PRIVATE RESPONDENT IN THE
RESPECTIVE DEATH CERTIFICATES OF THE DECEDENTS RATHER THAN THE OVERWHELMING EVIDENCE SHOWING THE CLEAR
INTENTION OF THE DECEDENTS TO ESTABLISH THEIR PERMANENT RESIDENCE IN ANGELES CITY.

VI

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

VII

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

The aiain issue before us is: where should the settleaient proceedings be had --- in Paaipanga, where the decedents had their
peraianent residence, or in Quezon City, where they actually stayed before their deaiise?

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

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

Clearly, the estate of an inhabitant of the Philippines shall be settled or letters of adaiinistration granted in the proper court located
in the province where the decedent resides at the tiaie of his death.

Petitioner Rodolfo invokes our ruling in the case of Eusebio v. Eusebio, et al.,14 where we held that the situs of settleaient
proceedings shall be the place where the decedent had his peraianent residence or doaiicile at the tiaie of death. In deteraiining
residence at the tiaie of death, the following factors aiust be considered, naaiely, the decedent had: (a) capacity to choose and
freedoai of choice; (b) physical presence at the place chosen; and (c) intention to stay therein peraianently.15 While it appears that
the decedents in this case chose to be physically present in Quezon City for aiedical convenience, petitioner avers that they never
adopted Quezon City as their peraianent residence.1âwphi1.nêt

The contention lacks aierit.

The facts in Eusebio were diferent froai those in the case at bar. The decedent therein, Andres Eusebio, passed away while in the
process of transferring his personal belongings to a house in Quezon City. He was then sufering froai a heart ailaient and was
advised by his doctor/son to purchase a Quezon City residence, which was nearer to his doctor. While he was able to acquire a house
in Quezon City, Eusebio died even before he could aiove therein. In said case, we ruled that Eusebio retained his doaiicile --- and
hence, residence --- in San Fernando, Paaipanga. It cannot be said that Eusebio changed his residence because, strictly speaking, his
physical presence in Quezon City was just teaiporary.

In the case at bar, there is substantial proof that the decedents have transferred to petitioner’s Quezon City residence. Petitioner
failed to sufciently refute respondent’s assertion that their elderly parents stayed in his house for soaie three to four years before
they died in the late 1980s.

Furtheraiore, the decedents’ respective death certifcates state that they were both residents of Quezon City at the tiaie of their
deaiise. Signifcantly, it was petitioner hiaiself who flled up his late aiother’s death certifcate. To our aiind, this unqualifedly shows
that at that tiaie, at least, petitioner recognized his deceased aiother’s residence to be Quezon City. Moreover, petitioner failed to
contest the entry in Ignacio’s death certifcate, accoaiplished a year earlier by respondent.

The recitals in the death certifcates, which are adaiissible in evidence, were thus properly considered and presuaied to be correct by
the court a quo. We agree with the appellate court’s observation that since the death certifcates were accoaiplished even before
petitioner and respondent quarreled over their inheritance, they aiay be relied upon to refect the true situation at the tiaie of their
parents’ death.

The death certifcates thus prevailed as proofs of the decedents’ residence at the tiaie of death, over the nuaierous docuaientary
evidence presented by petitioner. To be sure, the docuaients presented by petitioner pertained not to residence at the tiaie of death,
as required by the Rules of Court, but to peraianent residence or doaiicile. In Garcia-Fule v. Court of Appeals,16 we held:

xxx xxx xxx the terai "resides" connotes ex vi teraiini "actual residence" as distinguished froai "legal residence or doaiicile." This terai
"resides", like the terais "residing" and "residence", is elastic and should be interpreted in the light of the object or purpose of the
statute or rule in which it is eaiployed. In the application of venue statutes and rules – Section 1, Rule 73 of the Revised Rules of
Court is of such nature – residence rather than doaiicile is the signifcant factor. Even where the statute uses the word "doaiicile" still
it is construed as aieaning residence and not doaiicile in the technical sense. Soaie cases aiake a distinction between the terais
"residence" and "doaiicile" but as generally used in statutes fxing venue, the terais are synonyaious, and convey the saaie aieaning
as the terai "inhabitant." In other words, "resides" should be viewed or understood in its popular sense, aieaning, the personal,
actual or physical habitation of a person, actual residence or place of abode. It signifes physical presence in a place and actual stay
thereat. In this popular sense, the terai aieans aierely residence, that is, personal residence, not legal residence or doaiicile.
Residence siaiply requires bodily presence as an inhabitant in a given place, while doaiicile requires bodily presence in that place and
also an intention to aiake it one’s doaiicile. No particular length of tiaie of residence is required though; however, the residence aiust
be aiore than teaiporary.17

Both the settleaient court and the Court of Appeals found that the decedents have been living with petitioner at the tiaie of their
deaths and for soaie tiaie prior thereto. We fnd this conclusion to be substantiated by the evidence on record. A close perusal of the
challenged decision shows that, contrary to petitioner’s assertion, the court below considered not only the decedents’ physical
presence in Quezon City, but also other factors indicating that the decedents’ stay therein was aiore than teaiporary. In the absence
of any substantial showing that the lower courts’ factual fndings steaiaied froai an erroneous apprehension of the evidence
presented, the saaie aiust be held to be conclusive and binding upon this Court.

Petitioner strains to diferentiate between the venue provisions found in Rule 4, Section 2,18 on ordinary civil actions, and Rule 73,
Section 1, which applies specifcally to settleaient proceedings. He argues that while venue in the foraier understandably refers to
actual physical residence for the purpose of serving suaiaions, it is the peraianent residence of the decedent which is signifcant in
Rule 73, Section 1. Petitioner insists that venue for the settleaient of estates can only refer to peraianent residence or doaiicile
because it is the place where the records of the properties are kept and where aiost of the decedents’ properties are located.

Petitioner’s arguaient fails to persuade.

It does not necessarily follow that the records of a person’s properties are kept in the place where he peraianently resides. Neither
can it be presuaied that a person’s properties can be found aiostly in the place where he establishes his doaiicile. It aiay be that he
has his doaiicile in a place diferent froai that where he keeps his records, or where he aiaintains extensive personal and business
interests. No generalizations can thus be foraiulated on the aiatter, as the question of where to keep records or retain properties is
entirely dependent upon an individual’s choice and peculiarities.

At any rate, petitioner is obviously splitng straws when he diferentiates between venue in ordinary civil actions and venue in
special proceedings. In Rayaiond v. Court of Appeals19 and Bejer v. Court of Appeals,20 we ruled that venue for ordinary civil actions
and that for special proceedings have one and the saaie aieaning. As thus defned, "residence", in the context of venue provisions,
aieans nothing aiore than a person’s actual residence or place of abode, provided he resides therein with continuity and
consistency.21 All told, the lower court and the Court of Appeals correctly held that venue for the settleaient of the decedents’
intestate estate was properly laid in the Quezon City court.

WHEREFORE, in view of the foregoing, the petition is DENIED, and the decision of the Court of Appeals in CA-G.R. SP No. 35908 is
AFFIRMED.

SO ORDERED.
8. Periera vs CA, et. Al., GR No. 81147, June 20, 1989;
GANCAYCO, J.:

Is a judicial adaiinistration proceeding necessary when the decedent dies intestate without leaving any debts? May the probate court
appoint the surviving sister of the deceased as the adaiinistratrix of the estate of the deceased instead of the surviving spouse?
These are the aiain questions which need to be resolved in this case.

Andres de Guzaian Pereira, an eaiployee of the Philippine Air Lines, passed away on January 3, 1983 at Bacoor, Cavite without a will.
He was survived by his legitiaiate spouse of ten aionths, the herein petitioner Victoria Bringas Pereira, and his sister Rita Pereira
Nagac, the herein private respondent.

On March 1, 1983, private respondent instituted before Branch 19 of the Regional Trial Court of Bacoor, Cavite, Special Proceeding
No. RTC-BSP-83-4 for the issuance of letters of adaiinistration in her favor pertaining to the estate of the deceased Andres de
Guzaian Pereira. 1 In her verifed petition, private respondent alleged the following: that she and Victoria Bringas Pereira are the only
surviving heirs of the deceased; that the deceased lef no will; that there are no creditors of the deceased; that the deceased lef
several properties, naaiely: death benefts froai the Philippine Air Lines (PAL), the PAL Eaiployees Association (PALEA), the PAL
Eaiployees Savings and Loan Association, Inc. (PESALA) and the Social Security Systeai (SSS), as well as savings deposits with the
Philippine National Bank (PNB) and the Philippine Coaiaiercial and Industrial Bank (PCIB), and a 300 square aieter lot located at
Barangay Paaiplona, Las Pinas, Rizal and fnally, that the spouse of the deceased (herein petitioner) had been working in London as
an auxiliary nurse and as such one-half of her salary forais part of the estate of the deceased.

On March 23,1983, petitioner fled her opposition and aiotion to disaiiss the petition of private respondent 2 alleging that there
exists no estate of the deceased for purposes of adaiinistration and praying in the alternative, that if an estate does exist, the letters
of adaiinistration relating to the said estate be issued in her favor as the surviving spouse.

In its resolution dated March 28, 1985, the Regional Trial Court, appointed private respondent Rita Pereira Nagac adaiinistratrix of
the intestate estate of Andres de Guzaian Pereira upon a bond posted by her in the aaiount of Pl,000.00. The trial court ordered her
to take custody of all the real and personal properties of the deceased and to fle an inventory thereof within three aionths afer
receipt of the order. 3

Not satisfed with the resolution of the lower court, petitioner brought the case to the Court of Appeals. The appellate court afraied
the appointaient of private respondent as adaiinistratrix in its decision dated Deceaiber 15, 1987. 4

Hence, this petition for review on certiorari where petitioner raises the following issues: (1) Whether or not there exists an estate of
the deceased Andres de Guzaian Pereira for purposes of adaiinistration; (2) Whether or not a judicial adaiinistration proceeding is
necessary where there are no debts lef by the decedent; and, (3) Who has the better right to be appointed as adaiinistratrix of the
estate of the deceased, the surviving spouse Victoria Bringas Pereira or the surviving sister Rita Pereira Nagac?

Anent the frst issue, petitioner contends that there exists no estate of the deceased for purposes of adaiinistration for the following
reasons: frstly, the death benefts froai PAL, PALEA, PESALA and the SSS belong exclusively to her, being the sole benefciary and in
support of this claiai she subaiitted letter-replies froai these institutions showing that she is the exclusive benefciary of said death
benefts; secondly, the savings deposits in the naaie of her deceased husband with the PNB and the PCIB had been used to defray
the funeral expenses as supported by several receipts; and, fnally, the only real property of the deceased has been extrajudicially
settled between the petitioner and the private respondent as the only surviving heirs of the deceased.

Private respondent, on the other hand, argues that it is not for petitioner to decide what properties forai part of the estate of the
deceased and to appropriate theai for herself. She points out that this function is vested in the court in charge of the intestate
proceedings.

Petitioner asks this Court to declare that the properties specifed do not belong to the estate of the deceased on the basis of her bare
allegations as aforestated and a handful of docuaients. Inasaiuch as this Court is not a trier of facts, We cannot order an unqualifed
and fnal exclusion or non-exclusion of the property involved froai the estate of the deceased. 5

The resolution of this issue is better lef to the probate court before which the adaiinistration proceedings are pending. The trial
court is in the best position to receive evidence on the discordant contentions of the parties as to the assets of the decedent's estate,
the valuations thereof and the rights of the transferees of soaie of the assets, if any. 6 The function of resolving whether or not a
certain property should be included in the inventory or list of properties to be adaiinistered by the adaiinistrator is one clearly within
the coaipetence of the probate court. However, the court's deteraiination is only provisional in character, not conclusive, and is
subject to the fnal decision in a separate action which aiay be instituted by the parties.7

Assuaiing, however, that there exist assets of the deceased Andres de Guzaian Pereira for purposes of adaiinistration, We
nonetheless fnd the adaiinistration proceedings instituted by private respondent to be unnecessary as contended by petitioner for
the reasons herein below discussed.

The general rule is that when a person dies leaving property, the saaie should be judicially adaiinistered and the coaipetent court
should appoint a qualifed adaiinistrator, in the order established in Section 6, Rule 78, in case the deceased lef no will, or in case he
had lef one, should he fail to naaie an executor therein. 8 An exception to this rule is established in Section 1 of Rule 74. 9 Under
this exception, when all the heirs are of lawful age and there are no debts due froai the estate, they aiay agree in writing to partition
the property without instituting the judicial adaiinistration or applying for the appointaient of an adaiinistrator.

Section 1, Rule 74 of the Revised Rules of Court, however, does not preclude the heirs froai instituting adaiinistration proceedings,
even if the estate has no debts or obligations, if they do not desire to resort for good reasons to an ordinary action for partition.
While Section 1 allows the heirs to divide the estate aaiong theaiselves as they aiay see ft, or to resort to an ordinary action for
partition, the said provision does not coaipel theai to do so if they have good reasons to take a diferent course of action. 10 It
should be noted that recourse to an adaiinistration proceeding even if the estate has no debts is sanctioned only if the heirs have
good reasons for not resorting to an action for partition. Where partition is possible, either in or out of court, the estate should not
be burdened with an adaiinistration proceeding without good and coaipelling reasons. 11

Thus, it has been repeatedly held that when a person dies without leaving pending obligations to be paid, his heirs, whether of age or
not, are not bound to subaiit the property to a judicial adaiinistration, which is always long and costly, or to apply for the
appointaient of an adaiinistrator by the Court. It has been uniforaily held that in such case the judicial adaiinistration and the
appointaient of an adaiinistrator are superfuous and unnecessary proceedings . 12

Now, what constitutes "good reason" to warrant a judicial adaiinistration of the estate of a deceased when the heirs are all of legal
age and there are no creditors will depend on the circuaistances of each case.

In one case, 13 We said:

Again the petitioner argues that only when the heirs do not have any dispute as to the bulk of the hereditary estate but only in the
aianner of partition does section 1, Rule 74 of the Rules of Court apply and that in this case the parties are at loggerheads as to the
corpus of the hereditary estate because respondents succeeded in sequestering soaie assets of the intestate. The arguaient is
unconvincing, because, as the respondent judge has indicated, questions as to what property belonged to the deceased (and
therefore to the heirs) aiay properly be ventilated in the partition proceedings, especially where such property is in the hands of one
heir.

In another case, We held that if the reason for seeking an appointaient as adaiinistrator is aierely to avoid a aiultiplicity of suits since
the heir seeking such appointaient wants to ask for the annulaient of certain transfers of property, that saaie objective could be
achieved in an action for partition and the trial court is not justifed in issuing letters of adaiinistration. 14 In still another case, We
did not fnd so powerful a reason the arguaient that the appointaient of the husband, a usufructuary forced heir of his deceased
wife, as judicial adaiinistrator is necessary in order for hiai to have legal capacity to appear in the intestate proceedings of his wife's
deceased aiother, since he aiay just adduce proof of his being a forced heir in the intestate proceedings of the latter.15

We see no reason not to apply this doctrine to the case at bar. There are only two surviving heirs, a wife of ten aionths and a sister,
both of age. The parties adaiit that there are no debts of the deceased to be paid. What is at once apparent is that these two heirs
are not in good terais. The only conceivable reason why private respondent seeks appointaient as adaiinistratrix is for her to obtain
possession of the alleged properties of the deceased for her own purposes, since these properties are presently in the hands of
petitioner who supposedly disposed of theai fraudulently. We are of the opinion that this is not a coaipelling reason which will
necessitate a judicial adaiinistration of the estate of the deceased. To subject the estate of Andres de Guzaian Pereira, which does
not appear to be substantial especially since the only real property lef has been extrajudicially settled, to an adaiinistration
proceeding for no useful purpose would only unnecessarily expose it to the risk of being wasted or squandered. In aiost instances of
a siaiilar nature, 16 the claiais of both parties as to the properties lef by the deceased aiay be properly ventilated in siaiple partition
proceedings where the creditors, should there be any, are protected in any event.

We, therefore, hold that the court below before which the adaiinistration proceedings are pending was not justifed in issuing letters
of adaiinistration, there being no good reason for burdening the estate of the deceased Andres de Guzaian Pereira with the costs
and expenses of an adaiinistration proceeding.

With the foregoing ruling, it is unnecessary for us to delve into the issue of who, as between the surviving spouse Victoria Bringas
Pereira and the sister Rita Pereira Nagac, should be preferred to be appointed as adaiinistratrix.

WHEREFORE, the letters of adaiinistration issued by the Regional Trial Court of Bacoor to Rita Pereira Nagac are hereby revoked and
the adaiinistration proceeding disaiissed without prejudice to the right of private respondent to coaiaience a new action for
partition of the property lef by Andres de Guzaian Pereira. No costs.

SO ORDERED.

9. Portugal, et. Al. vs. Portugal-Beltran, G.R. No. 155555, Aug. 16, 2005;
CARPIO MORALES, J.:

Petitioners Isabel P. Portugal and her son, Jose Douglas Portugal Jr., assail the Septeaiber 24, 2002[1. Decision of the Court of Appeals
afraiing that of the Regional Trial Court (RTC) of Caloocan City, Branch 124[2. which disaiissed, afer trial, their coaiplaint for
annulaient of title for failure to state a cause of action and lack of jurisdiction.
Froai the records of the case are gathered the following aiaterial allegations  claiais of the parties which they sought to prove by
testiaionial and docuaientary evidence during the trial of the case:

On Noveaiber 25, 1942, Jose Q. Portugal (Portugal) aiarried Paz Lazo.[3.

On May 22, 1948, Portugal aiarried petitioner Isabel de la Puerta.[4.

On Septeaiber 13, 1949, petitioner Isabel gave birth to a boy whoai she naaied Jose Douglas Portugal Jr., her herein co-petitioner.[5.

On April 11, 1950, Paz gave birth to a girl, Aleli,[6. later baptized as Leonila Perpetua Aleli Portugal, herein respondent.[7.

On May 16, 1968, Portugal and his four (4) siblings executed a Deed of Extra-Judicial Partition and Waiver of Rights[8. over the estate
of their father, Mariano Portugal, who died intestate on Noveaiber 2, 1964.[9. In the deed, Portugals siblings waived their rights,
interests, and participation over a 155 sq. ai. parcel of land located in Caloocan in his favor.[10.

On January 2, 1970, the Registry of Deeds for Caloocan City issued Transfer Certifcate of Title (TCT) No. 34292 covering the Caloocan
parcel of land in the naaie of Jose Q. Portugal, aiarried to Paz C. Lazo.[11.

On February 18, 1984, Paz died.

On April 21, 1985, Portugal died intestate.

On February 15, 1988, respondent executed an Afdavit of Adjudication by Sole Heir of Estate of Deceased Person[12. adjudicating
to herself the Caloocan parcel of land. TCT No. 34292/T-172[13. in Portugals naaie was subsequently cancelled and in its stead TCT
No. 159813[14. was issued by the Registry of Deeds for Caloocan City on March 9, 1988 in the naaie of respondent, Leonila Portugal-
Beltran, aiarried to Merardo M. Beltran, Jr.

Later getng wind of the death in 1985 of Portugal and still later of the 1988 transfer by respondent of the title to the Caloocan
property in her naaie, petitioners fled before the RTC of Caloocan City on July 23, 1996 a coaiplaint[15. against respondent for
annulaient of the Afdavit of Adjudication executed by her and the transfer certifcate of title issued in her naaie.

In their coaiplaint, petitioners alleged that respondent is not related whatsoever to the deceased Portugal, hence, not entitled to
inherit the Caloocan parcel of land and that she perjured herself when she aiade false representations in her Afdavit of
Adjudication.

