Remedial Review II Cases

8/12/2019 Remedial Review II Cases

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Rule 75 Production of will, allowance of will, necessary

BALANAY, JR. vs. MARTINEZ64 SCRA 452FACTS:Leodegaria Julian died. She was survived by her husband, Felix Balanay, Sr., and six legitimate children.

Felix Balanay, Jr. filed a petition for the probate of his mothers notarialwill, which was written in English. In thatwill, Leodegaria declared that it was her desire her propertiesshould not be divided among her heirs during her husband's lifetime and that their legitimes should besatisfied out of the fruits of her properties. She devised andpartitioned the conjugal lands as if they wereall owned by her. She disposed of in the will her husband's one-half share of the conjugal assets.

Felix Balanay, Sr. and Avelina B. Antonio opposed the probate of the will.Thereafter, Felix Balanay, Sr. signed an instrument waiving and renouncing his right in Leodegarias estate infavorof their 6 children.ISSUE:Whether or not the probate court erred in passing upon the intrinsic validity of the will, before ruling onitsallowance or formal validity, and in declaring it void.

RULING:

The trial court acted correctly in passing upon the will's intrinsic validity even before itsformalvalidity had been established. The probate of a will might become an idle ceremony if on itsface it appears tobe intrinsically void.But the probate court erred in declaring that the will was void and in converting the testate proceedinginto anintestate proceeding.The will is intrinsically valid and the partition therein may be given effect if itdoes not prejudice the creditors andimpair the legitimes. The distribution and partition would becomeeffective upon the death of Felix Balanay, Sr. In themeantime, the net income should be equitably dividedamong the children and the surviving spouse.(Relate to Articles 779 and 780 : In this case, there is testamentary succession because it resulted from

the designation of heirs by the testatrix, made in a will executed in the form prescribed by law. It can be considered

as a mixed succession because there is partly by will (execution of the will and execution of the waiver) and by

operation of law (as to the share of the husband of the conjugal party of which he eventually waived

G.R. No. L-39247 June 27, 1975

In the Matter of the Petition to Approve the Will of Leodegaria Julian. FELIX BALANAY,JR., petitioner,vs.HON. ANTONIO M. MARTINEZ, Judge of the Court of First Instance of Davao, Branch VI; AVELINAB. ANTONIO and DELIA B. LANABAN, respondents.

Roberto M. Sarenas for petitioner.

Jose B. Guyo for private respondents.

AQUINO, J .:

Felix Balanay, Jr. appealed by certiorarifrom the order of the Court of First Instance of Davao datedFebruary 28, 1974, declaring illegal and void the will of his mother, Leodegaria Julian, converting thetestate proceeding into an intestate proceeding and ordering the issuance of the corresponding notice tocreditors (Special Case No. 1808). The antecedents of the appeal are as follows:

Leodegaria Julian, a native of Sta. Maria, Ilocos Sur, died on February 12, 1973 in Davao City at the ageof sixty-seven. She was survived by her husband, Felix Balanay, Sr., and by their six legitimate childrennamed Felix Balanay, Jr., Avelina B. Antonio, Beatriz B. Solamo, Carolina B. Manguiob, Delia B. Lanabanand Emilia B. Pabaonon.

Felix J. Balanay, Jr. filed in the lower court a petition dated February 27, 1973 for the probate of hismother's notarial will dated September 5, 1970 which is written in English. In that will Leodegaria Juliandeclared (a) that she was the owner of the "southern half of nine conjugal lots (par. II); (b) that she was


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the absolute owner of two parcels of land which she inherited from her father (par. III), and (c) that it washer desire that her properties should not be divided among her heirs during her husband's lifetime andthat their legitimes should be satisfied out of the fruits of her properties (Par. IV).

Then, in paragraph V of the will she stated that after her husband's death (he was eighty-two years old in1973) her paraphernal lands and all the conjugal lands (which she described as "my properties") should

be divided and distributed in the manner set forth in that part of her will. She devised and partitioned theconjugal lands as if they were all owned by her. She disposed of in the will her husband's one half shareof the conjugal assets.*

Felix Balanay, Sr. and Avelina B. Antonio opposed the probate of the will on the grounds of lack oftestamentary capacity, undue influence, preterition of the husband and alleged improper partition of theconjugal estate. The oppositors claimed that Felix Balanay, Jr. should collate certain properties which hehad received from the testatrix.

Felix Balanay, Jr., in his reply to the opposition, attached thereto an affidavit of Felix Balanay, Sr. datedApril 18, 1973 wherein he withdrew his opposition to the probate of the will and affirmed that he wasinterested in its probate. On the same date Felix Balanay, Sr. signed an instrument captioned"Conformation (sic) of Division and Renunciation of Hereditary Rights" wherein he manifested that out of

respect for his wife's will he "waived and renounced' his hereditary rights in her estate in favor of their sixchildren. In that same instrument he confirmed the agreement, which he and his wife had perfectedbefore her death, that their conjugal properties would be partitioned in the manner indicated in her will.

