Rule 72-80 Case Doctrines
Case Name
Rule 72
Pacific Banking v. CA
Heirs of Gabatan v. CA
Montaner v. Sharia District
Ruling and Doctrines
Action is the act by which one sues another in a court of justice for the enforcement or protection
of a right, or the prevention or redress of a wrong while special proceeding is the act by which one
seeks to establish the status or right of a party, or a particular fact. Hence, action is distinguished
from special proceeding in that the former is a formal demand of a right by one against another,
while the latter is but a petition for a declaration of a status, right or fact. Where a party litigant
seeks to recover property from another, his remedy is to file an action. Where his purpose is to
seek the appointment of a guardian for an insane, his remedy is a special proceeding to establish
the fact or status of insanity calling for an appointment of guardianship. To initiate a special
proceeding, a petition and not a complaint should be filed.
Jurisprudence dictates that the determination of who are the legal heirs of the deceased must be
made in the proper special proceedings in court, and not in an ordinary suit for recovery of
ownership and possession of property. This must take precedence over the action for recovery of
possession and ownership. The Court has consistently ruled that the trial court cannot make a
declaration of heirship in the civil action for the reason that such a declaration can only be made in
a special proceeding. Under Section 3, Rule 1 of the 1997 Revised Rules of Court, a civil action is
defined as one by which a party sues another for the enforcement or protection of a right, or the
prevention or redress of a wrong while a special proceeding is a remedy by which a party seeks to
establish a status, a right, or a particular fact. It is then decisively clear that the declaration of
heirship can be made only in a special proceeding inasmuch as the petitioners here are seeking
the establishment of a status or right.
We reiterate that the proceedings before the court a quo are for the issuance of letters of
administration, settlement, and distribution of the estate of the deceased, which is a special
proceeding. Section 3(c) of the Rules of Court (Rules) defines a special proceeding as a remedy
by which a party seeks to establish a status, a right, or a particular fact. In a petition for the
issuance of letters of administration, settlement, and distribution of estate, the applicants seek to
establish the fact of death of the decedent and later to be duly recognized as among the
decedent’s heirs, which would allow them to exercise their right to participate in the settlement and
liquidation of the estate of the decedent. Unlike a civil action which has definite adverse parties, a
special proceeding has no definite adverse party. The definitions of a civil action and a special
proceeding, respectively, in the Rules illustrate this difference.
A civil action, in which a party sues another for the enforcement or protection of a right, or the
prevention or redress of a wrong necessarily has definite adverse parties, who are either the
plaintiff or defendant. On the other hand, a special proceeding, by which a party seeks to establish
a status, right, or a particular fact, has one definite party, who petitions or applies for a declaration
of a status, right, or particular fact, but no definite adverse party. In the case at bar, it bears
emphasis that the estate of the decedent is not being sued for any cause of action. As a special
 proceeding, the purpose of the settlement of the estate of the decedent is to determine all the
assets of the estate, pay its liabilities, and to distribute the residual to those entitled to the same.
Rule 73
Ching v. Rodriguez An action for reconveyance and annulment of title with damages is a civil action, whereas matters
relating to settlement of the estate of a deceased person such as advancement of property made
by the decedent, partake of the nature of a special proceeding, which concomitantly requires the
application of specific rules as provided for in the Rules of Court.

Under Article 916 of the NCC, disinheritance can be effected only through a will wherein the legal
cause therefor shall be specified. While the respondents in their Complaint and Amended
Complaint sought the disinheritance of Ramon, no will or any instrument supposedly effecting the
disposition of Antonio's estate was ever mentioned. Hence, despite the prayer for Ramon's
disinheritance, Civil Case No. 02-105251 does not partake of the nature of a special proceeding
and does not call for the probate court's exercise of its limited jurisdiction.

In the event that the RTC will find grounds to grant the reliefs prayed for by the respondents, the
only consequence will be the reversion of the properties subject of the dispute to the estate of
Antonio. Civil Case No. 02-105251 was not instituted to conclusively resolve the issues relating to
the administration, liquidation and distribution of Antonio's estate, hence, not the proper subject of
a special proceeding for the settlement of the estate of a deceased person under Rules 73-91
of the Rules of Court.
Natcher v. CA Whether a particular matter should be resolved by the Regional Trial Court (then Court of First
Instance) in the exercise of its general jurisdiction or its limited probate jurisdiction is not a
jurisdictional issue but a mere question of procedure. In essence, it is a procedural question
involving a mode of practice which may be waived

Notwithstanding, we do not see any waiver on the part of herein private respondents inasmuch as
the six children of the decedent even assailed the authority of the trial court, acting in its general
jurisdiction, to rule on this specific issue of advancement made by the decedent to petitioner.

In Re: In the Matter of the Petition to Approve
the Will of Ruperta Palaganas
Analogously, in a train of decisions, this Court has consistently enunciated the long standing
principle that although generally, a probate court may not decide a question of title or ownership ,
yet if the interested parties are all heirs, or the question is one of collation or advancement , or the
parties consent to the assumption of jurisdiction by the probate court and the rights of third parties
are not impaired, then the probate court is competent to decide the question of ownership.
Our laws do not prohibit the probate of wills executed by foreigners abroad although the same
have not as yet been probated and allowed in the countries of their execution. A foreign will can be
given legal effects in our jurisdiction. Article 816 of the Civil Code states that the will of an alien
who is abroad produces effect in the Philippines if made in accordance with the formalities
prescribed by the law of the place where he resides, or according to the formalities observed in his
country.

Portugal v. Portugal-Beltran
Agtarap v. Agtarap
In this connection, Section 1, Rule 73 of the 1997 Rules of Civil Procedure provides that if the
decedent is an inhabitant of a foreign country, the RTC of the province where he has an estate
may take cognizance of the settlement of such estate. Sections 1 and 2 of Rule 76 further state
that the executor, devisee, or legatee named in the will, or any other person interested in the
estate, may, at any time after the death of the testator, petition the court having jurisdiction to have
the will allowed, whether the same be in his possession or not, or is lost or destroyed.
Our rules require merely that the petition for the allowance of a will must show, so far as known to
the petitioner: (a) the jurisdictional facts; (b) the names, ages, and residences of the heirs,
legatees, and devisees of the testator or decedent; (c) the probable value and character of the
property of the estate; (d) the name of the person for whom letters are prayed; and (e) if the will
has not been delivered to the court, the name of the person having custody of it. The rules do not
require proof that the foreign will has already been allowed and probated in the country of its
execution.
The common doctrine in Litam, 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 settlement is that if the
special proceedings are pending, or if there are no special proceedings filed but there is, under
the circumstances of the case, a need to file one, then the determination of, among other issues,
heirship should be raised and settled in said special proceedings. Where special proceedings had
been instituted but had been finally closed and terminated, however, or if a putative heir has lost
the right to have himself 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 filed for his declaration as heir in order to
bring about the annulment of the partition or distribution or adjudication of a property or properties
belonging to the estate of the deceased.
It appearing, however, that in the present case the only property of the intestate estate of Portugal
is the Caloocan parcel of land, to still subject it, under the circumstances of the case, to a special
proceeding which could be long, hence, not expeditious, just to establish the status of petitioners
as heirs is not only impractical; it is burdensome to the estate with the costs and expenses of an
administration proceeding. And it is superfluous in light of the fact that the parties to the civil case
subject of the present case, could and had already in fact presented evidence before the trial court
which assumed jurisdiction over the case upon the issues it defined during pre-trial.
The general rule is that the jurisdiction of the trial court, either as a probate or an intestate court,
relates only to matters having to do with the probate of the will and/or settlement of the estate of
deceased persons, but does not extend to the determination of questions of ownership that arise
during the proceedings. The patent rationale for this rule is that such court merely exercises
special and limited jurisdiction. As held in several cases, a probate court or one in charge of estate
proceedings, whether testate or intestate, cannot adjudicate or determine title to properties
claimed to be a part of the estate and which are claimed to belong to outside parties, not by virtue
of any right of inheritance from the deceased but by title adverse to that of the deceased and his
 estate. All that the said court could do as regards said properties is to determine whether or not
they should be included in the inventory of properties to be administered by the administrator. If
there is no dispute, there poses no problem, but if there is, then the parties, the administrator, and
the opposing parties have to resort to an ordinary action before a court exercising general
jurisdiction for a final determination of the conflicting claims of title.