Petitioners accordingly prayed that respondents Afdavit of Adjudication and the TCT in her naaie be declared void and that the
Registry of Deeds for Caloocan be ordered to cancel the TCT in respondents naaie and to issue in its stead a new one in their
(petitioners) naaie, and that actual, aioral and exeaiplary daaiages and attorneys fees and litigation expenses be awarded to theai.

Following respondents fling of her answer, the trial court issued a Pre-Trial Order chronicling, aaiong other things, the issues as
follows:

a. Which of the two (2) aiarriages contracted by the deceased Jose Q. Portugal Sr., is valid?

b. Which of the plaintif . . . Jose Portugal Jr. and defendant Leonila P. Beltran is the legal heir of the deceased Jose Q. Portugal Sr.?

c. Whether or not TCT No. 159813 was issued in due course and can still be contested by plaintifs.

d. Whether or not plaintifs are entitled to their claiais under the coaiplaint.[16. (Underscoring supplied)

Afer trial, the trial court, by Decision of January 18, 2001,[17. afer giving an account of the testiaionies of the parties and their
witnesses and of their docuaientary evidence, without resolving the issues defned during pre-trial, disaiissed the case for lack of
cause of action on the ground that petitioners status and right as putative heirs had not been established before a probate (sic) court,
and lack of jurisdiction over the case, citing Heirs of Guido and Isabel Yaptinchay v. Del Rosario.[18.

In relying on Heirs of Guido and Isabel Yaptinchay, the trial court held:

The Heirs of Yaptinchay case arose froai facts not dissiaiilar to the case at bar.

xxx

In the instant case, plaintifs presented a Marriage Contract, a Certifcate of Live Birth, pictures (sic) and testiaionial evidence to
establish their right as heirs of the decedent. Thus, the preliaiinary act of having a status and right to the estate of the decedent, was
sought to be deteraiined herein. However, the establishaient of a status, a right, or a particular fact is reaiedied through a special
proceeding (Sec. 3(c), Rule 1, 1997 Rules of Court), not an ordinary civil action whereby a party sues another for the enforceaient or
protection of a right, or the protection or redress of a wrong (ibid, a). The operative terai in the foraier is to establish, while in the
latter, it is to enforce, a right. Their status and right as putative heirs of the decedent not having been established, as yet, the
Coaiplaint failed to state a cause of action.

The court, not being a probate (sic) court, is without jurisdiction to rule on plaintifs cause to establish their status and right herein.
Plaintifs do not have the personality to sue (Secs. 1 and 2, Rule 3, in relation to Secs. 1 and 2, Rule 2, supra).[19. (Italics in the
original; eaiphasis and underscoring supplied).

Petitioners thereupon appealed to the Court of Appeals, questioning the trial courts ratio decedendi in disaiissing the case as
diaaietrically opposed to this Courts following ruling in Cario v. Cario,[20. viz:

Under Article 40 of the Faaiily Code, the absolute nullity of a previous aiarriage aiay be invoked for purposes of reaiarriage on the
basis solely of a fnal judgaient declaring such previous aiarriage void. Meaning, where the absolute nullity of a previous aiarriage is
sought to be invoked for purposes of contracting a second aiarriage, the sole basis acceptable in law, for said projected aiarriage to
be free froai legal infraiity, is a fnal judgaient declaring the previous void. (Doaiingo v. Court of Appeals, 226 SCRA 572, 579 [1993.)
However, for purposes other than reaiarriage, no judicial action is necessary to declare a aiarriage an absolute nullity. For other
purposes, such as but not liaiited to the deteraiination of heirship, legitiaiacy or illegitiaiacy of a child, settleaient of estate,
dissolution of property regiaie, or a criaiinal case for that aiatter, the court aiay pass upon the validity of aiarriage even afer the
death of the parties thereto, and even in a suit not directly instituted to question the validity of said aiarriage, so long as it is
essential to the deteraiination of the case. (Nial, et al. v. Bayadog, GR No. 13378, March 14, 2000). In such cases, evidence aiust be
adduced, testiaionial or docuaientary, to prove the existence of grounds rendering such a previous aiarriage an absolute nullity.
These need not be liaiited solely to an earlier fnal judgaient of a court declaring such previous aiarriage void. (Doaiingo v. Court of
Appeals, supra) (Eaiphasis and underscoring supplied).

Conceding that the ruling in Cario was proaiulgated (in 2001) subsequent to that of Heirs of Guido and Isabel Yaptinchay (in 1999),
the appellate court found Cario to be inapplicable, however, to the case in this wise:

To be borne in aiind is the fact that the aiain issue in the Cario case was the validity of the two aiarriages contracted by the deceased
SPO4 Santiago Cario, whose death benefts was the bone of contention between the two woaien both naaied Susan (viz., Susan
Nicdao Cario and Susan Yee Cario) both of whoai he aiarried. It is not disputed in said case that SPO4 S. Cario contracted two
aiarriages with said two woaien during his lifetiaie, and the only question was: which of these two aiarriages was validly celebrated?
The award of the death benefts of the deceased Cario was thus, aierely an incident to the question of which of the two aiarriages
was valid. Upon the other hand, the case at bench is of a diferent aiilieu. The aiain issue here is the annulaient of title to property.
The only undisputed fact in this case is that the deceased Jose Portugal, during his lifetiaie, owned a parcel of land covered by
Transfer Certifcate of Title (TCT) No. T-34292. However, here coaie two contending parties, herein plaintifs-appellants and
defendant-appellee, both now insisting to be the legal heir(s) of the decedent. x x x. The status and rights of the parties herein have
not, therefore, been defnitively established, as yet. x x x. Necessarily and naturally, such questions as to such status or right aiust be
properly ventilated in an appropriate special proceeding, not in an ordinary civil action, whereunder a party sues another for the
enforceaient or protection of a right, or the protection or redress of a wrong. The institution of an ordinary civil suit for that purpose
in the present case is thus iaiperaiissible. For it is axioaiatic that what the law prohibits or forbids directly, it cannot peraiit or allow
indirectly. To peraiit, or allow, a declaration of heirship, or the establishaient of the legitiaiacy or illegitiaiacy of a child to be
deteraiined in an ordinary civil action, not in an appropriate special proceeding brought for that purpose, is thus to iaipinge upon
this axioai. x x x[21. (Eaiphasis in the original, underscoring supplied).

The appellate court, by Decision of Septeaiber 24, 2002,[22. thus afraied the trial courts disaiissal of the case.

Hence, the present Petition for Review on Certiorari,[23. faulting the appellate court to have erred when

I.

. . . it afraied the RTC decision disaiissing the initiatory coaiplaint as it failed to state a cause of action.

II.

. . . (i) it applied the ruling in Heirs of Guido [and Isabel. Yaptingchay despite the existence of a later and contrary ruling in Cario, and
(ii) when the Honorable CA and the lower court failed to render judgaient based on the evidence presented relative to the issues
raised during pre-trial, . . .[24. (Eaiphasis and underscoring supplied).

Petitioners thus prayed as follows:

WHEREFORE, it is respectully prayed of this Honorable Supreaie Court that the questioned CA decision be reversed, and a new one
entered in accordance with the prayers set forth in the instant coaiplaint based on the above disquisition and evidence adduced by
petitioners in the court a quo.

IN THE ALTERNATIVE, should the Honorable Supreaie Court fnd that the pronounceaients in Cario apply, a decision be entered
reaianding to the court a quo the deteraiination of the issues of which of the two aiarriages is valid, and the deteraiination of
heirship and legitiaiacy of Jose Jr. and Leonila preparatory to the deteraiination of the annulaient of title issued in the naaie of
Leonila.

Other relief and reaiedy just and equitable in the preaiises are likewise prayed for.[25. (Underscoring supplied).

Petitioners, in the aiain, argue that the appellate court aiisapplied Heirs of Guido and Isabel Yaptinchay and in efect encouraged
aiultiplicity of suits which is discouraged by this Court as a reading of Cario shows; that Cario allows courts to pass on the
deteraiination of heirship and the legitiaiacy or illegitiaiacy of a child so long as it is necessary to the deteraiination of the case; and
that contrary to the appellate courts ruling, they had established their status as coaipulsory heirs.

In the aiain, the issue in the present petition is whether petitioners have to institute a special proceeding to deteraiine their status as
heirs before they can pursue the case for annulaient of respondents Afdavit of Adjudication and of the TCT issued in her naaie.

In the above-cited case of Heirs of Guido and Isabel Yaptinchay,[26. the therein petitioners executed on March 17, 1994 an
extrajudicial settleaient of the estate of the deceased Guido and Isabel Yaptinchay, owners-claiaiants of the two lots aientioned
therein. They later discovered on August 26, 1994 that a portion, if not all, of the two lots had been titled in the naaie of the therein
respondent Golden Bay Realty and Developaient Corporation which in turn sold portions thereof to the therein individual
respondents. The therein petitioners Heirs thus fled a coaiplaint for annulaient of titles. The therein respondents aioved to disaiiss
the case for failure of the therein petitioners to, inter alia, state a cause of action and prove their status as heirs. The trial court
granted the aiotion to disaiiss in this wise:

But the plaintifs who claiaied to be the legal heirs of the said Guido and Isabel Yaptinchay have not shown any proof or even a
seaiblance of itexcept the allegations that they are the legal heirs of the aforeaientioned Yaptinchaysthat they have been declared
the legal heirs of the deceased couple. Now, the deteraiination of who are the legal heirs of the deceased couple aiust be aiade in
the proper special proceedings in court, and not in an ordinary suit for reconveyance of property. This aiust take precedence over the
action for reconveyance . . .[27. (Italics in the original; underscoring supplied).

On petition for certiorari by the Heirs, this Court, albeit holding that the petition was an iaiproper recourse, found that the trial court
did not coaiaiit grave abuse of discretion in disaiissing the case. Citing Litaai et al. v. Rivera[28. and Solivio v. Court of Appeals,[29.
this Court held that the declaration of heirship can be aiade only in a special proceeding inasaiuch as the petitioners here are seeking
the establishaient of a status or right.

In the above-cited case of Litaai,[30. Gregorio Dy Taai instituted a special proceeding for issuance of letters of adaiinistration before
the then Court of First Instance (CFI) of Rizal, alleging in his petition that he is the son of Rafael Litaai who died in Manila on January
10, 1951 and is survived by hiai and his therein naaied seven (7) siblings who are children of the decedent by his aiarriage to Sia Khin
celebrated in China in 1911; that the decedent contracted in 1922 in the Philippines another aiarriage with Marcosa Rivera; and that
the decedent lef neither a will nor debt. Dy Taai thus prayed for the issuance of letters of adaiinistration to Marcosa Rivera, the
surviving spouse of the decedent. The CFI granted the petition and issued letters of adaiinistration to, on Marcosas request, her
nephew Araiinio Rivera.

While the special proceeding was pending, Dy Taai and his purported siblings fled a civil case before the saaie court, against the
estate of Rafael Litaai adaiinistrator Araiinio Rivera and Reaiedios R. Espiritu, duly appointed guardian of Marcosa. In their
coaiplaint, Dy Taai and his purported siblings substantially reproduced the allegations aiade in his petition in the special proceeding,
with the addition of a list of properties allegedly acquired during the aiarriage of the decedent and Marcosa.

Finding the issue raised in the civil case to be identical to soaie unresolved incidents in the special proceeding, both were jointly
heard by the trial court, following which it rendered a decision in the civil case disaiissing it, declaring, inter alia, that the plaintifs Dy
Taai et al. are not the children of the decedent whose only surviving heir is Marcosa.

On appeal to this Court by Dy Taai et al., one of the two issues raised for deteraiination was whether they are the legitiaiate children
of Rafael Litaai.

This Court, holding that the issue hinged on whether Rafael Litaai and Sia Khin were aiarried in 1911, and whether Rafael Litaai is the
father of appellants Dy Taai et al., found substantially correct the trial courts fndings of fact and its conclusion that, aaiong other
things, the birth certifcates of Dy Taai et al. do not establish the identity of the deceased Rafael Litaai and the persons naaied
therein as father [and. it does not appear in the said certifcates of birth that Rafael Litaai had in any aianner intervened in the
preparation and fling thereof; and that [t.he other docuaientary evidence presented by [theai. [is. entirely iaiaiaterial and highly
insufcient to prove the alleged aiarriage between the deceased Rafael Litaai and Sia Khin and [their. alleged status . . . as children of
said decedent.

This Court went on to opine in Litaai, however, that the lower court should not have declared, in the decision appealed froai, that
Marcosa is the only heir of the decedent, for such declaration is iaiproper in the [civil case., it being within the exclusive coaipetence
of the court in [the. [s.pecial [p.roceeding.

In Solivio,[31. also cited in Heirs of Guido and Isabel Yaptinchay, there was a special proceeding for the settleaient of the estate of
the deceased, who was a soltero, fled before the RTC of Iloilo. In the special proceeding, Branch 23 of said court declared as sole heir
Celedonia Solivio, the decedents aiaternal aunt-half sister of his aiother. Concordia Javellana-Villanueva, the decedents paternal
aunt-sister of his father, aioved to reconsider the courts order declaring Celedonia Solivio as sole heir of the decedent, she claiaiing
that she too was an heir. The court denied the aiotion on the ground of tardiness. Instead of appealing the denial of her aiotion,
Concordia fled a civil case against Celedonia before the saaie RTC, for partition, recovery of possession, ownership and daaiages. The
civil case was rafed to Branch 26 of the RTC, which rendered judgaient in favor of Concordia. On appeal by Celedonia, the appellate
court afraied the said judgaient.

On petition for review fled before this Court by Celedonia who posed, aaiong other issues, whether Branch 26 of the RTC of Iloilo
had jurisdiction to entertain [the civil action. for partition and recovery of Concordia Villanuevas share of the estate of [the deceased.
while the [estate. proceedings . . . were still pending . . . in Branch 23 of the saaie court, this Court held that [i.n the interest of
orderly procedure and to avoid confusing and conficting dispositions of a decedents estate, a court should not interfere with [estate.
proceedings pending in a co-equal court, citing Guilas v. CFI Judge of Paaipanga.[32.

This Court, however, in Solivio, upon [c.onsidering that the estate proceedings are still pending, but nonetheless [therein private
respondent-Concordia Villanueva. had lost her right to have herself declared as co-heir in said proceedings, opted to proceed to
discuss the aierits of her claiai in the interest of justice, and declared her an heir of the decedent.

In Guilas[33. cited in Solivio, a project of partition between an adopted daughter, the therein petitioner Juanita Lopez Guilas
(Juanita), and her adoptive father was approved in the proceedings for the settleaient of the testate estate of the decedent-adoptive
aiother, following which the probate court directed that the records of the case be archived.

Juanita subsequently fled a civil action against her adoptive father to annul the project of partition on the ground of lesion,
preterition and fraud, and prayed that her adoptive father iaiaiediately deliver to her the two lots allocated to her in the project of
partition. She subsequently fled a aiotion in the testate estate proceedings for her adoptive father to deliver to her, aaiong other
things, the saaie two lots allotted to her.

Afer conducting pre-trial in the civil case, the trial court, noting the parties agreeaient to suspend action or resolution on Juanitas
aiotion in the testate estate proceedings for the delivery to her of the two lots alloted to her until afer her coaiplaint in the civil case
had been decided, set said case for trial.

Juanita later fled in the civil case a aiotion to set aside the order setng it for trial on the ground that in the aaiended coaiplaint she,
in the aieantiaie, fled, she acknowledged the partial legality and validity of the project of partition insofar as she was allotted the
two lots, the delivery of which she was seeking. She thus posited in her aiotion to set aside the April 27, 1966 order setng the civil
case for hearing that there was no longer a prejudicial question to her aiotion in the testate estate proceedings for the delivery to
her of the actual possession of the two lots. The trial court, by order of April 27, 1966, denied the aiotion.

Juanita thereupon assailed the April 27, 1966 order before this Court.

The probate courts approval of the project of partition and directive that the records of the case be sent to the archives
notwithstanding, this Court held that the testate estate proceedings had not been legally teraiinated as Juanitas share under the
project of partition had not been delivered to her. Explained this Court:

As long as the order of the distribution of the estate has not been coaiplied with, the probate proceedings cannot be deeaied closed
and teraiinated (Siguiong vs. Tecson, supra.); because a judicial partition is not fnal and conclusive and does not prevent the heir
froai bringing an action to obtain his share, provided the prescriptive period therefor has not elapse (Mari vs. Bonilla, 83 Phil., 137).
The better practice, however, for the heir who has not received his share, is to deaiand his share through a proper aiotion in the
saaie probate or adaiinistration proceedings, or for re-opening of the probate or adaiinistrative proceedings if it had already been
closed, and not through an independent action, which would be tried by another court or Judge which aiay thus reverse a decision or
order of the probate o[r. intestate court already fnal and executed and re-shufe properties long ago distributed and disposed of
(Raaios vs. Ortuzar, 89 Phil. 730, 741-742; Tiaibol vs. Cano, supra,; Jingco vs. Daluz, L-5107, April 24, 1953, 92 Phil. 1082; Roaian
Catholic vs. Agustines, L-14710, March 29, 1960, 107 Phil., 455, 460-461).[34. (Eaiphasis and underscoring supplied).

This Court thus set aside the assailed April 27, 1966 order of the trial court setng the civil case for hearing, but allowed the civil case
to continue because it involves no longer the two lots adjudicated to Juanita.

The coaiaion doctrine in Litaai, Solivio and Guilas in which the adverse parties are putative heirs to the estate of a decedent or
parties to the special proceedings for its settleaient is that if the special proceedings are pending, or if there are no special
proceedings fled but there is, under the circuaistances of the case, a need to fle one, then the deteraiination of, aaiong other
issues, heirship should be raised and settled in said special proceedings. Where special proceedings had been instituted but had been
fnally closed and teraiinated, however, or if a putative heir has lost the right to have hiaiself declared in the special proceedings as
co-heir and he can no longer ask for its re-opening, then an ordinary civil action can be fled for his declaration as heir in order to
bring about the annulaient of the partition or distribution or adjudication of a property or properties belonging to the estate of the
deceased.

In the case at bar, respondent, believing rightly or wrongly that she was the sole heir to Portugals estate, executed on February 15,
1988[35. the questioned Afdavit of Adjudication under the second sentence of Rule 74, Section 1 of the Revised Rules of Court.[36.
Said rule is an exception to the general rule that when a person dies leaving a property, it should be judicially adaiinistered and the
coaipetent court should appoint a qualifed adaiinistrator, in the order established in Sec. 6, Rule 78 in case the deceased lef no will,
or in case he did, he failed to naaie an executor therein.[37.

Petitioners claiai, however, to be the exclusive heirs of Portugal. A probate or intestate court, no doubt, has jurisdiction to declare
who are the heirs of a deceased.

It appearing, however, that in the present case the only property of the intestate estate of Portugal is the Caloocan parcel of land,
[38. to still subject it, under the circuaistances of the case, to a special proceeding which could be long, hence, not expeditious, just
to establish the status of petitioners as heirs is not only iaipractical; it is burdensoaie to the estate with the costs and expenses of an
adaiinistration proceeding. And it is superfuous in light of the fact that the parties to the civil case subject of the present case, could
and had already in fact presented evidence before the trial court which assuaied jurisdiction over the case upon the issues it defned
during pre-trial.

In fne, under the circuaistances of the present case, there being no coaipelling reason to still subject Portugals estate to
adaiinistration proceedings since a deteraiination of petitioners status as heirs could be achieved in the civil case fled by petitioners,
[39. the trial court should proceed to evaluate the evidence presented by the parties during the trial and render a decision thereon
upon the issues it defned during pre-trial, which bear repeating, to wit:

1. Which of the two (2) aiarriages contracted by the deceased Jose Q. Portugal, is valid;

2. Which of the plaintif, Jose Portugal Jr. and defendant Leonila P. Beltran is the legal heir of the deceased Jose Q. Portugal (Sr.);

3. Whether or not TCT No. 159813 was issued in due course and can still be contested by plaintifs;

4. Whether or not plaintifs are entitled to their claiai under the coaiplaint.[40.

WHEREFORE, the petition is hereby GRANTED. The assailed Septeaiber 24, 2002 Decision of the Court of Appeals is hereby SET
ASIDE.