Avelina B. Antonio, an oppositor, in her rejoinder contended that the affidavit and "conformation" of FelixBalanay, Sr. were void. The lower court in its order of June 18, 1973 "denied" the opposition and reset forhearing the probate of the will. It gave effect to the affidavit and conformity of Felix Balanay, Sr. In anorder dated August 28, 1973 it appointed its branch clerk of court as special administrator of thedecedent's estate.

Mrs. Antonio moved for the reconsideration of the lower court's order of June 18, 1973 on the grounds (a)that the testatrix illegally claimed that she was the owner of the southern half of the conjugal lots and (b)that she could not partition the conjugal estate by allocating portions of the nine lots to her children. Felix

Balanay, Jr., through his counsel, Hermenegildo Cabreros, opposed that motion. The lower court deniedit in its order of October 15, 1973.

In the meanwhile, another lawyer appeared in the case. David O. Montaa, Sr., claiming to be the lawyerof petitioner Felix Balanay, Jr. (his counsel of record was Atty. Cabreros), filed a motion dated September25, 1973 for "leave of court to withdraw probate of alleged will of Leodegaria Julian and requestingauthority to proceed by intestate estate proceeding." In that motion Montaa claimed to be the lawyer notonly of the petitioner but also of Felix Balanay, Sr., Beatriz B. Solamo, Carolina B. Manguiob and EmiliaB. Pabaonon.

Montaa in his motion assailed the provision of the will which partitioned the conjugal assets or allegedlyeffected a compromise of future legitimes. He prayed that the probate of the will be withdrawn and thatthe proceeding be converted into an intestate proceeding. In another motion of the same date he asked

that the corresponding notice to creditors be issued.

Avelina B. Antonio and Delia B. Lanaban, through Atty. Jose B. Guyo, in their comments dated October15, 1973 manifested their conformity with the motion for the issuance of a notice to creditors. They prayedthat the will be declared void for being contrary to law and that an intestacy be declared.

The lower court, acting on the motions of Atty. Montaa, assumed that the issuance of a notice tocreditors was in order since the parties had agreed on that point. It adopted the view of Attys. Montaaand Guyo that the will was void. So, in its order of February 28, 1974 it dismissed the petition for theprobate, converted the testate proceeding into an intestate proceeding, ordered the issuance of a noticeto creditors and set the intestate proceeding for hearing on April 1 and 2, 1974. The lower court did notabrogate its prior orders of June 18 and October 15, 1973. The notice to creditors was issued on April 1,1974 and published on May 2, 9 and 16 in the Davao Star in spite of petitioner's motion of April 17, 1974

that its publication be held in abeyance.

Felix Balanay, Jr., through a new counsel, Roberto M. Sarenas, in a verified motion dated April 15, 1974,asked for the reconsideration of the lower court's order of February 28, 1974 on the ground that Atty.Montaa had no authority to withdraw the petition for the allowance of the will. Attached to the motion wasa copy of a letter dated March 27, 1974 addressed to Atty. Montaa and signed by Felix Balanay, Jr.,Beatriz V. Solamo, Carolina B. Manguiob and Emilia B. Pabaonon, wherein they terminated Montaa'sservices and informed him that his withdrawal of the petition for the probate of the will was without their


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consent and was contrary to their repeated reminder to him that their mother's will was "very sacred" tothem.

Avelina B. Antonio and Delia B. Lanaban opposed the motion for reconsideration. The lower court deniedthe motion in its order of June 29, 1974. It clarified that it declared the will void on the basis of its ownindependent assessment of its provisions and not because of Atty. Montaa's arguments.

The basic issue is whether the probate court erred in passing upon the intrinsic validity of the will, beforeruling on its allowance or formal validity, and in declaring it void.

We are of the opinion that in view of certain unusual provisions of the will, which are of dubious legality,and because of the motion to withdraw the petition for probate (which the lower court assumed to havebeen filed with the petitioner's authorization), the trial court acted correctly in passing upon the will'sintrinsic validity even before its formal validity had been established. The probate of a will might becomean idle ceremony if on its face it appears to be intrinsically void. Where practical considerations demandthat the intrinsic validity of the will be passed upon, even before it is probated, the court should meet theissue (Nuguid vs. Nuguid, 64 O.G. 1527, 17 SCRA 449. Compare with Sumilang vs. Ramagosa, L-23135,December 26, 1967, 21 SCRA 1369; Cacho vs. Udan, L-19996, April 30, 1965, 13 SCRA693).1wph1.t

But the probate court erred in declaring, in its order of February 28, 1974 that the will was void and inconverting the testate proceeding into an intestate proceeding notwithstanding the fact that in its order ofJune 18, 1973 , it gave effect to the surviving husband's conformity to the will and to his renunciation ofhis hereditary rights which presumably included his one-half share of the conjugal estate.

The rule is that "the invalidity of one of several dispositions contained in a will does not result in theinvalidity of the other dispositions, unless it is to be presumed that the testator would not have made suchother dispositions if the first invalid disposition had not been made" (Art. 792, Civil Code). "Where some ofthe provisions of a will are valid and others invalid, the valid parts will be upheld if they can be separatedfrom the invalid without defeating the intention of the testator or interfering with the general testamentaryscheme, or doing injustice to the beneficiaries" (95 C.J.S. 873).