However, this general rule is subject to exceptions as justified by expediency and convenience.
First, the probate court may provisionally pass upon in an intestate or a testate proceeding the
question of inclusion in, or exclusion from, the inventory of a piece of property without prejudice to
the final determination of ownership in a separate action. Second, if the interested parties are all
heirs to the estate, or the question is one of collation or advancement, or the parties consent to
the assumption of jurisdiction by the probate court and the rights of third parties are not impaired,
then the probate court is competent to resolve issues on ownership. Verily, its jurisdiction extends
to matters incidental or collateral to the settlement and distribution of the estate, such as the
determination of the status of each heir and whether the property in the inventory is conjugal or
exclusive property of the deceased spouse.

We hold that the general rule does not apply to the instant case considering that the parties are all
heirs of Joaquin and that no rights of third parties will be impaired by the resolution of the
ownership issue. More importantly, the determination of whether the subject properties are
conjugal is but collateral to the probate court’s jurisdiction to settle the estate of Joaquin.
Cuenco v. CA
Rule 73, section of the Rules of Court lays down the rule of venue (and not jurisdiction), as the
very caption of the Rule indicates, and in order to prevent conflict among the different courts which
otherwise may properly assume jurisdiction from doing so.
Under these facts, the Cebu court could not be held to have acted without jurisdiction or with
grave abuse of jurisdiction in declining to take cognizance of the intestate petition and deferring to
the Quezon City court. Necessarily, neither could the Quezon City court be deemed to have acted
without jurisdiction in taking cognizance of and acting on the probate petition since under Rule 73,
Section 1, the Cebu court must first take cognizance over the estate of the decedent and
must exercise jurisdiction to exclude all other courts, which the Cebu court declined to do. Since
the Quezon City court took cognizance over the probate petition before it and assumed
jurisdiction over the estate, with the consent and deference of the Cebu court, the Quezon City
court should be left now, by the same rule of venue of said Rule 73, to exercise jurisdiction to the
exclusion of all other courts.

In Uriarte vs. Court of First Instance of Negros Occidental case, the Court upheld the doctrine of
precedence of probate proceedings over intestate proceedings in this wise:

It cannot be denied that a special proceeding intended to effect the distribution of the estate of a
 deceased person, whether in accordance with the law on intestate succession or in accordance
with his will, is a "probate matter" or a proceeding for the settlement of his estate. It is equally true,
however, that in accordance with settled jurisprudence in this jurisdiction, testate proceedings for
the settlement of the estate of a deceased person take precedence over intestate proceedings for
the same purpose. Thus it has been held repeatedly that, if in the course of intestate proceedings
pending before a court of first instance it is found that the decedent had left a last will,
proceedings for the probate of the latter should replace the intestate proceedings even if at that
state an administrator had already been appointed, the latter being required to render final
account and turn over the estate in his possession to the executor subsequently appointed. This
however, is understood to be without prejudice that should the alleged last will be rejected or is
disapproved, the proceeding shall continue as an intestacy. As already adverted to, this is a clear
indication that proceedings for the probate of a will enjoy priority over intestate proceedings.
Rodriguez v. Borja The jurisdiction of the Court of First Instance of Bulacan became vested upon the delivery thereto
of the will even if no petition for its allowance was filed until later (Section 3, Rule 76). The estate
proceedings having been initiated in the Bulacan Court of First Instance ahead of any other, that
court is entitled to assume jurisdiction to the exclusion of all other courts, even if it were a case of
wrong venue by express provisions of Rule 73 of the Rules of Court. The Court first taking
cognizance of the settlement of the estate of a decedent shall exercise jurisdiction to the exclusion
of all other courts.

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

The other reason is that, in our system of civil law, intestate succession is only subsidiary or
subordinate to the testate, since intestacy only takes place in the absence of a valid operative will.
Roberts v. Leonidas A testate proceeding is proper in this case because Grimm died with two wills and "no will shall
pass either real or personal property unless it is proved and allowed" (Art. 838, Civil Code; sec. 1,
Rule 75, Rules of Court).

The probate of the will is mandatory (Guevara vs. Guevara, 74 Phil. 479 and 98 Phil. 249; Baluyot
vs. Panio, L-42088, May 7, 1976, 71 SCRA 86). It is anomalous that the estate of a person who
died testate should be settled in an intestate proceeding. Therefore, the intestate case should be
consolidated with the testate proceeding and the judge assigned to the testate proceeding should
continue hearing the two cases.
Cayetano v. Leonidas The settlement of the estate of Adoracion Campos was correctly filed with the Court of First
Instance of Manila where she had an estate since it was alleged and proven the Adoracion at the
 time of her death was a citizen and permanent resident of Pennsylvania, United States of America
and not a "usual resident of Cavite" as alleged by the petitioner. Moreover, petitioner is now
estopped from questioning the jurisdiction of the probate court in the petition for relief. It is a
settled rule that a party cannot invoke the jurisdiction of a court to secure affirmative relief, against
his opponent and after failing to obtain such relief, repudiate or question that same jurisdiction.
Garcia Fule v. CA Section 1, Rule 73, specifically the clause "so far as it depends on the place of residence of the
decedent, or of the location of the estate," is in reality a matter of venue. It could not have been
intended to define the jurisdiction over the subject matter, because such legal provision is
contained in a law of procedure dealing merely with procedural matters. Procedure is one thing;
jurisdiction over the subject matter is another.

In the application of venue statutes and rules — Section 1, Rule 73 of the Revised Rules of Court
is of such nature — residence rather than domicile is the significant factor. Even where the statute
uses the word "domicile" still it is construed as meaning residence and not domicile in the
technical sense. Some cases make a distinction between the terms "residence" and "domicile" but
as generally used in statutes fixing venue, the terms are synonymous, and convey the same
meaning as the term "inhabitant." In other words, "resides" should be viewed or understood in its
popular sense, meaning, and the personal, actual or physical habitation of a person, actual
residence or place of abode. It signifies physical presence in a place and actual stay thereat. In
this popular sense, the term means merely residence, that is, personal residence, not legal
residence or domicile. Residence simply requires bodily presence as an inhabitant in a given
place, while domicile requires bodily presence in that place and also an intention to make it one's
domicile. No particular length of time of residence is required though; however, the residence must
be more than temporary.
Uy v. Dizon-Capulong A probate court has no authority to decide questions of the ownership of property, real or personal.
The only purpose of the examination is to elicit information or to secure evidence from the persons
suspected of having possession or knowledge of the property of the deceased, or of having
concealed, embezzled, or conveyed away any of the property of the deceased. If after such
examination there is good reason for believing that the person so examined has property in
possession belonging to the estate, it is the duty of the administrator, by ordinary action, to
recover the same.

Said section nowhere gives the court the power to determine the question of ownership of such
property. Furthermore, the declaration of nullity of the sale of a parcel of land under administration
and the consequent cancellation of the certificate of title issued in favor of the vendee, cannot be
obtained through a mere motion in the probate proceedings over the objection of said vendee over
whom the probate court has no jurisdiction. To recover the property, an independent action against
the vendee must be instituted in the proper court
Jimenez v. CA Petitioners' present action for recovery of possession and ownership is appropriately filed because
as a general rule, a probate court can only pass upon questions of title provisionally. Since the
probate, court's findings are not conclusive being prima facie, a separate proceeding is necessary
 to establish the ownership of the five (5) parcels of land.

The patent reason is the probate court's limited jurisdiction and the principle that questions of title
or ownership, which result in inclusion or exclusion from the inventory of the property, can only be
settled in a separate action.

All that the said court could do as regards said properties is determine whether they should or
should not be included in the inventory or list of properties to be administered by the administrator.
If there is a dispute as to the ownership, then the opposing parties and the administrator have to
resort to an ordinary action for a final determination of the conflicting claims of title because the
probate court cannot do so.
Pia Barreto v. CA It cannot but be conceded that the limited jurisdiction of a probate court prohibits it from
determining rights to property left by a decedent which depends on the contract. However, actions
of the probate court, in the case at bar, do not refer to the adjudication of rights under the contract
entered into by the deceased during his lifetime. It is to be noted that the dealings of the
respondent with the court arose out of the latter's bid to sell property under its authority to sell,
mortgage or otherwise encumber property of the estate to pay or settle against the estate (Rule
89, Revised Rules of Court). Thus, respondent bound himself under an agreement with the court
separate and distinct from that which he had with the decedent. In rescinding such contract, the
court merely seeks to enforce its right to put an end to an agreement which had ceased to be a
working proposition. Surely, this is well within the power of the probate court. Though of limited
and special jurisdiction, it cannot be denied, however, that when the law confers jurisdiction upon
a court, the latter is deemed to have all the necessary powers to exercise such jurisdiction to
make it effective.

