SALUD TEODORO VDA.. DE PEREZ, Petitioner, v. HON. ZOTICO A.

TOLETE in his capacity as

Presiding Judge, Branch 18, RTC Bulacan, Respondent.

SYLLABUS

1. REMEDIAL LAW; SPECIAL PROCEEDINGS; SETTLEMENT OF DECEDENT’S ESTATE; ALLOWANCE OF

WILLS PROBATED ABROAD; EVIDENCE NECESSARY THEREFOR; CASE AT BAR. — The respective wills of
the Cunanan spouses, who were American citizens, will only be effective in this country upon compliance
with the following provisions of the Civil Code of the Philippines. . . . Thus, proof that both wills conform
with the formalities prescribed by New York laws or by Philippine laws is imperative. 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. Except for the first and last requirements, the petitioner submitted all
the needed evidence.

2. ID.; ID.; ID.; ID.; NOTICE OF TESTATOR’S KNOWN HEIRS, LEGATES, AND DEVISEES, A PRE-
REQUISITE THEREFOR; CASE AT BAR. — 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, . . ."cralaw virtua1aw library

3. ID.; ID.; ID.; JOINT PROBATE OF SEPARATE WILLS PROPER IN CASE AT BAR; REASON. — In the case
at bench, the Cunanan spouses executed separate wills. Since the two wills contain essentially the same
provisions and pertain to property which in all probability are conjugal in nature, practical considerations
dictate their joint probate. As this Court has held a number of times, it will always strive to settle the
entire controversy in a single proceeding leaving no root or branch to bear the seeds of future litigation.
Respondent Judge’s view that the Rules on allowance of wills is couched in singular terms and therefore
should be interpreted to mean that there should be separate probate proceedings for the wills of the
Cunanan spouses is too literal and simplistic an approach. Such view overlooks the provisions of Section
2, Rule 1 of the Revised Rules of Court, which advise that the rules shall be "liberally construed in order to
promote their object and to assist the parties in obtaining just, speedy, and inexpensive determination of
every action and proceeding." A literal application of the Rules should be avoided if they would only result
in the delay in the administration of justice.

DECISION

QUIASON, J.:

This is a petition for certiorari under Rule 65 of the Revised Rules of Court to set aside the Order dated
November 19, 1986 of the Regional Trial Court, Branch 18, Bulacan presided by respondent Judge Zotico
A. Tolete, in Special Proceedings No. 1793-M.

We grant the petition.

Dr. Jose F. Cunanan and his wife, Dr. Evelyn Perez-Cunanan, who became American citizens, established a
successful medical practice in New York, U.S.A. The Cunanans lived at No. 2896 Citation Drive, Pompey,
Syracuse, New York, with their children, Jocelyn, 18; Jacqueline, 16; and Josephine, 14.

On August 23, 1979, Dr. Cunanan executed a last will and testament, bequeathing to his wife "all the
remainder" of his real and personal property at the time of his death "wheresoever situated" (Rollo, p.
35). In the event he would survive his wife, he bequeathed all his property to his children and
grandchildren with Dr. Rafael G. Cunanan, Jr. as trustee. He appointed his wife as executrix of his last will
and testament and Dr. Rafael G. Cunanan, Jr. as substitute executor. Article VIII of his will
states:jgc:chanrobles.com.ph

"If my wife, EVELYN PEREZ-CUNANAN, and I shall die under such circumstances that there is not sufficient
evidence to determine the order of our deaths, then it shall be presumed that I predeceased her, and my
estate shall be administered and distributed, in all respects, in accordance with such presumption" (Rollo,
p. 41).chanrobles.com:cralaw:red

Four days later, on August 27, Dr. Evelyn P. Cunanan executed her own last will and testament containing
the same provisions as that of the will of her husband. Article VIII of her will
estates:jgc:chanrobles.com.ph

"If my husband, JOSE F. CUNANAN, and I shall die under such circumstances that there is not sufficient
evidence to determine the order of our deaths, then it shall be presumed that he predeceased me, and my
estate shall be administered and distributed in all respects, in accordance with such presumption" (Rollo,
p. 31.)

On January 9, 1982, Dr. Cunanan and his entire family perished when they were trapped by fire that
gutted their home. Thereafter, Dr. Rafael Cunanan, Jr. as trustee and substitute executor of the two wills,
filed separate proceedings for the probate thereof with the Surrogate Court of the County of Onondaga,
New York. On April 7, these two wills were admitted to probate and letters testamentary were issued in
his favor.

On February 21, 1983, Salud Teodoro Perez, the mother of Dr. Evelyn P. Cunanan, and petitioner herein,
filed with the Regional Trial Court, Malolos, Bulacan a petition for the reprobate of the two wills ancillary to
the probate proceedings in New York. She also asked that she be appointed the special administratrix of
the estate of the deceased couple consisting primarily of a farm land in San Miguel, Bulacan.

On March 9, the Regional Trial Court, Branch 16, Malolos, Bulacan, presided by Judge Gualberto J. de la
Llana, issued an order, directing the issuance of letters of special administration in favor of petitioner upon
her filing of a P10,000.00 bond. The following day, petitioner posted the bond and took her oath as special
administratrix.

As her first act of administration, petitioner filed a motion, praying that the Philippine Life Insurance
Company be directed to deliver the proceeds in the amount of P50,000.00 of the life insurance policy
taken by Dr. Jose F. Cunanan with Dr. Evelyn Perez-Cunanan and their daughter Jocelyn as beneficiaries.
The trial Court granted the motion.chanrobles virtual lawlibrary

Counsel for the Philippine American Life Insurance Company then filed a manifestation, stating that said
company had delivered to petitioner the amount of P49,765.85, representing the proceeds of the life
insurance policy of Dr. Jose F. Cunanan.

In a motion dated May 19, 1983, petitioner asked that Dr. Rafael Cunanan, Sr. be ordered to deliver to
her a Philippine Trust Company passbook with P25,594.00 in savings deposit, and the Family Savings
Bank time deposit certificates in the total amount of P12,412.52.

On May 31, Atty. Federico Alday filed a notice of appearance as counsel for the heirs of Dr. Jose F.
Cunanan, namely, Dr. Rafael Cunanan, Sr., Priscilla Cunanan Bautista, Lydia Cunanan Ignacio, Felipe F.
Cunanan and Loreto Cunanan Concepcion (Cunanan heirs). He also manifested that before receiving
petitioner’s motion of May 19, 1983, his clients were unaware of the filing of the testate estate case and
therefore, "in the interest of simple fair play," they should be notified of the proceedings (Records, p.
110). He prayed for deferment of the hearing on the motion of May 19, 1983.

Petitioner then filed a counter manifestation dated June 13, 1983, asserting: (1) that the "Cunanan
collaterals are neither heirs nor creditors of the late Dr. Jose F. Cunanan" and therefore, they had "no
legal or proprietary interests to protect" and "no right to intervene" ; (2) that the wills of Dr. Jose F.
Cunanan and Dr. Evelyn Perez-Cunanan, being American citizens, were executed in accordance with the
solemnities and formalities of New York laws, and produced "effects in this jurisdiction in accordance with
Art. 16 in relation to Art. 816 of the Civil Code" ; (3) that under Article VIII of the two wills, it was
presumed that the husband predeceased the wife; and (4) that "the Cunanan collaterals are neither
distributees, legatees or beneficiaries, much less, heirs as heirship is only by institution" under a will or by
operation of the law of New York (Records, pp. 112-113).

On June 23, the probate court granted petitioner’s motion of May 19, 1983. However, on July 21, the
Cunanan heirs filed a motion to nullify the proceedings and to set aside the appointment of, or to
disqualify, petitioner as special administratrix of the estates of Dr. Jose F. Cunanan and Dr. Evelyn Perez-
Cunanan. The motion stated: (1) that being the "brothers and sisters and the legal and surviving heirs" of
Dr. Jose F. Cunanan, they had been "deliberately excluded" in the petition for the probate of the separate
wills of the Cunanan spouses thereby misleading the Bulacan court to believe that petitioner was the sole
heir of the spouses; that such "misrepresentation" deprived them of their right to "due process in violation
of Section 4, Rule 76 of the Revised Rules of Court; (2) that Dr. Rafael G. Cunanan, Jr., the executor of
the estate of the Cunanan spouses, was likewise not notified of the hearings in the Bulacan court; (3) that
the "misrepresentation and concealment committed by" petitioner rendered her unfit to be a special
administratrix; (4) that Dr. Rafael G. Cunanan, Jr. had, by virtue of a verified power of attorney,
authorized his father, Dr. Rafael Cunanan, Sr., to be his attorney-in-fact; and (5) that Dr. Rafael Cunanan,
Sr. is qualified to be a regular administrator "as practically all of the subject estate in the Philippines
belongs to their brother, Dr. Jose F. Cunanan" (Records, pp. 118-122). Hence, they prayed: (1) that the
proceedings in the case be declared null and void; (2) that the appointment of petitioner as special
administratrix be set aside; and (3) that Dr. Rafael Cunanan, Sr. be appointed the regular administrator of
the estate of the deceased spouses.chanrobles.com.ph : virtual law library

Thereafter, the Cunanan heirs filed a motion requiring petitioner to submit an inventory or accounting of
all monies received by her in trust for the estate.

In her opposition, petitioner asserted: (1) that she was the "sole and only heir" of her daughter, Dr.
Evelyn Perez-Cunanan to the exclusion of the "Cunanan collaterals" ; hence they were complete strangers
to the proceedings and were not entitled to notice; (2) that she could not have "concealed" the name and
address of Dr. Rafael G. Cunanan, Jr. because his name was prominently mentioned not only in the two
wills but also in the decrees of the American surrogate court; (3) that the rule applicable to the case is
Rule 77, not Rule 76, because it involved the allowance of wills proved outside of the Philippines and that
nowhere in Section 2 of Rule 77 is there a mention of notice being given to the executor who, by the same
provision, should himself file the necessary ancillary proceedings in this country; (4) that even if the
Bulacan estate came from the "capital" of Dr. Jose F. Cunanan, he had willed all his wordly goods to his
wife and nothing to his brothers and sisters; and (5) that Dr. Rafael G. Cunanan, Jr. had unlawfully
disbursed $215,000.00 to the Cunanan heirs, misappropriated $15,000.00 for himself and irregularly
assigned assets of the estates to his American lawyer (Records, pp. 151-160).