The statement of the testatrix that she owned the "southern half of the conjugal lands is contrary to lawbecause, although she was a coowner thereof, her share was inchoate and proindiviso (Art. 143, CivilCode; Madrigal and Paterno vs. Rafferty and Concepcion, 38 Phil. 414). But That illegal declaration doesnot nullify the entire will. It may be disregarded.

The provision of the will that the properties of the testatrix should not be divided among her heirs duringher husband's lifetime but should be kept intact and that the legitimes should be paid in cash is contraryto article 1080 of the Civil Code which reads:

ART. 1080. Should a person make a partit ion of his estate by an actinter vivos, or by will,such partition shall be respected, insofar as it does not prejudice the legitime of thecompulsory heirs.

A parent who, in the interest of his or her family, to keep any agricultural, industrial, ormanufacturing enterprise intact, may avail himself of the right granted him in this article,by ordering that the legitime of the other children to whom the property is not assigned bepaid in cash. (1056a)

The testatrix in her will made a partition of the entire conjugal estate among her six children (her husbandhad renounced his hereditary rights and his one-half conjugal share). She did not assign the whole estateto one or more children as envisaged in article 1080. Hence, she had no right to require that the legitimesbe paid in cash. On the other hand, her estate may remain undivided only for a period of twenty years.So, the provision that the estate should not be divided during her husband's lifetime would at most beeffective only for twenty years from the date of her death unless there are compelling reasons forterminating the coownership (Art. 1083, Civil Code).

Felix Balanay, Sr. could validly renounce his hereditary rights and his one-half share of the conjugalpartnership (Arts. 179[1] and 1041, Civil Code) but insofar as said renunciation partakes of a donation ofhis hereditary rights and his one-half share in the conjugal estate (Art. 1060[1] Civil Code), it should besubject to the limitations prescribed in articles 750 and 752 of the Civil Code. A portion of the estateshould be adjudicated to the widower for his support and maintenance. Or at least his legitime should berespected.


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Subject to the foregoing observations and the rules on collation, the will is intrinsically valid and thepartition therein may be given effect if it does not prejudice the creditors and impair the legitimes. Thedistribution and partition would become effective upon the death of Felix Balanay, Sr. In the meantime,the net income should be equitably divided among the children and the surviving spouse.

It should be stressed that by reason of the surviving husband's conformity to his wife's will and his

renunciation of his hereditary rights, his one-half conjugal share became a part of his deceased wife'sestate. His conformity had the effect of validating the partition made in paragraph V of the will withoutprejudice, of course, to the rights of the creditors and the legitimes of the compulsory heirs.

Article 793 of the Civil Code provides that "property acquired after the making of a will shall only passthereby, as if the testator had it at the time of making the will, should it expressly appear by the will thatsuch was his intention". Under article 930 of the Civil Code "the legacy or devise of a thing belonging toanother person is void, if the testator erroneously believed that the thing pertained to him. But if the thingbequeathed, though not belonging to the testator when he made the will, afterwards becomes his, bywhatever title, the disposition shall take effect."

In the instant case there is no doubt that the testatrix and her husband intended to partition the conjugalestate in the manner set forth in paragraph V of her will. It is true that she could dispose of by will only her

half of the conjugal estate (Art. 170, Civil Code) but since the husband, after the dissolution of theconjugal partnership, had assented to her testamentary partition of the conjugal estate, such partition hasbecome valid, assuming that the will may be probated.

The instant case is different from the Nuguid case, supra, where the testatrix instituted as heir her sisterand preterited her parents. Her will was intrinsically void because it preterited her compulsory heirs in thedirect line. Article 854 of the Civil Code provides that "the preterition or omission of one, some, or all ofthe compulsory heirs in the directline, whether living at the time of the execution of the will or born afterthe death of the testator, shall annul the institution of heir; but the devises and legacies, shall be validinsofar as they are not inofficious." Since the preterition of the parents annulled the institution of the sisterof the testatrix and there were no legacies and devises, total intestacy resulted (.Art. 960[2], CivilCode).1wph1.t

In the instant case, the preterited heir was the surviving spouse. His preterition did not produce intestacy.Moreover, he signified his conformity to his wife's will and renounced his hereditary rights. .

It results that the lower court erred in not proceeding with the probate of the will as contemplated in itsuncancelled order of June 18, 1973. Save in an extreme case where the will on its face is intrinsicallyvoid, it is the probate court's duty to pass first upon the formal validity of the will. Generally, the probate ofthe will is mandatory (Art. 838, Civil Code; Guevara vs. Guevara, 74 Phil. 479 and 98 Phil. 249;Fernandez vs. Dimagiba, L-23638, October 12, 1967, 21 SCRA 428).

As aptly stated by Mr. Justice Barredo, "the very existence of a purported testament is in itself primafacie proof that the supposed testator has willed that his estate should be distributed in the mannertherein provided, and it is incumbent upon the state that, if legally tenable, such desire be given effectindependent of the attitude of the parties affected thereby" (Resolution, Vda. de Precilla vs. Narciso, L-

27200, August 18, 1972, 46 SCRA 538, 565).