Further, the probate court has ample discretion in determining whether conditions of a particular
sale would be beneficial to the estate and this is generally respected by the appellate courts.
Ramos v. CA A reading of the order of the probate court will show that it is merely an approval of the deed of
conditional sale executed by petitioner Adelaida Ramos in favor of petitioners. There is nothing in
said order providing for the consolidation of ownership over the lots allegedly sold to petitioners
nor was the issue of the validity of said contract discussed or resolved therein. The approval of the
probate court of the conditional sale is not a conclusive determination of the intrinsic or extrinsic
validity of the contract but a mere recognition of the right of private respondent Adelaida Ramos as
an heir, to dispose of her rights and interests over her inheritance even before partition.

Moreover, the probate jurisdiction of the former court of first instance or the present regional trial
court relates only to matters having to do with the settlement of the estate and probate of wills of
deceased persons, and the appointment and removal of administrators, executors, guardians and
trustees. Subject to settled exceptions not present in this case, the law does not extend the
jurisdiction of a probate court to the determination of questions of ownership that arise during the
proceeding. The parties concerned may choose to bring a separate action as a matter of
 convenience in the preparation or presentation of evidence. Obviously, the approval by the
probate court of the conditional sale was without prejudice to the filing of the proper action for
consolidation of ownership and/or reformation of instrument in the proper court within the statutory
period of prescription.
Pastor v. CA In a special proceeding for the probate of a will, the issue by and large is restricted to the extrinsic
validity of the will, i.e., whether the testator, being of sound mind, freely executed the will in
accordance with the formalities prescribed by law. (Rules of Court, Rule 75, Section 1; Rule 76,
Section 9.) As a rule, the question of ownership is an extraneous matter which the Probate Court
cannot resolve with finality. Thus, for the purpose of determining whether a certain property should
or should not be included in the inventory of estate properties, the Probate Court may pass upon
the title thereto, but such determination is provisional, not conclusive, and is subject to the final
decision in a separate action to resolve title.

Nowhere in the dispositive portion is there a declaration of ownership of specific properties. On

the contrary, it is manifest therein that ownership was not resolved. For it confined itself to the
question of extrinsic validity of the win, and the need for and propriety of appointing a special
administrator.
Trinidad v. CA Petitioner maintains that to proceed execute the deed of absolute sale without the go-signal of the
Probate Court is to be recreant to his sworn duty as administrator, as well as to render void his
actuations done without the permission of the Probate Court.

This contention is correct and is impressed with merit. Inasmuch as the owner-seller of the
property was already deceased and there were proceedings in the Probate Court, it was
incumbent for the Probate Court to first give authorization to administrator of the estate to deliver
titles of lots which had previously been sold. The decedent after all, might be considered the alter
ego of the Mother Earth Realty Development Corporation. The private complainant had been duly
instructs by the accused herein to file the proper petition or motion with the Probate Court for
delivery of said title but said complainant for one reason or another, disregarded said instructions.
If at anybody should be blamed, it should be private complainant herself for her failure to obtain
the needed authorization from the court. Indeed, questions of title to any property apparent still
belonging to estate of the deceased may be passed upon in the Probate Court, with consent of all
the parties, without prejudice to third persons such as the herein private complainant.
Valera v. Inserto Settled is the rule that a Court of First Instance (now Regional Trial Court), acting as a Probate
Court, exercises but limited jurisdiction, and thus has no power to take cognizance of and
determine the issue of title to property claimed by a third person adversely to the decedent, unless
the claimant and all the other parties having legal interest in the property consent, expressly or
impliedly, to the submission of the question to the Probate Court for adjudgment, or the interests
of third persons are not thereby prejudiced, the reason for the exception being that the question of
whether or not a particular matter should be resolved by the Court in the exercise of its general
jurisdiction or of its limited jurisdiction as a special court (e.g., probate, land registration, etc.), is in
reality not a jurisdictional but in essence a procedural one, involving a mode of practice which may
 be waived.

The same norm governs the situation contemplated in Section 6, Rule 87 of the Rules of Court,
expressly invoked by the Probate Court in justification of its holding a hearing on the issue arising
from the parties' conflicting claims. The examination provided in the cited section is intended
merely to elicit evidence relevant to property of the decedent from persons suspected of having
possession or knowledge thereof, or of having concealed, embezzled, or conveyed away the
same.
Lorenzo v. Posadas The heirs succeed immediately to all of the property of the deceased ancestor. The property
belongs to the heirs at the moment of the death of the ancestor as completely as if the ancestor
had executed and delivered to them a deed for the same before his death. Article 657 of the Civil
Code is broad and makes no distinction between different classes of heirs. It speaks of the rights
of succession and the transmission thereof from the moment of death. The provision of section
625 of the Code of Civil Procedure regarding the authentication and probate of a will as a
necessary condition to effect transmission of property does not affect the general rule laid down in
article 657 of the Civil Code. The authentication of a will implies its due execution but once
probated and allowed the transmission is effective as of the death of the testator in accordance
with article 657 of the Civil Code. Whatever may be the time when actual transmission of the
inheritance takes place, succession takes place in any event at the moment of the decedent's
death. The time when the heirs legally succeed to the inheritance may differ from the time when
the heirs actually receive such inheritance.
Rule 74
In the Matter of Intestate Estate of Delgado We note, however, that the petitioners before us are already the nephews, nieces, grandnephews
and grandnieces of Josefa Delgado. Art. 1001. Should brothers and sisters or their children
survive with the widow or widower, the latter shall be entitled to one-half of the inheritance and the
brothers and sisters or their children to the other one-half.

Since Josefa Delgado had heirs other than Guillermo Rustia, Guillermo could not have validly
adjudicated Josefa’s estate all to himself. Rule 74, Section 1 of the Rules of Court is clear.
Adjudication by an heir of the decedent’s entire estate to himself by means of an affidavit is
allowed only if he is the sole heir to the estate:

SECTION 1. Extrajudicial settlement by agreement between heirs. – If the decedent left no will
and no debts and the heirs are all of age, or the minors are represented by their judicial or legal
representatives duly authorized for the purpose, the parties may, without securing letters of
administration, divide the estate among themselves as they see fit by means of a public
instrument filed in the office of the register of deeds, and should they disagree, they may do so in
an ordinary action of partition. If there is only one heir, he may adjudicate to himself the
estate by means of an affidavit filed in the office of the register of deeds
Vda. De Reyes v. CA The Court of Appeals correctly held that the partition made by the children of Gavino Reyes in
1936, although oral, was valid and binding. There is no law that requires partition among heirs to
 be in writing to be valid. In Hernandez vs. Andal, supra, this Court, interpreting Section 1 of Rule
74 of the Rules of Court, held that the requirement that a partition be put in a public document and
registered has for its purpose the protection of creditors and at the same time the protection of the
heirs themselves against tardy claims. The object of registration is to serve as constructive notice
to others. It follows then that the intrinsic validity of partition not executed with the prescribed
formalities does not come into play when there are no creditors or the rights of creditors are not
affected. Where no such rights are involved, it is competent for the heirs of an estate to enter into
an agreement for distribution in a manner and upon a plan different from those provided by law.
There is nothing in said section from which it can be inferred that a writing or other formality is an
essential requisite to the validity of the partition. Accordingly, an oral partition is valid.

Partition among heirs or renunciation of an inheritance by some of them is not exactly a

conveyance of real property for the reason that it does not involve transfer of property from one to
the other, but rather a confirmation or ratification of title or right of property by the heir renouncing
in favor of another heir accepting and receiving the inheritance.
Pedrosa v. CA Section 4, Rule 74 provides for a two year prescriptive period (1) to persons who have participated
or taken part or had notice of the extrajudicial partition, and in addition (2) when the provisions of
Section 1 of Rule 74 have been strictly complied with, i.e., that all the persons or heirs of the
decedent have taken part in the extrajudicial settlement or are represented by themselves or
through guardians.

Petitioner, as the records confirm, did not participate in the extrajudicial partition. Patently then,
the two-year prescriptive period is not applicable in her case. The applicable prescriptive period
here is four (4) years.

