G.R. No.

160530 - November 20, 2007

CYNTHIA V. NITTSCHER, petitioner, vs. DR. WERNER KARL JOHANN NITTSCHER (Deceased),
ATTY. ROGELIO P. NOGALES and THE REGIONAL TRIAL COURT OF MAKATI (Branch 59),
respondents.

FACTS:

On January 31, 1990, Dr. Werner Karl Johann Nittscher FILED before the RTC of Makati City a
petition for the probate of his holographic will together with the issuance of letters testamentary to
Atty. Rogelio P. Nogales – which the court allowed and proved.

When Dr. Nittscher died on September 26, 1994, Atty. Nogales, as the named executor, immediately
filed a petition for the issuance of letters testamentary so he can manage and administer the
decedent’s estate. However, petitioner Cynthia Nittscher moved for the dismissal of the petition
which the court denied citing:

Section 4, Rule 78 of the Revised Rules of Court, provides "when a will has been proved and
allowed, the court shall issue letters testamentary thereon to the person named as executor
therein, if he is competent, accepts the trust and gives a bond as required by these rules."

ISSUE BEFORE THE RTC:

 Moved for the dismissal of the petition for letters testamentary (which the court denied)
 Moved for Reconsideration (denied as well)

RULING OF THE RTC: Petitioner moved for reconsideration but was denied for lack of merit and
Atty. Nogales was issued letters testamentary and was sworn in as executor.

ISSUE BEFORE THE CA: (Petitioner appealed to the CA citing the following issues :)

 The RTC has no jurisdiction over the subject matter – because Dr. Nittscher was not a
resident of the Philippines, and has no properties in the country.
 Petitioner was denied due process – because she was not notified about the probate
proceedings.

RULING OF THE CA:

The CA affirmed the decisions of the lower court. Petitioner’s motion for reconsideration of the
aforequoted decision was denied for lack of merit.

ISSUES BROUGHT BEFORE THE SUPREME COURT: (Petitioner filed a petition for Certiorari)

 The CA erred in not dismissing the case for violation of CIRCULAR NO. 28-91 AND
ADMINISTRATIVE CIRCULAR NO. 04-94 – respondent’s petition lacked a certification
against forum shopping.
 The CA erred in not dismissing the case because RTC has no jurisdiction over the subject
matter.
  The CA erred in declaring that summons was properly issued to all interested persons in the
probate proceedings.
 The CA erred in concluding that petitioner was given due process.

RULING OF THE SC: (THE SC DENIED THE PETITION FOR LACK OF MERIT)

First issue – The court held that the petition for the issuance of letters testamentary is not an
initiatory pleading, but a mere continuation of the original petition for the probate of Dr. Nittscher’s
will. Hence, respondent’s failure to include a certification against forum-shopping in his petition for
the issuance of letters testamentary is not a ground for outright dismissal of the said petition.

Second issue – The court resolved the second issue by citing Section 1, Rule 73 of the Rules of
Court. It affirmed the finding of the CA that indeed, Dr Nittscher resides in Las Pinas at the time of
his death. Thus, Dr. Nittscher correctly filed in the RTC of Makati City, which then covered Las
Piñ as, Metro Manila, the petition for the probate of his will and for the issuance of letters
testamentary to respondent.

In the Third and Fourth Issues – The Court cited Section 4, Rule 76 of the Rules of Court states:

SEC. 4. Heirs, devisees, legatees, and executors to be notified by mail or personally. – …

If the testator asks for the allowance of his own will, notice shall be sent only to his compulsory heirs.

The court found that Dr Nittscher children from previous marriage as well as herein petitioner
were notified of the probate proceedings through registered mail. This was proven by petitioner’s
opposition to the issuance of letters testamentary before the RTC, filing a motion to dismiss the
petition, and motion for reconsideration. Thus, she was accorded every opportunity to defend her
cause. Therefore, petitioner’s allegation that she was denied due process in the probate
proceedings is without basis.

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

[ G.R. No. 176943. October 17, 2008 ]

DANILO ALUAD, LEONORA ALUAD, DIVINA ALUAD, PROSPERO ALUAD, AND CONNIE ALUAD,
PETITIONERS, VS. ZENAIDO ALUAD, RESPONDENT.