In their reply, the Cunanan heirs stressed that on November 24, 1982, petitioner and the Cunanan heirs
had entered into an agreement in the United States "to settle and divide equally the estates," and that
under Section 2 of Rule 77 the "court shall fix a time and place for the hearing and cause notice thereof to
be given as in case of an original will presented for allowance" (Records, pp. 184-185).chanrobles law
library
Petitioner asked that Dr. Rafael G. Cunanan, Jr. be cited for contempt of court for failure to comply with
the Order of June 23, 1983 and for appropriating money of the estate for his own benefit. She also alleged
that she had impugned the agreement of November 24, 1982 before the Surrogate Court of Onondaga,
New York which rendered a decision on April 13, 1983, finding that "all assets are payable to Dr. Evelyn P.
Cunanan’s executor to be then distributed pursuant to EPTL4-1.1 subd [a] par [4]" (Rollo, p. 52).

On their part, the Cunanan heirs replied that petitioner was estopped from claiming that they were heirs
by the agreement to divide equally the estates. They asserted that by virtue of Section 2 of Rule 77 of the
Rules of Court, the provision of Sections 3, 4 and 5 of Rule 76 on the requirement of notice to all heirs,
executors, devisees and legatees must be complied with. They reiterated their prayer: (1) that the
proceedings in the case be nullified; (2) that petitioner be disqualified as special administratrix: (3) that
she be ordered to submit an inventory of all goods, chattels and monies which she had received and to
surrender the same to the court; and (4) that Dr. Rafael Cunanan, Sr. be appointed the regular
administrator.

Petitioner filed a rejoinder, stating that in violation of the April 13, 1983 decision of the American court Dr.
Rafael G. Cunanan, Jr. made "unauthorized disbursements from the estates as early as July 7, 1982"
(Records, p. 231). Thereafter, petitioner moved for the suspension of the proceedings as she had "to
attend to the settlement proceedings" of the estate of the Cunanan spouses in New York (Records, p.
242). The Cunanans heirs opposed this motion and filed a manifestation, stating that petitioner had
received $215,000.00 "from the Surrogate’s Court as part of legacy" based on the aforesaid agreement of
November 24, 1982 (Records, p. 248).

On February 21, 1984, Judge de la Llana issued an order, disallowing the reprobate of the two wills,
recalling the appointment of petitioner as special administratrix, requiring the submission of petitioner of
an inventory of the property received by her as special administratrix and declaring all pending incidents
moot and academic. Judge de la Llana reasoned out that petitioner failed to prove the law of New York on
procedure and allowance of wills and the court had no way of telling whether the wills were executed in
accordance with the law of New York. In the absence of such evidence, the presumption is that the law of
succession of the foreign country is the same as the law of the Philippines. However, he noted, that there
were only two witnesses to the wills of the Cunanan spouses and the Philippine law requires three
witnesses and that the wills were not signed on each and every page, a requirement of the Philippine
law.chanrobles virtual lawlibrary

On August 27, 1985, petitioner filed a motion for reconsideration of the Order dated February 21, 1984,
where she had sufficiently proven the applicable laws of New York governing the execution of last wills and
testaments.

On the same day, Judge de la Llana issued another order, denying the motion of petitioner for the
suspension of the proceedings but gave her 15 days upon arrival in the country within which to act on the
other order issued that same day. Contending that the second portion of the second order left its finality
to the discretion of counsel for petitioner, the Cunanans filed a motion for the reconsideration of the
objectionable portion of the said order so that it would conform with the pertinent provisions of the
Judiciary Reorganization Act of 1980 and the Interim Rules of Court.

On April 30, 1985, the respondent Judge of Branch 18 of the Regional Trial Court, Malolos, to which the
reprobate case was reassigned, issued an order stating that" (W)hen the last will and testament . . . was
denied probate," the case was terminated and therefore all orders theretofore issued should be given
finality. The same Order amended the February 21, 1984 Order by requiring petitioner to turn over to the
estate the inventoried property. It considered the proceedings for all intents and purposes, closed
(Records, p. 302).

On August 12, petitioner filed a motion to resume proceedings on account of the final settlement and
termination of the probate cases in New York. Three days later, petitioner filed a motion praying for the
reconsideration of the Order of April 30, 1985 on the strength of the February 21, 1984 Order granting her
a period of 15 days upon arrival in the country within which to act on the denial of probate of the wills of
the Cunanan spouses. On August 19, respondent Judge granted the motion and reconsidered the Order of
April 30, 1985.chanrobles law library
On August 29, counsel for petitioner, who happens to be her daughter, Natividad, filed a motion praying
that since petitioner was ailing in Fort Lee, New Jersey, U.S.A. and therefore incapacitated to act as
special administratrix, she (the counsel) should be named substitute special administratrix. She also filed
a motion for the reconsideration of the Order of February 21, 1984, denying probate to the wills of the
Cunanan spouses, alleging that respondent Judge "failed to appreciate the significant probative value of
the exhibits . . . which all refer to the offer and admission to probate of the last wills of the Cunanan
spouses including all procedures undertaken and decrees issued in connection with the said probate"
(Records, pp. 313-323).

Thereafter, the Cunanans heirs filed a motion for reconsideration of the Order of August 19, 1985, alleging
lack of notice to their counsel.

On March 31, 1986, respondent Judge to which the case was reassigned denied the motion for
reconsideration holding that the documents submitted by petitioner proved "that the wills of the testator
domiciled abroad were properly executed, genuine and sufficient to possess real and personal property;
that letters testamentary were issued; and that proceedings were held on a foreign tribunal and proofs
taken by a competent judge who inquired into all the facts and circumstances and being satisfied with his
findings issued a decree admitting to probate the wills in question. "However, respondent Judge said that
the documents did not establish the law of New York on the procedure and allowance of wills (Records, p.
381).chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph

On April 9, 1986, petitioner filed a motion to allow her to present further evidence on the foreign law.
After the hearing of the motion on April 25, 1986, respondent Judge issued an order wherein he conceded
that insufficiency of evidence to prove the foreign law was not a fatal defect and was curable by adducing
additional evidence. He granted petitioner 45 days to submit the evidence to that effect.

However, without waiting for petitioner to adduce the additional evidence, respondent Judge ruled in his
order dated June 20, 1986 that he found "no compelling reason to disturb its ruling of March 31, 1986"
but allowed petitioner to "file anew the appropriate probate proceedings for each of the testator" (Records,
p. 391).

The Order dated June 20, 1986 prompted petitioner to file a second for reconsideration stating that she
was "ready to submit further evidence on the law obtaining in the State of New York" and praying that she
be granted "the opportunity to present evidence on what the law of the State of New York has on the
probate and allowance of wills" (Records, p. 393).

On July 18, respondent Judge denied the motion holding that to allow the probate of two wills in a single
proceeding "would be a departure from the typical and established mode of probate where one petition
takes care of one will." He pointed out that even in New York "where the wills in question were first
submitted for probate, they were dealt with in separate proceedings" (Records, p. 395).

On November 19, respondent Judge issued an order, denying the motion for reconsideration filed by
petitioner on the grounds that "the probate of separate wills of two or more different persons even if they
are husband and wife cannot be undertaken in a single petition" (Records, pp. 376-378).

Hence, petitioner instituted the instant petition, arguing that the evidence offered at the hearing of April
11, 1983 sufficiently proved the laws of the State of New York on the allowance of wills, and that the
separate wills of the Cunanan spouses need not be probated in separate proceedings.

The respective wills of the Cunanan spouses, who were American citizens, will only be effective in this
country upon compliance with the following provisions of the Civil Code of the
Philippines:jgc:chanrobles.com.ph

"Art. 816. The will of an alien who is abroad produces effect in the Philippines if made with the formalities
prescribed by the law of the place in which he resides, or according to the formalities observed in his
country, or in conformity with those which this Code prescribes."cralaw virtua1aw library
Thus, proof that both wills conform with the formalities prescribed by New York laws or by Philippine laws
is imperative.

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 (III Moran Commentaries on the Rules of Court, 1970
ed., pp. 419-429; Suntay v. Suntay, 95 Phil. 500 [1954]; Fluemer v. Hix, 54 Phil. 610 [1930]. Except for
the first and last requirements, the petitioner submitted all the needed evidence.chanrobles virtual
lawlibrary

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 (Philippine Commercial
and Industrial Bank v. Escolin, 56 SCRA 266 [1974]).

Petitioner must have perceived this omission as in fact she moved for more time to submit the pertinent
procedural and substantive New York laws but which request respondent Judge just glossed over. While
the probate of a will is a special proceeding wherein courts should relax the rules on evidence, the goal is
to receive the best evidence of which the matter is susceptible before a purported will is probated or
denied probate (Vda. de Ramos v. Court of Appeals, 81 SCRA 393 [1978]).

There is merit in petitioner’s insistence that the separate wills of the Cunanan spouses should be probated
jointly. Respondent Judge’s view that the Rules on allowance of wills is couched in singular terms and
therefore should be interpreted to mean that there should be separate probate proceedings for the wills of
the Cunanan spouses is too literal and simplistic an approach. Such view overlooks the provisions of
Section 2, Rule 1 of the Revised Rules of Court, which advise that the rules shall be "liberally construed in
order to promote their object and to assist the parties in obtaining just, speedy, and inexpensive
determination of every action and proceeding." chanrobles lawlibrary : rednad

A literal application of the Rules should be avoided if they would only result in the delay in the
administration of justice (Acain v. Intermediate Appellate Court, 155 SCRA 100 [1987]; Roberts v.
Leonidas, 129 SCRA 33 [1984]).

What the law expressly prohibits is the making of joint wills either for the testators’ reciprocal benefit or
for the benefit of a third person (Civil Code of the Philippines, Article 818). In the case at bench, the
Cunanan spouses executed separate wills. Since the two wills contain essentially the same provisions and
pertain to property which in all probability are conjugal in nature, practical considerations dictate their
joint probate. As this Court has held a number of times, it will always strive to settle the entire
controversy in a single proceeding leaving no root or branch to bear the seeds of future litigation
(Motoomull v. Dela Paz, 187 SCRA 743 [1990]).