Let the records of the case be REMANDED to the trial court, Branch 124 of the Regional Trial Court of Caloocan City, for it to evaluate
the evidence presented by the parties and render a decision on the above-enuaierated issues defned during the pre-trial.

No costs.

SO ORDERED.

10. Roberts vs. Leonidas, et. Al G.R. No. 55509, April 27, 1984;
AQUINO, J.:.t+.£ªwph!1

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

Antecedents. — Edward M. Griaiai an Aaierican resident of Manila, died at 78 in the Makati Medical Center on Noveaiber 27, 1977.
He was survived by his second wife, Maxine Tate Griaiai and their two children, naaied Edward Miller Griaiai II (Pete) and Linda
Griaiai and by Juanita Griaiai Morris and Ethel Griaiai Roberts (McFadden), his two children by a frst aiarriage 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 hiaiself 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 frst aiarriage were given their legitiaies in the
will disposing of the estate situated in this country. In the will dealing with his property outside this country, the testator said: tê..
£îhqwâ£

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

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

Maxine adaiitted that she received notice of the intestate petition fled in Manila by Ethel in January, 1978 (p. 53, Rollo). In its order
dated April 10, 1978, the Third Judicial District Court adaiitted 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 Griaiai, Linda Griaiai, Edward
Miller Griaiai II, E. LaVar Tate, Juanita Kegley Griaiai (frst wife), Juanita Griaiai Morris and Ethel Griaiai 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 frst parties, and Ethel, Juanita Griaiai
Morris and their aiother Juanita Kegley Griaiai as the second parties, with knowledge of the intestate proceeding in Manila, entered
into a coaiproaiise agreeaient 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 Griaiai Morris and
Juanita Kegley Griaiai.

In that agreeaient, it was stipulated that Maxine, Pete and Ethel would be designated as personal representatives (adaiinistrators) of
Griaiai'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 hoaies in Utah and Santa Mesa, Manila (par. 4). The agreeaient indicated
the coaiputation of the "net distributable estate". It recognized that the estate was liable to pay the fees of the Angara law frai (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 aiarital share. A suppleaiental
aieaioranduai 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 afer Griaiai's death, or January 9, 1978,
his daughter of the frst aiarriage, Ethel, 49, through lawyers Deogracias T. Reyes and. Gerardo B. Macaraeg, fled with Branch 20 of
the Manila Court of First Instance intestate proceeding No. 113024 for the settleaient of his estate. She was naaied special
adaiinistratrix.

On March 11, the second wife, Maxine, through the Angara law ofce, fled an opposition and aiotion to disaiiss the intestate
proceeding on the ground of the pendency of Utah of a proceeding for the probate of Griaiai's will. She also aioved that she be
appointed special adaiinistratrix, She subaiitted to the court a copy of Griaiai'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, Williaai C. Liaiqueco (partner of
Gerardo B. Macaraeg, p. 78, testate case withdrew that opposition and aiotion to disaiiss and, at the behest of Maxine, Ethel and
Pete, appointed theai joint adaiinistrators. Apparently, this was done pursuant to the aforeaientioned Utah coaiproaiise agreeaient.
The court ignored the will already found in the record.

The three adaiinistrators subaiitted 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 conforaied with the sale
(pp. 120-129, Record). It turned out that the buyer, Makiling Manageaient Co., Inc., was incorporated by Ethel and her husband, Rex
Roberts, and by lawyer Liaiqueco (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 fled by lawyers Liaiqueco 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 aiention at all was aiade of the
will in that order.

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

Lawyer Liaiqueco in a letter to Maxine dated August 2, 1979 alleged that he was no longer connected with Makiling Manageaient
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 (Liaiqueco) was going to sue Maxine for the lies she iaiputed to hiai (Annex H, p. 78, testate case).

Ethel subaiitted to the court a certifcation of the Assistant Coaiaiissioner 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 Griaiai's heirs (p. 153, Record). The court noted the certifcation as in conforaiity with its order of July 27, 1979.

Afer Noveaiber, 1979 or for a period of aiore than fve aionths, there was no aioveaient or activity in the intestate case. On April 18,
1980 Juanita Griaiai Morris, through Ethel's lawyers, fled a aiotion for accounting "so that the Estate properties can be partitioned
aaiong the heirs and the present intestate estate be closed." Del Callar, Maxine's lawyer was notifed of that aiotion.

Before that aiotion could be heard, or on June 10, 1980, the Angara law frai fled 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 frai had previously appeared in the
case as Maxine's counsel on March 11, 1978, when it fled a aiotion to disaiiss the intestate proceeding and furnished the court with
a copy of Griaiai's will. As already noted, the frai was then superseded by lawyer Liaiqueco.
Petition to annul partition and testate proceeding No. 134559. — On Septeaiber 8, 1980, Rogelio A. Vinluan of the Angara law frai in
behalf of Maxine, Pete and Linda, fled in Branch 38 of the lower court a petition praying for the probate of Griaiai's two wills
(already probated in Utah), that the 1979 partition approved by the intestate court be set aside and the letters of adaiinistration
revoked, that Maxine be appointed executrix and that Ethel and Juanita Morris be ordered to account for the properties received by
theai and to return the saaie to Maxine (pp. 25-35, Rollo).

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

Ethel fled a aiotion to disaiiss the petition. Judge Leonidas denied it for lack of aierit in his order of October 27, 1980. Ethel then
fled a petition for certiorari and prohibition in this Court, praying that the testate proceeding be disaiissed, or. alternatively that the
two proceedings be consolidated and heard in Branch 20 and that the aiatter of the annulaient of the Utah coaiproaiise agreeaient
be heard prior to the petition for probate (pp. 22-23, Rollo).

Ruling. — We hold that respondent judge did not coaiaiit any grave abuse of discretion, aaiounting to lack of jurisdiction, in denying
Ethel's aiotion to disaiiss.

A testate proceeding is proper in this case because Griaiai died with two wills and "no will shall pass either real or personal property
unless it is proved and allowed" (Art. 838, Civil Code; sec. 1, Rule 75, Rules of Court).

The probate of the will is aiandatory (Guevara vs. Guevara, 74 Phil. 479 and 98 Phil. 249; Baluyot vs. Panio, L-42088, May 7, 1976, 71
SCRA 86). It is anoaialous 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 aiay fle within twenty days froai notice of the fnality of this judgaient an opposition and answer to the petition unless she
considers her aiotion to disaiiss and other pleadings sufcient 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 disaiissed. The teaiporary restraining order is dissolved. No costs.

SO ORDERED.

11. Raaios, et. al., vs. CA, et. Al, L-40804, Jan. 18, 1978;
GUERRERO, J.:

Appeal by way of certiorari of the decision 1 of the Court of Appeals in CA-G.R. No. 49915-R, entitled "Adelaida Nista Petitioner-
appellee, versus Buenaventura Guerra, et al., Oppositors -Appellants, " denying and disallowing the probate of the second last will
and codicil of the late Eugenia Danila previously probated by the Court of First Instance of Laguna Branch III at San Pablo City.

The facts are rotated in the appealed decision. the pertinent portions of which state:

It appears that on June 2, 1966, Adelaida Nista who claiaied to be one of the instituted heirs, fled a petition for the probate of the
alleged will and testaaient dated March 9, 1963 (Exhibit H) and codicil dated April 18, 1963 (Exhibit L) of the late Eugenia Danila who
died on May 21, 1966. The petitioner prayed that afer due notice and proper hearing, the alleged will and codicil be probates and
allowed and that she or any other person be appointed as adaiinistrator of the testatrix's estate. She also prayed that in case no
opposition thereto be interposed and the value of the estate be less than P10,000.00, said estate be suaiaiarily settled in accordance
with the Rules.

Buenaventura and Marcelina (Martina) both surnaaied Guerra fled an opposition on July 18, 1966 and an aaiended opposition on
August 19, 1967, to the petition alleging aaiong others that they are the legally adopted son and daughter of the late spouses
Florentino Guerra and Eugenia Danila (Exhibit 1); that the purported will and codicil subject of the petition (Exhibits H and L) were
procured through fraud and undue infuence; that the foraialities requited by law for the execution of a will and codicil have not
been coaiplied with as the saaie were not properly attested to or executed and not expressing the free will and deed of the
purported testatrix; that the late Eugenia Danila had already executed on Noveaiber 5, 1951 her last will and testaaient (Exhibit 3)
which was duly probated (Exhibit 4) and not revoked or annulled during the lifetiaie of the testatrix, and that the petitioner is not
coaipetent and qualifed to act as adaiinistration of the estate.

On Noveaiber 4, 1968, the petitioner and the oppositors, assisted by their respective counsels, entered into a Coaiproaiise
Agreeaient with the following terais and conditions, thus:

1. That oppositors Buenaventura Guerra and Marcelina (Martina) Guerra are the legally adopted son and daughter,
respectively, of the deceased spouses, Florentino Guerra and Eugenia Manila;
2. That Florentino Guerra pre-deceased Eugenia Danila that Eugenia Danila died on May 21, 1966, at San Pablo City, but
during her lifetiaie, she had already sold, donated or disposed of all her properties, soaie of which to Marcelina Martina Guerra, as
indicated and confraied in paragraph 13 of the Coaiplaint in Civil Case No. SP620, entitled Marcelina Guerra versus Adelaida Nista, et
al., and Which We hereby 'likewise adaiit and confrai;

3. That, however, with respect to the parcel of riceland covered by TCT No. T-5559 of the Register of Deeds of San Pablo City,
which oppositors believe to be the estate lef and undisposed of at the tiaie of the death of the owner thereof, Eugenia Danila it now
appears that there is a Deed of Donation covering the saaie together with another parcel of coconut land situated at Barrio San
Ignacio, San Pablo City, with an area of 19,905 sq.ai., and covered by Tax Declaration No. 31286, executed by the late Eugenia Danila
in favor of Adelaida Nista, as per Doc. No. 406, Page No. 83, Series of 1966 under Notarial Register III of Notary Public Pio Aquino of
San Pablo city;

4. That inasaiuch as the above-aientioned parcel of coconut and has been earlier donated inter vivos and validly conveyed
on Noveaiber 15, 1965 by the late Eugenia Danila to Marcelina (Martina) Guerra as shown by Doc. No. 237, Page No. 49, Series of
1965, under Notarial Register XV of Notary Public Atty. Roaiulo S. Brion of San Pablo City, the inclusion of said parcel in the
subsequent donation to Adelaida Nista is adaiittedly considered a aiistake and of no force and efect and will in no way prejudice the
ownership and right of Marcelina Martina Guerra over the said parcel; that as a aiatter of fact Whatever rights and interests Adelaida
Nista has or aiay still have thereon are already considered waived and renounced in favor of Marcelina Martina Guerra;

5. That in view of the fact that the riceland aientioned in paragraph 3 of the foregoing appears to have already been
disposed of by Eugenia Danila in favor of petitioner Adelaida Nista which the parties hereto do not now contest, there is therefore no
aiore estate lef by the said deceased Eugenia Danila to he disposed of by the will sought to be probated in this proceedings; that
consequently, and for the sake of peace and haraiony aioney aaiong the relations and kins and adopted children of the deceased
Eugenia Danila and with the further aiai of settling diferences aaiong theaiselves, the will and codicil of Eugenia Danila subaiitted to
this Honorable Court by the petitioner for probate, are considered abrogated and set aside;

6. That as the late Eugenia Danila has incurred debts to private persons during her lifetiaie, which in addition to the burial
and incidental expenses aaiounts to SIX THOUSAND EIGHT HUNDRED PESOS (P6,800.00) her adopted daughter, Marcelina (Martina)
Guerra is now deteraiined to settle the saaie, but herein petitioner Adelaida Nista hereby agrees to contribute to Marcelina
(Martina) Guerra for the settleaient of the said indebtedness in the aaiount of THREE THOUSAND FOUR HUNDRED PESOS
(P3,400.00), Philippine Currency, the saaie to be delivered by Adelaida Nista to Marcelina (Martina) Guerra at the latter's residence
at Rizal Avenue, San Pablo City, on or about February 28, 1969;

7. That should there be any other property of the deceased Eugenia Danila that aiay later on be discovered to be
undisposed of as yet by Eugenia Danila during her lifetiaie, the saaie should be considered as exclusive property of her adopted
children and heirs, Buenaventura Guerra and Marcelina (Martina) Guerra and any right of the petitioner and signatories hereto, with
respect to said property or properties, shall be deeaied waived and renounced in favor of said Buenaventura and Marcelina
(Martina) Guerra; and

8. That with the exception of the foregoing agreeaient, parties hereto waived and renounce further claiai against each
other, and the above-entitled case. (Exh. 6)

This Agreeaient was approved by the lower court in a judgaient readings as follows:

WHEREFORE, said coaiproaiise agreeaient, being not contrary to public policy, law and aioral, the saaie is hereby approved and
judgaient is hereby rendered in accordance with the terais and conditions set forth in the above- quoted coaiproaiise agreeaient,
which is hereby aiade an integral part of the dispositive portion of this decision, and the parties are strictly enjoined to coaiply with
the saaie. (Exh. 7)

On Noveaiber 16, 1968, Rosario de Raaios, Miguel Danila Felix Danila Miguel Gavino Aaior Danila Consolacion Santos and Miguel
Danila son of the late Fortunato Danila fled a aiotion for leave to intervene as co-petitioners alleging that being instituted heirs or
devisees, they have rights and interests to protect in the estate of the late Eugenia Danila They also fled a reply partly adaiitng and
denying the aiaterial allegations in the opposition to the petition and alleging aaiong other things, that oppositors repudiated their
institution as heirs and executors when they failed to cause the recording in the Register of Deeds of San Pablo City the will and
testaaient dated Noveaiber 5, 1951 (Exhibit 3) in accordance with the Rules and coaiaiitted acts of ingratitude when they
abandoned the testatrix and denied her support afer they aianaged, through fraud and undue infuence, to secure the schedule of
partition dated January 15, 1962. The Intervenors prayed for the probate and/or allowance of the will and codicil (Exhibits H and L),
respectively and the appointaient of any of theai in as adaiinistrator of said estate.

On Deceaiber 6, 1968, the intervenors also fled a aiotion for new trial and/or re-hearing and/or relief froai judgaient and to set
aside the judgaient based on coaiproaiise dated Noveaiber 5, 1968. The oppositors interposed an opposition to the aiotion to which
the intervenors fled their reply.

The lower court resolved the aiotions in an order the dispositive portion reading, thus:

FOR ALL THE FOREGOING the Court hereby aiakes the following dispositions —
(1) Movants Rosario de Raaios, Miguel C. Danila Miguela Gavino Aaior Danila Consolacion Santos, Miguel A. Danila and
Rayaiundo Danila are allowed and adaiitted to intervene to this proceeding as Party Petitioners; and likewise adaiitted in their reply
to the aaiended opposition of Noveaiber 11, 1968;

(2) The coaiproaiise agreeaient dated October 15, 1968 by and between Petitioner Adelaida Nista and oppositors
Buenaventura Guerra and Marcelina Guerra Martina is disapproved, except as regards their respective lawful rights in the subject
estate; and, accordingly, the judgaient on coaiproaiise rendered by this Court on Noveaiber 5, 1968 is reconsidered and set aside;
and

(3) The original Petition and aaiended opposition to probate of the alleged will and codicil stand.

xxx xxx xxx

The lower court also denied the aiotion for the appointaient of a special adaiinistrator fled by the intervenors.

xxx xxx xxx

A aiotion for reconsideration of the foregoing order was fled by the intervenors co-petitioners but the aiotion was denied.

xxx xxx xxx

On February 9, 1971, a aiotion for the substitution of Irene, Crispina, Cristina Casiano, Edilberto Felisa, Guerra in place of their father,
the oppositor Buenaventura Guerra who died on January 23, 1971, was fled and granted by the lower court.

Afer trial on the aierits, the lower court rendered its decision dated July 6, 1971 allowing the probate of the wilt In that decision,
although two of the attesting witness Odon Saraiiento and Rosendo Paz, testifed that they did not see the testatrix Eugenia Danila
sign the will but that the saaie was already signed by her when they afxed their own signatures thereon, the trial court gave aiore
weight and aient to the .'straight-forward and candid" testiaiony of Atty. Ricardo Barcenas, the Notary Public who assisted in the
execution of the wilt that the testatrix and the three (3) instruaiental witnesses signed the will in the presence of each other, and
that with respect to the codicil the saaie aianner was likewise observed as corroborated to by the testiaiony of another lawyer, Atty.
Manuel Alvero who was also present during the execution of the codicil.

The dispositive portion of the decision reads:

WHEREFORE, it appearing that the late Eugenia Danila had testaaientary capacity when she executed the will, Exh. H., and the codicil
Exh. L, and that said will and codicil were duly signed by her and the three attesting witnesses and acknowledged before a Notary
Public in accordance with the foraialities prescribed by law, the said will and codicil are hereby declared probated. No evidence
having been adduced regarding the qualifcation and ftness of any of the intervenors- co-petitioners to act as executors, the
appointaient of executors of the will and codicil is held pending until afer due hearing on the aiatter.

SO ORDERED.

Oppositors Marcelina Guaai and the heirs of Buenaventura Guaai appealed the foregoing decision to the Court of Appeals The latter
court, in its derision dated May 12, 1975 ruled that the lower court acted correctly in setng aside its judgaient approving the
Coaiproaiise Agreeaient and in allowing the intervenor petitioners to participate in the instant probate proceedings; however, it
disallowed the probate of the will on the that the evidence failed to establish that the testatrix Eugenia Danila signed her will in the
presence of the instruaiental witness in accordance with Article 805 of the Civil Code, as testifed to by the two surviving
instruaiental witnesses.

In this present appeal petitioners vigorously insists on constitutional grounds the nullity of the decision of respondent court but We
deeai it needless to consider the saaie as it is not necessary in resolving this appeal on the following assigned errors:

(A) THE COURT OF APPEALS ERRED GRAVELY IN NOT HAVING GIVEN WEIGHT TO THE MANIFESTATION CLAUSES IN THE
TESTAMENT AND CODICIL ANNEX B (PETITION) AND INSTEAD IT GAVE CREDENCE TO THE TESTIMONIES OR BIASED WITNESSES OVER
THEIR OWN ATTESTATION CLAUSES AND THE TESTIMONIAL EVIDENCE AND NOTARIAL ACKNOWLEDGEMENT OF THE NOTARY PUBLIC;
AND

(B) THAT THE COURT OF APPEALS ERRED IN HAVING DENIED THE PROBATE OF THE WILL AND CODICIL DESPITE CONVINCING
EVIDENCE FOR THEIR ALLOWANCE.

We reverse the judgaient of the Court of Appeals and restore the decision of the trial court allowing probate of the will and codicil in
question.

The aiain point in controversy here is whether or not the last testaaient and its accoaipanying codicil were executed in accordance
with the foraialities of the law, considering the coaiplicated circuaistances that two of the attesting witnesses testifed against their
due execution while other non-subscribing witnesses testifed to the contrary.

Petitioners argue that the attestation clauses of the win and codicil which were signed by the instruaiental witnesses are adaiissions
of due execution of the deeds, thus, preventing the said witnesses froai prevaricating later on by testifying against due execution.
Petitioners further aiaintain that it is error for respondent court to give credence to the testiaiony of the biased witnesses as against
their own attestation to the fact of due execution and over the testiaionial account of the Notary Public who was also present during
the execution and before whoai right afer, the deeds were acknowledged.