To give effect to the intention and wishes of the testatrix is the first and principal law in the matter oftestaments (Dizon-Rivera vs. Dizon, L-24561, June 30, 1970, 33 SCRA 554, 561). Testacy is preferableto intestacy. An interpretation that will render a testamentary disposition operative takes precedence overa construction that will nullify a provision of the will (Arts. 788 and 791, Civil Code).

Testacy is favored. Doubts are resolved in favor of testacy especially where the will evinces an intentionon the part of the testator to dispose of practically his whole estate. So compelling is the principle thatintestacy should be avoided and that the wishes of the testator should prevail that sometimes thelanguage of the will can be varied for the purpose of giving it effect (Austria vs. Reyes, L-23079, February27, 1970, 31 SCRA 754, 762).

As far as is legally possible, the expressed desire of the testator must be followed and the dispositions ofthe properties in his will should be upheld (Estorque vs. Estorque, L-19573, June 30, 1970, 33 SCRA540, 546).

The law has a tender regard for the wishes of the testator as expressed in his will because anydisposition therein is better than that which the law can make (Castro vs. Bustos, L-25913, February 28,1969, 27 SCRA 327, 341).


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Two other errors of the lower court may be noticed. It erred in issuing a notice to creditors although noexecutor or regular administrator has been appointed. The record reveals that it appointed a specialadministrator. A notice to creditors is not in order if only a special administrator has been appointed.Section 1, Rule 86 of the Rules of Court, in providing that "immediately after granting letters oftestamentary or of administration, the court shall issue a notice requiring all persons having money claimsagainst the decedent to file them in the office of the clerk of said court" clearly contemplates theappointment of an executor or regular administrator and not that of a special administrator.

It is the executor or regular administrator who is supposed to oppose the claims against the estate and topay such claims when duly allowed (See. 10, Rule 86 and sec. 1, Rule 88, Rules of Court).

We also take this occasion to point out that the probate court's appointment of its branch clerk of court asspecial administrator (p. 30, Rollo) is not a salutary practice because it might engender the suspicion thatthe probate Judge and his clerk of court are in cahoots in milking the decedent's estate. Should thebranch clerk of court commit any abuse or devastavit in the course of his administration, the probateJudge might find it difficult to hold him to a strict accountability. A court employee should devote hisofficial time to his official duties and should not have as a sideline the administration of a decedent'sestate.

WHEREFORE, the lower court's orders of February 28, and June 29, 1974 are set aside and its order ofJune 18, 1973, setting for hearing the petition for probate, is affirmed. The lower court is directed toconduct further proceedings in Special Case No. 1808 in consonance with this opinion. Costs, against theprivate respondents.

SO ORDERED.

G.R. No. L-42226 July 26, 1935

In re estate of the deceased Ines Basa de Mercado.JOAQUINA BASA, ET AL.,petitioners-appellants,vs.ATILANO G. MERCADO,respondent-appellee.

Briones and Martinez for appellants.Jose Gutierrez David for appellee.

GODDARD, J .:

By virtue of an order dated June 27, 1931, the Honorable Hermogenes Reyes, Judge of the Court of FirstInstance of Pampanga, allowed and probated the last will and testament of Ines Basa, deceased. OnJanuary 30, 1932, the same judge approved the account of the administrator of the estate, declared himthe only heir of the deceased under the will and closed the administration proceedings. On April 11, 1934,the herein petitioners-appellants filed a motion in which they prayed that said proceedings be reopenedand alleged that the court lacked jurisdiction to act in the matter because there was a failure to comply

with requirements as to the publication of the notice of hearing prescribed in the following section of theCode of Civil Procedure:

SEC. 630. Court to appoint hearing on will. When a will is delivered to a court havingjurisdiction of the same, the court shall appoint a time and place when all concerned may appearto contest the allowance of the will, and shall cause public notice thereof to be given bypublication in such newspaper or newspapers as the court directs of general circulation in theprovince, three weeks successively, previous to the time appointed, and no will shall be alloweduntil such notice has been given. At the hearing all testimony shall be taken under oath, reducedto writing and signed by the witnesses.

In this motion the appellants claim that the provisions of section 630 of the Code of Civil Procedure havenot been complied with in view of the fact that although the trial judge, on May 29, 1931, ordered the

publication of the required notice for "three weeks successively" previous to the time appointed for thehearing on the will, the first publication was on June 6, 1931, the third on June 20, 1931, and the hearingtook place on the 27th of that month, only twenty-one days after the date of the first publication instead ofthree full weeks before the day set for the hearing.