Section 1 of Rule 74 of the Rules of Court is the applicable rule on publication of extrajudicial
settlement. It states that no extrajudicial settlement shall be binding upon any person who has not
participated therein or had no notice thereof. Under said provision, without the participation of all
persons involved in the proceedings, the extrajudicial settlement cannot be binding on said
persons. The rule contemplates a notice which must be sent out or issued before the Deed of
Settlement and/or Partition is agreed upon,

The provision of Section 4, Rule 74 will also not apply when the deed of extrajudicial partition is
sought to be annulled on the ground of fraud. A deed of extrajudicial partition executed without
including some of the heirs, who had no knowledge of and consent to the same, is fraudulent and
vicious. Maria Elena is an heir of Miguel together with her adopting mother, Rosalina. Being the
lone descendant of Miguel, she excludes the collateral relatives of Miguel from participating in his
estate, following the provisions of Article 1003 of the Civil Code

It is clear that Section 1 of Rule 74 does not apply to the partition in question which was null and
void as far as the plaintiffs were concerned. The rule covers only valid partitions. The partition in
 the present case was invalid. Under the rule, no extrajudicial settlement shall be binding upon any
person who has not participated therein or had no notice thereof. As the partition was a total nullity
and did not affect the excluded heirs, it was not correct for the trial court to hold that their right to
challenge the partition had prescribed after two years from its execution. To say that Maria Elena
was represented by Rosalina in the partitioning is imprecise. Maria Elena, the adopted child, was
no longer a minor at the time Miguel died.
Cua v. Vargas The procedure outlined in Section 1 of Rule 74 is an ex parte proceeding. The rule plainly states,
however, that persons who do not participate or had no notice of an extrajudicial settlement will
not be bound thereby. It contemplates a notice that has been sent out or issued before any deed
of settlement and/or partition is agreed upon (i.e., a notice calling all interested parties to
participate in the said deed of extrajudicial settlement and partition), and not after such an
agreement has already been executed as what happened in the instant case with the publication
of the first deed of extrajudicial settlement among heirs.

The publication of the settlement does not constitute constructive notice to the heirs who had no
knowledge or did not take part in it because the same was notice after the fact of execution. The
requirement of publication is geared for the protection of creditors and was never intended to
deprive heirs of their lawful participation in the decedent's estate. In this connection, the records of
the present case confirm that respondents never signed either of the settlement documents,
having discovered their existence only shortly before the filing of the present complaint. Following
Rule 74, these extrajudicial settlements do not bind respondents, and the partition made without
their knowledge and consent is invalid insofar as they are concerned.
Teves v. CA Thus, for a partition pursuant to section 1 of Rule 74 to be valid, the following conditions must
concur: (1) the decedent left no will; (2) the decedent left no debts, or if there were debts left, all
had been paid; (3) the heirs are all of age, or if they are minors, the latter are represented by their
judicial guardian or legal representatives; (4) the partition was made by means of a public
instrument or affidavit duly filed with the Register of Deeds.
PEZA v. Fernandez A perusal of the foregoing provision (Section 4 Rule 74) will show that persons unduly deprived of
their lawful participation in a settlement may assert their claim only within the two-year period after
the settlement and distribution of the estate. This prescription period does not apply, however, to
those who had no part in or had no notice of the settlement. Section 4, Rule 74 of the Rules of
Court, is not meant to be a statute of limitations. Moreover, by no reason or logic can one contend
that an extrajudicial partition, being merely an ex parte proceeding, would affect third persons who
had no knowledge thereof. Be that as it may, it cannot be denied, either, that by its registration in
the manner provided by law, a transaction may be known actually or constructively.

Heirs of Ignacio Conti v. CA
In the present case, private respondents are deemed to have been constructively notified of the
extrajudicial settlement by reason of its registration and annotation in the certificate of title over the
subject lot. From the time of registration, private respondents had two (2) years or until July 8,
1984, within which to file their objections or to demand the appropriate settlement of the estate.
In conjunction with Arts. 777 and 494 of the Civil Code, from the death of Lourdes Sampayo her

Litonjua v. Montilla
Aznar Brothers Realty v. CA
Ralla v. Untalan
rights as a co-owner, incidental to which is the right to ask for partition at any time or to terminate
the co-ownership, were transmitted to her rightful heirs. In so demanding partition private
respondents merely exercised the right originally pertaining to the decedent, their predecessor-in-
interest.
Petitioners' theory as to the requirement of publication would have been correct had the action
been for the partition of the estate of Lourdes Sampayo, or if we were dealing with extrajudicial
settlement by agreement between heirs and the summary settlement of estates of small value
(under Rule 73). But what private respondents are pursuing is the mere segregation of Lourdes'
one-half share which they inherited; from her through intestate succession. This is a simple case
of ordinary partition between co-owners under Rule 69 of the Rules of Court and not Rule 73, the
latter requiring publication.
The creditor of the heirs of a deceased person is entitled to collect his claim out of the property
which pertains by inheritance to said heirs, only after the debts of the testate or intestate
succession have been paid and when the net assets that are divisible among the heirs are known,
because the debts of the deceased must first be paid before his heirs can inherit. It was therein
also held that a person who is not a creditor of a deceased, testate or intestate, has no right to
intervene either in the proceedings brought in connection with the estate or in the settlement of the
succession.
Under Article 1104 of the Civil Code, "[a] partition made with preterition of any of the compulsory
heirs shall not be rescinded, unless it be proved that there was bad faith or fraud on the part of the
persons interested; but the latter shall be proportionately obliged to pay to the person omitted the
share which belongs to him." In the present case, no evidence of bad faith or fraud is extant from
the records. As to the two parties to the deed who were allegedly not heirs, Article 1105 is in point;
it provides: "A partition which includes a person believed to be an heir, but who is not, shall be void
only with respect to such person." In other words, the participation of non-heirs does not render
the partition void in its entirety but only to the extent corresponding to them.
It is worthy to note that the Extrajudicial Partition with Deed of Absolute Sale is a notarized
document. As such, it has in its favor the presumption of regularity, and it carries the evidentiary
weight conferred upon it with respect to its due execution. It is admissible in evidence without
further proof of authenticity and is entitled to full faith and credit upon its face.
The first argument is stated as follows:
The extrajudicial partition of the 63 parcels made after the filing of the petition for the probate of
the Will, and before said Will was probated, is a NULLITY, considering that as already decided by
this Court in the case of Ernesto M. Guevara, vs. Rosario Guevara et al., Vol. 74 Phil. Reports,
there can be no valid partition among the heirs till after the Will had been probated. ...
The above argument is obviously flawed and misleading for the simple reason that the
aforementioned partition was made in the civil case for partition of the estate of Paz Escarella
 (who died intestate), which is distinct from, and independent of, the special proceedings for the
probate of the will of Rosendo Ralla.

Verily, the rule is that there can be no valid partition among the heirs till after the will has been
probated. This, of course, presupposes that the properties to be partitioned are the same
properties embraced in the win. Thus the rule invoked is inapplicable in this instance where there
are two separate cases (Civil Case No. 2023 for partition, and Special Proceedings No. 564
originally for the probate of a will), each involving the estate of a different person (Paz Escarella
and Rosendo Ralla, respectively) comprising dissimilar properties.
Pedrosa v.CA supra
Benatiro v. Heirs of Cuyos It bears stressing that the purpose of the conference was for the heirs to arrive at a compromise
agreement. Thus, it was imperative that all the heirs must be present in the conference and be
heard to afford them the opportunity to protect their interests. What matters is whether the heirs
were indeed notified before the compromise agreement was arrived at, which was not
established, and not whether they were notified of the Commissioner's Report embodying the
alleged agreement afterwards.

We also find nothing in the records that would show that the heirs were called to a hearing to
validate the Report. The CFI adopted and approved the Report despite the absence of the
signatures of all the heirs showing conformity thereto. The CFI adopted the Report despite the
statement therein that only six out of the nine heirs attended the conference, thus, effectively
depriving the other heirs of their chance to be heard. The CFI's action was tantamount to a
violation of the constitutional guarantee that no person shall be deprived of property without due
process of law. We find that the assailed Order dated December 16, 1976, which approved a void
Commissioner's Report, is a void judgment for lack of due process.