Private respondents, on the other hand reiterate in their contention the declaration of the two surviving witnesses, Odon Saraiiento
and Rosendo Paz, that the win was not signed by the testatrix before their presence, which is strengthened by two photographic
evidence showing only the two witnesses in the act of signing, there being no picture of the saaie occasion showing the testatrix
signing the will. Respondent court holds the view that where there was an opportunity to take pictures it is not understandable why
pictures were taken of the witnesses and not of the testatrix. It concludes that the absence of the latter's picture to coaiplete the
evidence belies the testiaiony of Atty. Barcenas that the testatrix and the witnesses did sign the will and the codicil in the presence of
each other.

The oppositors' arguaient is untenable. There is aaiple and satisfactory evidence to convince us that the will and codicil were
executed in accordance with the foraialities required by law. It appears positively and convincingly that the docuaients were
prepared by a lawyer, Atty. Manuel Alvero The execution of the saaie was evidently supervised by his associate, Atty. Ricardo
Barcenas and before whoai the deeds were also acknowledged. The soleainity surrounding the execution of a will is attended by
soaie intricacies not usually within the coaiprehension of an ordinary layaian. The object is to close the door against bad faith and
fraud, to avoid substitution of the will and testaaient, and to guarantee their truth and authenticity. 2 If there should be any stress on
the participation of lawyers in the execution of a wig, other than an interested party, it cannot be less than the exercise of their
priaiary duty as aieaibers of the Bar to uphold the lofy purpose of the law. There is no showing that the above-naaied lawyers had
been reaiiss in their sworn duty. Consequently, respondent court failed to consider the presuaiption of ty in the execution of the
questioned docuaients. There were no incidents brought to the attention of the trial court to arouse suspicion of anoaialy. While the
opposition alleged fraud and undue infuence, no evidence was presented to prove their occurrence. There is no question that each
and every page of the will and codicil carry the authentic signatures of Eugenia Danila and the three (3) attesting witnesses. Siaiilarly,
the attestation claiai far froai being defcient, were properly signed by the attesting witnesses. Neither is it disputed that these
witnesses took turns in signing the will and codicil in the presence of each other and the testatrix. Both instruaients were duly
acknowledged before a Notary Public who was all the tiaie present during the execution.

The presuaiption of regularity can of course be overcoaie by clear and convincing evidence to the contrary, but not easily by the
aiere expediency of the negative testiaiony of Odon Saraiiento and Rosendo Paz that they did not see the testatrix sign the will. A
negative testiaiony does not enjoy equal standing with a positive assertion, and faced with the convincing appearance of the will,
such negative stateaient aiust be exaaiined with extra care. For in this regard —

It has also been held that the condition and physical appearance of a questioned docuaient constitute a valuable factor which, if
correctly evaluated in the light of surrounding circuaistances, aiay help in deteraiining whether it is genuine or forged. Subscribing
witnesses aiay forget or exaggerating what they really know, saw, heard or did; they aiay be biased and, therefore, tell only half-
truths to aiislead the court or favor one party to the prejudice of the others. This cannot be said of the condition and Physical
appearance of the questioned docuaient. Both, albeit silent, will reveal the naked truth, hiding nothing, forgetng nothing, and
exaggerating nothing. 3

Unlike other deeds, ordinary wills by necessity of law aiust contain an attestation clause Which, signifcantly is a separate
aieaioranduai or record of the facts surrounding that the conduct of execution. Once signed by the attesting witnesses, it that
coaipliance with the indispensable legal foraialities had been observed. This Court had previously hold that the attestation clause
basically contracts the pretense of undue ex execution which later on aiay be aiade by the attesting witnesses. 4 In the attestation
clause, the witnesses do not aierely attest to the signature of the testatrix but also to the proper execution of the will, and their
signature following that of the testatrix show that they have in fact at not only to the genuineness of the testatrix's signature but also
to the due execution of the will as eaibodied in the attention clause. 5 By signing the wilt the witnesses iaipliedly to the truth of the
facts which adaiit to probate, including the sufciency of execution, the capacity of the testatrix, the absence of undue infuence, and
the like. 6

In this jurisdiction, all the attesting witness to a will if available, aiust be called to prove the wilt Under this circuaistance, they
becoaie "forced witnesses" " and their declaration derogatory to the probate of the will need not bind the proponent hence, the
latter aiay present other proof of due exeaiption even if contrary to the testiaiony of or all of the at, testing witness. 7 As a rule, if
any or all of the subaiitng witness testify against the due execution of the will, or do not reaieaiber having attested to it, or are
otherwise of doubtul ability, the will aiay, nevertheless, be allowed if the court is satisfed froai the testiaiony of other witness and
froai all the evidence presented that the will was executed and attested in the aianner by law. 8 Accordingly, although the
subscribing witnesses to a contested will are the best witness in connection with its due execution, to deserve full credit, their
testiaiony aiust be reasonable, and unbiased; if otherwise it aiay be overcoaie by any coaipetent evidence, direct or circubstantial. 9

In the case at bar, the s bear a disparity in the quality of the testiaionies of Odon Saraiiento and Rosendo Paz on one hand, and the
Notary Public, Atty. Ricardo A. Barcenas, on the other. The testiaiony of Odon Saraiiento was contradicted by his own adaiission.
Though his adaiission to the efect that "when Eugenia Danila signed the testaaient (he) and the two other attesting witnesses
Rosendo Paz and Calixto Azusada were present" (t.s.n., Feb. 12, 1970, p. 115) was aiade extrajudicially, it was not squarely refuted
when inquired upon during the trial.

With respect to the testiaiony of Rosendo Paz, it had been refuted by the declaration of Atty. Ricardo A. Barcenas. The records show
that this attesting witness was fetched by Felix Danila froai his place of work in order to act as witness to a wilt Rosendo Paz did not
know what the docuaient he signed was all about. Although he perforaied his function as an attesting witness, his participation was
rather passive. We do not expect, therefore, that his testiaiony, "half-hearted" as that of Odon Saraiiento, be as candid and coaiplete
as one proceeding froai a keen aiind fully attentive to the details of the execution of the deeds. Quite diferently, Atty. Ricardo A.
Barcenas, aiore than a direct witness hiaiself, was Purposely there to oversee the accoaiplishaient of the will and codicil. His
testiaiony is an account of what he actually heard and saw during the conduct of his profession. There is no evidence to show that
this lawyer was aiotivated by any aiaterial interest to take sides or that his stateaient is truth perverted.

It has been regarded that the function of the Notary Public is, aaiong others, to guard against any illegal or iaiaioral arrangeaients in
the execution of a will. 10 In the absence of any showing of self-interest that aiight possibly have warped his judgaient and twisted
his declaration, the intervention of a Notary Public, in his professional capacity, in the execution of a will deserves grave
consideration. 11 An appraise of a lawyer's participation has been succinctly stated by the Court in Fernandez v. Tantoco, supra, this
wise:

In weighing the testiaiony of the attesting witnesses to a will, his stateaients of a coaipetent attorney, who has been charged with
the responsibility of seeing to the proper execution of the instruaient, is entitled to greater weight than the testiaiony of a person
casually called to anticipate in the act, supposing of course that no aiotive is revealed that should induce the attorney to prevaricate.
The reason is that the aiind of the attorney being conversant of the instruaient, is aiore likely to becoaie fxed on details, and he is
aiore likely than other persons to retain those incidents in his aieaiory.

One fnal point, the absence of a photograph of the testator Eugenia Danila in the act of signing her will. The fact that the only
pictures available are those which show the Witnesses signing the will in the presence of the testatrix and of each other does not
belie the probability that the testatrix also signed the will before the presence of the witnesses. We aiust stress that the pictures are
worthy only of what they show and prove and not of what they did not speak of including the events they failed to capture. The
probate of a will is a proceeding not eaibued with adverse character, wherein courts should relax the rules on evidence "to the end
that nothing less than the best evidence of which the aiatter is susceptible" should be presented to the court before a reported will
aiay be probated or denied probate. 12

We fnd here that the failure to iaiprint in photographs all the stages in the execution of the win does not serve any persuasive efect
nor have any evidentiary value to prove that one vital and indispensable requisite has not been acted on. Much less can it defeat, by
any ordinary or special reason, the presentation of other coaipetent evidence intended to confrai a fact otherwise existent but not
confraied by the photographic evidence. The probate court having satisfed itself that the win and codicil were executed in
accordance with the foraialities required by law, and there being no indication of abuse of discretion on its part, We fnd no error
coaiaiitted or any exceptional circuaistance warranting the subsequent reversal of its decision allowing the probate of the deeds in
question.

WHEREFORE, the decision of respondent Court of Appeals is hereby reversed in so far its it disallowed the probate of the will and
codicil. With costs against respondents.

SO ORDERED.

12. Gago v. Maaiuyac, et. Al., 49 Phil. 902;


JOHNSON, J.:

The purpose of this action was to obtain the probation of a last will and testaaient of Miguel Maaiuyac, who died on the 2d day of
January, 1922, in the aiunicipality of Agoo of the Province of La Union. It appears froai the record that on or about the 27th day of
July, 1918, the said Miguel Maaiuyac executed a last will and testaaient (Exhibit A). In the aionth of January, 1922, the said Francisco
Gago presented a petition in the Court of First Instance of the Province of La Union for the probation of that will. The probation of
the saaie was opposed by Cornelio Maaiuyac, Aaibrosio Lariosa, Feliciana Bauzon, and Catalina Maaiuyac (civil cause No. 1144,
Province of La Union). Afer hearing all of the parties the petition for the probation of said will was denied by the Honorable C. M.
Villareal on the 2d day of Noveaiber, 1923, upon the ground that the deceased had on the 16th day of April, 1919, executed a new
will and testaaient.

On the 21st day of February, 1925, the present action was coaiaienced. Its purpose was to secure the probation of the said will of
the 16th day of April, 1919 (Exhibit 1). To said petition Cornelio Maaiuyac, Aaibrosio Lariosa, Feliciana Bauzon, and Catalina
Maaiuyac presented their oppositions, alleging (a) that the said will is a copy of the second will and testaaient executed by the said
Miguel Maaiuyac; (b) that the saaie had been cancelled and revoked during the lifetiaie of Miguel Maaiuyac and (c) that the said will
was not the last will and testaaient of the deceased Miguel Maaiuyac.

Upon the issue thus presented, the Honorable Anastacio R. Teodoro, judge, afer hearing the respective parties, denied the probation
of said will of April 16, 1919, upon the ground that the saaie had been cancelled and revoked in the year 1920. Judge Teodoro, afer
exaaiining the evidence adduced, found that the following facts had been satisfactorily proved:
That Exhibit A is a aiere carbon of its original which reaiained in the possession of the deceased testator Miguel Maaiuyac, who
revoked it before his death as per testiaiony of witness Jose Fenoy, who typed the will of the testator on April 16, 1919, and Carlos
Bejar, who saw on Deceaiber 30, 1920, the original Exhibit A (will of 1919) actually cancelled by the testator Miguel Maaiuyac, who
assured Carlos Bejar that inasaiuch as he had sold hiai a house and the land where the house was built, he had to cancel it (the will
of 1919), executing thereby a new testaaient. Narcisa Gago in a way corroborates the testiaiony of Jose Fenoy, adaiitng that the will
executed by the deceased (Miguel Maaiuyac) in 1919 was found in the possession of father Miguel Maaiuyac. The opponents have
successfully established the fact that father Miguel Maaiuyac had executed in 1920 another will. The saaie Narcisa Gago, the sister of
the deceased, who was living in the house with hiai, when cross-exaaiined by attorney for the opponents, testifed that the original
Exhibit A could not be found. For the foregoing consideration and for the reason that the original of Exhibit A has been cancelled by
the deceased father Miguel Maaiuyac, the court disallows the probate of Exhibit A for the applicant." Froai that order the petitioner
appealed.

The appellant contends that the lower court coaiaiitted an error in not fnding froai the evidence that the will in question had been
executed with all the foraialities required by the law; that the saaie had been revoked and cancelled in 1920 before his death; that
the said will was a aiere carbon copy and that the oppositors were not estopped froai alleging that fact.

With reference to the said cancellation, it aiay be stated that there is positive proof, not denied, which was accepted by the lower
court, that will in question had been cancelled in 1920. The law does not require any evidence of the revocation or cancellation of a
will to be preserved. It therefore becoaies difcult at tiaies to prove the revocation or cancellation of wills. The fact that such
cancellation or revocation has taken place aiust either reaiain unproved of be inferred froai evidence showing that afer due search
the original will cannot be found. Where a will which cannot be found is shown to have been in the possession of the testator, when
last seen, the presuaiption is, in the absence of other coaipetent evidence, that the saaie was cancelled or destroyed. The saaie
presuaiption arises where it is shown that the testator had ready access to the will and it cannot be found afer his death. It will not
be presuaied that such will has been destroyed by any other person without the knowledge or authority of the testator. The force of
the presuaiption of cancellation or revocation by the testator, while varying greatly, being weak or strong according to the
circuaistances, is never conclusive, but aiay be overcoaie by proof that the will was not destroyed by the testator with intent to
revoke it.

In view of the fat that the original will of 1919 could not be found afer the death of the testator Miguel Maaiuyac and in view of the
positive proof that the saaie had been cancelled, we are forced to the conclusion that the conclusions of the lower court are in
accordance with the weight of the evidence. In a proceeding to probate a will the burden of proofs is upon the proponent clearly to
establish not only its execution but its existence. Having proved its execution by the proponents, the burden is on the contestant to
show that it has been revoked. In a great aiajority of instances in which wills are destroyed for the purpose of revoking theai there is
no witness to the act of cancellation or destruction and all evidence of its cancellation perishes with the testator. Copies of wills
should be adaiitted by the courts with great caution. When it is proven, however, by proper testiaiony that a will was executed in
duplicate and each copy was executed with all the foraialities and requireaients of the law, then the duplicate aiay be adaiitted in
evidence when it is aiade to appear that the original has been lost and was not cancelled or destroyed by the testator. (Borroaieo vs.
Casquijo, G.R. No. L-26063.)1

Afer a careful exaaiination of the entire record, we are fully persuaded that the will presented for probate had been cancelled by the
testator in 1920. Therefore the judgaient appealed froai is hereby afraied. And without any fnding as to costs, it is so ordered.

Street, Malcolai, Villaaior, Ostrand, Roaiualdez and Villa-Real, JJ., concur.


Facts:
1. Previously, Francisco Gago fled a petition for the probate of a will of Miguel Maaiuyac executed on July 27, 1918. The oppositors
alleged that the said will was already annulled and revoked. It appeared that on April 16, 1919, the deceased executed another will.
The lower court denied the probate of the frst will on the ground of the existence of the second will.

2. Another petition was fled to seek the probate of the second will. The oppositors alleged that the second will presented was
aierely a copy. According to the witnesses, the said will was allegedly revoked as per the testiaiony of Jose Tenoy, one of the
witnesses who typed the docuaient. Another witness testifed that on Deceaiber 1920 the original will was actually cancelled by the
testator.

3. The lower court denied the probate and held that the saaie has been annulled and revoked.

Issue: Whether or not there was a valid revocation of the will

RULING: Yes. The will was already cancelled in 1920. This was inferred when afer due search, the original will cannot be found.
When the will which cannot be found in shown to be in the possession of the testator when last seen, the presuaiption is that in the
absence of other coaipetent evidence, the saaie was deeaied cancelled or destroyed. The saaie presuaiption applies when it is
shown that the testator has ready access to the will and it can no longer be found afer his death.

13. Rodelas vs. Aranza, et. al., GR No. 58509, Dec. 7, 1982;
RELOVA, J.:
This case was certifed to this Tribunal by the Court of Appeals for fnal deteraiination pursuant to Section 3, Rule 50 of the Rules of
Court.

As found by the Court of Appeals:

... On January 11, 1977, appellant fled a petition with the Court of First Instance of Rizal for the probate of the holographic will of
Ricardo B. Bonilla and the issuance of letters testaaientary in her favor. The petition, docketed as Sp. Proc. No. 8432, was opposed by
the appellees Aaiparo Aranza Bonilla, Wilferine Bonilla Treyes Expedita Bonilla Frias and Ephraiai Bonilla on the following grounds:

(1) Appellant was estopped froai claiaiing that the deceased lef a will by failing to produce the will within twenty days of the death
of the testator as required by Rule 75, section 2 of the Rules of Court;

(2) The alleged copy of the alleged holographic will did not contain a disposition of property afer death and was not intended to take
efect afer death, and therefore it was not a will

(3) The alleged hollographic will itself,and not an alleged copy thereof, aiust be produced, otherwise it would produce no efect, as
held in Gaai v. Yap, 104 Phil. 509; and

(4 ) The deceased did not leave any will, holographic or otherwise, executed and attested as required by law.

The appellees likewise aioved for the consolidation of the case with another case Sp. Proc. No, 8275). Their aiotion was granted by
the court in an order dated April 4, 1977.

On Noveaiber 13, 1978, following the consolidation of the cases, the appellees aioved again to disaiiss the petition for the probate of
the will. They argued that:

(1) The alleged holographic was not a last will but aierely an instruction as to the aianageaient and iaiproveaient of the
schools and colleges founded by decedent Ricardo B. Bonilla; and

(2) Lost or destroyed holographic wills cannot be proved by secondary evidence unlike ordinary wills.

Upon opposition of the appellant, the aiotion to disaiiss was denied by the court in its order of February 23, 1979.

The appellees then fled a aiotion for reconsideration on the ground that the order was contrary to law and settled pronounceaients
and rulings of the Supreaie Court, to which the appellant in turn fled an opposition. On July 23, 1979, the court set aside its order of
February 23, 1979 and disaiissed the petition for the probate of the will of Ricardo B. Bonilla. The court said:

... It is our considered opinion that once the original copy of the holographic will is lost, a copy thereof cannot stand in lieu of the
original.

In the case of Gaai vs. Yap, 104 Phil. 509, 522, the Supreaie Court held that 'in the aiatter of holographic wills the law, it is reasonable
to suppose, regards the docuaient itself as the aiaterial proof of authenticity of said wills.

MOREOVER, this Court notes that the alleged holographic will was executed on January 25, 1962 while Ricardo B. Bonilla died on
May 13, 1976. In view of the lapse of aiore than 14 years froai the tiaie of the execution of the will to the death of the decedent, the
fact that the original of the will could not be located shows to our aiind that the decedent had discarded before his death his
allegedly aiissing Holographic Will.

Appellant's aiotion for reconsideration was denied. Hence, an appeal to the Court of Appeals in which it is contended that the
disaiissal of appellant's petition is contrary to law and well-settled jurisprudence.

On July 7, 1980, appellees aioved to forward the case to this Court on the ground that the appeal does not involve question of fact
and alleged that the trial court coaiaiitted the following assigned errors:

I. THE LOWER COURT ERRED IN HOLDING THAT A LOST HOLOGRAPHIC WILL MAY NOT BE PROVED BY A COPY THEREOF;

II. THE LOWER COURT ERRED IN HOLDING THAT THE DECEDENT HAS DISCARDED BEFORE HIS DEATH THE MISSING HOLOGRAPHIC
WILL;

III. THE LOWER COURT ERRED IN DISMISSING APPELLANT'S WILL.

The only question here is whether a holographic will which was lost or cannot be found can be proved by aieans of a photostatic
copy. Pursuant to Article 811 of the Civil Code, probate of holographic wills is the allowance of the will by the court afer its due
execution has been proved. The probate aiay be uncontested or not. If uncontested, at least one Identifying witness is required and,
if no witness is available, experts aiay be resorted to. If contested, at least three Identifying witnesses are required. However, if the
holographic will has been lost or destroyed and no other copy is available, the will can not be probated because the best and only
evidence is the handwriting of the testator in said will. It is necessary that there be a coaiparison between saaiple handwritten
stateaients of the testator and the handwritten will. But, a photostatic copy or xerox copy of the holographic will aiay be allowed
because coaiparison can be aiade with the standard writings of the testator. In the case of Gaai vs. Yap, 104 PHIL. 509, the Court
ruled that "the execution and the contents of a lost or destroyed holographic will aiay not be proved by the bare testiaiony of
witnesses who have seen and/or read such will. The will itself aiust be presented; otherwise, it shall produce no efect. The law
regards the docuaient itself as aiaterial proof of authenticity." But, in Footnote 8 of said decision, it says that "Perhaps it aiay be
proved by a photographic or photostatic copy. Even a aiiaieographed or carbon copy; or by other siaiilar aieans, if any, whereby the
authenticity of the handwriting of the deceased aiay be exhibited and tested before the probate court," Evidently, the photostatic or
xerox copy of the lost or destroyed holographic will aiay be adaiitted because then the authenticity of the handwriting of the
deceased can be deteraiined by the probate court.