Section 630 of our Code of Civil Procedure is taken from the Code of Civil Procedure of the State ofVermont. The Supreme Court of that State, commenting on the phrase "three weeks successively", held:


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The date of examining and allowing P.A. Barlett's final account of administration, and fordecreeing the residue of the estate to the lawful claimants of the same, was set by the probatecourt for December 19, 1919, at the probate office in Brighton, and an order was made to thiseffect on November 28, 1919. The order provided also that notice should be given by publicationfor three weeks successively in the Essex County Herald. In accordance with this order, thenotice was published in the issues for December 4, 11 and 18, respectively. This was "publicnotice" to all persons interested of the time and place of examining and allowing said account andmaking decree of distribution, and was sufficient under the provisions of G.L. 3276.(Lenehen vs.Spaulding, 57 Vt., 115.) "The proceeding was according to law in all respects, andbeing in the nature of a proceeding in rem, it binds everybody by its legal effect." (Burbeck vs.Little, 50 Vt., 713.) At the time and place set for the hearing none of the petitioners or otherlegatees under the will of Nickerson Warner appeared. Thereupon the judge of probate then andthere continued the hearing until April 6, 1920, at which time the final account of P.A .Barlett asadministrator de bonis non with will annexed was filed and, no one appearing to object, the samewas allowed, and the decree of distribution was entered. ( In reWarner's Estate [Supreme Court ofVermont] 1925; 127 Atl. Rep., 362, 364; 98 Vt., 254, 261.)

It will be noted that in the above cited case the last of the three publications was on December 18, 1919,and the hearing on the administrators's final account was set for December 19 of that year, only fifteendays after the date of the first publication.

In view of the foregoing, it is held that the language used in section 630 of the Code of Civil Proceduredoes not mean that the notice, referred to therein, should be published for three full weeks before thedate set for the hearing on the will. In other words the first publication of the notice need not be madetwenty-one days before the day appointed for the hearing.

The appellants also contend that the trial court erred in ruling that the weekly newspaper, Ing Katipunan,in which the notice of hearing was published, was a newspaper of general circulation in the Province ofPampanga.

The record shows that Ing Katipunanis a newspaper of general circulation in view of the fact that it ispublished for the dissemination of local news and general information; that it has a bona fidesubscription

list of paying subscribers; that it is published at regular intervals and that the trial court ordered thepublication to be made inIng Katipunanprecisely because it was a "newspaper of general circulation inthe Province of Pampanga."

Furthermore no attempt has been made to prove that it was a newspaper devoted to the interests orpublished for the entertainment of a particular class, profession, trade, calling, race or religiousdenomination. The fact that there is another paper published in Pampanga that has a few moresubscribers (72 to be exact) and that certain Manila dailies also have a larger circulation in that provinceis unimportant. The law does not require that publication of the notice, referred to in the Code of CivilProcedure, should be made in the newspaper with the largest numbers is necessary to constitute anewspaper of general circulation.

The assignments of error of the appellants are overruled and the appealed order of the trial court is

affirmed with costs in this instance against the appellants.

G.R. No. 122646 March 14, 1997

ADELIA C. MENDOZA, for herself and Administratix of the Intestate Estate of the late NORBERTOB. MENDOZA, petitioners,vs.HON. ANGELITO C. TEH, Presiding Judge, Branch 87, RTC, Rosario, Batangas, SPS. HERMINIO &CLARITA TAYAG @ SPS. GEORGE T. TIGLAO & CLARIZZA T. TIGLAO and/or @ TEOFILO M.

ESGUERRA, LEONOR M. ESGUERRA. LETICIA M. ESGUERRA, JOEL M. ESGUERRA, RICARDO M.ESGUERRA, VOLTAIRE E. TAYAG, BENITO I. TAYAG, MERLIE MALIG, ALBERTO T. TAYAG,ROSEMARIE T. TAYAG, LETICIA E. LULU and the REGISTER OF DEED for the Province ofBatangas, respondents.

FRANCISCO, J.:

On October 28, 1994, petitioner "for herself and as administratrix of the intestate estate" of her deceasedhusband Norberto Mendoza filed before the Regional Trial Court (RTC) of Batangas a complaint for


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"reconveyance of title (involving parcels of lot in Batangas) and damages with petition for preliminaryinjunction" docketed as Civil Case No. R94-009.1Paragraphs 2 and 3 of said complaint states:

2. That Adelia C. Mendoza likewise represents her co-plaintiff, the Intestate Estate of thelate Norberto B. Mendoza in her capacity as the surviving wife of the deceased NorbertoB. Mendoza who died on December 29, 1993;

3. That Adelia C. Mendoza should be appointed by this Honorable Court as the judicialadministratrix of her co-plaintiff for purposes of this case; 2

Private respondents filed on January 21, 1995 3their "answer with motion to dismiss"4alleging amongothers that the complaint states no cause of action and that petitioner's demand had already beenpaid.5On February 17, 1995, private respondents filed another pleading entitled "motion to dismiss"invoking, this time, lack of jurisdiction, lack of cause of action, estoppel, laches and prescription. Insupport of their argument of lack of jurisdiction, private respondents contend that a special proceedingscase for appointment of administratrix of an estate cannot be incorporated in the ordinary action forreconveyance. In her opposition to the motions, petitioner asserts among others, that the allegationseeking appointment as administratrix is only an incidental matter which is not even prayed for in thecomplaint. Replying to the opposition, private respondents argued that since petitioner's husband resided

in Quezon City at the time of his death, the appointment of the estate administratrix should be filed in theRTC of that place in accordance with Section 1 Rule 73 of the Rules of Court. Accordingly, it is theirargument that the RTC of Batangas has no jurisdiction over the case.