We are not persuaded by petitioners’ contentions that all the parties in the intestate estate
proceedings in the trial court were duly represented by respective counsels. While the trial court's
order approving the Commissioners Report was received by Attys. Yray and Lepiten, they were
the lawyers of Gloria and Francisco, respectively, but not the lawyers of the other heirs. Thus, the
other heirs who were not represented by counsel were not given any notice of the judgment
approving the compromise.
Rodriguez v. Tan Section 1 [Rule 74] does not preclude the heirs from instituting administration proceedings, even if
the estate has no debts or obligations, if they do not desire to resort for good reasons to an
ordinary action of partition. While Section 1 allows the heirs to divide the estate among
themselves as they may see fit, or to resort to an ordinary action of partition, it does not compel
them to do so if they have good reasons to take a different course of action. Said section is not
mandatory or compulsory as may be gleaned from the use made therein of the word may. If the
intention were otherwise the framer of the rule would have employed the word shall as was done
in other provisions that are mandatory in character. Note that the word may is used not only once
but in the whole section which indicates an intention to leave the matter entirely to the discretion of
 the heirs.
Hernandez v. Andal Section 1 of Rule 74 contains no such express or clear declaration that the required public
instruments is to be constitutive of a contract of partition or an inherent element of its effectiveness
as between the parties. And this Court had no apparent reason, in adopting this rule, to make the
efficacy of a partition as between the parties dependent on the execution of a public instrument
and its registration. On the other hand, the opposite theory is not without reasonable support. We
can think of possible factors against the proposition that a public document and its registration
were contemplated as necessary ingredients to give life to a contract of partition so that without
them no oral partition can bind the parties.
*Yap v. CA The records show that the real and personal properties under administration in the intestate estate
proceedings of Maning Yap were acquired by Talina Bianong and the deceased Maning Yap
during their marriage. Hence, these properties, in the absence of any evidence to the contrary are
considered conjugal properties of Talina Bianong and Maning Yap (Article 142, New Civil Code).
Considering that there was no liquidation of the conjugal partnership of gains during the lifetime of
Maning Yap, such liquidation must be carried out in the intestate proceedings of Maning Yap, the
deceased spouse as expressly provided in Section 2, Rule 73, Revised Rules of Court
Article 142 of the New Civil Code provides:

By means of the conjugal partnership of gains the husband and wife place in a common fund the
fruits of their separate property and the income from their work or industry, and divide equally,
upon the dissolution of the marriage or of the partnership, the net gains or benefits obtained
indiscriminately by either spouse during the marriage.

and Article 185 thereof states:

The net remainder of the conjugal partnership of gains shall be divided equally between the
husband and the wife or their respective heirs, unless a different basis of division was agreed
upon in the marriage settlements.

Pursuant to these provisions, the net remainder of the conjugal partnership of gains after money
claims filed by creditors against the intestate estate of Maning Yap approved by the lower court
have been paid by the administratrix should be equally divided between Maning Yap and Talina
Bianong as their shares. The one-half share of Maning Yap would then comprise his intestate
estate to be distributed among his heirs.

Rule 75
Pastor v. CA In a special proceeding for the probate of a will, the issue by and large is restricted to the extrinsic
validity of the will, i.e., whether the testator, being of sound mind, freely executed the will in
accordance with the formalities prescribed by law. (Rules of Court, Rule 75, Section 1; Rule 76,
Section 9.) As a rule, the question of ownership is an extraneous matter which the Probate Court
 cannot resolve with finality. Thus, for the purpose of determining whether a certain property should
or should not be included in the inventory of estate properties, the Probate Court may pass upon
the title thereto, but such determination is provisional, not conclusive, and is subject to the final
decision in a separate action to resolve title.
The rule is that execution of a judgment must conform to that decreed in the dispositive part of the
decision. However, in case of ambiguity or uncertainty, the body of the decision may be scanned
for guidance in construing the judgment.
Alvarado v. Gaviolo This Court has held in a number of occasions that substantial compliance is acceptable where the
purpose of the law has been satisfied, the reason being that the solemnities surrounding the
execution of wills are intended to protect the testator from all kinds of fraud and trickery but are
never intended to be so rigid and inflexible as to destroy the testamentary privilege.

In the case at bar, private respondent read the testator's will and codicil aloud in the presence of
the testator, his three instrumental witnesses, and the notary public. Prior and subsequent thereto,
the testator affirmed, upon being asked, that the contents read corresponded with his instructions.
Only then did the signing and acknowledgement take place. There is no evidence, and petitioner
does not so allege, that the contents of the will and codicil were not sufficiently made known and
communicated to the testator. On the contrary, with respect to the "Huling Habilin," the day of the
execution was not the first time that Brigido had affirmed the truth and authenticity of the contents
of the draft. The uncontradicted testimony of Atty. Rino is that Brigido Alvarado already
acknowledged that the will was drafted in accordance with his expressed wishes even prior to 5
November 1977 when Atty. Rino went to the testator's residence precisely for the purpose of
securing his conformity to the draft.

The spirit behind the law was served though the letter was not. Although there should be strict
compliance with the substantial requirements of the law in order to insure the authenticity of the
will, the formal imperfections should be brushed aside when they do not affect its purpose and
which, when taken into account, may only defeat the testator's will.
Nepomuceno v. CA As a general rule, the only purpose of the probate is to establish conclusively as against everyone
that a Will was executed with the formalities required by law and that the testator has the mental
capacity to execute the same (extrinsic validity of the Will). The rule, however, is not inflexible and
absolute. Given exceptional circumstances, the probate court is not powerless to do what the
situation constrains it to do and pass upon certain provisions of the Will.

In Nuguid v. Nuguid (17 SCRA 449) cited by the trial court, the testator instituted the petitioner as
universal heir and completely preterited her surviving forced heirs. A will of this nature, no matter
how valid it may appear extrinsically, would be null and void. Separate or latter proceedings to
determine the intrinsic validity of the testamentary provisions would be superfluous.

There appears to be no more dispute at this time over the extrinsic validity of the Will. However, in
the present case, the testamentary disposition in favor of the petitioner is void in accordance to
 Article 1028, in relation to Article 739 of the Civil Code (void donations).

Invoking "practical considerations", that in view of certain unusual provisions of the will, which are
of dubious legality, the trial court acted correctly in passing upon the will's intrinsic validity even
before its formal validity had been established. The probate of a will might become an idle
ceremony if on its face it appears to be intrinsically void. Where practical considerations demand
that the intrinsic validity of the will be passed upon, even before it is probated, the court should
meet the issue.
Ajero v. CA As a general rule, courts in probate proceedings are limited to pass only upon the extrinsic validity
of the will sought to be probated. However, in exceptional instances, courts are not powerless to
do what the situation constrains them to do, and pass upon certain provisions of the will. In the
case at bench, decedent herself indubitably stated in her holographic will that the Cabadbaran
property is in the name of her late father, John H. Sand (which led oppositor Dr. Jose Ajero to
question her conveyance of the same in its entirety). Thus, as correctly held by respondent court,
she cannot validly dispose of the whole property, which she shares with her father's other heirs.
Rule 76
*Tolentino v. Francisco When a will is contested it is the duty of the proponent to call all of the attesting witnesses, if
available but the validity of the will in no wise depends upon the united support of the will by all of
those witnesses. A will may be admitted to probate notwithstanding the fact that one or more of
the subscribing witnesses do not unite with the other, or others, in proving all the facts upon which
the validity of the will rests. When a will is contested it is the duty of the proponent to call all of the
attesting witnesses, if available but the validity of the will in no wise depends upon the united
support of the will by all of those witnesses. A will may be admitted to probate notwithstanding the
fact that one or more of the subscribing witnesses do not unite with the other, or others, in proving
all the facts upon which the validity of the will rests.
Mercado v. Santos
(In Manahan vs. Manahan 58 Phil., 448, 451), we held:

. . . The decree of probate is conclusive with respect to the due execution thereof and it cannot be
impugned on any of the grounds authorized by law, except that of fraud, in any separate or
independent action or proceeding.

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

The probate of a will by the probate court having jurisdiction thereof is usually considered
as conclusive as to its due execution and validity, and is also conclusive that the testator
was of sound and disposing mind at the time when he executed the will, and was not
acting under duress, menace, fraud, or undue influence, and that the will is genuine and
not a forgery.
 The American and English cases show a conflict of authorities on the question as to whether or
not the probate of a will bars criminal prosecution of the alleged forger of the probate will. We
have examined some important cases and have come to the conclusion that no fixed standard
maybe adopted or drawn therefrom, in view of the conflict no less than of diversity of statutory
provisions obtaining in different jurisdictions. It behooves us, therefore, as the court of last resort,
to choose that rule most consistent with our statutory law, having in view the needed stability of
property rights and the public interest in general.