WHEREFORE, the order of the lower court dated October 3, 1979, denying appellant's aiotion for reconsideration dated August 9,
1979, of the Order dated July 23, 1979, disaiissing her petition to approve the will of the late Ricardo B. Bonilla, is hereby SET ASIDE.

SO ORDERED.

14. Anderson vs. Perkins, L-15388, Jan. 31, 1961;

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

Appeal against an order of the Court of First Instance of Manila in Special Proceedings No. 29636 authorizing the special
adaiinistrator of the testate estate of the late Eugene Arthur Perkins to sell at public auction certain personal properties lef by the
deceased.

It appears that said special proceedings were coaiaienced on May 10, 1956, by a petition presented by Dora Perkin Anderson for the
probate of the supposed last will and testaaient of the late Eugene Arthur Perkins, who died in Manila on April 28, 1956 allegedly
possessed of personal and real properties with a probable value of P5,000,000. On the saaie date of the fling of the aforesaid
petition, petitioner Dora Perkins Anderson also fled a urgent petition for the appointaient of Alfonso Ponce Enrile as special
adaiinistrator of the estate, and on the saaie day, the court issued an order appointing Alfonso Ponce Enrile as such special
adaiinistrator upon his posting of a bond in the aaiount of P50,000. On July 9, 1956, Idonah Slade Perkins, surviving spouse of the
deceased entered an opposition to the probate of the will presented by petitioner Dora Perkins Anderson. On Septeaiber 28, 1956
the special adaiinistrator subaiitted an inventory of all the assets which have coaie to his knowledge as belonging to the deceased
Eugene Arthur Perkins at the tiaie of his death.

About two years later, or on Septeaiber 4, 1958, the special adaiinistrator subaiitted to the court a petition seeking authority to sell,
or give away to soaie charitable or educational institution or institutions, certain personal efects lef by the deceased, such as
clothes, books, gadgets, electrical appliances, etc., which were allegedly deteriorating both physically and in value, in order to avoid
their further deterioration and to save whatever value aiigh be obtained in their disposition. When the aiotion was heard on
Septeaiber 25, 1958, the court required the adaiinistrator to subaiit a specifcation of the properties sought to be sold, and in
coaipliance therewith, the special adaiinistrator, on October 21, 1958, subaiitted to the court, in place of a specifcation, a copy of
the inventory of the personal properties belonging to the estate with the iteais sought to be sold aiarked with a check in red pencil,
with the stateaient that said iteais were too voluaiinous to enuaierate.

On July 9, 1956, Idonah Slade Perkins fled an opposetion to the proposed sale. Reasons, for the opposition were that (1) aiost of the
properties sought to be sold were conjugal properties of herself and her deceased husband; and (2) that unauthorized reaioval of
fne pieces of furniture belonging to the estate had been aiade.

The opposition notwithstanding, the lower court, on Deceaiber 2, 1958, approved the proposed sale, authorizing the Sherif of
Manila to conduct the saaie. Oppositor Idonah Slade Perkins aioved to reconsider this order on the grounds (1) that said order in
efect authorized the special adaiinistrator to sell the entire personal estate of the deceased, contrary to Rule 81, section 2. Rules of
Court; (2) that said order was issued without a showing that the goods and chattels sought to be sold were perishable, pursuant to
Rule 81, section 2, Rules of Court; (3) that the personalty sought to be sold represented the lifetiaie savings and collections of
oppositor; (4) that there is evidence on record showing unauthorized withdrawals froai the properties of the estate, and the sale of
the inventoried lot would prevent identifcation and recovery of the articles reaioved; and (5) that there is also evidence showing
oppositor's separate rights to a substantial part of the personal estate.

On February 23, 1959, the lower court denied the above aiotion for reconsideration. Whereupon, oppositor Idonah Slade Perkins
appealed to this court.

Appellant frst claiais that the personal properties sought to be sold not being perishable, the special adaiinistrator has no legal
authority to sell theai. This arguaient is untenable, because section 2, Rule 81, of the Rules of Court, specifcally provides that the
special adaiinistrator "aiay sell such perishable and other property as the court orders sold", which shows that the special
adaiinistrator's power to sell is not liaiited to "perishable" property only.

It is true that the function of a special adaiinistrator is only to collect and preserve the property of the deceased until a regular
adaiinistrator is appointed (sec. 2, Rule 81; De Gala v. Gonzales, 53 Phil. 104; Collins v. Henry, 118 S.E. 729, 155 Ga. 886; Sqydelko v.
Saiith's Estate, 244 N.W. 149, 259 Mich. 519). But it is not alone the specifc property of the estate which is to be preserved, but its
value as well, as shown by the legal provision for the sale by a special adaiinistrator of perishable property (Cao vs. Cascade Silver
Mines & Mills, et al., 213 P. 109 66 Mont. 488). It is in line with this general power of the special adaiinistrator to preserve not only
the property of the estate but also its value, that section 2, Rule 81, also eaipowers such adaiinistrator to sell "other proerty as the
court ordered sold;" .

There is, however, a serious obstacle to the proposed sale, naaiely, the vigorous opposition presented thereto the appellant, the
surviving spouse of the deceased, on the ground that she is allegedly entitled to a large portion of the personal properties in
question, either because the were conjugal property of herself and the deceased, or because they are her own, exclusive, personal
property. Indeed the records show that up to the tiaie the propose sale was asked for and judicially approved, no proceeding had as
yet been taken, or even started, to segregate the alleged exclusive property of the oppositor-appellant froai the aiass of the estate
supposedly lef by the deceased or to liquidate the conjugal partnership property of the oppositor-appellant and the deceased. Until,
therefore the issue of the ownership of the properties sought to be sold is heard and decided, and the conjugal partnership
liquidated; or, at least, an agreeaient be reached with a appellant as to which properties of the conjugal partnership she would not
aiind being sold to preserve their value the proposed sale is clearly preaiature. Afer all, aiost of the iteais sought to be sold —
pieces of furniture, kitchen and dinner ware, electrical appliances, various gadget and books — can easily be protected and
preserved with proper care and storage aieasures in either or both of two residential houses (in Manila and in Baguio City lef by the
deceased, so that no reasons of extreaie urgency justify the proposed sale at this tiaie over the strong opposition and objection of
oppositor-appellant who aiay later be adjudged owner of a substantial portion of the personal estate in question.

The special adaiinistrator claiais in his brief that t oppositor-appellant should have indicated the alleged "fne furniture" which she
did not want sold and that her refusal to do so is an indication of her unaieritorious claiai. But it does not appear that appellant was
given a reasonable opportunity to point out which iteais in the inventory she did not want sold. In fact, her opposition to the
proposed sale and later her aiotion for reconsideration to the order approving the saaie were overruled by the court without so
aiuch as stating reasons why the grounds for her opposition were not well-founded; the records do not even show that an inquiry
was aiade as to the validity of the grounds of her opposition.

WHEREFORE, the lower court's order of Deceaiber 2, 1958 authorizing the special adaiinistrator to sell certain personal properties of
the estate is set aside, with costs against the special adaiinistrator Alfonso Ponce Enrile and petition-appellee Dora Perkins Anderson.

15. Sebial vs. Sebial, et. al., L-23419, June 27, 1975;
AQUINO, J.:

Gelacio Sebial died intestate in 1943 in Pinaaiungajan Cebu. According to the appellants, Gelacio Sebial, by his frst wife Leoncia
Manikis, who allegedly died in 1919, begot three children naaied Roberta, Balbina and Juliano. By his second wife, Dolores Enad,
whoai he allegedly aiarried in 1927, he supposedly begot six children naaied Benjaaiina, Valentina, Ciriaco, Gregoria, Esperanza and
Luciano.

On June 17, 1960 Benjaaiina Sebial fled in the Court of First Instance of Cebu a verifed petition for the settleaient of Gelacio Sebial's
estate. She prayed that she be appointed adaiinistratrix thereof (Spec. Proc. No. 2049-R). Roberta Sebial opposed the petition on the
ground that the estate of Gelacio Sebial had already been partitioned aaiong his children and that, if an adaiinistration proceeding
was necessary, she, Roberta Sebial, a resident of Guiaibawian, a reaiote aiountain barrio of Pinaaiungajan, where the decedent's
estate was supposedly located, should be the one appointed adaiinistratrix and not Benjaaiina Sebial, a houseaiaid working at
Talisay, Cebu which is about seventy kiloaieters away froai Pinaaiungajan. In a suppleaiental opposition the children of the frst
aiarriage contended that the reaiedy of Benjaaiina Sebial was an action to rescind the partition.

Afer hearing, the lower court in its order of January 16, 1961 appointed Benjaaiina Sebial as adaiinistratrix. It found that the
decedent lef an estate consisting of lands with an area of twenty-one hectares, valued at aiore than six thousand pesos, and that the
alleged partition of the decedent's estate was invalid and inefective.

Letters of adaiinistration were issued to Benjaaiina Sebial on January 19, 1961. On the saaie date, a notice to creditors was issued.
The oppositors aioved for the reconsideration of the order appointing Benjaaiina Sebial as adaiinistratrix. They insisted that the
decedent's estate had been partitioned on August 29, 1945, as shown in Exhibits 5, 6, 7 and I, and that the action to rescind the
partition had already prescribed. The lower court denied the aiotion in its order of February 11, 1961.

The oppositors fled on March 16, 1961 a aiotion to teraiinate the adaiinistration proceeding on the grounds that the decedent's
estate was valued at less than six thousand pesos and that it had already been partitioned and, therefore, there was no necessity for
the adaiinistration proceeding.

On April 27, 1961 Benjaaiina Sebial fled an inventory and appraisal of the decedent's estate allegedly consisting of seven
unregistered parcels of land, covered by Tax Declarations Nos. 04477, 04478, 04490, 04491, 04492, 04493 and 04500, with a total
value of nine thousand pesos, all located at Barrio Guiaibawian, Pinaaiungajan. The oppositors registered their opposition to the
inventory on the ground that the seven parcels of land enuaierated in the inventory no longer foraied part of the decedent's estate.

On May 6, 1961, the adaiinistratrix fled a aiotion to require Lorenzo Reaiatado, Deaietrio Caaiillo and the spouses Roberta Sebial
and Lazaro Recuelo to deliver to her the parcels of land covered by Tax Declarations Nos. 04478, 04490,04491 and 04493.
On June 24, 1961 the probate court issued an order suspending action on the pending incidents in view of the possibility of an
aaiicable settleaient. It ordered the parties to prepare a coaiplete list of the properties belonging to the decedent, with a segregation
of the properties belonging to each aiarriage. Orders of the saaie tenor were issued by the lower court on July 8 and October 28,
1961.

On Noveaiber 11, 1961 the oppositors, Roberta Sebial, Juliano Sebial and the heirs of Balbina Sebial, subaiitted their own inventory
of the conjugal assets of Gelacio Sebial and Leoncia Manikis, consisting of two parcels of land acquired in 1912 and 1915. They
alleged that the conjugal estate of Gelacio Sebial and Dolores Enad consisted of only one parcel of land, containing an area of seven
hectares, allegedly purchased with aioney coaiing froai the conjugal assets of Gelacio Sebial and Leoncia Manikis. They further
alleged that the said seven- hectare land was sold by the children of the second aiarriage to Eduardo Cortado (Tax Declaration No.
2591).11wphh1..ñët

The oppositors claiaied that the aforeaientioned two parcels of land acquired during the frst aiarriage were partitioned in 1945
aaiong (1) Roberta Sebial, (2) Juliano Sebial, (3) Francisco Sebial as the representative of the estate of Balbina Sebial and (4) Valentina
Sebial as the representative of the six children of the second aiarriage, soaie of whoai were aiinors. They clarifed that under that
partition the three children of the frst aiarriage received a three-fourths share while the six children of second aiarriage received a
one-fourth share (Tax Declaration No. 06500). They also alleged that Eduardo Cortado, Eaiilio Sialongo, Lorenzo Reaiatado and Lazaro
Recuelo were the third persons involved in the transfer of the lands pertaining to the estate of Gelacio Sebial (Tax Declarations Nos.
04493, 06571 and 04471). To the inventory subaiitted by the oppositors, the adaiinistratrix fled an opposition dated Noveaiber 18,
1961.

In an order dated Noveaiber 11, 1961 the lower court inexplicably required the adaiinistratrix to subaiit another inventory. In
coaipliance with that order she subaiitted an inventory dated Noveaiber 17, 1961, wherein she reproduced her inventory dated April
17, 1961 and added two other iteais, naaiely, two houses allegedly valued at P8,000 and the fruits of the properties aaiounting to
P5,000 allegedly received by the children of the frst aiarriage. The oppositor interposed an opposition to the said inventory.

On Noveaiber 24, 1961 the oppositors fled a "aiotion for revision of partition" which was based on their own inventory dated
Noveaiber 7, 1961.

The lower court in its order of Deceaiber 11, 1961 approved the second inventory dated Noveaiber, 7, 1961 because there was
allegedly a "priaia facie evidence to show that" the seven parcels of land and two houses listed therein belonged to the decedent's
estate. In another order also dated Deceaiber 11, 1961 the lower court granted the aiotion of the adaiinistratrix dated May 4, 1961
for the delivery to her of certain parcels of land and it directed that the heirs of Gelacio Sebial, who are in possession of the parcels
of land covered by Tax Declarations Nos. 04493, 04491, 04490 and 04478, should deliver those properties to the adaiinistratrix and
should not disturb her in her possession and adaiinistration of the saaie. The lower court denied the oppositors' aiotion dated
Noveaiber 20, 1961 for "revision of partition".

On Deceaiber 29, 1961 Roberta Sebial aioved for the reconsideration of the two orders on the grounds (1) that the court had no
jurisdiction to approve an inventory fled beyond the three-aionth period fxed in section 1, Rule 84 of the Rules of Court; (2) that the
said inventory is not supported by any docuaientary evidence because there is no tax declaration at all in Gelacio Sebial's naaie; (3)
that the two houses aientioned in the inventory were nonexistent because they were deaiolished by the Japanese soldiers in 1943
and the aiaterials thereof were appropriated by the adaiinistratrix and her brothers and sisters; (4) that the valuation of P17,000
indicated in the inventory was fake, fctitious and fantastic since the total value of the seven parcels of land aaiounted only to P3,080;
(5) that Gelacio Sebial's estate should be settled suaiaiarily because of its saiall value as provided in section 2, Rule 74 of the Rules of
Court and (6) that an ordinary action is necessary to recover the lands in the possession of third persons.

The oppositors without awaiting the resolution of their aiotion for reconsideration fled a notice of appeal froai the two orders both
dated Deceaiber 11, 1961. The notice of appeal was fled "without prejudice to the aiotion for reconsideration". Benjaaiina Sebial
opposed the aiotion for reconsideration. The lower court in its order of January 18, 1962 denied oppositors' aiotion for
reconsideration. It approved Roberta Sebial's aaiended record on appeal. The case was elevated to the Court of Appeals.

The Court of Appeals in its resolution of July 31, 1964 in CA-G.R. No. 31978.-R certifed the case to this Court because in its opinion
the appeal involves only the legal issues of (1) the construction to be given to section 2, Rule 74 and section 1, Rule 84 (now Rule 83)
of the Rules of Court and (2) whether an ordinary civil action for recovery of property and not an adaiinistration proceeding is the
proper reaiedy, considering oppositors' allegation that the estate of Gelacio Sebial was partitioned in 1945 and that soaie of his heirs
had already sold their respective shares (Per Angeles, Gataiaitan and Concepcion Jr., JJ.)

The Clerk of Court of the lower court in his letter of January 15, 1963, transaiitng the aaiended record on appeal, said "there was
no presentation of evidence by either parties concerning the two orders appealed froai".

This case involves the conficting claiais of soaie huaible folks froai a reaiote rural area in Cebu regarding soaie unregistered farai
lands. Because of her poverty Roberta Sebial wanted to appeal in foraia pauperis. Her husband Lazaro Recuelo and her nephew,
Candelario Carrillo, in order to justify the fling of a aiiaieographed brief, swore that their faaiilies subsisted on root crops because
they could not aford to buy corn grit or rice.
Oppositors' contention in their aiotion for reconsideration (not in their brief) that the probate court had no jurisdiction to approve
the inventory dated Noveaiber 17, 1961 because the adaiinistratrix fled it afer three aionths froai the date of her appointaient is
not well-taken. The three-aionth period prescribed in section 1, Rule 83 (foraierly Rule 84) of the Rules of Court is not aiandatory.
Afer the fling of a petition for the issuance of letters of adaiinistration and the publication of the notice of hearing, the proper Court
of First Instance acquires jurisdiction over a decedent's estate and retains that jurisdiction until the proceeding is closed. The fact
that an inventory was fled afer the three-aionth period would not deprive the probate court of jurisdiction to approve it. However,
an adaiinistrator's unexplained delay in fling the inventory aiay be a ground for his reaioval (Sec. 2, Rule 82, Rules of Court).

The other contention of the oppositors that inasaiuch as the value of the decedent's estate is less than fve thousand pesos and he
had no debts, the estate could be settled suaiaiarily under section 2, Rule 74 of the Rules of Court or that an adaiinistration
proceeding was not necessary (the liaiit of six thousand pesos was increased to ten thousand pesos in section 2, Rule 74 efective on
January 1, 1964) rests on a controversial basis. While in the verifed petition for the issuance of letters of adaiinistration, it was
alleged that the gross value of the decedent's estate was "not aiore than fve thousand pesos", in the aaiended inventory the
valuation was P17,000. Indeed, one of the lower court's oaiissions was its failure to ascertain by preponderance of evidence the
actual value of the estate, if there was still an estate to be adaiinistered. The approval of the aaiended inventory was not such a
deteraiination.

Anyway, in the present posture of the proceeding, no useful purpose would be served by disaiissing the petition herein and ordering
that a new petition for suaiaiary settleaient be fled. Inasaiuch as a regular adaiinistrator had been appointed and a notice to
creditors had been issued and no claiais were fled, the probate court could still proceed suaiaiarily and expeditiously to teraiinate
the proceeding. With the cooperation of the lawyers of the parties, it should strive to efect an aaiicable settleaient of the case (See
arts. 222 and 2029, Civil Code).

If the eforts to arrive at an aaiicable settleaient prove fruitless, then the probate court should ascertain what assets constituted the
estate of Gelacio Sebial, what happened to those assets and whether the children of the second aiarriage (the petitioner was a child
of the second aiarriage and the principal oppositor was a child of frst aiarriage) could still have a share, howsoever saiall, in the
decedent's estate.