In a Resolution dated June 14, 1995, the RTC of Batangas thru respondent Judge Teh "dismissed withoutprejudice" the complaint for lack of jurisdiction "on the ground that the rules governing an ordinary civilaction and a special proceeding are different." Accordingly, the lower court found it unnecessary todiscuss the other grounds raised in the motion to dismiss.6Upon denial of petitioner's motion forreconsideration, he filed this petition under Rule 45 on pure questions of law. The Court thereafter gavedue course to the petition.

The issue is whether or not in an action for reconveyance, an allegation seeking appointment asadministratrix of an estate, would oust the RTC of its jurisdiction over the whole case?

We rule in the negative. First, Section 19 of B.P. 129 as amended by RA 7691 provides:

Jurisdiction in Civil Cases. Regional Trial Courts shall exercise exclusive originaljurisdiction:

(1) In all civil actions in which the subject of the litigation is incapable of pecuniaryestimation;

(2) In all civil actions which involve the title to, or possession of, real property, or anyinterest therein, where the assessed value of property involved exceeds Twentythousand pesos (P20,000.00). . .

xxx xxx xxx

(4) In all matters of probate, both testate and intestat . . . .

Likewise, Section 33 of the same law provides that:

Metropolitan Trial Court shall exercise:

(1) Exclusive original jurisdiction over civil actions and probateproceedings, testate and intestate . . . (emphasis ours).

The above law is clear. An action for reconveyance, which involves title to property worth millionsof pesos, such as the lots subject of this case, is cognizable by the RTC. Likewise falling within itsjurisdiction are actions "incapable of pecuniary estimation," such as the appointment of anadministratrix for an estate. Even the Rules on venue of estate proceedings (Section 1 of Rule737) impliedly recognizes the jurisdiction of the RTC over petitions for granting of letters ofadministration. On the other hand, probate proceedings for the settlement of estate are within theambit of either the RTC or MTC depending on the net worth of the estate. By arguing that theallegation seeking such appointment as administratrix ousted the RTC of its jurisdiction, bothpublic and private respondents confuse jurisdiction with venue. Section 2 of Rule 4 as revised by


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Circular 13-958provides that actions involving title to property shall be tried in the province wherethe property is located, in this case, Batangas. The mere fact that petitioner's deceasedhusband resides in Quezon City at the time of his death affects only the venue but not thejurisdiction of the Court. 9

Second, the cases cited 10by private respondents are not at point as they involve settlement of

estatewhere the probate court was asked to resolve questions of ownership of certain properties.In thepresent suit, no settlement of estate is involved, but merely an allegation seeking appointment as estateadministratrix which does not necessarily involve settlement of estate that would have invited the exerciseof the limited jurisdiction of a probate court. The above allegation is not even a jurisdictional fact whichmust be stated in an action for reconveyance. The Court therefore, should have at least, proceeded withthe reconveyance suit rather than dismiss the entire case.

Third, jurisprudential rulings that a probate court cannot generally decide questions of ownership or title toproperty 11is not applicable in this case, because: there is no settlement of estate involved and the RTCof Batangas was not acting as a probate court. It should be clarified that whether a particular mattershould be resolved by the RTC in the exercise of its general jurisdiction or its limited probate jurisdiction,is not a jurisdictional issue but a mere question of procedure. 12Moreover, the instant action forreconveyance does not even invoke the limited jurisdiction of a probate court. 13Considering that the RTC

has jurisdiction, whether it be on the reconveyance suit or as to the appointment of an administratrix, itwas improper for respondent judge to dismiss the whole complaint for alleged lack of jurisdiction.

Finally, judges should not dismiss with precipitate haste, complaints or petitions filed before them, just sothey can comply with their administrative duty to dispose cases within 90 days at the expense of theirjudicial responsibility.

WHEREFORE, the Resolutions dated June 14, 1995 and November 14, 1995 of the RTC of Batangasare REVERSED and SET ASIDE. The trial court is ordered to immediately proceed with the disposition ofthe case in accordance with this Decision.

SO ORDERED.

CONSTANTINO C. ACAIN, petitioner,vs.HON. INTERMEDIATE APPELLATE COURT (Third Special Cases Division), VIRGINIA A.FERNANDEZ and ROSA DIONGSON, respondents.

PARAS, J .:

This is a petition for review on certiorari of the decision *of respondent. Court of Appeals in AC-G.R. SPNo. 05744 promulgated on August 30, 1985 (Rollo, p. 108) ordering the dismissal of the petition inSpecial Proceedings No, 591 ACEB and its Resolution issued on October 23, 1985 (Rollo, p. 72) denying

respondents' (petitioners herein) motion for reconsideration.

The dispositive portion of the questioned decision reads as follows:

WHEREFORE, the petition is hereby granted and respondent Regional Trial Court of theSeventh Judicial Region, Branch XIII (Cebu City), is hereby ordered to dismiss thepetition in Special Proceedings No. 591 ACEB No special pronouncement is made as tocosts.