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 (Calderon v. Solicitor General,
215 SCRA 876 [1992]).

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.cralawnad

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, . . ." .

WHEREFORE, the questioned Order is SET ASIDE. Respondent Judge shall allow petitioner reasonable time
within which to submit evidence needed for the joint probate of the wills of the Cunanan spouses and see
to it that the brothers and sisters of Dr. Jose F. Cunanan are given all notices and copies of all pleadings
pertinent to the probate proceeding

DE ARANZ VS. GALING

Katigbak , Paula Margareth

FACTS:
On 3 March 1986, private respondent Joaquin R-Infante filed RTC Pasig a petition for the probate and allowance
of the last will and testament of the late Montserrat R-Infante y G-Pola. The petition specified the names and ad- dresses
of herein petitioners as legatees and devisees. The probate court issued an order setting the petition for hearing. Said
order was published in the "Nueva Era" A newspaper of general circulation in Metro Manila once a week for three (3)
consecutive weeks. On the date of the hearing, no oppositor appeared. The hearing was then reset and private respondent
presented his evidence ex-parte and placed Arturo Arceo one of the testamentary witnesses, on the witness stand. During
the proceedings, private respondent was appointed executor. Petitioners filed a motion for reconsideration alleging that,
as named legatees, no notices were sent to them as required by Sec. 4, Rule 76 of the Rules of Court and they prayed that
they be given a period of ten (10) days within which to file their opposition to the probate of the will. This was denied by
the Court. Petition for certiorari was filed and referred to CA which was also dismissed. Hence, present petition.

ISSUE:
Whether the CA erred in ruling that the requirement of notice on heirs, legatees, and devisees is merely a
procedural convenience to satisfy the requirements of due process?

RULING:
Yes. Sec. 4, Rule 76 of the Rules of Cof reads: SEC. 4. Heirs, devisees, legatees, and executors to be notified by
mail or personally.— The court 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 resident in the Philippines at their
places of residence, and deposited in the post office with the postage thereon prepaid at least twenty (20) days before the
hearing, if such places of residence be known. A copy of the notice must in like manner be mailed to the person named as
executor, if he be not, the petitioner; also, to any person named as co-executor not petitioning, if their places of residence
be known. Personal service of copies of the notice at least ten (10) days before the day of hearing shall be equivalent to
mailing. It is clear from the aforecited rule that notice of the time and place of the hearing for the allowance of a will shall
be forwarded to the designated or other known heirs, legatees, and devisees residing in the Philippines at their places of
residence, if such places of residence be known. There is no question that the residences of herein petitioners legatees and
devisees were known to the probate court. But despite such knowledge, the probate court did not cause copies of the
notice to be sent to petitioners. The requirement of the law for the allowance of the will was not satisfied by mere
publication of the notice of hearing for three (3) weeks in a newspaper of general circulation in the province.

De Aranz v. Judge Galing

GR No. 77047, 28 May 1988

Padilla, J.

Facts:

Private respondent filed w/ the Pasig RTC a petition for the probate & allowance of the will of the late Montserrat Infante.
The petition specified the names & addresses of herein petitioners as legatees & devisees. The probate court issued an
order setting the petition for hearing & the order was published in a newspaper of general circulation in Metro Mla once a
week for 3 consecutive weeks. On the date of the hearing, no oppositor appeared. The hearing was reset, on w/c date
the probate court issued an order designating the clerk of court to receive evidence ex-parte of the petitioner as there was
no opposition. During the proceedings, private respondent was appointed executor.

2 Days later, petitioners filed a motion for reconsideration of the order. They alleged that as legatees, no notices were
sent to them as required by Sec 4 of Rule 76 ROC. They prayed that they be given 10 days to file their opposition to the
probate of the will.

The probate court denied the motion for reconsideration. The CA dismissed the petition for certiorari & prohibition
consequently filed by petitioners.

Issue:

Whether the CA erred in holding that the requirement of notice on individual heirs, devisees & legatees is merely a matter
of procedural convenience to better satisfy in some instances the requirements of due process

Held:

Yes. It is clear from Sec 4 Rule 76 ROC that notice of the time and place of the hearing for the allowance of a will shall be
forwarded to the designated or other known heirs, legatees, and devisees residing in the Philippines at their places of
residence, if such places of residence be known. There is no question that the residences of herein petitioners legatees
and devisees were known to the probate court. The petition for the allowance of the will itself indicated the names and
addresses of the legatees and devisees of the testator. But despite such knowledge, the probate court did not cause
copies of the notice to be sent to petitioners. The requirement of the law for the allowance of the will was not satisfied by
mere publication of the notice of hearing for three (3) weeks in a newspaper of general circulation in the province.

The case cited by the CA in its assailed decision to support its theory is not applicable in the present case. . If the
allegation of the petition was wrong and the true residence of petitioners was not known, then notice upon them
individually was not necessary. Individual notice upon heirs, legatees and devisees is necessary only when they are
known or when their places of residence are known. In other instances, such notice is not necessary and the court may
acquire and exercise jurisdiction simply upon the publication of the notice in a newspaper of general circulation.

G.R. No. L-58509 December 7, 1982

IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF RICARDO B. BONILLA deceased, MARCELA
RODELAS, petitioner-appellant, vs. AMPARO ARANZA, ET AL., oppositors-appellees, ATTY. LORENZO SUMULONG,
intervenor.

FACTS: On January 11, 1977, appellant filed a petition with the Court of First Instance of Rizal for the probate of the
holographic will of Ricardo B. Bonilla and the issuance of letters testamentary in her favor. The petition was opposed by
the appellees AmparoAranza Bonilla, Wilferine Bonilla TreyesExpedita Bonilla Frias and Ephraim Bonilla on the following
grounds: (1) Appellant was estopped from claiming that the deceased left a will by failing to produce the will within twenty
days of the death of the testator as required by Rule 75, section 2 of the Rules of Court; (2) The alleged copy of the
alleged holographic will did not contain a disposition of property after death and was not intended to take effect after
death, and therefore it was not a will; (3) The alleged hollographic will itself,and not an alleged copy thereof, must be
produced, otherwise it would produce no effect, as held in Gam v. Yap, 104 Phil. 509; and (4 ) The deceased did not
leave any will, holographic or otherwise, executed and attested as required by law.
 The appellees likewise moved for the consolidation of the case. Their motion was granted by the court in an order
dated April 4, 1977.
On November 13, 1978, following the consolidation of the cases, the appellees moved again to dismiss the
petition for the probate of the will. They argued that: (1) The alleged holographic was not a last will but merely an
instruction as to the management and improvement of the schools and colleges founded by decedent Ricardo B. Bonilla;
and (2) Lost or destroyed holographic wills cannot be proved by secondary evidence unlike ordinary wills.
Upon opposition of the appellant, the motion to dismiss was denied by the court in its order of February 23, 1979.
The appellees then filed a motion for reconsideration. On July 23, 1979, the court set aside its order of February
23, 1979 and dismissed the petition for the probate of the will of Ricardo B. Bonilla. It is our considered opinion that once
the original copy of the holographic will is lost, a copy thereof cannot stand in lieu of the original.
In the case of Gam vs. Yap, 104 Phil. 509, 522, the Supreme Court held that ‘in the matter of holographic wills the
law, it is reasonable to suppose, regards the document itself as the material proof of authenticity of said wills.
MOREOVER, this Court notes that the alleged holographic will was executed on January 25, 1962 while Ricardo
B. Bonilla died on May 13, 1976. In view of the lapse of more than 14 years from the time of the execution of the will to the
death of the decedent, the fact that the original of the will could not be located shows to our mind that the decedent had
discarded before his death his allegedly missing Holographic Will.
Appellant’s motion for reconsideration was denied. Hence, an appeal to the Court of Appeals.

RULING: The only question here is whether a holographic will which was lost or cannot be found can be proved by means
of a photostatic copy. Pursuant to Article 811 of the Civil Code, probate of holographic wills is the allowance of the will by
the court after its due execution has been proved. The probate may be uncontested or not. If uncontested, at least one
Identifying witness is required and, if no witness is available, experts may be resorted to. If contested, at least three
Identifying witnesses are required. However, if the holographic will has been lost or destroyed and no other copy is
available, the will can not be probated because the best and only evidence is the handwriting of the testator in said will. It
is necessary that there be a comparison between sample handwritten statements of the testator and the handwritten will.
But, a photostatic copy or xerox copy of the holographic will may be allowed because comparison can be made with the
standard writings of the testator. In the case of Gam vs. Yap, 104 PHIL. 509, the Court ruled that “the execution and the
contents of a lost or destroyed holographic will may not be proved by the bare testimony of witnesses who have seen
and/or read such will. The will itself must be presented; otherwise, it shall produce no effect. The law regards the
document itself as material proof of authenticity.” But, in Footnote 8 of said decision, it says that “Perhaps it may be
proved by a photographic or photostatic copy. Even a mimeographed or carbon copy; or by other similar means, if any,
whereby the authenticity of the handwriting of the deceased may be exhibited and tested before the probate court,”
Evidently, the photostatic or xerox copy of the lost or destroyed holographic will may be admitted because then the
authenticity of the handwriting of the deceased can be determined by the probate court.

G.R. No. L-23135 December 26, 1967

TESTATE ESTATE OF HILARION RAMAGOSA. MARIANO SUMILANG, petitioner-appellee,

vs.
SATURNINA RAMAGOSA, SANTIAGO RAMAGOSA, ENRIQUE PABELLA, LICERIA PABELLA and ANDREA
RAVALO, oppositors-appellants.

Gatchalian and Sison and J. A. Bardelosa, Jr. for petitioner-appellee.

Jose L. Desvarro Jr. for oppositors-appellants

MAKALINTAL, J.:

On July 5, 1960 Mariano Sumilang filed in the Court of First Instance of Quezon a petition for the probate of a document
alleged to be the last will and testament of Hilarion Ramagosa, who died on December 1, 1959. Said document, written in
Tagalog and dated February 26, 1949, institutes petitioner as sole heir of the testator.