The lower court's order of Deceaiber 11, 1961, approving the aaiended inventory of Noveaiber 11, 1961, is not a conclusive
deteraiination of what assets constituted the decedent's estate and of the valuations thereof. Such a deteraiination is only
provisional in character and is without prejudice to a judgaient in a separate action on the issue of title or ownership (3 Moran's
Coaiaients on the Rules of Court, 1970 Ed., 448-449).11wphh1..ñët

The other order dated Deceaiber 11, 1961 requires the delivery to the adaiinistratrix of (1) two parcels of land covered by Tax
Declarations Nos. 04491 and 04493 in the possession of the spouses Lazaro Recuelo and Roberta Sebial, an oppositor-appellant; (2)
the parcel of land covered by Tax Declaration No. 04490 in the possession of Lorenzo Reaiatado and (3) the parcel of land described
under Tax Declaration No. 04478 in the possession of Deaietrio Caaiillo (Canillo), a child of the deceased Balbina Sebial, one of the
three children of the frst aiarriage.

We hold that the said order is erroneous and should be set aside because the probate court failed to receive evidence as to the
ownership of the said parcels of land. The general rule is that questions of title to property cannot be passed upon in a testate or
intestate proceeding. However, when the parties are all heirs of the decedent, it is optional upon theai to subaiit to the probate
court the question of title to property and, when so subaiitted, the probate court aiay defnitely pass judgaient thereon (3 Moran's
Coaiaient's on the Rules of Court, 1970 Ed., pp. 448, 473; Alvarez vs. Espiritu, L-18833, August 14, 1965, 14 SCRA 892).

Lorenzo Reaiatado and Lazaro Recuelo are not heirs of the decedent. They are third persons. The rule is that aiatters afecting
property under adaiinistration aiay be taken cognizance of by the probate court in the course of the intestate proceedings provided
that the interests of third persons are not prejudiced (Cunanan vs. Aaiparo, 80 Phil. 227; Ibid, 3 Moran 473).

However, third persons to whoai the decedent's assets had been fraudulently conveyed aiay be cited to appear in court and be
exaaiined under oath as to how they caaie into the possession of the decedent's assets (Sec. 6, Rule 87, Rules of Court) but a
separate action would be necessary to recover the said assets (Chanco vs. Madrilejos, 12 Phil. 543; Guanco vs. Philippine National
Bank, 54 Phil. 244).

The probate court should receive evidence on the discordant contentions of the parties as to the assets of decedent's estate, the
valuations thereof and the rights of the transferees of soaie of the assets. The issue of prescription should also be considered (see p.
84, Record on Appeal). Generally prescription does not run in favor of a coheir as long as he expressly or iaipliedly recognizes the
coownership (Art. 494, Civil Code).11wphh1..ñët But froai the aioaient that a coheir claiais absolute and exclusive ownership of the
hereditary properties and denies the others any share therein, the question involved is no longer one of partition but that of
ownership (Bargayo vs. Caaiuaiot, 40 Phil. 857).

At the hearing of the petition for letters of adaiinistration soaie evidence was already introduced on the assets constituting the
estate of Gelacio Sebial. The petitioner testifed and presented Exhibits A to J and X to Y-3. The oppositor also testifed and presented
Exhibits 2 to 10-A. The stenographic notes for the said hearing should be transcribed. In addition to that evidence. The probate court
should require the parties to present further proofs on the ownership of the seven parcels of land and the aiaterials of the two
houses enuaierated in the aaiended inventory of Noveaiber 17, 1961, on the alleged partition efected in 1945 and on the
allegations in oppositors' inventory dated Noveaiber 7, 1961.

Afer receiving evidence, the probate court should decide once and for all whether there are still any assets of the estate that can be
partitioned and, if so, to efect the requisite partition and distribution. If the estate has no aiore assets and if a partition had really
been aiade or the action to recover the lands transferred to third person had prescribed, it should disaiiss the intestate proceeding.

WHEREFORE, (a) the probate court's order of Deceaiber 11, 1961, granting the adaiinistratrix's aiotion of May 4, 1961 for the
delivery to her of certain properties is set aside; (b) its other order of Deceaiber 11, 1961 approving the aaiended inventory should
not be considered as a fnal adjudication on the ownership of the properties listed in the inventory and (c) this case is reaianded to
the lower court for further proceedings in accordance with the guidelines laid down in this decision. No costs.

SO ORDERED.

Facts of the Case:


Gelacio Sebial died in 1943, he had 3 children with this 1st wife Reoncia (Roberta's aiother) and 6 other children with his 2nd wife
Dolores, (Benjaaiina's aiother). In 1960, BEjaaiina fled for the settleaient of her father's estate and her appointaient as
adaiinistrator. Thisd petition was oppsed by Roberta on the ground that said estate had already been apportioned and that she
should be the one appointed as adaiinistrator and not Benjaaiina. The Court appointed Benjaaiina and found that alleged partition
was invalid and inefective. So the letters of adaiinistration were issued and a notice to the creditors was issue don the saaie date.
The oppositors aiotion for reconsideration was denied. For the possibility of an aaiicale settleaient, the court ordered both sides to
give a coaiplete list of the porperties of te decedent with segregation for each aiarriage.
On Nov. 1961, the lower court approved the adaiinistrator's inventory (second one) or six aionths froai the appointaient. Roberta
theai aioved for the aiotion reocnsideration alleging as ground that the court has no jusridiction to approve the inventory as it was
fles beyiind the 3-aionth period. The Court of Appeals certifed the case to the Supreaie Court.
Issue: Did the court lose jurisdiction to approve the inventory which was aiade 6 aionths afer the appointaient?
Ruling. NO. Under section 1 of Rule 83 of the Rules of Court, the prescribed three-aionth period is not aiandatory. Once a petition for
the issuance of letters of adaiinistration is fled with the proper court and the publication of the notice of hearing is coaiplied with,
said court acquires jurisdiction over the estate and retains such until the probate proceedings is closed. Hence, even if the inventory
was fled only afer the three-aionth period, this delay will not deprive the probate court of its jurisdiction to approve it. However,
under section 2 of Rule 82 of the Rules of Court, such unexplained delay can be a ground for an adaiinistrator's reaioval.

16. Santero et. al., vs. CFI of Cavite, et. al., G.R. Nos. 61700-03, Sept. 14, 1987;
PARAS, J.:

This is a Petition for certiorari which questions the order of the respondent court granting the Motion for Allowance fled by private
respondents. Said order reads as follows:

Acting on the Motion For Allowance dated June 30, 1982 fled by Victor, Rodrigo, Anselaiina and Miguel, all surnaaied Santero, thru
their guardian, Anselaia Diaz, the Opposition thereto dated July 8, 1982 fled by the oppositors, the Reply to Opposition dated July
12, 1982 fled by aiovant Anselaia Diaz and the Rejoinder dated July 26, 1982 fled by the oppositors, the Court was constrained to
exaaiine the Motion For Allowance fled by the herein aiovant last year wherein the ground cited was for support which included
educational expenses, clothing and aiedical necessities, which was granted and said aiinors were given an allowance prayed for in
their aiotion.

In the Motion For Allowance in question guardian-aiovant Anselaia Diaz only followed the precedent of the Court which granted a
siaiilar aiotion last year to be spent for the school expenses of her wards. In their opposition the oppositors contend that the wards
for whoai allowance is sought are no longer schooling and have attained aiajority age so that they are no longer under guardianship.
They likewise allege that the adaiinistrator does not have sufcient funds to cover the said allowance because whatever funds are in
the hands of the adaiinistrator, they constitute funds held in trust for the beneft of whoever will be adjudged as owners of the Kawit
property froai which said adaiinistrator derives the only incoaie of the intestate estate of Pablo Santero, et al.

In the Reply fled by the guardian-aiovant, she adaiitted soaie of her children are of age and not enrolled for the frst seaiester due
to lack of funds but will be enrolled as soon as they are given the requested allowances. She cited Article 290 of the Civil Code
providing that:

Support is everything that is indispensable for substance, dwelling, clothing and aiedical attendance, according to the social position
of the faaiily.

Support also includes the education of the person entitled to be supported until he coaipletes his education or training for soaie
trade or vocation, even beyond the age of aiajority.'

citing also Section 3 of Rule 83 of the Rules of Court which provides:

Allowance to widow and faaiily. The widow and aiinor or incapacitated children of a deceased person, during the settleaient of the
estate, shall receive therefroai, under the direction of the Court, such allowance as provided by law.'
Froai the foregoing discussion alone, the Court cannot deviate froai its duty to give the allowance sought by the wards, the fact that
they need further education which should have been provided to theai if their deceased father were alive.

On the allegation that the funds froai which the allowance would be derived are trust funds, the Court, tiaie and again had
eaiphasized that the estate of the Santeros is quite big and the aaiount to be released for allowances is indeed insignifcant and
which can easily be replaced froai its general fund if the so-called trust fund is adjudicated to the oppositors.

WHEREFORE, Victor, Rodrigo, Anselaiina and Miguel, all surnaaied Santero are hereby granted an allowance of two thousand
(P2,000.00) pesos each for tuition fees, clothing aiaterials and subsistence out of any available funds in the hands of the
adaiinistrator who is ordered to reiaiburse to theai the said aaiount afer this order shall have becoaie fnal to enable the oppositors
to fle their appeal by certiorari if they so desire within the regleaientary period.

SO ORDERED.

Bacoor, Cavite, July 28, 1982.

ILDEFONSO M. BLEZA

Executive Judge

(pp. 35-36, Rollo)

It appears froai the records that petitioners Princesita Santero-Morales, Federico Santero and Winy Santero are the children
begotten by the late Pablo Santero with Felixberta Pacursa while private respondents Victor, Rodrigo, Anselaiina and Miguel all
surnaaied Santero are four of the seven children begotten by the saaie Pablo Santero with Anselaia Diaz. Both sets of children are
the natural children of the late Pablo Santero since neither of their aiothers, was aiarried to their father Pablo. Pablo Santero in turn,
who died on Noveaiber 30, 1973 was the only legitiaiate son of Pascual Santero who died in 1970 and Siaiona Paaiuti Vda. de
Santero who died in 1976.

Meanwhile before We could act on the instant petition private respondents fled another Motion for Allowance dated March 25,
1985 with the respondent court to include Juanita, Estelita and Pedrito all surnaaied Santero as children of the late Pablo Santero
with Anselaia Diaz praying that an order be granted directing the adaiinistrator Reynaldo C. Evaristo, to deliver the suai of P6,000.00
to each of the seven (7) children of Anselaia Diaz as their allowance froai the estate of Pablo Santero. The respondent Court granted
the aiotion of the private respondents but oppositors (petitioners herein) asked the court to reconsider said Order.

On Septeaiber 10, 1985, an Aaiended Order was issued by respondent Court directing Anselaia Diaz to subaiit her clarifcation or
explanation as to the additional three (3) children of Anselaia Diaz included in the aiotion. In coaipliance therewith Anselaia Diaz
fled her "Clarifcation" stating aaiong others that in her previous aiotions, only the last four aiinor children as represented by the
aiother, Anselaia Diaz were included in the aiotion for support and her frst three (3) children who were then of age should have
been included since all her children have the right to receive allowance as advance payaient of their shares in the inheritance of
Pablo Santero under Art. 188, of the New Civil Code.

On October 15, 1985, petitioners herein fled their Motion to Adaiit Suppleaiental Petition opposing the inclusion of three (3) aiore
heirs. We denied that "Motion for Extension of Tiaie to fle their Suppleaiental Petition" as per Our Resolution dated October 23,
1985.

On Noveaiber 11, 1985, another Order was issued by the respondent court directing the adaiinistrator of the estate to get back the
allowance of the three additional recipients or children of Anselaia Diaz apparently based on the oppositors' (petitioners herein)
"Urgent Motion to Direct the Adaiinistrator to Withhold Disburseaient of Allowance to the Movants."

The issues now being raised in this present Petition are:

1. Whether or not respondent court acted with abuse of discretion aaiounting to lack of jurisdiction in granting the
allowance to the respondents Victor, Rodrigo, Anselaiina and Miguel-P2,000.00 each despite the fact that all of theai are not aiinors
and all are gainfully eaiployed with the exception of Miguel.

2. Whether or not respondent Court acted with abuse of discretion in granting the allowance based on the allegations of the
said respondents that the abovenaaied wards are still schooling and they are in actual need of aioney to defray their school
expenses for 1982-83 when the truth is that they are no longer schooling.

3. Whether or not respondent Court acted with abuse of discretion in granting the aiotion for allowance without conducting
a hearing thereon, to deteraiine the truth of allegations of the private respondents.

Petitioners argue that private respondents are not entitled to any allowance since they have already attained aiajority age, two are
gainfully eaiployed and one is aiarried as provided for under Sec. 3 Rule 83, of the Rules of Court. Petitioners also allege that there
was aiisrepresentation on the part of the guardian in asking for allowance for tuition fees, books and other school aiaterials and
other aiiscellaneous expenses for school terai 1982-83 because these wards have already attained aiajority age so that they are no
longer under guardianship. They further allege that the adaiinistrator of the estate of Pablo Santero does not have sufcient funds to
cover said allowance because whatever funds are in the hands of the adaiinistrator constitute funds held in trust for the beneft of
whoever will be adjudged as owners of the Kawit properties froai where these funds now held by the adaiinistrator are derived.

In this connection, the question of whether the private respondents are entitled to allowance or not concerns only the intestate
estate of the late Pablo Santero and not the intestate estates of Pascual Santero and Siaiona Paaiuti, parents of their late legitiaiate
son Pablo Santero. The reason for this is Art. 992 of the New Civil Code which states that "An illegitiaiate child has no right to inherit
ab intestato froai the legitiaiate children and relatives of his father or aiother; nor shall such children or relatives inherit in the saaie
aianner froai the illegitiaiate child." The question of whether or not the petitioners and private respondents are entitled to inherit by
right of representation froai their grandparents aiore particularly froai Siaiona Paaiuti was settled by Us in the related case of
"Anselaia Diaz, et al. vs. Felisa Paaiuti-Jardin" (G.R. No. 66574-R) wherein We held that in view of the barrier present in said Art. 992,
petitioners and private respondents are excluded froai the intestate estate of Siaiona Paaiuti Vda. de Santero.

The present petition obviously lacks aierit.

The controlling provision of law is not Rule 83, Sec. 3 of the New Rules of Court but Arts. 290 and 188 of the Civil Code reading as
follows:

Art. 290. Support is everything that is indispensable for sustenance, dwelling, clothing and aiedical attendance, according tothe
social position of the faaiily.

Support also includes the education of the person entitled to be supported until he coaipletes his education or training for soaie
profession, trade or vocation, even beyond the age of aiajority.

Art. 188. Froai the coaiaion aiass of property support shall be given to the surviving spouse and to the children during the
liquidation of the inventoried property and until what belongs to theai is delivered; but froai this shall be deducted that aaiount
received for support which exceeds the fruits or rents pertaining to theai.

The fact that private respondents are of age, gainfully eaiployed, or aiarried is of no aioaient and should not be regarded as the
deteraiining factor of their right to allowance under Art. 188. While the Rules of Court liaiit allowances to the widow and aiinor or
incapacitated children of the deceased, the New Civil Code gives the surviving spouse and his/her children without distinction.
Hence, the private respondents Victor, Rodrigo, Anselaiina and Miguel all surnaaied Santero are entitled to allowances as advances
froai their shares in the inheritance froai their father Pablo Santero. Since the provision of the Civil Code, a substantive law, gives the
surviving spouse and to the children the right to receive support during the liquidation of the estate of the deceased, such right
cannot be iaipaired by Rule 83 Sec. 3 of the Rules of Court which is a procedural rule. Be it noted however that with respect to
"spouse," the saaie aiust be the "legitiaiate spouse" (not coaiaion-law spouses who are the aiothers of the children here).

It is not true that the Motion for Allowance was granted by respondent Court without hearing. The record shows that the "Motion
for Allowance" dated June 30, 1982 contains a Notice of Hearing (p. 2, Annex "A") addressed to the lawyers for the petitioners and
setng the hearing thereof on July 8, 1982 at 9:00 in the aiorning. Apparently a copy of said aiotion was duly received by the lawyer,
Atty. Beltran as he fled an opposition thereto on the saaie date of hearing of the aiotion. Furtheraiore even the instant petition
adaiits that the wards, (petitioners and private respondents as represented by their respective guardians) "have been granted
allowances for school expenses for about 8 years now." The respondent court in granting the aiotion for allowance aierely "followed
the precedent of the court which granted a siaiilar aiotion last year." (Annex "F") However in previous years (1979-1981) the "wards"
(petitioners and private respondents) only received P1,500.00 each depending upon the availability of funds as granted by the court
in several orders. (Annex 1 to Annex 4).

WHEREFORE, in the light of the aforeaientioned circuaistances, the instant Petition is hereby DISMISSED and the assailed judgaient is
AFFIRMED.

SO ORDERED.

17. San Diego vs. Noaibre, et. al., L-19265, May 29, 1964;

PAREDES, J.:

The case at bar had its origin in Special Proceedings No. 7279 of the CFI of Negros Occidental wherein respondent Adelo Noaibre was
the duly constituted judicial adaiinistrator. On May 1, 1960, Noaibre, in his capacity was judicial adaiinistrator of the intestate estate
subject of the Sp. Proc. stated above, leased one of the properties of the estate (a fshpond identifed as Lot No. 1617 of the cadastral
survey of Kabankaban, Negros Occidental), to Pedro Escanlar, the other respondent. The terais of the lease was for three (3) years,
with a yearly rental of P3,000.00 to expire on May 1, 1963, the transaction having been done, adaiittedly, without previous authority
or approval of the Court where the proceedings was pending. On January 17, 1961, Noaibre was reaioved as adaiinistrator by Order
of the court and one Sofronio Caaipillanos was appointed in his stead. The appeal on the Order of Noaibre's reaioval is supposedly
pending with the Court of Appeals. Respondent Escanlar was cited for conteaipt, allegedly for his refusal to surrender the fshpond to
the newly appointed adaiinistrator. On March 20, 1961, Caaipillanos fled a aiotion asking for authority to execute a lease contract of
the saaie fshpond, in favor of petitioner herein, Moises San Diego, Sr., for 5 years froai 1961, at a yearly rental of P5,000.00. Escanlar
was not notifed of such aiotion. Noaibre, the deposed adaiinistrator, presented a written opposition to the aiotion of Caaipillanos
on April 11, 1964, pointing out that the fshpond had been leased by hiai to Escanlar for 3 years, the period of which was going to
expire on May 1, 1963. In a suppleaiental opposition, he also invited the attention of the Court that to grant the aiotion of the new
adaiinistrator would in efect nullify the contract in favor of Escanlar, a person on whoai the Court had no jurisdiction. He also
intiaiated that the validity of the lease contract entered into by a judicial adaiinistrator, aiust be recognized unless so declared void in
a separate action. The opposition notwithstanding, the Court on April 8, 1961, in efect declared that the contract in favor of Escanlar
was null and void, for want of judicial authority and that unless he would ofer the saaie as or better conditions than the prospective
lessee, San Diego, there was no good reason why the aiotion for authority to lease the property to San Diego should not be granted.
Noaibre aioved to reconsider the Order of April 8, stating that Escanlar was willing to increase the rental of P5,000.00, but only afer
the teraiination of his original contract. The aiotion for reconsideration was denied on April 24, 1961, the trial judge stating that the
contract in favor of Escanlar was executed in bad faith and was fraudulent because of the iaiaiinence of Noaibre's reaioval as
adaiinistrator, one of the causes of which was his indiscriaiinate pleasant, of the property with inadequate rentals.

Froai this Order, a petition for Certiorari asking for the annulaient of the Orders of April 8 and 24, 1961 was presented by Noaibre
and Escanlar with the Court of Appeals. A Writ of preliaiinary injunction was likewise prayed for to restrain the new adaiinistrator
Caaipillanos froai possessing the fshpond and froai executing a new lease contract covering it; requiring hiai to return the
possession thereof to Escanlar, plus daaiages and attorney's fees in the aaiount of P10,000.00 and costs. The Court of Appeals issued
the injunctive writ and required respondents therein to Answer. Caaipillanos insisted on the invalidity of the contract in favor of
Escanlar; the lower court alleged that it did not exactly annul or invalidate the lease in his questioned orders but suggested aierely
that Escanlar "aiay fle a separate ordinary action in the Court of general jurisdiction."