FACTS:

Maria Aluad, petitioners’ mother, and Zenaido Aluad, herein respondent, were raised by childless
couple Matilde Aluad (Matilde) and Crispin Aluad (Crispin). Crispin was the owner of six lots
identified as Lot Nos. 674, 675, 676, 677, 680, and 682, and after his death, Matilde owned these
lots.

Matilde executed a document entitled "Deed of Donation of Real Property Inter Vivos" (Deed of
Donation) in favor of petitioners’ mother Maria covering all the six lots. However, she sold Lot
No. 676 to respondent by a Deed of Absolute Sale of Real Property.

January 14, 1992, Matilde executed a last will and testament, devising Lot Nos. 675, 677, 682, and
680 to Maria, and her "remaining properties" including Lot No. 674 to respondent. Matilde died on
January 25, 1994 and followed by Maria on September, the same year.

Afterwards, petitioners filed a complaint before RTC for the recovery of ownership and possession
of Lot Nos. 674 and 676 against respondent alleging that he took possession of the land while
Matilde was alive and did not return it. But respondent in his answer claimed that he was given lot
No. 674 through Matilde’s will and purchased Lot No. 676.

ISSUE BEFORE THE RTC:

 Lot Nos. 674 and 676 should be in the possession and ownership of the petitioners
since it was given to Maria via deed of donation.

RULING of the RTC: (Defendant's counterclaim is ordered dismissed for lack of merit)

RTC held that Matilde could not have transmitted any right over Lot Nos. 674 and 676 to
respondent, she having previously alienated them to Maria via the Deed of Donation. It ordered the
defendant to deliver the possession of the subject lots to the plaintiffs.

ISSUES BROUGHT BEFORE THE CA: (Upon defendant’s appeal)

 Whether or not respondent owned the Lot Nos. 674 and 676 through Matilde’s will
and the Deed of Sale.

RULING OF THE CA: (Reversed the RTC’s decisions)

The CA held that the Donation is not inter vivos but mortis causa. The said Donation did not follow
the formalities of a will as it only had two witnesses instead of three, and no attestation clause as
required by law under Article 805 of the Civil Code. However, it declared respondent as the rightful
owner of Lot No. 676 thru the Deed of Sale but did not so declare with respect to Lot No. 674, as
Matilde's last will and testament had not yet been probated.

MR by petitioners were denied. Thus the petition to SC.

ISSUES BROUGHT BEFORE THE SC:

 CA erred in holding that the Donation inter vivos is indeed mortis causa.
 CA erred in not declaring petitioners the rightful owners of Lot. No. 674
 CA erred in ruling that respondent owned Lot No. 676 through the Deed of Sale executed by
Matilde when she was alive.
  Lot No. 674 (thru petitioners’ mother) should nevertheless have been awarded to them
because they had acquired it by acquisitive prescription,

RULING of the SC:

On the first issue: The SC held that the Deed of Donation is indeed mortis causa by examining
the Document. It found that The phrase in the Deed of Donation "to become effective upon the death
of the DONOR" admits of no other interpretation than to mean that Matilde did not intend to transfer the
ownership of the six lots to petitioners' mother during her (Matilde's) lifetime. The statement in the
Deed of Donation reading "anytime during the lifetime of the DONOR or anyone of them who should
survive, they could use, encumber or even dispose of any or even all the parcels of land herein
donated" means that Matilde retained ownership of the lots and reserved in her the right to dispose
them.

Since it was a Donation Mortis Causa, the SC held that it lacked the formalities of the will as prescribed
by law. There were only two witnesses instead of three, and the said witnesses did not sign the
attestation clause. To make matters worse, they did not acknoweldge it before the notary public. Thus,
the will is void and does not transfer any rights to the petitioners’ mother.

On the second and third issue: Matilde thus validly disposed of Lot No. 674 to respondent by her last
will and testament, subject of course to the qualification that her (Matilde's) will must be probated. With
respect to Lot No. 676, the same had, as mentioned earlier, been sold by Matilde to respondent on
August 26, 1991.

Fourth issue: The court held that petitioners should not raise this issue for the first time before the SC.
Petitioners failed to raise the issue of acquisitive prescription before the lower courts, thus issues not
brought to the attention of the trial court cannot be raised for the first time on appeal.