The petition for probate was opposed by two (2) of oppositors — appellants herein — who questioned the due execution
of the document, claiming that it was made under duress and was not really intended by the deceased to be his last will
and testament. Aside from merely opposing the petition for probate, the first set of oppositors — Saturnino and Santiago
Ramagosa — also claimed that they, instead of petitioner, were entitled to inherit the estate of the deceased. The other
oppositors representing themselves simply as next of kin, appropriately prayed only for the disallowance of the will.

At the hearings of the petition petitioner adduced his evidence, and then rested his case on February 16, 1961. Reception
of oppositors' evidence was set for July 14, 1961. However, on July 3, 1961 oppositors moved for the dismissal of the
petition for probate mainly on the ground that "the court lacks jurisdiction over the subject-matter because the last will and
testament of the decedent, if ever it was really executed by him, was revoked by implication of law six years before his
death." Oppositors alleged that after making the will Hilarion Ramagosa sold to petitioner Mariano Sumilang and his
brother Mario the parcels of land described therein, so that at the time of the testator's death the titles to said lands were
no longer in his name.

Petitioner filed his opposition to the motion for dismissal on July 17, 1961 supplemented it by another opposition on
August 14, 1961, and by a rejoinder on August 21, 1961. Finally, on October 22, 1962 petitioner moved to strike out the
oppositors' pleadings on two grounds, namely:

1. That oppositors have no legal standing in court and they are bereft of personality to oppose the probate of the
last will and testament of the testators; and

2. That oppositors have no valid claim and interest in the distribution of (the) estate of the aforesaid testator and
no existing valid right whatsoever.

On October 18, 1963 the court a quo issued the order now subject of this appeal, which read as follows:

Acting on the motion to dismiss filed by the oppositors dated July 31, 1961, the same is hereby denied for the
allegations contained therein goes (sic) to the very intrinsic value of the will and other grounds stated on said
motion to dismiss are without merit.itc-alf With respect to the motion to strike out opposition and all other
pleadings of oppositors filed by the petitioner, it appears that oppositors have no relationship whatsoever within
the fifth degree as provided by law and therefore the oppositors are totally strangers to the deceased whose will is
under probate. This being so, the motion to strike out opposition and all other pleadings pertinent thereto is
hereby ordered stricken out of the record.

The petition below being for the probate of a will, the court's area of inquiry is limited to the extrinsic validity thereof. The
testator's testamentary capacity and the compliance with the formal requisites or solemnities prescribed by law are the
only questions presented for the resolution of the court. Any inquiry into the intrinsic validity or efficacy of the provisions of
the will or the legality of any devise or legacy is premature. (Nuguid vs. Nuguid, G.R. No. L-23445, June 23, 1966).

To establish conclusively as against everyone and once for all, the facts that a will was executed with the
formalities required by law and that the testator was in a condition to make a will, is the only purpose of the
proceedings . . . for the probate of a will. The judgment in such proceedings determines and can determine
nothing more. (Alemany, et al. vs. CFI of Manila, 3 Phil. 424).

Oppositors would want the court a quo to dismiss petition for probate on the ground that the testator had impliedly
revoked his will by selling, prior to his death, the lands disposed of therein.

True or not, the alleged sale is no ground for the dismissal of the petition for probate. Probate is one thing the validity of
the testamentary provisions is another.itc-alf The first decides the execution of the document and the testamentary
capacity of the testator; the second relates to descent and distribution.

The alleged revocation implied from the execution of the deeds of conveyance in favor of the testamentary heir is
plainly irrelevant to and separate from the question of whether the testament was duly executed. For one, if the
will is not entitled to probate, or its probate is denied, all questions of revocation become superfluous: in law, there
is no such will and hence there would be nothing to revoke. Then, again, the revocation invoked by the
oppositors-appellants is not an express one, but merely implied from subsequent acts of the testatrix allegedly
evidencing an abandonment of the original intention to bequeath or devise the properties concerned. As such, the
revocation would not affect the will itself, but merely the particular devise or legacy.itc-alf (Fernandez, et al. vs.
Dimagiba, L-23638 and Reyes, et al. vs. Dimagiba, L-23662, October 12, 1967.)

In their brief, oppositors do not take issue with the court a quo's finding that they "have no relationship whatsoever within
the fifth degree as provided by law and therefore . . . are totally (sic) strangers to the deceased whose will is under
probate." They do not attempt to show that they have some interest in the estate which must be protected. The
uncontradicted evidence, consisting of certified true copies of the parties' baptism and marriage certificates, support the
said court's finding in this respect.

It is a well-settled rule that in order that a person may be allowed to intervene in a probate proceeding he must
have an interest in the estate, or in the will, or in the property to be affected by it either as executor or as a
claimant of the estate (Ngo The Hua vs. Chung Kiat Hua, et al., L-17091, September 30, 1963); and an interested
party has been defined as one who would be benefited by the estate such as an heir or one who has a claim
against the estate like a creditor. (Teotico vs. Del Val, etc., G.R. No. L- 18753, March 26, 1965.)

The reason for the rule excluding strangers from contesting the will, is not that thereby the court may be
prevented from learning facts which would justify or necessitate a denial of probate, but rather that the courts and
the litigants should not be molested by the intervention in the proceedings of persons with no interest in the estate
which would entitle them to be heard with relation thereto. (Paras vs. Narciso, 35 Phil. 244.)

Sometime after this case was elevated to this Court appellee moved to dismiss the appeal on the ground that the order
appealed from is interlocutory. We deferred action on the motion until after the brief of both parties had been filed. The
motion, although now practically academic in view of our resolution of the main issue involved, must be denied, since the
order of the lower court striking out appellants' opposition to the probate of the will on the ground that they have no
personality to intervene in the case, was final and therefore appealable order insofar as they were concerned.

The order appealed from is hereby affirmed, with costs against oppositors- appellants.

G.R. No. 45629 September 22, 1938

ANTILANO G. MERCADO, petitioner,

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

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

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

LAUREL, J.:

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

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

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

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

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

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

xxx xxx xxx

(Emphasis ours.)

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

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

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

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

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

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

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

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

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

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

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

Through the publication of the petition for the probate of the will, the court acquires jurisdiction over all such
persons as are interested in said will; and any judgment that may be rendered after said proceeding is binding
against the whole world.

In Everrett vs. Wing (103 Vt., 488, 492), the Supreme Court of Vermont held.

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

Section 333, paragraph 4, of the Code of Civil Procedure establishes an incontrovertible presumption in favor of
judgments declared by it to be conclusive.

SEC. 333. Conclusive Presumptions. — The following presumptions or deductions, which the law expressly
directs to be made from particular facts, are deemed conclusive.

xxx xxx xxx

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

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

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

A judgment admitting a will to probate cannot be attacked collaterally although the will was forged; and a payment
to the executor named therein of a debt due the decedent will discharge the same, notwithstanding the spurious
character of the instrument probated. It has also been held that, upon an indictment for forging a will, the probate
of the paper in question is conclusive evidence in the defendants favor of its genuine character. But this particular
point has lately been ruled otherwise.

It was the case of Rex vs. Buttery, supra, which induced the Supreme Court of Massachussetts in the case of
Waters vs. Stickney (12 Allen 1; 90 Am. Dec., 122) also cited by the majority opinion, to hold that "according to later and
sounder decisions, the probate, though conclusive until set aside of the disposition of the property, does not protect the
forger from punishment." This was reproduced in 28 R.C.L., p. 376, and quoted in Barry vs. Walker (103 Fla., 533; 137
So., 711, 715), and Thompson vs. Freeman (149 So., 740, 742), also cited in support of the majority opinion of the Court
of Appeals. The dissenting opinion of the Court of Appeals in the instant case under review makes a cursory study of the
statutes obtaining in England, Massachussetts and Florida, and comes to the conclusion that the decisions cited in the
majority opinion do not appear to "have been promulgated in the face of statutes similar to ours." The dissenting opinion
cites Whartons Criminal Evidence (11th ed., sec. 831), to show that the probate of a will in England is only prima
facie proof of the validity of the will (Op. Cit. quoting Marriot vs. Marriot, 93 English Reprint, 770); and 21 L.R.A. (pp.
686689 and note), to show that in Massachussetts there is no statute making the probate of a will conclusive, and that in
Florida the statute(sec. 1810, Revised Statutes) makes the probate conclusive evidence as to the validity of the will with
regard to personal, and prima facie as to real estate. The cases decided by the Supreme Court of Florida cited by the
majority opinion, supra, refer to wills of both personal and real estate.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

G.R. No. L-26743 May 31, 1972

IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF CIPRIANO ABUT, deceased. GENEROSO ABUT,
petitioner, GAVINA ABUT, petitioner-appellant,
vs.
FELIPE ABUT, PRESENTACION DE RODRIGUEZ and ABSOLUTO ABUT, oppositors-appellees.

Felipe N. Montesa for petitioner-appellant.

Homobono A. Adaza for oppositors-appellees.

MAKALINTAL, J.:p

This is an appeal from an order dated July 2, 1966 of the Court of First Instance of Misamis Oriental (Br. IV) in its Sp.
Proc. No. 911. The said order states:

Gavina Abut, through counsel, seeks the admission of the amended petition in which she substitutes for
the original petitioner, Generoso Abut, who died after his original petition was filed, published and the
Court had taken jurisdiction thereof. In the original petition the deceased Generoso Abut appears to have
been named executor of the will of the deceased Cipriano Abut; that he was in possession and custody of
the latter's will; and that he sought to be named executor of the will of the deceased Cipriano Abut. In the
amended petition Gavina Abut alleges that the will was delivered to her by Generoso Abut before his
death and that it is now in her custody and possession, and she prays that she be appointed
administratrix of the estate of the deceased Cipriano Abut.

Considering the foregoing amendments embodied in the amended petition, and the fact that publication of
the petition is a jurisdictional matter intended to inform whomsoever may be interested in said petition and
to afford him or her an opportunity to assert his or her rights, the Court believes that the original petition
should be, as it is hereby dismissed, without prejudice to the filing of another petition pursuant to the
requirements of the Rules of Court.