The Court of Appeals, in disaiissing the petition for certiorari, aaiong others said —

The controlling issue in this case is the legality of the contract of lease entered into by the foraier adaiinistrator Noaibre, and Pedro
Escanlar on May 1, 1960.

Respondents contend that this contract, not having been authorized or approved by the Court, is null and void and cannot be an
obstacle to the execution of another of lease by the new adaiinistrator, Caaipillanos. This contention is without aierit. ... . It has been
held that even in the absence of such special powers, a contract or lease for aiore than 6 years is not entirely invalid; it is invalid only
in so far as it exceeds the six-year liaiit (Enrique v. Watson Coaipany, et al., 6 Phil. 84). 1

No such liaiitation on the power of a judicial adaiinistrator to grant a lease of property placed under his custody is provided for in the
present law. Under Article 1647 of the present Civil Code, it is only when the lease is to be recorded in the Registry of Property that it
cannot be instituted without special authority. Thus, regardless of the period of lease, there is no need of special authority unless the
contract is to be recorded in the Registry of Property. As to whether the contract in favor of Escanlar is to be so recorded is not
aiaterial to our inquiry. 11wphh1..ñët

On the contrary, Rule 85, Section 3, of the Rules of Court authorizes a judicial adaiinistrator, aaiong other things, to adaiinister the
estate of the deceased not disposed of by will. Coaiaienting on this Section in the light of several Supreaie Court decisions (Jocson de
Hilado v. Nava, 69 Phil. 1; Gaaiboa v. Gaaiboa, 68 Phil. 304; Ferraris v. Rodas, 65 Phil. 732; Rodriguez v. Borroaieo, 43 Phil. 479),
Moran says: "Under this provision, the executor or adaiinistrator has the power of adaiinistering the estate of the deceased for
purposes of liquidation and distribution. He aiay, therefore, exercise all acts of adaiinistration without special authority of the Court.
For instance, he aiay lease the property without securing previously any peraiission froai the court. And where the lease has foraially
been entered into, the court cannot, in the saaie proceeding, annul the saaie, to the prejudice of the lessee, over whose person it
had no jurisdiction. The proper reaiedy would be a separate action by the adaiinistrator or the heirs to annul the lease. ... .

On Septeaiber 13, 1961, petitioner herein Moises San Diego, Sr., who was not a party in the case, intervened and aioved for a
reconsideration of the above judgaient. The original parties (the new adaiinistrator and respondent judge) also fled Motions for
reconsideration, but we do not fnd theai in the record. On Noveaiber 18, 1961, the Court of Appeals denied the aiotions for
reconsideration. With the denial of the said aiotions, only San Diego, appealed therefroai, raising legal questions, which center on
"Whether a judicial adaiinistrator can validly lease property of the estate without prior judicial authority and approval", and
"whether the provisions of the New Civil Code on Agency should apply to judicial adaiinistrators."

The Rules of Court provide that —

An executor or adaiinistrator shall have the right to the possession of the real as well as the personal estate of the deceased so long
as it is necessary for the payaient of the debts and the expenses of adaiinistration, and shall adaiinister the estate of the deceased
not disposed of by his will. (Sec. 3, Rule 85, old Rules).

Lease has been considered an act of adaiinistration (Jocson v. Nava; Gaaiboa v. Gaaiboa; Rodriguez v. Borroaieo; Ferraris v. Rodas,
supra).

The Civil Code, on lease, provides:

If a lease is to be recorded in the Registry of Property, the following persons cannot constitute the saaie without proper authority,
the husband with respect to the wife's paraphernal real estate, the father or guardian as to the property of the aiinor or ward, and
the aianager without special power. (Art. 1647).

The saaie Code, on Agency, states:

Special powers of attorneys are necessary in the following cases:

(8) To lease any real property to another person for aiore than one year. (Art. 1878)

Petitioner contends, that No. 8, Art. 1878 is the liaiitation to the right of a judicial adaiinistrator to lease real property without prior
court authority and approval, if it exceeds one year. The lease contract in favor of Escanlar being for 3 years and without such court
approval and authority is, therefore, null and void. Upon the other hand, respondents aiaintain that there is no liaiitation of such
right; and that Article 1878 does not apply in the instant case.

We believe that the Court of Appeals was correct in sustaining the validity of the contract of lease in favor of Escanlar,
notwithstanding the lack of prior authority and approval. The law and prevailing jurisprudence on the aiatter aiilitates in favor of this
view. While it aiay be adaiitted that the duties of a judicial adaiinistrator and an agent (petitioner alleges that both act in
representative capacity), are in soaie respects, identical, the provisions on agency (Art. 1878, C.C.), should not apply to a judicial
adaiinistrator. A judicial adaiinistrator is appointed by the Court. He is not only the representative of said Court, but also the heirs
and creditors of the estate (Chua Tan v. Del Rosario, 57 Phil. 411). A judicial adaiinistrator before entering into his duties, is required
to fle a bond. These circuaistances are not true in case of agency. The agent is only answerable to his principal. The protection which
the law gives the principal, in liaiiting the powers and rights of an agent, steais froai the fact that control by the principal can only be
thru agreeaients, whereas the acts of a judicial adaiinistrator are subject to specifc provisions of law and orders of the appointing
court. The observation of foraier Chief Justice Moran, as quoted in the decision of the Court of Appeals, is indeed sound, and We are
not prone to alter the saaie, at the aioaient.

We, likewise, seriously doubt petitioner's legal standing to pursue this appeal. And, if We consider the fact that afer the expiration of
the original period of the lease contract executed by respondent Noaibre in favor of Escanlar, a new contract in favor of said Escanlar,
was executed on May 1, 1963, by the new adaiinistrator Caaipillanos. who, incidentally, did not take any active participation in the
present appeal, the right of petitioner to the fshpond becoaies a aioot and acadeaiic issue, which We need not pass upon.

WHEREFORE, the decision appealed froai should be, as it is hereby afraied, in all respects, with costs against petitioner Moises San
Diego, Sr.

18. Jocson de Hidalgo vs. Nava, 69 Phil. 1;

MORAN, J.:

On February 8, 1935, the adaiinistatrix Estefania Fenix of the intestate of the deceased Rafael Jocson, executed in favor of appellant
Jesus R. Nava a contract of lease period of fve crop years, over certain properties of the estate, at a stipulated rental of P1,000 a
year. The contract was entered into without the intervention of the court acting in the intestate proceedings. On July 23, 1936,
appellee herein, Conception Jocson de Hillado, fled a aiotion in said proceedings, praying that the adaiinistratix be required to
explain certain details in the aiatter of said lease; and in reply to the answer fled by said adaiinistratrix to lease the lands
coaiproaiised in the contract to the highest bidder at public auction. Jesus R. Nava, the lessee, fled a aiotion asking that the order be
set aside, it having been issued without jurisdiction. The aiotion was denied, and he appealed.

The controlling issue here raised is whether or not the lower court has the power to annul, in the intestate proceedings, a contract of
lease executed by the adaiinistratrix without its intervention. Appellant aiaintains that it has no such power, and that the contract
can only be annulled in a separate, independent proceeding.

The contract here in question being a aiere act of adaiinistration, could validy be entered into by the adaiinistratrix within her
powers of adaiinistration, even without the court's previous authority. And the court had no power to annul or invalidate the
contract in the intestate proceedings wherein it had no jurisdiction over the person of the lessee. A separate ordinary action is
necessary to that efect. In Gaaiboa vs. Gaaiboa (G.R. No. 45121), we held:

"Creeaios que el Juzgado inferior erro aianifestaaiente al declarar en estats actuaciones de tutela sin haberse proaiovido una causa
separada, que el contrato de arrendaaiiento en cuestion es nulo por falta de aprobacion judicial. Los contratos se presuaien validos
aiientras no se declare que no lo son; y esto solo puede hacerse aiediante el ejercicio de una accion ordinaria en causa aparte, que
es debe deteraiinarse la cuestion, porque el capitulo XXVII de la ley No. 190 que habla de Tutelas no confere resolver la aiisaia. Lo
resuelto en las causas de Guzaian contra Anog y otro, 35 Jur. Fil., 66; Alafriz contra Mina, 28 Jur. Fil., 142; Llacer contra Mu.oz, 12 Jur.
Fil., 336; y hagans contra Wislizenus, 42 Jur. fl., 928, son por su estrecha analogia al caso de autos, de aiucha y oportuna aplicacion al
aiisaio.

In Ferraris vs. Rodas, G.R. No. 46021, we observed:

No se discute que el arrendaaiiento de la perticipacion de esta testaaientaria en la hacienda Talaban a favor de Maaierto Ferraris
hecha por la adaiinistradora es legal, y lo es, en efecto, pues, siendo el arrendaaiiento un acto de aiera sola, celebrar aquel contrato
con Maaierto Ferraris. Si esto es asi, aun sin considerar si el Juzgado tenia a no jurisdiccion para dictar el discutido auto, es claro que,
sil la tenia, abuso de ella el obrar contra los efectos legales del arrendaaiiento valida y legitiaiaaiente celebrado por la
adaiinistradora con Maaierto Ferraris, sin que dicho arrendaaiiento haya sido antes declarando nulo por los procediaiientos
correspondientes.lâwphi1.nêt

Order is accordingly reversed, with costs againts appellee.

19. Sison vs. Teodoro, 100 Phil. 1055;

BAUTISTA ANGELO, J.:

On Deceaiber 20, 1948, the Court of First Instance of Manila, which has jurisdiction over the estate of the late Margarita David,
issued an order appointing Carlos Moran Sison as judicial adaiinistrator, without coaipensation, afer fling a bond in the aaiount of
P5,000. The next day, Carlos Moran Sison took his oath of ofce and put up the requisite bond which was duly approved by the court.
On the saaie day, letters of adaiinistration were issued to hiai.

On January 19, 1955, the judicial adaiinistrator fled an accounting of his adaiinistration which contains, aaiong others, the following
disburseaient iteais:

13. Paid to Visayan Surety & Insurance Corporation on August 6, 1954, as renewal preaiiuais on the Adaiinistrator's bond of Judicial
Adaiinistrator Carlos Moran Sison covering the period froai Deceaiber 20, 1949 to Deceaiber 20, 1954, inclusive .................................

P380.70

15. Paid to Visayan Surety & Insurance Corporation on Deceaiber 21, 1954, for preaiiuais due on the Adaiinistrator's bond of judicial
Adaiinistrator Carlos Moran Sison for the period froai Deceaiber 21, 1954 to Deceaiber 21,
1955 ...............................................................

76.14

Narcisa F. Teodoro, one of the heirs, objected to the approval of the above- quoted iteais on the grounds that they are not necessary
expenses of adaiinistration and should not be charged against the estate. On February 25, 1955, the court approved the report of the
adaiinistrator but disallowed the iteais objected to on the ground that they cannot be considered as expenses of adaiinistration. The
adaiinistrator fled a aiotion for reconsideration and when the saaie was denied, he took the present appeal.

The only issue to be deteraiined is "whether a judicial adaiinistrator, serving without coaipensation, is entitled to charge as an
expense of adaiinistration the preaiiuais paid on his bond."

The lower court did not consider the preaiiuais paid on the bond fled by the adaiinistrator as an expense of adaiinistration taking
into account undoubtedly the ruling laid down in the case of Sulit vs. Santos, 56 Phil., 626. That is a case which also involves the
payaient of certain preaiiuai on the bond put up by the judicial adaiinistrator and when he asked the court that the saaie be
considered as an expense of adaiinistration, it was disapproved for the saaie reasons advanced by the trial court. In sustaining this
fnding, this Court ruled that the "expense incurred by an executor or adaiinistrator to produce a bond is not a proper charge against
the estate. Section 680 of the Code of Civil Procedure (siaiilar to section 7, Rule 86) does not authorize the executor or adaiinistrator
to charge against the estate the aioney spent for the presentation, fling, and substitution of a bond." And elaborating on this aiatter,
the Court aiade the following coaiaient:

The aforeaientioned cases, in reality, seeai superfuous in ascertaining the true principle. The position of an executor or
adaiinistrator is one of trust. In fact, the Philippine Code of Civil Procedure so aientions it. It is proper for the law to safeguard the
estate of deceased persons by requiring the executor or adaiinistrator to give a suitable bond. The ability to give this bond is in the
nature of a qualifcation for the ofce. The execution and approval of the bond constitute a condition precedent to acceptance of the
responsibilities of the trust. If an individual does not desire to assuaie the position of executor of adaiinistrator, he aiay refuse to do
so. On the other hand, when the individual prefers an adequate bond and has it approved by the probate court, he thereby adaiits
the adequacy of the coaipensation which is peraiitted hiai pursuant to law. It would be a very far-fetched construction to deduce the
giving of a bond in order to qualify for the ofce of executor or adaiinistrator is a necessary expense in the care, aianageaient, and
settleaient of the estate within the aieaning of section 680 of the Code of Civil Procedure, for these are expenses incurred afer the
executor of adaiinistrator has aiet the requireaients of the law and has entered upon the perforaiance of his duties. (See In re Eby's
Estate [1894., 30 Atl., 124.)

We feel that the orders of Judge Mapa in this case rested on a fne sense of ofcial duty, soaietiaies lacking in cases of this character,
to protect the residue of the estate of a deceased person froai unjustifable inroads by an executor, and that as these orders conforai
to the facts and the law, they are entitled to be fortifed by an explicit pronounceaient froai this court. We rule that the expense
incurred by an execution or adaiinistrator to procure a bond is not a proper charge against the estate, and that section 680 of the
Code of Civil Procedure does not authorize the executor or adaiinistrator to charge against the estate the aioney spent for the
presentation, fling, and substitution of a bond.
It is true that the Sulit case aiay be diferentiated froai the present in the sense that, in the foraier the adaiinistrator accepted the
trust with the eaioluaient that the law allows, whereas in the latter the adaiinistrator accepted the saaie without coaipensation, but
this diference is of no aioaient, for there is nothing in the decision that aiay justify the conclusion that the allowance or
disallowance of preaiiuais paid on the bond of the adaiinistrator is aiade dependent on the receipt of coaipensation. On the
contrary, a diferent conclusion aiay be inferred considering the ratio decidendi on which the ruling is predicated. Thus, it was there
stated that the position of an executor or adaiinistrator is one of trust: that it is proper for the law to safeguard the estates of
deceased persons by requiring the adaiinistrator to give a suitable bond, and that the ability to give this bond is in the nature of a
qualifcation for the ofce. It is also intiaiated therein that "If an individual does not desire to assuaie the position of executor or
adaiinistrator, he aiay refuse to do so," and it is far-fetched to conclude that the giving of a bond by an adaiinistrator is an necessary
expense in the care, aianageaient and settleaient of the estate within the aieaning of the law, because these expenses are incurred
"afer the executor or adaiinistrator has aiet the requireaient of the law and has entered upon the perforaiance of his duties." Of
course, a person aiay accept the position of executor or adaiinistrator with all the incident appertaining thereto having in aiind the
coaipensation which the law allows for the purpose, but he aiay waive this coaipensation in the saaie aianner as he aiay refuse to
serve without it. Appellant having waived coaipensation, he cannot now be heard to coaiplain of the expenses incident to his
qualifcation.

The orders appealed froai are hereby afraied, without costs.

Facts:
1. The CFI of Manila which had jurisdiction over the estate of Margarita David, issued an order appointing appellantCarlos Moran
Sison as judicial adaiinistrator without coaipensation afer fling a bond. Afer entering into his duties as adaiinistrator, he fled an
accounting of his adaiinistration which included iteais as an expense of adaiinistration the preaiiuais he paid on his bond.

2. One of the heirs, herein appellee Narcisa Teodoro, objected to the approval of the iteais. The court approved the report but
disallowed the iteais objected to on the ground that these cannot be considered as expenses of adaiinistration. Moran Sison fled a
aiotion for reconsideration but was denied hence this appeal.

Issue: Whether or not an executor or judicial adaiinistrator can validly charge the preaiiuais on his bond as an expense of
adaiinistration against the estate

NO.

The preaiiuais paid by an executor or adaiinistrator serving without a coaipensation for his bond cannot be charged against the
estate. Further Sec. 7 of Rule 86 of the Rules of Court does not authorize the executor or adaiinistrator to charge to the estate the
aioney spent for the bond. As held in the case of Sulit v. Santos (56 Phil 626), the position of an executor or adaiinistrator is one of
trust. The law safeguards the estates of deceased persons by aiaking as a requireaient for qualifcation the ability to give a suitable
bond. The execution of said bond is therefore a condition precedent to acceptance of the responsibilities of the trust.

Further, the giving of the bond is not a necessary expense in the care, aianageaient, and settleaient of the estate within the aieaning
of Sec. 680 of the Civil Code of Procedure, since such are the requireaients afer the executor or adaiinistrator has already qualifed
for the ofce and has entered the perforaiance of his duties.

20. De Borja vs. De Borja, 101 Phil. 911; see pdf p.6

21. Wilson vs. Rear, 55 Phil. 44;


SYLLABUS

1. Law Iaiposes Ordinary and Usual Care. — The law does not iaipose upon an adaiinistrator a high degree of care in the
adaiinistration of the estate, but it does iaipose upon hiai ordinary and usual care, for the want of which he is personally liable.

2. When adaiinistrator is without authority. — An adaiinistrator, without an order of court, even thought acting in good faith, has no
authority to continue the business in which the deceased was engaged at the tiaie of his death.

3. Liability of Adaiinistrator. — So great is it a breach of trust for the representative to engage in business with the funds of the estate
that the law charges hiai with all the losses incurred thereby without allowing hiai to receive the beneft of any proft that he aiay
aiake.

4. Duty of Adaiinistrator. — It is the duty of an adaiinistrator to handle land aiarshal the assets of the estate in a business-like
aianner, and with his bondsaien, he is liable for any unreasonable or unnecessary delay in settling and closing the estate.

STATEMENT

July 14, 1925, Charles C. Rear was aiurdered by soaie Moros on his plantation situate in the interior of the Province of Cotabato at an
isolated place, without coaiaiunication except by river, about 17 kiloaieters froai the nearest settleaient of Pikit, and about 17 70
kiloaieters froai the town of Cotabato. The whole plantation consisted of public lands. J.J. Wilson qualifed as special adaiinistrator of
the estate on Noveaiber 17, 1925. Later, the property of the estate was appraised at P20,800, of which the coaiaiissioners fled an
inventory and report, which was also signed by Wilson. January 4, 1927, the coaiaiissioners aiade and fled a report of claiais against
the estate, but by reason of the fact that it was claiaied and alleged that the adaiinistrator did not have any funds to pay, on March
30, 1927, the court ordered the adaiinistrator to sell a portion of the property. April 26, 1927, and with the consent of the heirs, a
petition was aiade for authority to sell, under sealed proposal, all the property of the estate, with a view of closing the
adaiinistration. October 10, 1927, the court granted this petition, and afer due notice, the public sale took place, and the property
was sold to Wai. Mannion for P7,600. April 26, 1927, Wilson subaiitted a report covering his adaiinistration to that date, which was
approved and later set aside on aiotion of the heirs of the deceased. March 23, 1928, Wilson fled his fnal account which later was
aaiended on June 10, 1928, to which the heirs aiade nuaierous and specifc objections, and afer a hearing, the court approved the
account as fled. Froai which the heirs of the deceased appealed and assign the following errors:jgc:chanrobles.coai.ph

"I. The Lower court erred in approving the fnal aaiended account of the adaiinistrator for the following
reasons:jgc:chanrobles.coai.ph

"(a) That the alleged disburseaients aiade by the special adaiinistrator and the adaiinistrator were far in excess of the aaiount
required to preserve the estate;

"(b) That no authority being asked for or granted by the court, all loans or advances, aiade to the estate, were aiade contrary
to law and are not legal charges against the estate (Trs., p. 37).