We hold, therefore, that in view of the provisions of sections 306, 333 and 625 of our Code of Civil
Procedure, criminal action will not lie in this jurisdiction against the forger of a will which had been
duly admitted to probate by a court of competent jurisdiction.
Perez v. Toleto This petition cannot be completely resolved without touching on a very glaring fact — petitioner
has always considered herself the sole heir of Dr. Evelyn Perez Cunanan and because she does
not consider herself an heir of Dr. Jose F. Cunanan, she noticeably failed to notify his heirs of the
filing of the proceedings. Thus, even in the instant petition, she only impleaded respondent Judge,
forgetting that a judge whose order is being assailed is merely a nominal or formal party. The rule
that the court having jurisdiction over the reprobate of a will shall "cause notice thereof to be given
as in case of an original will presented for allowance" (Revised Rules of Court, Rule 27, Section 2)
means that with regard to notices, the will probated abroad should be treated as if it were an
"original will" or a will that is presented for probate for the first time. Accordingly, compliance with
Sections 3 and 4 of Rule 76, which require publication and notice by mail or personally to the
"known heirs, legatees, and devisees of the testator resident in the Philippines" and to the
executor, if he is not the petitioner, are required. The brothers and sisters of Dr. Jose F. Cunanan,
contrary to petitioner’s claim are entitled to notices of the time and place for proving the wills.
Under Section 4 of Rule 76 of the Revised Rules of Court, the "court shall also cause copies of the
notice of the time and place fixed for proving the will to be addressed to the designated or other
known heirs, legatees, and devisees of the testator, . . .
Trillana v. Crisostomo
[T]he appellants in the present case, who merely allege in their petition for relief that they are
"nephews and nieces and therefore legal heirs of the deceased Damasa Crisostomo," without
specifying the degree of relationship they had the latter, do not pretend that it if the will October
19, 1949, be disallowed, they will inherit the estate left by the testatrix. They contend that said will
should be probated jointly or together with the will of August 16, 1948, and the latter be allowed
instead of the former. As in her will of October 19, 1949, as well in that of August 16, 1948, the
testatrix is leaving all her properties as legacies to other persons, the appellants have no interest
in the probate of said wills, and they can not appeal from the judgment which allowed one of them
instead of the other.

Appellants argue that they are in interested parties and therefore may appeal in the present case,

In Re: In the Matter of the Petition to Approve
the Will of Ruperta Palaganas
Baltazar v. Laxa
because in the event the will of October 19 is disallowed and in its that of August 16 is allowed,
and the legacies in the latter are declared invalid or the legatees incapable to inherit, the legacies
will go to appellants. This argument has no merit. In civil actions and special proceedings, unless
otherwise provided by law, the interest in order that a person may be a party on appeal must be
material and direct, so that he will be materially and directly benefited or injured by the court's
order, decree or judgment: and not indirect or contingent
Section 1, Rule 73 of the 1997 Rules of Civil Procedure provides that if the decedent is an
inhabitant of a foreign country, the RTC of the province where he has an estate may take
cognizance of the settlement of such estate. Sections 1 and 2 of Rule 76 further state that the
executor, devisee, or legatee named in the will, or any other person interested in the estate, may,
at any time after the death of the testator, petition the court having jurisdiction to have the will
allowed, whether the same be in his possession or not, or is lost or destroyed.
Our rules require merely that the petition for the allowance of a will must show, so far as known to
the petitioner: (a) the jurisdictional facts; (b) the names, ages, and residences of the heirs,
legatees, and devisees of the testator or decedent; (c) the probable value and character of the
property of the estate; (d) the name of the person for whom letters are prayed; and (e) if the will
has not been delivered to the court, the name of the person having custody of it.
It is incumbent upon those who oppose the probate of a will to clearly establish that the decedent was not
of sound and disposing mind at the time of the execution of said will. Otherwise, the state is duty-bound to
give full effect to the wishes of the testator to distribute his estate in the manner provided in his will so long
as it is legally tenable.
Petitioners dispute the authenticity of Paciencias Will on the ground that Section 11 of Rule 76 of
the Rules of Court was not complied with. They insist that all subscribing witnesses and the notary public
should have been presented in court since all but one witness, Francisco, are still living.
We cannot agree with petitioners.
We note that the inability of Faustino and Judge Limpin to appear and testify before the court was
satisfactorily explained during the probate proceedings. As testified to by his son, Faustino had a heart
attack, was already bedridden and could no longer talk and express himself due to brain damage. To prove
this, said witness presented the corresponding medical certificate. For her part, Dra. Limpin testified that
her father, Judge Limpin, suffered a stroke in 1991 and had to undergo brain surgery. At that time, Judge
Limpin could no longer talk and could not even remember his daughters name so that Dra. Limpin stated
that given such condition, her father could no longer testify. It is well to note that at that point, despite ample
opportunity, petitioners neither interposed any objections to the testimonies of said witnesses nor
challenged the same on cross examination. We thus hold that for all intents and purposes, Lorenzo was
able to satisfactorily account for the incapacity and failure of the said subscribing witness and of the notary
public to testify in court.
 It is an established rule that [a] testament may not be disallowed just because the attesting witnesses
declare against its due execution; neither does it have to be necessarily allowed just because all the
attesting witnesses declare in favor of its legalization; what is decisive is that the court is convinced by
evidence before it, not necessarily from the attesting witnesses, although they must testify, that the will was
or was not duly executed in the manner required by law.
Codoy v. Calugay
It may be true that the rule of this article (art. 811 NCC, requiring that three witnesses be
presented if the will is contested and only one if no contest is had) was derived from the rule
established for ordinary testaments. But it can not be ignored that the requirement can be
considered mandatory only in case of ordinary testaments, precisely because the presence of at
least three witnesses at the execution of ordinary wills is made by law essential to their validity
(Art. 805). Where the will is holographic, no witness need be present (art.10), and the rule
requiring production of three witnesses must be deemed merely permissive if absurd
results are to be avoided.
Paraphrasing Azaola vs. Singson, even if the genuineness of the holographic will were contested,
Article 811 of the civil code cannot be interpreted as to require the compulsory presentation of
three witnesses to identify the handwriting of the testator, under penalty of the having the probate
denied. No witness need be present in the execution of the holographic will. And the rule
requiring the production of three witnesses is merely permissive. What the law deems
essential is that the court is convinced of the authenticity of the will. Its duty is to exhaust all
available lines of inquiry, for the state is as much interested in the proponent that the true intention
of the testator be carried into effect. And because the law leaves it to the trial court to decide if
experts are still needed, no unfavorable inference can be drawn from a partys failure to offer
expert evidence, until and unless the court expresses dissatisfaction with the testimony of the lay
witnesses.
Enriquez v. Abadia The new Civil Code (Republic Act No. 386) under article 810 thereof provides that a person may
execute a holographic will which must be entirely written, dated and signed by the testator himself
and need not be witnessed. It is a fact, however, that at the time that Exhibit "A" was executed in
1923 and at the time that Father Abadia died in 1943, holographic wills were not permitted, and
the law at the time imposed certain requirements for the execution of wills, such as numbering
correlatively each page (not folio or sheet) in letters and signing on the left hand margin by the
testator and by the three attesting witnesses, requirements which were not complied with in
Exhibit "A" because the back pages of the first two folios of the will were not signed by any one,
not even by the testator and were not numbered, and as to the three front pages, they were
signed only by the testator.
What is the law to apply to the probate of Exh. "A"? Article 795 of this same new Civil Code
expressly provides: "The validity of a will as to its form depends upon the observance of the law in
force at the time it is made."
We should not forget that from the day of the death of the testator, if he leaves a will, the title of
the legatees and devisees under it becomes a vested right, protected under the due process
 clause of the constitution against a subsequent change in the statute adding new legal
requirements of execution of wills which would invalidate such a will. By parity of reasoning, when
one executes a will which is invalid for failure to observe and follow the legal requirements at the
time of its execution then upon his death he should be regarded and declared as having died
intestate, and his heirs will then inherit by intestate succession, and no subsequent law with more
liberal requirements or which dispenses with such requirements as to execution should be allowed
to validate a defective will and thereby divest the heirs of their vested rights in the estate by
intestate succession. The general rule is that the Legislature can not validate void wills
Ajero v. CA Art. 839: The will shall be disallowed in any of the following cases; (1) If the formalities required by
law have not been complied with; (2) If the testator was insane, or otherwise mentally incapable of
making a will, at the time of its execution; (3) If it was executed through force or under duress, or
the influence of fear, or threats; (4) If it was procured by undue and improper pressure and
influence, on the part of the beneficiary or of some other person; (5) If the signature of the testator
was procured by fraud; (6) If the testator acted by mistake or did not intend that the instrument he
signed should be his will at the time of affixing his signature thereto.

These lists are exclusive; no other grounds can serve to disallow a will. Thus, in a petition to admit
a holographic will to probate, the only issues to be resolved are: (1) whether the instrument
submitted is, indeed, the decedent's last will and testament; (2) whether said will was executed in
accordance with the formalities prescribed by law; (3) whether the decedent had the necessary
testamentary capacity at the time the will was executed; and, (4) whether the execution of the will
and its signing were the voluntary acts of the decedent.