The decisive facts are largely matters of record. On August 4, 1965 Generoso Abut, one of the children of the deceased
Cipriano Abut by his second marriage and the person named as executor in a will allegedly executed by the said
deceased, filed a petition before the court a quo praying that after due notice and hearing the said will be approved and
allowed and that letters testamentary issue in his favor. In an amended order dated September 1, 1965 the court a
quo motu proprio set the petition for hearing and further directed compliance with Sections 3 and 4 of Rule 76 of the Rules
of Court.1 These procedural steps admittedly took place.

Opposition to the petition was filed by the children of Cipriano Abut by his first marriage, namely, Felipe Abut,
Presentacion de Rodriguez and Absoluto Abut, now appellees here.

During the pendency of the case below but before the court a quo could even start the formal hearing of the petition,
which had been delayed by several postponements, Generoso Abut, the original petitioner who initiated the probate
proceeding, died on January 10, 1966. This eventuality prompted Gavina Abut, a sister of Generoso Abut and an heir and
devisee under the will of the testator Cipriano Abut, to ask the court a quo to substitute her in lieu of Generoso Abut and to
admit an amended petition wherein she prayed that the probate of the will be allowed and that letters of administration
with the will annexed be issued in her favor. For reasons stated in its order of July 2, 1966, hereinabove quoted, the
court a quo dismissed the petition originally brought by the deceased Generoso Abut, "without prejudice to the filing of
another petition pursuant to the requirements of the Rules of Court."

The issue is whether or not the probate court correctly dismissed the petition simply because the original petitioner — who
was the executor named in the will sought to be probated — died before the petition could be heard and/or terminated.
Stated otherwise, after the court had acquired jurisdiction over the case involving probate of the will, did the demise of the
original petitioner during the pendency of the proceeding divest the court of such jurisdiction and preclude the continuation
of the case on the theory that the amended petition filed by herein petitioner, who admittedly was a person having an
interest in the estate, seeking to substitute her in place of the original petitioner, but with a similar prayer for the allowance
of the same will, required a new publication in order to invest the court with jurisdiction.

We find the dismissal of the original petition for probate and the refusal of the probate court to admit the amended petition
without a new publication thereof to be untenable. The jurisdiction of the court became vested upon the filing of the
original petition and upon compliance with Sections 3 and 4 of Rule 76.2

A proceeding for the probate of a will is one in rem, such that with the corresponding publication of the petition the court's
jurisdiction extends to all persons interested in said will or in the settlement of the estate of the deceased. The fact that the
amended petition named additional heirs not included in the original petition 3 did not require that notice of the amended
petition be published anew. All that Section 4 of Rule 76 provides is that those heirs be notified of the hearing for the
probate of the will, either by mail or personally. In the case of Perez vs. Perez4 this Court explained:
 Thus it appears that such "no notice" argument has no legal foundation. At any rate the omission, if any,
did not affect the jurisdiction of the court; it constituted a mere procedural error that may or may not be
the basis of reversal (Jocson vs. Nable, 48 O.G. 90). Indeed, this Tribunal has ruled that the court
acquires jurisdiction over all persons interested in the estate through the publication of the petition in the
newspapers (In re Estate of Johnson, 39 Phil. 159; Jocson vs. Nable, supra) — which in this case
admittedly took place.

Service of notice on individual heirs or legatees or devisees is a matter of procedural convenience, not
jurisdictional requisite. So much so that even if the names of some legatees or heirs had been omitted
from the petition for allowance of the will — and therefore were not advised — the decree allowing the will
does not ipso facto become void for want of jurisdiction ...

Jurisdiction of the court once acquired continues until the termination of the case, 5 and remains unaffected by subsequent
events. The court below erred in holding that it was divested of jurisdiction just because the original petitioner died before
the petition could be formally heard. Parties who could have come in and opposed the original petition, as herein
appellees did, could still come in and oppose the amended petition, having already been notified of the pendency of the
proceeding by the publication of the notice thereof.

The admission of the amended petition, of course, does not mean that Gavina Abut's prayer that she be appointed
administratrix with the will annexed is necessarily meritorious. It simply recognizes that since the lower court has acquired
jurisdiction over the res, such jurisdiction continues until the termination of the case. The first question that the lower court
should hear and decide is the probate of the will; and the question of whether or not Gavina Abut should be appointed
administratrix must be decided on the basis of the facts to be presented and after the will is proved and allowed, as
provided in Section 6 of Rule 78.

WHEREFORE, the order dated July 2, 1966 is set aside and the case is remanded below, with direction for the lower
court to admit the amended petition and thereafter proceed accordingly. Costs against oppositors-appellees

G.R. No. 78590 June 20, 1988

PEDRO DE GUZMAN, petitioner,

vs.
THE HONORABLE JUDGE ZOSIMO Z. ANGELES, RTC BRANCH 58, MAKATI, METRO, MANILA; DEPUTY
SHERIFFS JOSE B. FLORA and HONORIO SANTOS and ELAINE G. DE GUZMAN, respondents.

Bautista, Picazo, Cruz, Buyco and Tan for private respondent.

Ponce Enrile, Cayetano, Bautista, Picaso and Reyes, collaborating counsel for private respondent.

GUTIERREZ, JR., J.:

May a probate court act on and/or grant motions for the appointment of a special administrator, for the issuance of a writ
of possession of alleged properties of the deceased person, and for assistance to preserve the estate in a petition for the
settlement of the intestate estate even before the court has caused notice to be served upon all interested parties
pursuant to section 3, Rule 79 of the Revised Rules of Court?

On May 5, 1987, private respondent Elaine G. de Guzman filed a petition for the settlement of the intestate estate of
Manolito de Guzman, before the Regional Trial Court of Makati, Metro Manila. The case was docketed as Special
Proceedings .No. M-1436.

The petition alleges that: (1) on March 22,1987, Manolito de Guzman died in Makati, Metro Manila; (2) at the time of his
death, the decedent was a resident of Makati, Metro Manila; (3) decedent left personal and real properties as part of his
estate, listed in Annexes "A," "B," "C" and "D;" (4) the properties were acquired after the marriage of the petitioner to the
decedent and therefore are included in their conjugal partnership; (5) the estate of -the decedent has a probable net value
which may be provisionally assessed at P4,000,000.00 more or less; (6) the possible creditors of the estate, who have
accounts payable. and existing claims against the firm — C. SANTOS Construction are listed in Annex "E;" (7) the
compulsory heirs of the decedent are the as the surviving spouse and their two (2) minor children namely: Charmane
Rose de Guzman 11 years and Peter Brian de Guzman, 9 years old; (8) after diligent search and inquiry to ascertain
whether the decedent left a last will and testament, none has been found and according to the best knowledge information
and belief of the petitioner, Manolito de Guzman died intestate; and (9) the petitioner as the survey surviving spouse of
the decedent, is most qualified and entitled to the grant of letters of administration.

On May 22, 1987, the private respondent filed a motion for writ of possession over five (5) — vehicles registered under
the name of Manolito de Guzman, alleged to be conjugal properties of the de Guzman's but which are at present in the
possession of the private respondent's father-in- law, herein petitioner Pedro de Guzman. The motion stated that as co-
owner and heir, the private respondent must have the possession of said vehicles in order to preserve the assets of her
late husband. On the same day, the lower court issued an order setting for hearing the motion on May 27, 1987 directing
the deputy sheriff to notify petitioner Pedro de Guzman at the expense of the private respondent.

The scheduled May 27, 1987 hearing was postponed on motion of petitioner's counsel, Atty. Ricardo Fojas. The petitioner
was also given three (3) days from May 27, 1987 to give his comment on the motion for a writ of possession. The hearing
was reset to June 5, 1987 at 3:00 p.m.

On May 29, 1987, the petitioner's counsel filed a notice of appearance and an "Urgent Motion For Extension of Time to
File an Opposition and for Resetting of the Hearing."

The motion was granted and the petitioner was given five (5) days from receipt of the order within which to file his
opposition to the motion for a writ of possession. The hearing was reset to June 15, 1987 at 2:00 in the afternoon.

In the meantime, on May 28, 1987, the private respondent filed her "Ex-Parte Motion to Appoint Petitioner as Special
Administratrix of the Estate of Manolito de Guzman."

In an order dated May 28,1987, the aforesaid motion was set for hearing on June 5, 1987. In this same order, the lower
court directed that all parties in the case be notified. However, no notice of the order was given to the petitioner.

In an order dated June 5, 1987, the lower court granted the private respondent's motion to be appointed as special
administratrix, to wit:

Finding the motion for appointment of special administratrix, on the ground alleged therein to be well-
founded, and finding further that it is to be the best interest of the Estate of Manolito de Guzman that
petitioner-movant Elaine G. de Guzman, be appointed as Special Administratrix in this case, said motion
is granted.

WHEREFORE, Elaine G. de Guzman, petitioner-movant, is hereby appointed as Special Administratrix of

the Estate of the deceased Manolito de Guzman, pending appointment of a regular administrator. The
bond for the said special administratrix is hereby fixed in the amount of P200,000.00. (Rollo, p. 40)

On June 8, 1987, the lower court issued another order, to wit:

Acting on the Urgent Ex-Parte Motion for Assistance" filed by Petitioner-Special Administratrix Elaine de
Guzman for appointment of Deputy Sheriffs Honorio Santos and Jose B. Flora together with some military
men and/or policemen to assist her in preserving the estate of Manolito de Guzman, the motion is granted
and the Deputy Sheriffs Honorio Santos and Jose B. Flora are hereby appointed for that purpose,
provided that the subject matter of the motion for writ of possession pending before this Court shall not be
affected. (Rollo, p. 41)

Trouble ensued when the respondents tried to enforce the above order. The petitioner resisted when Deputy Sheriffs Jose
B. Flora and Honorio Santos tried to take the subject vehicles on the ground that they were his personal properties.
According to the petitioner, this resulted in a "near shoot-out between members of the Makati Police, who were to
maintain peace and order, and the CAPCOM soldiers who were ostensibly aiding respondent sheriffs and Elaine G. de
Guzman" and that "the timely arrival of Mayor Jejomar Binay of Makati defused the very volatile situation which resulted in
an agreement between the parties that the bulldozer, sought to be taken, be temporarily placed in the custody of Mayor
Binay, while the parties seek clarification of the order from respondent Judge Zosimo Angeles the next day, June 9, 1981
at 10:30 a.m."
In the conference held before the respondent court attended by the counsels for both parties, the June 8, 1987 order was
clarified to the effect that the order "must be merely to take and preserve assets admittedly belonging to the estate, but
not properties, the ownership of which is claimed by third persons."