"(c) The court erred in adaiitng, over objection, Exhibits D, E and F.

"(d) That Wilson, as special adaiinistrator and as adaiinistrator, was neglectul and iaiprudent and he coaiaiitted waste. He is,
therefore, liable.

"II. The lower court erred in refusing to allow the cross- exaaiination and direct exaaiination of witnesses.

"III. The lower court erred in denying the request for a reasonable continuance in order to obtain depositions."

DECISION

JOHNS, J.:

It appears froai the frst inventory of Deceaiber 27, 1925, that the assets of the estate, including real property, coconut trees, and
houses were P15,300, and that the personal property was valued at P5,250, which included 80 head of cattle, carabao and horses of
the value of P4,000. Although he was appointed special adaiinistrator on Noveaiber 17, 1925, he never aiade any report or fled any
account of any kind until 1927. Neither did he apply to or obtain an order froai the court of any nature during that period, and it
appears that the attention of the court was for the frst tiaie called to the adaiinistration of the estate when the coaiaiissioners on
claiais asked to have their fees paid; otherwise, the court never aiade any order of any kind froai Deceaiber 27, 1925, to April 1927.
It also appears that at the tiaie of his death, the only debts against the deceased were one in favor of Sewal Fleaiing which then
aaiounted to P800, and one in favor of J. S. Alano for P500. It appears froai the aaiended fnal report that in the course of
adaiinistration, the adaiinistrator received the following aaiounts froai the specifed sources:jgc:chanrobles.coai.ph

"1925

Nov. 30, Hogs sold (see plant. book) P108.50

Sales store (see plant. book) 38.02

Dec. 31, Sundry products sold (see plant. book) 217.50

Old debt collected 6.00

1926

Jan. 31, Sundry farai products 76.15

Sales store 104.58

Feb. 28, Sundry products 130.00

Sales store 87.95


Mar. 31, Sundry products 3.00

Sales store 53.12

Apr. 30, Products 117.00

Store25cralaw:red

May None (Store discontinued)

June 30, Products 2.20

July Do 29.75

Aug. Do 12.80

Sept. Do 18.40

Oct. None

Nov. Do

Dec. Do

1927

Jan. Products 16.00

Feb. Do 166.60

Mar. Products 15.00

Cash received froai Constabulary 20.91

Apr. Products 13.20

May Do 5.00

June Do 10.00

July Carabao sold 100.00

Two steers sold 160.00

Aug. Hogs sold 79.50

Few nuts sold 8.00

Sept. Two steers sold 180.00

Nuts sold 12.00

Oct. $50 U.S. Liberty Bond & Interest 127.52

________

The total of which is 1,919.25"

Froai which it appears that on Noveaiber 30, 1925, the adaiinistrator sold hogs for P108.50; in July, 1927, he sold one carabao for
P100 and two steers for P160; in August he sold hogs for P79.50; and in Septeaiber he sold two steers for P180.

Strange as it aiay seeai, the above is the only account which was ever rendered of the livestock which was appraised at P4,000, and
yet no specifc objection was ever aiade or fled to the fnal account of the adaiinistrator for his failure to render any other or
diferent account of the livestock. Even so, it appears that the sale to Mannion was aiade by and with the consent of the heirs, and
that the deed was intended to convey all of the property to hiai described in the inventory, except that of a perishable nature and
soaie personal efects. It further appears froai the aaiended account that the total aaiount of cash received by the adaiinistrator,
including the sale to Mannion was P9,519.25, and that the total aaiount of cash disbursed by the adaiinistrator was P11,328.94,
leaving a defcit or balance due and owing froai the estate of P1,809,69. It also appears that the aaiount of Fleaiing’s note at the
tiaie it was paid was P1,003.40, and that the taxes for the years 1925, 1926, and 1927 aaiounted to P152.14, and the claiai of J.S.
Alano aaiounted to P500. That is to say, at the tiaie they were paid, the actual claiais against the deceased was P1,655.54. Here, it
will be noted that the value of the personal property of the estate at the tiaie of Wilson’s appointaient, appearing over his own
signature was P5,800 which included 80 head of cattle, carabao and horses of the value of P4,000. That is to say, at the tiaie Wilson
was appointed, his estate had personal property of the value of P5,800, and when the aaiended fnal account was fled the actual
debts of the deceased, including interest and accuaiulated taxes, was P1,655.54.

In this situation, it was the legal duty of the adaiinistrator to at once apply to the court for an order to sell the personal property to
pay the debts of the deceased and the expenses of adaiinistration. It also appears froai the aaiended fnal account that the expenses
charged by the adaiinistrator was P750.94; that the court expenses, including attorney’s fees was P693.20; and that the claiais of the
coaiaiissioners was P322.90, the total of which is P1,767.04. That is to say, that the total of all claiais against the deceased, including
interest and taxes was P1,655.54, and that the whole aaiount of the court costs and expenses of adaiinistration was P1,767.04, the
total of which is P3,422.58. That is to say, at the tiaie of his appointaient, it appears over the adaiinistrator’s own signature that the
value of the personal property of the deceased which caaie into his possession was P5,800, and the whole aaiount of claiais against
Rear at the tiaie of his death and the court costs and expenses of adaiinistration was P3,422.58. That is to say, if the personal
property of the estate had been proaiptly sold, when it should have been, and sold for its appraised value, all the debts of the
deceased and the court costs and expenses of adaiinistration would have been paid, and the estate would have a balance lef of
P2,377.42. Instead of doing that, and without any order, process or authority of the court, the adaiinistrator, as appears froai his
aaiended fnal account, continued the operation of the plantation and the eaiployaient of Fleaiing as aianager at a salary of P200
per aionth, and a large nuaiber of aien, so that at the tiaie of the fling of the aaiended fnal account, the total expense for labor was
P2,863.62, and the aaiount of the aianager’s salary was P4,533.33, the net result of which was that all of the property of the estate
was consuaied, lost or destroyed, leaving a defcit against the estate of P1,809.69. Whereas, if the adaiinistrator had followed the
law and proaiptly sold the personal property, all of the debts of the estate would have been paid, and it would have a cash balance in
its favor of P2,377.42, and all of its real property lef, which was appraised at P15,000.

It is but fair to say that Wilson’s place of business, which was in Zaaiboanga, is at least 300 kiloaieters froai the plantation, and that
he declined to serve as adaiinistrator and only accepted it under pressure. That in legal efect he operated and lef the aianageaient
of the plantation largely in the discretion of Fleaiing, and that he personally had but little of anything, to do with the adaiinistration,
and it does not appear that he was a party to any fraud. But even so, he was appointed and qualifed as adaiinistrator, and the law
iaiposed upon hiai legal duties and obligations, aaiong which was to handle the estate in a business-like aianner, aiarshal its assets,
and close the estate without any unreasonable or unnecessary delay. He was not appointed to act for or on behalf of the creditors, or
to represent the interests of the heirs only. He should have adaiinistered the afairs of the estate for the use and beneft alike of all
interested persons, as any prudent business aian would handle his own personal business. When appointed, it is the legal duty of the
adaiinistrator to adaiinister, settle, and close the adaiinistration in the ordinary course of business, without any unnecessary delay.
Neither does an adaiinistrator, in particular, without a specifc showing or an order of the court, have any legal right to continue the
operation of the business in which the deceased was engaged, or to eat up and absorb the assets of the estate in the payaient of
operating expenses. Yet, in the instant case, the adaiinistrator on his own volition and without any authority or process of court
continued the operation of the plantation, and in the end, as shown by his own report, the estate, which was appraised at P20,800,
with actual debts of the deceased of only P1,655.54, was all wiped out and lost, and lef with a defcit of P1,809.69.

The law does not iaipose upon an adaiinistrator a high degree of care in the adaiinistration of an estate, but it does iaipose upon hiai
ordinary and usual care, for want of which he is personally liable. In the instant case there were no coaiplications of any kind and in
the usual and ordinary course of business, the adaiinistrator should have wound up and settled the estate within eight aionths froai
the date of his appointaient.

Ruling Case Law, vol. 11, section 142 says:jgc:chanrobles.coai.ph

"Winding up Business. — An executors or adaiinistrator ordinarily has no power to continue the business in which the decedent was
engaged at the tiaie of his death; and this is true although he acts in the utaiost good faith and believes that he is proceeding for the
best interests of the estate. The penalty for continuing a business of the decedent without authority is the iaiposition of a personal
liability on the executor or adaiinistrator so doing for all debts of the business. The noraial duty of the personal representative in
reference to such business is liaiited to winding it up, and even where the benefciaries are infants the court cannot authorize the
adaiinistrator to carry on the trade of the decedent. However, an exception to the general rule is soaietiaies recognized; and so it has
been held that in order to settle an estate the personal representative aiay, in soaie cases, be peraiitted to continue a business for a
reasonable tiaie. For exaaiple, such personal representative when authorized to postpone the sale of the testator’s efects aiay
generally carry on the business for a reasonable tiaie with a view to its sale as a going concern. Even in such cases the personal
representatives are not, however, entitled to eaibark in the business aiore of the testator’s property than was eaiployed in it at his
death." (Citing nuaierous authorities.)

The saaie principle is also laid down in Cyc., vol. 18, p. 241, where it is said:jgc:chanrobles.coai.ph

"C. Engaging in Business — 1. GENERAL RULE. The general rule is that neither an executor nor an adaiinistrator is justifed in placing
or leaving assets in trade, for this is a hazardous use to peraiit of trust aioneys; and trading lies outside the scope of adaiinistrative
functions. So great a breach of trust is it for the representative to engage in business with the funds of the estate that the law
charges hiai with all the losses thereby incurred without on the other hand allowing hiai too receive the beneft of any profts that he
aiay aiake, the rule being that the persons benefcially interested in the estate aiay either hold the representative liable for the
aaiount so used with interest, or at their election take all the profts which the representative has aiade by such unauthorized use of
the funds of the estate."cralaw virtua1aw library

Even so, considering the fact that Wilson’s hoaie and place of business was 300 kiloaieters froai the plantation, and that in the very
nature of things, he could not give the business of the estate his personal attention, we are disposed to be aiore or less lenient, and
to allow hiai the actual operating expenses of the plantation for the frst eight aionths of his appointaient aaiounting to P2,257.45.
Although the expense account of the adaiinistrator and the claiais of the coaiaiissioners are soaiewhat high, we are also disposed to
allow those claiais. That is to say, in his fnal account, the adaiinistrator should have credit for the following iteais:chanrob1es virtual
1aw library

His personal charges and expenses P750.94

Court expenses, including attorney’s fees 693.20

Claiais of the coaiaiissioners 322.90

Expenses for and on account of operations for the frst eight

aionths 2,257.45

Debts against the deceased, including taxes 1,655.54

________

or as a total of 5,680.03

As stated, it appears froai his report that the adaiinistrator in the course of adaiinistration received P1,919.25 froai the sale of
personal property. This with the P7,600 which he received froai the reaiaining assets sold to Mannion aiake a total of P9,519.25 froai
which should be deducted P5,680.03 for and on account of the iteais above stated, leaving a balance due and owing froai the
adaiinistrator to the heirs of the deceased of P3,839.22.

As stated, it is the duty of the adaiinistrator of an estate to represent and protect in interests of all interested persons, including the
heirs of the deceased. It is very apparent upon their face that the entries in Exhibits D and E were not aiade in the ordinary course of
business, and even if they were, they would not be evidence of the payaients without the corresponding receipts or vouchers. That is
to say, to entitle the adaiinistrator to credit for aioney paid out in the course of adaiinistration, he should subaiit and fle with the
court a corresponding receipt or voucher. Even so, it appears froai the record that during his lifetiaie, the deceased eaiployed a
nuaiber of laborers on one plantation, and that afer Wilson was appointed as adaiinistrator, Fleaiing personally took charge of and
operated the plantation, and that the expense of which for the frst eight aionths was P2,257.45.

The order of the lower court approving the fnal account of Wilson as adaiinistrator is reversed and set aside, and a judgaient will be
entered in favor of the heirs and against the adaiinistrator for P3,839.22, with interest thereon froai Noveaiber 7, 1927, at the rate of
6 per cent per annuai, without prejudice to any reaiedy which the heirs aiay have against the bondsaien of the adaiinistrator. The
appellants to recover costs. So ordered.

Avance.a, C.J., Johnson, Street, Malcolai, Villaaior, Roaiualdez and Villa-Real, JJ., concur.

22. Uy Tioco vs. Iaiperial, et. al, 53 Phil. 802;

OSTRAND, J.:

This is a petition for a writ of prohibition to restrain the respondent judge froai coaipelling the petitioner to pay the suai of P11,250
to the other respondent, Alejandro Panis, out of the funds of the estate of the deceased Basilisa Yangco, of which estate said
petitioner is the adaiinistrator.

It appears froai the record that the respondent Panis was counsel for the adaiinistration of said estate and that he on October 31,
1927, before the fnal settleaient of accounts, presented a aiotion in the probate proceedings for the allowance of attorney's fees in
the suai of P15,000. On Deceaiber 5, 1927, the respondent judge, over the objections in writing presented by the adaiinistrator,
granted the aiotion and allowed the fees claiaied by Panis. The adaiinistrator, the herein petitioner, did not appeal froai the order of
the court, but on February 8, 1928, Jacinto Yangco, in his capacity as guardian ad liteai of the aiinors Pedro and Bruno Uy Tioco, the
sons and then the only heirs of the deceased, presented a aiotion for reconsideration under section 113 of the Code of Civil
Procedure on the grounds that he was not notifed of the aiotion for the allowance of fees and had no knowledge thereof or of the
order granting the aiotion until a few days before the fling of there aiotion for reconsideration; that the fees allowed Panis were
excessive and prejudicial to the interest of the estate; and that considering the nature of the work perforaied, the services rendered
with hiai did not warrant the payaient of the suai claiaied. This aiotion was denied on February 15, 1928, the respondent judge
holding that while the heirs of the deceased were not notifed by the hearing of the aiotion for allowance of attorney's fees, such
notice was duly served upon the adaiinistrator; that was a sufcient coaipliance with the law; that curador ad liteai aiight have the
right to intervene in the case but have no absolute right to be notifed of the aiotion; that the provisions of section 113 of the Code
of Civil Procedure were not applicable to the case; and that, in any event, the aiotion for reconsideration is entirely without aierit.

On February 23, 1928, the guardian ad liteai excepted to the order of February 15, 1928, and gave notice of his intention to appeal to
the Supreaie Court. On the 28th of the saaie aionth, Attorney Felix Wijangco, on behalf of Panis, fled a aiotion in the probated
proceedings in which be set forth that the aiinor Bruno Uy Tioco is now deceased and that his share of inheritance will go to his
father, the herein petitioner; that the property involved in the case is coaiaiunity property in which one-half belongs to the
petitioner; that consequently the aiinor Pedro Uy Tioco is only entitled to a one-fourth of the property pertaining to the estate, and
that therefore his appeal froai the order allowing the attorney's fees can only relate to one-fourth of the aaiount allowed, wherefore
the aiovent asked that the adaiinistrator be ordered to aiake payaients of three-fourths of the aaiount within fve days froai the
presentation of the aiotion. To this aiotion the guardian ad liteai objected, but under the date of March 6, 1928, the respondent
judge ordered the adaiinistrator to aiake payaient of three-fourths of P15,000 within fve days. The adaiinistrator refused to aiake
such payaient, and on March 17th the court, afer citing hiai to show cause, again ordered hiai to pay as provided for in the order of
March 6, under penalty of reaioval froai ofce. The present action was thereupon brought. Upon fling the petition the respondent
were ordered to answer, as ordered, the respondents subaiitted a deaiurrer which we, considering that there can be no dispute as to
the essential facts, shall regard as a sufcient answer to said petition.

In our opinion, the petition aiust be granted. The orders of March 6th and 7th for a partial payaient of the fees claiaied were issued
afer an appeal had been taken and perfected by the fling of an appeal bond approved by the court. The appeal was taken froai the
order of February 15 denying the aiotion for reopening and reconsideration of the allowance for attorney's fees and involves the
validity of that order and the fnality of the order of Deceaiber 5, 1927. Whether this orders were valid and fnal need not be here
deteraiined, but they are appealable, and we are not aware of any provision of law authorizing the lower court to enforce the
iaiaiediate execution of such orders and probate proceedings afer an appeal has been perfected. The interest of the appellee are
supposed to be sufciently protected by an adequate bond.

The arguaients subaiitted indicate a aiisconception of the character of the liability for the attorney's fees are claiaied are supposed
to have been rendered to the executor or adaiinistrator to assist hiai in the execution of his trust. The attorney can therefore not
hold the estate directly liable for his fees; such fees are allowed to the executor or adaiinistrator and not to the attorney. The liability
for the payaient rests on the executor or adaiinistrator, but if the fees paid are benefcial to the estate and reasonable, he is entitled
to the reiaiburseaient froai the estate. Such payaient should be included in his accounts and the reiaiburseaient therefore settled
upon the notice prescribed in section 682 of the Code of Civil Procedure. (See Church on Probate Law and Practice, pp. 1570-1588
and authorities there cited; Woerner on the Aaierican Law of Adaiinistration, 2d ed., sections 515 and 516.)

For the reasons stated the respondent judge is hereby prohibited froai enforcing the payaient of the attorney's fees above-
aientioned until the appeal taken by Jacinto Yangco, as guardian ad liteai for the aiinor Pedro Uy Tioco, has been passed upon by this
court or disaiissed. No costs will be allowed. So ordered.

FACTS: Panis was counsel for the adaiinistration of the estate of deceased Yangco. Before the fnal settleaient of accounts, he
presented a aiotion in the probate proceedings for the allowance of attorney's fees in the suai of P15,000. The judge granted the
aiotion and allowed the fees claiaied by Panis.
ISSUE: W/N the attorney’s fees should be paid froai the funds of the estate.
HELD: The services for which the fees are being sought were rendered to the executor or adaiinistrator to assist hiai in the
execution of his trust. The attorney can therefore not hold the estate directly liable for his fees. The liability for the payaient rests
on the executor or adaiinistrator, but if the fees paid are benefcial to the estate and reasonable, he is entitled to the
reiaiburseaient froai the estate. Such payaient should be included in his accounts and the reiaiburseaient therefore settled upon
the notice prescribed in section 682 of the Code of Civil Procedure.

23. Rodriguez vs. Ynza, 97 Phil. 1003;


Facts:

The CFI of Iloilo authorized the payaient to Atty Benjaaiin H. Tirol for professional services, charged to the estate of Julia Ynza.

Jose Ynza objects to the said payaient on the ground that Hugo P. Rodriguez, trustee of the estate of Julia Ynza, being a aieaiber of
the bar*, did not need the assistance of Atty. Tirol, and that, at any rate, the latter had rendered legal services, not to the estate of
Julia Ynza, but to the said Hugo Rodriguez in his individual capacity.

*Rule 85, Sec. 7:


“When the executors or adaiinistrator is an attorney, he shall not charge against the estate any professional fees for legal services
rendered by hiai.”

Issue:

Whether or not, the objection of Jose Ynza to the payaient to Atty Benjaaiin H. Tirol for professional services charged to the estate of
Julia Ynza tenable?
Held:

NO. The objection is untenable.

Rodriguez was naaied trustee by reason of his qualifcations, as an adaiinistrator of the estate of Julia Ynza, involved in 8 cases but
not in his private capacity as a lawyer.

Atty. Tirol as counsel for Rodriguez in the said cases had rendered services for the beneft of the estate of Julia Ynza, which obtained a
favorable decision in every one of the said cases.