In the case of holographic wills what assures authenticity is the requirement that they be totally
autographic or handwritten by the testator himself, as provided under Article 810 of the New Civil
Code.

A reading of Article 813 of the New Civil Code shows that its requirement affects the validity of the
dispositions contained in the holographic will, but not its probate. If the testator fails to sign and
date some of the dispositions, the result is that these dispositions cannot be effectuated. Such
failure, however, does not render the whole testament void. Likewise, a holographic will can still
be admitted to probate, notwithstanding non-compliance with the provisions of Article 814.
Caniza v. CA A will is essentially ambulatory; at any time prior to the testator's death, it may be changed or
revoked; and until admitted to probate, it has no effect whatever and no right can be claimed
thereunder, the law being quite explicit: "No will shall pass either real or personal property unless it
is proved and allowed in accordance with the Rules of Court" (ART. 838, id.). An owner's intention
to confer title in the future to persons possessing property by his tolerance, is not inconsistent with
the former's taking back possession in the meantime for any reason deemed sufficient. And that in
this case there was sufficient cause for the owner's resumption of possession is apparent: she
needed to generate income from the house on account of the physical infirmities afflicting her,
arising from her extreme age.
Azaola v. Singson
Article 811 of the Civil Code of the Philippines is to the following effect:

ART. 811. In the probate of a holographic will, it shall be necessary that at least one
witness who knows the handwriting and signature of the testator explicitly declare that the
will and the signature are in the handwriting of the testator. If the will is contested, at least
three of such witnesses shall be required.

In the absence of any competent witnesses referred to in the preceding paragraph, and if
the court deems it necessary, expert testimony may be resorted to. (691a).

We agree with the appellant that since the authenticity of the will was not contested, he was not
required to produce more than one witness; but even if the genuineness of the holographic will
were contested, we are of the opinion that Article 811 of our present Civil Code can not be
interpreted as to require the compulsory presentation of three witnesses to identify the handwriting
of the testator, under penalty of having the probate denied. Since no witness may have been
present at the execution of a holographic will, none being required by law (Art. 810, new Civil
Code), it becomes obvious that the existence of witness possessing the requisite qualifications is
a matter beyond the control of the proponent.
Rodelas v. Aranza Pursuant to Article 811 of the Civil Code, probate of holographic wills is the allowance of the will by
the court after its due execution has been proved. The probate may be uncontested or not. If
uncontested, at least one Identifying witness is required and, if no witness is available, experts
may be resorted to. If contested, at least three Identifying witnesses are required. However, if the
holographic will has been lost or destroyed and no other copy is available, the will can not be
probated because the best and only evidence is the handwriting of the testator in said will. It is
necessary that there be a comparison between sample handwritten statements of the testator and
the handwritten will. But, a photostatic copy or xerox copy of the holographic will may be allowed
because comparison can be made with the standard writings of the testator.
Gan v. Yap
In the case of ordinary wills, it is quite hard to convince three witnesses (four with the notary)
deliberately to lie. And then their lies could be checked and exposed, their whereabouts and acts
on the particular day, the likelihood that they would be called by the testator, their intimacy with the
testator, etc. And if they were intimates or trusted friends of the testator they are not likely to end
themselves to any fraudulent scheme to distort his wishes. Last but not least, they can not receive
anything on account of the will.

Whereas in the case of holographic wills, if oral testimony were admissible only one man could
engineer the fraud this way: after making a clever or passable imitation of the handwriting and
signature of the deceased, he may contrive to let three honest and credible witnesses see and
read the forgery; and the latter, having no interest, could easily fall for it, and in court they would in
 all good faith affirm its genuineness and authenticity. The will having been lost — the forger may
have purposely destroyed it in an "accident" — the oppositors have no way to expose the trick and
the error, because the document itself is not at hand. If testimonial evidence of holographic wills
be permitted, one more objectionable feature — feasibility of forgery — would be added to the
several objections to this kind of wills listed by Castan, Sanchez Roman and Valverde and other
well-known Spanish Commentators and teachers of Civil Law.

One more fundamental difference: in the case of a lost will, the three subscribing witnesses would
be testifying to a fact which they saw, namely the act of the testator of subscribing the will;
whereas in the case of a lost holographic will, the witnesses would testify as to their opinion of the
handwriting which they allegedly saw, an opinion which can not be tested in court, nor directly
contradicted by the oppositors, because the handwriting itself is not at hand.
Fernandez v. Tantoco In weighing the testimony of the attesting witnesses to a will, the statements of a competent
attorney, who has been charged with the responsibility of seeing to the proper execution of the
instrument, is entitled to greater weight than the testimony of a person casually called to
participate in the act, supposing of course that no motive is revealed that should induce the
attorney to prevaricate. The reason is that the mind of the attorney, being conversant with the
requisites of the proper execution of the instrument, is more likely to become fixed on details; and
he is more likely than other persons to retain those incidents in his memory.
In case of opposition to the probate of the will the proponent is legally bound to introduce all of the
subscribing witnesses, if available. They are therefore forced witnesses so far as the proponent is
concerned, and he is not bound by their testimony to the same extent that a litigant is bound by
the testimony of witnesses introduced in ordinary course. It follows that the proponent of a will
may avail himself of other proof to establish the instrument, even contrary to the testimony of
some of the subscribing witnesses, or all of them.
Ramos v. CA Unlike other deeds, ordinary wills by necessity of law must contain an attestation clause Which,
significantly is a separate memorandum or record of the facts surrounding that the conduct of
execution. Once signed by the attesting witnesses, it that compliance with the indispensable legal
formalities had been observed. This Court had previously hold that the attestation clause basically
contracts the pretense of undue ex execution which later on may be made by the attesting
witnesses. In the attestation clause, the witnesses do not merely 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 embodied in the attention clause. By signing the wilt the
witnesses impliedly to the truth of the facts which admit to probate, including the sufficiency of
execution, the capacity of the testatrix, the absence of undue influence, and the like.
As a rule, if any or all of the submitting witness testify against the due execution of the will, or do
not remember having attested to it, or are otherwise of doubtful ability, the will may, nevertheless,
be allowed if the court is satisfied from the testimony of other witness and from all the evidence
presented that the will was executed and attested in the manner by law.
Rule 77
Perez v. Tolete The evidence necessary for the reprobate or allowance of wills which have been probated outside
of the Philippines are as follows: (1) the due execution of the will in accordance with the foreign
laws; (2) the testator has his domicile in the foreign country and not in the Philippines; (3) the will
has been admitted to probate in such country; (4) the fact that the foreign tribunal is a probate
court, and (5) the laws of a foreign country on procedure and allowance of wills. The necessity of
presenting evidence on the foreign laws upon which the probate in the foreign country is based is
impelled by the fact that our courts cannot take judicial notice of them
Palaganas v. Palaganas In insisting that Rupertas will should have been first probated and allowed by the court of
California, petitioners Manuel and Benjamin obviously have in mind the procedure for
the reprobate of will before admitting it here. But, reprobate or re-authentication of a will already
probated and allowed in a foreign country is different from that probate where the will is presented
for the first time before a competent court. Reprobate is specifically governed by Rule 77 of the
Rules of Court. Contrary to petitioners stance, since this latter rule applies only to reprobate of a
will, it cannot be made to apply to the present case. In reprobate, the local court acknowledges as
binding the findings of the foreign probate court provided its jurisdiction over the matter can be
established.
Rule 78
Ventura v. Ventura
Section 6, Rule 78 of the Rules of Court:

When and to whom letters of administration granted.-If no executor is named in the

will, or the executor or executors are incompetent, refuse the trust, or fail to give
bond, or a person dies intestate, a petition shall be granted:

(a) To the surviving husband or wife, as the case may be or next of kin, or both, in
the discretion of the court, or to such person as such surviving husband or wife, or
both, in the discretion of the court, or to such person as such surviving husband or
wife, or next of kin, requests to have appointed, if competent and willing to serve;"

The "next of kin" has been defined as those persons who are entitled under the statute of
distribution to the decedent's property. It is generally said that "the nearest of kin, whose interest in
the estate is more preponderant, is preferred in the choice of administrator. 'Among members of a
class the strongest ground for preference is the amount or preponderance of interest. As between
next of kin, the nearest of kin is to be preferred."
Rule 79
De Guzman v. Angeles
Section 3, Rule 79 of the Revised Rules of Court provides:

Court to set time for hearing. — Notice thereof. — When a petition for letters of
 administration is filed in the court having jurisdiction, such court shall fix a time and
place for hearing the petition, and shall cause notice thereof to be given to the
known heirs and creditors of the decedent, and to any other persons believed to
have an interest in the estate, in the manner provided in sections 3 and 4 of Rule
76.