The petitioner then filed a manifestation listing properties which he claimed to be his own.

Thereafter, the instant petition was filed to annul the lower court's orders dated June 5, 1987 and June 8, 1987.

In a resolution dated June 10, 1987, we issued a temporary restraining order enjoining the respondent court from
enforcing the two questioned orders. In another resolution dated October 28, 1987, we gave due course to the petition.

The petitioner contends that the June 5, 1987 order is a patent nullity, the respondent court not having acquired
jurisdiction to appoint a special administratrix because the petition for the settlement of the estate of Manolito de Guzman
was not yet set for hearing and published for three consecutive weeks, as mandated by the Rules of Court. The petitioner
also stresses that the appointment of a special administratrix constitutes an abuse of discretion for having been made
without giving petitioner and other parties an opportunity to oppose said appointment.

Anent the June 8, 1987 order, the petitioner alleges that the immediate grant of the motion praying for the court's
assistance in the preservation of the estate of the deceased, "without notice to the petitioner Pedro de Guzman, and
its immediate implementation on the very same day by respondent Elaine G. de Guzman with the assistance of
respondents deputy sheriffs, at no other place but at the home of the petitioner Pedro de Guzman, are eloquent proofs
that all the antecedent events were intended solely to deprive petitioner de Guzman of his property without due process of
law." He also prays that the respondent Judge be disqualified from further continuing the case.

As stated earlier, the pivotal issue in the instant petition hinges on whether or not a probate court may appoint a special
administratrix and issue a writ of possession of alleged properties of a decedent for the preservation of the estate in a
petition for the settlement of the intestate estate of the said deceased person even before the probate court causes notice
to be served upon all interested parties pursuant to section 3, Rule 79 of the Revised Rules of Court.

As early as March 18, 1937, in the case of Santos v. Castillo (64 Phil. 211) we ruled that before a court may acquire
jurisdiction over the case for the probate of a will and the administration of the properties left by a deceased person, the
application must allege the residence of the deceased and other indispensable facts or circumstances and that the
applicant is the executor named in the will or is the person who had custody of the will to be probated.

In the instant case, there is no doubt that the respondent court acquired jurisdiction over the proceedings upon the filing of
a petition for the settlement of an intestate estate by the private respondent since the petition had alleged all the
jurisdictional facts, the residence of the deceased person, the possible heirs and creditors and the probable value of the
estate of the deceased Manolito de Guzman pursuant to Section 2, Rule 79 of the Revised Rules of Court.

We must, however, differentiate between the jurisdiction of the probate court over the proceedings for the administration
of an estate and its jurisdiction over the persons who are interested in the settlement of the estate of the deceased
person. The court may also have jurisdiction over the "estate" of the deceased person but the determination of the
properties comprising that estate must follow established rules.

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. (Eusebio v. Valmores, 96 Phil. 163).
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.
(See Eusebio v. Valmores, supra)

In the instant case, no notice as mandated by section 3, Rule 79 of the Revised Rules of Court was caused to be given by
the probate court before it acted on the motions of the private respondent to be appointed as special administratrix, to
issue a writ of possession of alleged properties of the deceased person in the widow's favor, and to grant her motion for
assistance to preserve the estate of Manolito de Guzman.

The "explanation" which we required of the respondent Judge for his apparent haste in issuing the questioned orders,
states:

xxx xxx xxx

10. In issuing the subject Orders, undersigned acted in the honest conviction that it would be to the best
interest of the estate without unduly prejudicing any interested party or third person. Any delay in issuing
the said Orders might have prejudiced the estate for the properties may be lost, wasted or dissipated in
the meantime. (Rollo, p. 86)

xxx xxx xxx

This explanation while seemingly plausible does not sufficiently explain the disregard of the Rule. If indeed, the
respondent court had the welfare of both the estate and the person who have interest in the estate, then it could have
caused notice to be given immediately as mandated by the Revised Rules of Court. All interested persons including
herein petitioner who is the biggest creditor of the estate listed in the Petition (P850,240.80) could have participated in the
proceedings especially so, because the respondent immediately filed a motion to have herself appointed as administratrix.
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." (Jones v. Minnesota Transfer R. Co. 1965
ed., at 106 cited in Fule v. Court of Appeals, 74 SCRA 189). 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.

As argued by the petitioner:

The position of special administrator, by the very nature of the powers granted thereby, is one of trust and
confidence. It is a fiduciary position and, therefore, requires a comprehensive determination of the
suitability of the applicant to such position. Hence, under Philippine jurisprudence, it has been settled that
the same fundamental and legal principles governing the choice of a regular administrator should be
taken in choosing the special administrator (Francisco, Vol. VB, page 46 citing the cases of Ozaeta v.
Pecson, Ibid. and Roxas v. Pecson, Ibid.)

In order to fully and correctly ascertain the suitability of the applicant to the trust, a hearing is obviously
necessary wherein the applicant can prove his qualifications and at the same time affording oppositors,
given notice of such hearing and application, the opportunity to oppose or contest such application.

The requirement of a hearing and the notification to all the known heirs and other
interested parties as to the date thereof is essential to the validity of the proceeding for
the appointment of an administrator "in order that no person may be deprived of his right
or property without due process of law" (Eusebio v. Valmores, 97 Phil. 163). Moreover, a
hearing is necessary in order to fully determine the suitability of the applicant to the trust,
by giving him the opportunity to prove his qualifications and affording oppositors, if any, to
contest the said application. (Matute v. Court of Appeals, 26 SCRA 770; emphasis
supplied).

Since the position of special administrator is a very sensitive one which requires trust and confidence, it is
essential that the suitability of the applicant be ascertained in a hearing with due notice to all oppositors
who may object precisely to the applicant's suitability to the trust. (Rollo, pp. 103-104)
If emergency situations threatening the dissipation of the assets of an estate justify a court's immediately taking some kind
of temporary action even without the required notice, no such emergency is shown in this case. The need for the proper
notice even for the appointment of a special administrator is apparent from the circumstances of this case.

The respondent Judge himself explains that the order for the preservation of the estate was limited to properties not
claimed by third parties. If certain properties are already in the possession of the applicant for special administratrix and
are not claimed by other persons, we see no need to hurry up and take special action to preserve those properties. As it
is, the sheriffs took advantage of the questioned order to seize by force, properties found in the residence of the petitioner
which he vehemently claims are owned by him and not by the estate of the deceased person.

The petitioner also asks that the respondent Judge be disqualified from continuing with the proceedings of the case on the
ground that he is partial to the private respondent.

In view of the fact that the respondent Judge in his "Explanation" requests that he be inhibited from further active on the
case, this issue has now become academic. We accept Judge Angeles" voluntary inhibition in line with our ruling
in Pimentel v. Salanga (21 SCRA 160). As we stated in Query of Executive Judge Estrella T. Estrada, Regional Trial
Court of Malolos, Bulacan on the conflicting views of Regional Trial Court—Judges Manalo and Elisaga Re: Criminal Case
No. 4954 — M Administrative Matter No. 87-9-3918-RTC, October 26, 1987:

xxx xxx xxx

... A judge may not be legally prohibited from sitting in a litigation. But when suggestion is made of record
that he might be induced to act in favor of one party or with bias or prejudice against a litigant arising out
of circumstances reasonably capable of inciting such a state of mind, he should conduct a careful self-
examination. He should exercise his discretion in a way that the people's faith in the courts of justice is
not impaired. A salutary norm is that he reflect on the probability that a losing party might nurture at the
back of his mind the thought that the judge had unmeritoriously tilted the scales of justice against him.
That passion on the part of a judge may be generated because of serious charges of misconduct against
him by a suitor or his counsel, is not altogether remote. He is a man, subject to the frailties of other men.
He should, therefore, exercise great care and caution before making up his mind to act or withdraw from
a suit Where that party or counsel is involved. He could in good grace inhibit himself where that case
could be heard by another judge and where no appreciable prejudice would be occasioned to others
involved thereon. On the result of his decisions to sit or not sit may depend to a great extent that all-
important confidence in the impartiality of the judiciary. If after reflection he should resolve to voluntarily
desist from sitting in a case where his motives or fairness might be seriously impugned, his action is to be
interpreted as giving meaning and substance to the second paragraph of Section 1, Rule 137. He serves
the cause of the law who forestalls miscarriage of justice.

Considering the foregoing, we find no need to discuss the other issues raised in the petition.

WHEREFORE, the instant petition is GRANTED. The questioned orders of the Regional Trial Court, Branch 58 of Makati
are hereby set aside. The case is ordered remanded to the lower court for the hearing of the petition with previous notice
to all interested parties as required by law. In view of the voluntary inhibition of the respondent Judge, the Executive
Judge of the Regional Trial Court, Makati is directed to re-raffle the case to another branch of the court. The Temporary
Restraining Order dated June 10, 1987 is made permanent. No costs.

.R. No. 156021 September 23, 2005

CYNTHIA C. ALABAN, FRANCIS COLLADO, JOSE P. COLLADO, JUDITH PROVIDO, CLARITA PROVIDO,
ALFREDO PROVIDO, MANUEL PROVIDO, JR., LORNA DINA E. PROVIDO, SEVERO ARENGA, JR., SERGIO
ARENGA, EDUARDO ARENGA, CAROL ARENGA, RUTH BABASA, NORMA HIJASTRO, DOLORES M. FLORES,
ANTONIO MARIN, JR., JOSE MARIN, SR., and MATHILDE MARIN, Petitioners,
vs.
COURT OF APPEALS and FRANCISCO H. PROVIDO, Respondent.