The antecedents of the case, based on the summary of the Intermediate Appellate Court, now Court ofAppeals, (Rollo, pp. 108-109) are as follows:

On May 29, 1984 petitioner Constantino Acain filed on the Regional Trial Court of Cebu City Branch XIII,

a petition for the probate of the will of the late Nemesio Acain and for the issuance to the same petitionerof letters testamentary, docketed as Special Proceedings No. 591 ACEB (Rollo, p. 29), on the premisethat Nemesio Acain died leaving a will in which petitioner and his brothers Antonio, Flores and Jose andhis sisters Anita, Concepcion, Quirina and Laura were instituted as heirs. The will allegedly executed byNemesio Acain on February 17, 1960 was written in Bisaya (Rollo, p. 27) with a translation in English(Rollo, p. 31) submi'tted by petitioner without objection raised by private respondents. The will containedprovisions on burial rites, payment of debts, and the appointment of a certain Atty. Ignacio G. Villagonzaloas the executor of the testament. On the disposition of the testator's property, the will provided:


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THIRD: All my shares that I may receive from our properties. house, lands and moneywhich I earned jointly with my wife Rosa Diongson shall all be given by me to my brotherSEGUNDO ACAIN Filipino, widower, of legal age and presently residing at 357-CSanciangko Street, Cebu City. In case my brother Segundo Acain pre-deceased me, allthe money properties, lands, houses there in Bantayan and here in Cebu City whichconstitute my share shall be given to me to his children, namely: Anita, Constantino,Concepcion, Quirina, laura, Flores, Antonio and Jose, all surnamed Acain.

Obviously, Segundo pre-deceased Nemesio. Thus it is the children of Segundo who are claiming to beheirs, with Constantino as the petitioner in Special Proceedings No. 591 ACEB

After the petition was set for hearing in the lower court on June 25, 1984 the oppositors (respondentsherein Virginia A. Fernandez, a legally adopted daughter of tile deceased and the latter's widow RosaDiongson Vda. de Acain filed a motion to dismiss on the following grounds for the petitioner has no legalcapacity to institute these proceedings; (2) he is merely a universal heir and (3) the widow and theadopted daughter have been pretirited. (Rollo, p. 158). Said motion was denied by the trial judge.

After the denial of their subsequent motion for reconsideration in the lower court, respondents filed withthe Supreme Court a petition for certiorari and prohibition with preliminary injunction which was

subsequently referred to the Intermediate Appellate Court by Resolution of the Court dated March 11,1985 (Memorandum for Petitioner, p. 3; Rollo, p. 159).

Respondent Intermediate Appellate Court granted private respondents' petition and ordered the trial courtto dismiss the petition for the probate of the will of Nemesio Acain in Special Proceedings No. 591 ACEB

His motion for reconsideration having been denied, petitioner filed this present petition for the review ofrespondent Court's decision on December 18, 1985 (Rollo, p. 6). Respondents' Comment was filed onJune 6, 1986 (Rollo, p. 146).

On August 11, 1986 the Court resolved to give due course to the petition (Rollo, p. 153). Respondents'Memorandum was filed on September 22, 1986 (Rollo, p. 157); the Memorandum for petitioner was filedon September 29, 1986 (Rollo, p. 177).

Petitioner raises the following issues (Memorandum for petitioner, p. 4):

(A) The petition filed in AC-G.R. No. 05744 for certiorari and prohibition with preliminaryinjunction is not the proper remedy under the premises;

(B) The authority of the probate courts is limited only to inquiring into the extrinsic validityof the will sought to be probated and it cannot pass upon the intrinsic validity thereofbefore it is admitted to probate;

(C) The will of Nemesio Acain is valid and must therefore, be admitted to probate. Thepreterition mentioned in Article 854 of the New Civil Code refers to preterition of

"compulsory heirs in the direct line," and does not apply to private respondents who arenot compulsory heirs in the direct line; their omission shall not annul the institution ofheirs;

(D) DICAT TESTATOR ET MERIT LEX. What the testator says will be the law;

(E) There may be nothing in Article 854 of the New Civil Code, that suggests that mereinstitution of a universal heir in the will would give the heir so instituted a share in theinheritance but there is a definite distinct intention of the testator in the case at bar,explicitly expressed in his will. This is what matters and should be in violable.

(F) As an instituted heir, petitioner has the legal interest and standing to file the petition inSp. Proc. No. 591 ACEB for probate of the will of Nemesio Acain and

(G) Article 854 of the New Civil Code is a bill of attainder. It is therefore unconstitutionaland ineffectual.

The pivotal issue in this case is whether or not private respondents have been pretirited.

Article 854 of the Civil Code provides:


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Art. 854. The preterition or omission of one, some, or all of the compulsory heirs in thedirect line, whether living at the time of the execution of the will or born after the death ofthe testator, shall annul the institution of heir; but the devisees and legacies shall be validinsofar as they are not; inofficious.

If the omitted compulsory heirs should die before the testator, the institution shall he

effectual, without prejudice to the right of representation.