It is very clear from this provision that the probate court must cause notice through publication of
the petition after it receives the same. The purpose of this notice is to bring all the interested
persons within the court's jurisdiction so that the judgment therein becomes binding on all the
world. (Manalo v. Paredes, 47 Phil. 938; Moran, Comment on the Rules of Court Volume 3,1980
Edition) Where no notice as required by Section 3, Rule 79 of the Rules of Court has been given
to persons believed to have an interest in the estate of the deceased person; the proceeding for
the settlement of the estate is void and should be annulled. The requirement as to notice is
essential to the validity of the proceeding in that no person may be deprived of his right to
property without due process of law.

Verily, notice through publication of the petition for the settlement of the estate of a deceased
person is jurisdictional, the absence of which makes court orders affecting other persons,
subsequent to the petition void and subject to annulment.
Rule 80
De Guzman v. Guadiz Under Section 1, Rule 80 of the Rules of Court, the probate court may appoint a special
administrator should there be a delay in granting letters testamentary or of administration
occasioned by any cause including an appeal from the allowance or disallowance of a will. Subject
to this qualification, the appointment of a special administrator lies in the discretion of the Court
which must be sound, that is, not whimsical, or Contrary to reason, justice, equity or legal
principle.
The reason for the practice of appointing a special administrator rests in the fact that estates of
decedents frequently become involved in protracted litigation, thereby being exposed to great
waste and losses if there is no authorized agent to collect the debts and preserve the assets in the
interim. No temporary administration can be granted where there is an executor in being capable
of acting, however.

It appears that the estate of the deceased Catalina Bajacan consists of eighty (80) hectares of first
class agricultural land. It is claimed that these 80 hectares produce P 50,000.00 worth of palay
each harvest twice a year. Obviously there is an immediate need for a special administrator to
protect the interests of the estate as regards the products.
De Guzman v. Angeles A special administrator has been defined as the "representative of decedent appointed by the
probate court to care for and preserve his estate until an executor or general administrator is
appointed." The petitioner as creditor of the estate has a similar interest in the preservation of the
 estate as the private respondent who happens to be the widow of deceased Manolito de Guzman.
Hence, the necessity of notice as mandated by the Rules of Court. It is not clear from the records
exactly what emergency would have ensued if the appointment of an administrator was deferred
at least until the most interested parties were given notice of the proposed action. No unavoidable
delay in the appointment of a regular administrator is apparent from the records.
Munsayac v. Loreto Jurisprudence teaches us that the appointment of a special administrator lies within the discretion
of the court. In Heirs of Belinda Dahlia A. Castillo v. Lacuata-Gabriel, it was stated that:

It is well settled that the statutory provisions as to the prior or preferred

right of certain persons to the appointment of administrator under Section 1, Rule
81, as well as the statutory provisions as to causes for removal of an executor or
administrator under section 653 of Act No. 190, now Section 2, Rule 83, do not
apply to the selection or removal of special administrator. x x x As the law does
not say who shall be appointed as special administrator and the
qualifications the appointee must have, the judge or court has discretion in
the selection of the person to be appointed, discretion which must be sound,
that is, not whimsical or contrary to reason, justice or equity.
While the trial court has the discretion to appoint anyone as a special administrator of the
estate, such discretion must be exercised with reason, guided by the directives of equity, justice
and legal principles. It may, therefore, not be remiss to reiterate that the role of a special
administrator is to preserve the estate until a regular administrator is appointed. As stated in Sec.
2, Rule 80 of the Rules:

Section 2. Powers and duties of special adminsitrator. Such special

administrator shall take possession and charge of the goods, chattels, rights,
credits, and estate of the deceased and preserve the same for the executors or
administrator afterwards appointed, and for that purpose may commence and
maintain suits as administrator. He may sell only such perishable and other
property as the court orders sold. A special administrator shall not be liable to pay
any debts of the deceased unless so ordered by the court.

Given this duty on the part of the special administrator, it would, therefore, be prudent and
reasonable to appoint someone interested in preserving the estate for its eventual distribution to
the heirs. Such choice would ensure that such person would not expose the estate to losses that
would effectively diminish his or her share. While the court may use its discretion and depart from
such reasoning, still, there is no logical reason to appoint a person who is a debtor of the estate
 and otherwise a stranger to the deceased. To do so would be tantamount to grave abuse of
discretion.
Ocampo v. Ocampo A special administrator is an officer of the court who is subject to its supervision and control,
expected to work for the best interest of the entire estate, with a view to its smooth administration
and speedy settlement. When appointed, he or she is not regarded as an agent or representative
of the parties suggesting the appointment. The principal object of the appointment of a temporary
administrator is to preserve the estate until it can pass to the hands of a person fully authorized to
administer it for the benefit of creditors and heirs, pursuant to Section 2 of Rule 80 of the Rules of
Court.

While the RTC considered that respondents were the nearest of kin to their deceased parents in
their appointment as joint special administrators, this is not a mandatory requirement for the
appointment. It has long been settled that the selection or removal of special administrators is not
governed by the rules regarding the selection or removal of regular administrators.

The probate court may appoint or remove special administrators based on grounds other than
those enumerated in the Rules at its discretion, such that the need to first pass upon and resolve
the issues of fitness or unfitness and the application of the order of preference under Section 6 of
Rule 78, as would be proper in the case of a regular administrator, do not obtain.
Corona v. CA
This Court, in resolving to give due course to the Petition taking into account the allegations,
arguments and issues raised by the parties, is of the considered opinion that petitioner's nominee,
Nenita F. Alonte, should be appointed as co-Special Administrator. The executrix's choice of
Special Administrator, considering her own inability to serve and the wide latitude of discretion
given her by the testatrix in her Will (Annex "A-1"), is entitled to the highest consideration.
Objections to Nenita's appointment on grounds of impracticality and lack of kinship are over-
shadowed by the fact that justice and equity demand that the side of the deceased wife and the
faction of the surviving husband be represented in the management of the decedent's estate. 2

En passant, it is apropos to remind the Special Administrators that while they may have respective
interests to protect, they are officers of the Court subject to the supervision and control of the
Probate Court and are expected to work for the best interests of the entire estate, its smooth
administration, and its earliest settlement.
Liwanag v. Reyes Now the question arises as to whether the petitioner herein can be sued as special administratrix.
The Rules of Court do not expressly prohibit making the special administratrix a defendant in a
suit against the estate. Otherwise, creditors would find the adverse effects of the statute of
limitations running against them in cases where the appointment of a regular administrator is
delayed. So that if We are now to deny the present action on this technical ground alone, and the
appointment of a regular administrator will be delayed, the very purpose for which the mortgage
was constituted will be defeated.1awphîl.nèt
Zayco v. Hinlo Jr. An order appointing an administrator of a deceased persons estate is a final determination of the
rights of the parties in connection with the administration, management and settlement of the
decedents estate. It is a final order and, hence, appealable.
Tan v. Gederio Jr.
The order of preference petitioners speak of is found in Section 6, Rule 78 of the Rules of Court,
which provides:

SEC. 6. When and to whom letters of administration granted.—If no executor is named in the will,
or the executor or executors are incompetent, refuse the trust, or fail to give bond, or a person
dies intestate, administration shall be granted:

(a) To the surviving husband or wife, as the case may be, or next of kin, or both, in the
discretion of the court, or to such person as such surviving husband or wife, or next of kin,
requests to have appointed, if competent and willing to serve;

(b) If such surviving husband or wife, as the case may be, or next of kin, or the person
selected by them, be incompetent or unwilling, or if the husband or widow, or next of kin,
neglects for thirty (30) days after the death of the person to apply for administration or to
request that administration be granted to some other person, it may be granted to one or
more of the principal creditors, if competent and willing to serve;

(c) If there is no such creditor competent and willing to serve, it may be granted to such
other person as the court may select.

However, this Court has consistently ruled that the order of preference in the appointment of a
regular administrator as provided in the afore-quoted provision does not apply to the selection of a
special administrator. The preference under Section 6, Rule 78 of the Rules of Court for the next
of kin refers to the appointment of a regular administrator, and not of a special administrator, as
the appointment of the latter lies entirely in the discretion of the court, and is not
appealable.