DECISION

Tinga, J.:
This is a petition for review of the Resolutions1 of the
Court of Appeals (CA) in CA-G.R. SP No. 69221, dismissing petitioners’ petition for annulment of judgment.
2

On 8 November 2000, respondent Francisco Provido (respondent) filed a petition, docketed as SP Proc. No. 00-135, for
the probate of the Last Will and Testament3 of the late Soledad Provido Elevencionado ("decedent"), who died on 26
October 2000 in Janiuay, Iloilo.4 Respondent alleged that he was the heir of the decedent and the executor of her will. On
30 May 2001, the Regional Trial Court (RTC), Branch 68, in P.D. Monfort North, Dumangas, Iloilo, rendered
its Decision,5 allowing the probate of the will of the decedent and directing the issuance of letters testamentary to
respondent.6

More than four (4) months later, or on 4 October 2001, herein petitioners filed a motion for the reopening of the probate
proceedings.7 Likewise, they filed an opposition to the allowance of the will of the decedent, as well as the issuance of
letters testamentary to respondent,8 claiming that they are the intestate heirs of the decedent. Petitioners claimed that the
RTC did not acquire jurisdiction over the petition due to non-payment of the correct docket fees, defective publication, and
lack of notice to the other heirs. Moreover, they alleged that the will could not have been probated because: (1) the
signature of the decedent was forged; (2) the will was not executed in accordance with law, that is, the witnesses failed to
sign below the attestation clause; (3) the decedent lacked testamentary capacity to execute and publish a will; (4) the will
was executed by force and under duress and improper pressure; (5) the decedent had no intention to make a will at the
time of affixing of her signature; and (6) she did not know the properties to be disposed of, having included in the will
properties which no longer belonged to her. Petitioners prayed that the letters testamentary issued to respondent be
withdrawn and the estate of the decedent disposed of under intestate succession. 9

On 11 January 2002, the RTC issued an Order10 denying petitioners’ motion for being unmeritorious. Resolving the issue
of jurisdiction, the RTC held that petitioners were deemed notified of the hearing by publication and that the deficiency in
the payment of docket fees is not a ground for the outright dismissal of the petition. It merely required respondent to pay
the deficiency.11 Moreover, the RTC’s Decision was already final and executory even before petitioners’ filing of the
motion to reopen.12

Petitioners thereafter filed a petition13 with an application for preliminary injunction with the CA, seeking the annulment of
the RTC’s Decision dated 30 May 2001 and Order dated 11 January 2002. They claimed that after the death of the
decedent, petitioners, together with respondent, held several conferences to discuss the matter of dividing the estate of
the decedent, with respondent agreeing to a one-sixth (1/6) portion as his share. Petitioners allegedly drafted a
compromise agreement to implement the division of the estate. Despite receipt of the agreement, respondent refused to
sign and return the same. Petitioners opined that respondent feigned interest in participating in the compromise
agreement so that they would not suspect his intention to secure the probate of the will. 14 They claimed that they learnt of
the probate proceedings only in July of 2001, as a result of which they filed their motion to reopen the proceedings and
admit their opposition to the probate of the will only on 4 October 2001. They argued that the RTC Decision should be
annulled and set aside on the ground of extrinsic fraud and lack of jurisdiction on the part of the RTC. 15

In its Resolution16 promulgated on 28 February 2002, the CA dismissed the petition. It found that there was no showing
that petitioners failed to avail of or resort to the ordinary remedies of new trial, appeal, petition for relief from judgment, or
other appropriate remedies through no fault of their own. 17 Moreover, the CA declared as baseless petitioners’ claim that
the proceedings in the RTC was attended by extrinsic fraud. Neither was there any showing that they availed of this
ground in a motion for new trial or petition for relief from judgment in the RTC, the CA added.18 Petitioners sought
reconsideration of the Resolution, but the same was denied by the CA for lack of merit.19

Petitioners now come to this Court, asserting that the CA committed grave abuse of discretion amounting to lack of
jurisdiction when it dismissed their petition for the alleged failure to show that they have not availed of or resorted to the
remedies of new trial, appeal, petition for relief from judgment or other remedies through no fault of their own, and held
that petitioners were not denied their day in court during the proceedings before the RTC.20 In addition, they assert that
this Court has yet to decide a case involving Rule 47 of the Rules of Court and, therefore, the instant petition should be
given due course for the guidance of the bench and bar.21

For his part, respondent claims that petitioners were in a position to avail of the remedies provided in Rules 37 and 38, as
they in fact did when they filed a motion for new trial. 22 Moreover, they could have resorted to a petition for relief from
judgment since they learned of the RTC’s judgment only three and a half months after its promulgation. 23 Respondent
likewise maintains that no extrinsic fraud exists to warrant the annulment of the RTC’s Decision, since there was no
showing that they were denied their day in court. Petitioners were not made parties to the probate proceedings because
the decedent did not institute them as her heirs. 24 Besides, assuming arguendo that petitioners are heirs of the decedent,
lack of notice to them is not a fatal defect since personal notice upon the heirs is a matter of procedural convenience and
not a jurisdictional requisite.25 Finally, respondent charges petitioners of forum–shopping, since the latter have a pending
suit involving the same issues as those in SP No. 00-135, that is SP No. 118126 filed before Branch 23, RTC of General
Santos City and subsequently pending on appeal before the CA in CA-G.R. No.74924.27

It appears that one of the petitioners herein, Dolores M. Flores ("Flores"), who is a niece of the decedent, filed a petition
for letters of administration with the RTC of General Santos City, claiming that the decedent died intestate without any
issue, survived by five groups of collateral heirs. Flores, armed with a Special Power of Attorney from most of the other
petitioners, prayed for her appointment as administratrix of the estate of the decedent. The RTC dismissed the petition on
the ground of lack of jurisdiction, stating that the probate court in Janiuay, Iloilo has jurisdiction since the venue for a
petition for the settlement of the estate of a decedent is the place where the decedent died. This is also in accordance
with the rule that the first court acquiring jurisdiction shall continue hearing the case to the exclusion of other courts, the
RTC added.28 On 9 January 2002, Flores filed a Notice of Appeal 29 and on 28 January 2002, the case was ordered
forwarded to the CA.30

Petitioners maintain that they were not made parties to the case in which the decision sought to be annulled was rendered
and, thus, they could not have availed of the ordinary remedies of new trial, appeal, petition for relief from judgment and
other appropriate remedies, contrary to the ruling of the CA. They aver that respondent’s offer of a false compromise and
his failure to notify them of the probate of the will constitute extrinsic fraud that necessitates the annulment of the RTC’s
judgment.31

The petition is devoid of merit.

Section 37 of the Rules of Court allows an aggrieved party to file a motion for new trial on the ground of fraud, accident,
mistake, or excusable negligence. The same

Rule permits the filing of a motion for reconsideration on the grounds of excessive award of damages, insufficiency of
evidence to justify the decision or final order, or that the decision or final order is contrary to law. 32 Both motions should be
filed within the period for taking an appeal, or fifteen (15) days from notice of the judgment or final order.

Meanwhile, a petition for relief from judgment under Section 3 of Rule 38 is resorted to when a judgment or final order is
entered, or any other proceeding is thereafter taken, against a party in any court through fraud, accident, mistake, or
excusable negligence. Said party may file a petition in the same court and in the same case to set aside the judgment,
order or proceeding. It must be filed within sixty (60) days after the petitioner learns of the judgment and within six (6)
months after entry thereof.33

A motion for new trial or reconsideration and a petition for relief from judgment are remedies available only to parties in
the proceedings where the assailed

judgment is rendered.34 In fact, it has been held that a person who was never a party to the case, or even summoned to
appear therein, cannot avail of a petition for relief from judgment. 35

However, petitioners in this case are mistaken in asserting that they are not or have not become parties to the probate
proceedings.

Under the Rules of Court, any executor, devisee, or legatee named in a will, or any other person interested in the estate
may, at any time after the death of the testator, petition the court having jurisdiction to have the will allowed. 36 Notice of
the time and place for proving the will must be published for three (3) consecutive weeks, in a newspaper of general
circulation in the province,37 as well as furnished to the designated or other known heirs, legatees, and devisees of the
testator.38 Thus, it has been held that a proceeding for the probate of a will is one in rem, such that with the corresponding
publication of the petition the court's jurisdiction extends to all persons interested in said will or in the settlement of the
estate of the decedent.39

Publication is notice to the whole world that the proceeding has for its object to bar indefinitely all who might be minded to
make an objection of any sort against the right sought to be established. It is the publication of such notice that brings in
the whole world as a party in the case and vests the court with jurisdiction to hear and decide it. 40 Thus, even though
petitioners were not mentioned in the petition for probate, they eventually became parties thereto as a consequence of the
publication of the notice of hearing.

As parties to the probate proceedings, petitioners could have validly availed of the remedies of motion for new trial or
reconsideration and petition for relief from judgment. In fact, petitioners filed a motion to reopen, which is essentially a
motion for new trial, with petitioners praying for the reopening of the case and the setting of further proceedings. However,
the motion was denied for having been filed out of time, long after the Decision became final and executory.

Conceding that petitioners became aware of the Decision after it had become final, they could have still filed a petition for
relief from judgment after the denial of their motion to reopen. Petitioners claim that they learned of the Decision only on 4
October 2001, or almost four (4) months from the time the Decision had attained finality. But they failed to avail of the
remedy.

For failure to make use without sufficient justification of the said remedies available to them, petitioners could no longer
resort to a petition for annulment of judgment; otherwise, they would benefit from their own inaction or negligence. 41

Even casting aside the procedural requisite, the petition for annulment of judgment must still fail for failure to comply with
the substantive requisites, as the appellate court ruled.

An action for annulment of judgment is a remedy in law independent of the case where the judgment sought to be
annulled was rendered.42 The purpose of such action is to have the final and executory judgment set aside so that there
will be a renewal of litigation. It is resorted to in cases where the ordinary remedies of new trial, appeal, petition for relief
from judgment, or other appropriate remedies are no longer available through no fault of the petitioner,43 and is based on
only two grounds: extrinsic fraud, and lack of jurisdiction or denial of due process. 44 A person need not be a party to the
judgment sought to be annulled, and it is only essential that he can prove his allegation that the judgment was obtained by
the use of fraud and collusion and he would be adversely affected thereby. 45

An action to annul a final judgment on the ground of fraud lies only if the fraud is extrinsic or collateral in
character.46 Fraud is regarded as extrinsic where it prevents a party from having a trial or from presenting his entire case
to the court, or where it operates upon matters pertaining not to the judgment itself but to the manner in which it is
procured. The overriding consideration when extrinsic fraud is alleged is that the fraudulent scheme of the prevailing
litigant prevented a party from having his day in court.47

To sustain their allegation of extrinsic fraud, petitioners assert that as a result of respondent’s deliberate omission or
concealment of their names, ages and residences as the other heirs of the decedent in his petition for allowance of the
will, they were not notified of the proceedings, and thus they were denied their day in court. In addition, they claim that
respondent’s offer of a false compromise even before the filing of the petition prevented them from appearing and
opposing the petition for probate.

The Court is not convinced.

According to the Rules, notice is required to be personally given to known heirs, legatees, and devisees of the
testator.48 A perusal of the will shows that respondent was instituted as the sole heir of the decedent. Petitioners, as
nephews and nieces of the decedent, are neither compulsory nor testate heirs 49 who are entitled to be notified of the
probate proceedings under the Rules. Respondent had no legal obligation to mention petitioners in the petition for
probate, or to personally notify them of the same.

Besides, assuming arguendo that petitioners are entitled to be so notified, the purported infirmity is cured by the
publication of the notice. After all, personal notice upon the heirs is a matter of procedural convenience and not a
jurisdictional requisite.50

The non-inclusion of petitioners’ names in the petition and the alleged failure to personally notify them of the proceedings
do not constitute extrinsic fraud. Petitioners were not denied their day in court, as they were not prevented from
participating in the proceedings and presenting their case before the probate court.

One other vital point is the issue of forum-shopping against petitioners. Forum-shopping consists of filing multiple suits in
different courts, either simultaneously or successively, involving the same parties, to ask the courts to rule on the same or
related causes and/or to grant the same or substantially same reliefs, 51 on the supposition that one or the other court
would make a favorable disposition.52 Obviously, the parties in the instant case, as well as in the appealed case before
the CA, are the same. Both cases deal with the existence and validity of the alleged will of the decedent, with petitioners
anchoring their cause on the state of intestacy. In the probate proceedings, petitioners’ position has always been that the
decedent left no will and if she did, the will does not comply with the requisites of a valid will. Indeed, that position is the
bedrock of their present petition. Of course, respondent maintains the contrary stance. On the other hand, in the petition
for letters of administration, petitioner Flores prayed for her appointment as administratrix of the
estate on the theory that the decedent died intestate. The petition was dismissed on the ground of lack of jurisdiction, and
it is this order of dismissal which is the subject of review in CA-G.R. No. 74924. Clearly, therefore, there is forum-
shopping.

Moreover, petitioners failed to inform the Court of the said pending case in their certification against forum- shopping.
Neither have they done so at any time thereafter. The Court notes that even in the petition for annulment of judgment,
petitioners failed to inform the CA of the pendency of their appeal in CA-G.R. No. 74924, even though the notice of appeal
was filed way before the petition for annulment of judgment was instituted.

WHEREFORE, the petition is DENIED. Costs against petitioner

G.R. No. 189984 November 12, 2012

IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE LAST WILL AND TESTAMENT OF ENRIQUE S.
LOPEZ RICHARD B. LOPEZ, Petitioner,
vs.
DIANA JEANNE LOPEZ, MARYBETH DE LEON and VICTORIA L. TUAZON, Respondents.

RESOLUTION

PERLAS-BERNABE, J.:

This Petition for Review on Certiorari assails the March 30, 2009 Decision 1 and October 22, 2009 Resolution2 of the Court
of Appeals (CA) in CA-G.R. CV No. 87064 which affirmed the August 26, 2005 Decision 3 of the Regional Trial Court of
Manila, Branch 42 (RTC), in SP. Proc. No. 99-95225 disallowing the probate of the Last Will and Testament of Enrique S.
Lopez.

The Factual Antecedents

On June 21, 1999, Enrique S. Lopez (Enrique) died leaving his wife, Wendy B. Lopez, and their four legitimate children,
namely, petitioner Richard B. Lopez (Richard) and the respondents Diana Jeanne Lopez (Diana), Marybeth de Leon
(Marybeth) and Victoria L. Tuazon (Victoria) as compulsory heirs. Before Enrique’s death, he executed a Last Will and
Testament4 on August 10, 1996 and constituted Richard as his executor and administrator.

On September 27, 1999, Richard filed a petition for the probate of his father's Last Will and Testament before the RTC of
Manila with prayer for the issuance of letters testamentary in his favor. Marybeth opposed the petition contending that the
purported last will and testament was not executed and attested as required by law, and that it was procured by undue
and improper pressure and influence on the part of Richard. The said opposition was also adopted by Victoria.

After submitting proofs of compliance with jurisdictional requirements, Richard presented the attesting witnesses, namely:
Reynaldo Maneja; Romulo Monteiro; Ana Maria Lourdes Manalo (Manalo); and the notary public who notarized the will,
Atty. Perfecto Nolasco (Atty. Nolasco). The instrumental witnesses testified that after the late Enrique read and signed the
will on each and every page, they also read and signed the same in the latter's presence and of one another.
Photographs of the incident were taken and presented during trial. Manalo further testified that she was the one who
prepared the drafts and revisions from Enrique before the final copy of the will was made.

Likewise, Atty. Nolasco claimed that Enrique had been his client for more than 20 years. Prior to August 10, 1996, the
latter consulted him in the preparation of the subject will and furnished him the list of his properties for distribution among
his children. He prepared the will in accordance with Enrique's instruction and that before the latter and the attesting
witnesses signed it in the presence of one another, he translated the will which was written in English to Filipino and
added that Enrique was in good health and of sound mind at that time.

On the other hand, the oppositors presented its lone witness, Gregorio B. Paraon (Paraon), Officer-in-Charge of the
Notarial Section, Office of the Clerk of Court, RTC, Manila. His testimony centered mainly on their findings that Atty.
Nolasco was not a notary public for the City of Manila in 1996, which on cross examination was clarified after Paraon
discovered that Atty. Nolasco was commissioned as such for the years 1994 to 1997.

Ruling of the RTC

In the Decision dated August 26, 2005,5 the RTC disallowed the probate of the will for failure to comply with Article 805 of
the Civil Code which requires a statement in the attestation clause of the number of pages used upon which the will is
written. It held that while Article 809 of the same Code requires mere substantial compliance of the form laid down in
Article 805 thereof, the rule only applies if the number of pages is reflected somewhere else in the will with no evidence
aliunde or extrinsic evidence required. While the acknowledgment portion stated that the will consists of 7 pages including
the page on which the ratification and acknowledgment are written, the RTC observed that it has 8 pages including the
acknowledgment portion. As such, it disallowed the will for not having been executed and attested in accordance with law.

Aggrieved, Richard filed a Notice of Appeal which the RTC granted in the Order dated October 26, 2005. 6

Ruling of the Court of Appeals

On March 30, 2009,7 the CA issued the assailed decision dismissing the appeal. It held that the RTC erroneously granted
Richard's appeal as the Rules of Court is explicit that appeals in special proceedings, as in this case, must be made
through a record on appeal. Nevertheless, even on the merits, the CA found no valid reason to deviate from the findings
of the RTC that the failure to state the number of pages of the will in the attestation clause was fatal. It noted that while
Article 809 of the Civil Code sanctions mere substantial compliance with the formal requirements set forth in Article 805
thereof, there was a total omission of such fact in the attestation clause. Moreover, while the acknowledgment of the will
made mention of "7 pages including the page on which the ratification and acknowledgment are written," the will had
actually 8 pages including the acknowledgment portion thus, necessitating the presentation of evidence aliunde to explain
the discrepancy. Richard's motion for reconsideration from the decision was likewise denied in the second assailed
Resolution8 dated October 22, 2009.

Hence, the instant petition assailing the propriety of the CA's decision.

Ruling of the Court

The petition lacks merit.

The provisions of the Civil Code on Forms of Wills, particularly, Articles 805 and 809 of the Civil Code provide:

ART. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the
testator's name written by some other person in his presence, and by his express direction, and attested and subscribed
by three or more credible witnesses in the presence of the testator and of one another.

The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign,
as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be numbered
correlatively in letters placed on the upper part of each page.

The attestation shall state the number of pages used upon which the will is written, and the fact that the testator signed
the will and every page thereof, or caused some other person to write his name, under his express direction, in the
presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the
presence of the testator and of one another.

If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them.1âwphi1 (underscoring
supplied)

ART. 809. In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence, defects and
imperfections in the form of attestation or in the language used therein shall not render the will invalid if it is proved that
the will was in fact executed and attested in substantial compliance with all the requirements of Article 805.

The law is clear that the attestation must state the number of pages used upon which the will is written. The purpose of
the law is to safeguard against possible interpolation or omission of one or some of its pages and prevent any increase or
decrease in the pages.9

While Article 809 allows substantial compliance for defects in the form of the attestation clause, Richard likewise failed in
this respect. The statement in the Acknowledgment portion of the subject last will and testament that it "consists of 7
pages including the page on which the ratification and acknowledgment are written" 10 cannot be deemed substantial
compliance. The will actually consists of 8 pages including its acknowledgment which discrepancy cannot be explained by
mere examination of the will itself but through the presentation of evidence aliund.11 On this score is the comment of
Justice J.B.L. Reyes regarding the application of Article 809, to wit:

x x x The rule must be limited to disregarding those defects that can be supplied by an examination of the will itself:
whether all the pages are consecutively numbered; whether the signatures appear in each and every page; whether the
subscribing witnesses are three or the will was notarized. All these are facts that the will itself can reveal, and defects or
even omissions concerning them in the attestation clause can be safely disregarded. But the total number of pages, and
whether all persons required to sign did so in the presence of each other must substantially appear in the attestation
clause, being the only check against perjury in the probate proceedings. 12 (Emphasis supplied)

Hence, the CA properly sustained the disallowance of the will. Moreover, it correctly ruled that Richard pursued the wrong
mode of appeal as Section 2(a), Rule 41 of the Rules of Court explicitly provides that in special proceedings, as in this
case, the appeal shall be made by record on appeal.

WHEREFORE, premises considered, the petition is DENIED.

SO ORDERED.