Preterition consists in the omission in the testator's will of the forced heirs or anyone of them eitherbecause they are not mentioned therein, or, though mentioned, they are neither instituted as heirs nor areexpressly disinherited (Nuguid v. Nuguid, 17 SCRA 450 [1966]; Maninang v. Court of Appeals, 114 SCRA478 [1982]). Insofar as the widow is concerned, Article 854 of the Civil Code may not apply as she doesnot ascend or descend from the testator, although she is a compulsory heir. Stated otherwise, even if thesurviving spouse is a compulsory heir, there is no preterition even if she is omitted from the inheritance,for she is not in the direct line. (Art. 854, Civil code) however, the same thing cannot be said of the otherrespondent Virginia A. Fernandez, whose legal adoption by the testator has not been questioned bypetitioner (.Memorandum for the Petitioner, pp. 8-9). Under Article 39 of P.D. No. 603, known as the Childand Youth Welfare Code, adoption gives to the adopted person the same rights and duties as if he were alegitimate child of the adopter and makes the adopted person a legal heir of the adopter. It cannot be

denied that she has totally omitted and preterited in the will of the testator and that both adopted child andthe widow were deprived of at least their legitime. Neither can it be denied that they were not expresslydisinherited. Hence, this is a clear case of preterition of the legally adopted child.

Pretention annuls the institution of an heir and annulment throws open to intestate succession the entireinheritance including "la porcion libre (que) no hubiese dispuesto en virtual de legado mejora o donacion "Maniesa as cited in Nuguid v. Nuguid, supra; Maninang v. Court of Appeals, 114 SCRA [1982]). The onlyprovisions which do not result in intestacy are the legacies and devises made in the will for they shouldstand valid and respected, except insofar as the legitimes are concerned.

The universal institution of petitioner together with his brothers and sisters to the entire inheritance of thetestator results in totally abrogating the will because the nullification of such institution of universal heirs-without any other testamentary disposition in the will-amounts to a declaration that nothing at all was

written. Carefully worded and in clear terms, Article 854 of the Civil Code offers no leeway for inferentialinterpretation (Nuguid v. Nuguid), supra. No legacies nor devises having been provided in the will thewhole property of the deceased has been left by universal title to petitioner and his brothers and sisters.The effect of annulling the "Institution of heirs will be, necessarily, the opening of a total intestacy (Neri v.Akutin, 74 Phil. 185 [1943]) except that proper legacies and devises must, as already stated above, berespected.

We now deal with another matter. In order that a person may be allowed to intervene in a probateproceeding he must have an interest iii the estate, or in the will, or in the property to be affected by iteither as executor or as a claimant of the estate and an interested party is one who would be benefited bythe estate such as an heir or one who has a claim against the estate like a creditor (Sumilang v.Ramagosa, 21 SCRA 1369/1967). Petitioner is not the appointed executor, neither a devisee or a legateethere being no mention in the testamentary disposition of any gift of an individual item of personal or real

property he is called upon to receive (Article 782, Civil Code). At the outset, he appears to have aninterest in the will as an heir, defined under Article 782 of the Civil Code as a person called to thesuccession either by the provision of a will or by operation of law. However, intestacy having resultedfrom the preterition of respondent adopted child and the universal institution of heirs, petitioner is in effectnot an heir of the testator. He has no legal standing to petition for the probate of the will left by thedeceased and Special Proceedings No. 591 A-CEB must be dismissed.

As a general rule certiorari cannot be a substitute for appeal, except when the questioned order is anoppressive exercise of j judicial authority (People v. Villanueva, 110 SCRA 465 [1981]; Vda. de Caldito v.Segundo, 117 SCRA 573 [1982]; Co Chuan Seng v. Court of Appeals, 128 SCRA 308 [1984]; andBautista v. Sarmiento, 138 SCRA 587 [1985]). It is axiomatic that the remedies of certiorari andprohibition are not available where the petitioner has the remedy of appeal or some other plain, speedyand adequate remedy in the course of law (DD Comendador Construction Corporation v. Sayo (118

SCRA 590 [1982]). They are, however, proper remedies to correct a grave abuse of discretion of the trialcourt in not dismissing a case where the dismissal is founded on valid grounds (Vda. de Bacang v. Courtof Appeals, 125 SCRA 137 [1983]).

Special Proceedings No. 591 ACEB is for the probate of a will. As stated by respondent Court, thegeneral rule is that the probate court's authority is limited only to the extrinsic validity of the will, the dueexecution thereof, the testator's testamentary capacity and the compliance with the requisites orsolemnities prescribed by law. The intrinsic validity of the will normally comes only after the Court hasdeclared that the will has been duly authenticated. Said court at this stage of the proceedings is not called


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upon to rule on the intrinsic validity or efficacy of the provisions of the will (Nuguid v. Nuguid, 17 SCRA449 [1966]; Sumilang v. Ramagosa, supra; Maninang v. Court of Appeals, 114 SCRA 478 [1982];Cayetano v. Leonides, 129 SCRA 522 [1984]; and Nepomuceno v. Court of Appeals, 139 SCRA 206[1985]).

The rule, however, is not inflexible and absolute. Under exceptional circumstances, the probate court is

not powerless to do what the situation constrains it to do and pass upon certain provisions of the will(Nepomuceno v. Court of Appeals, supra). In Nuguid v. Nuguid the oppositors to the probate moved todismiss on the ground of absolute preteriton The probate court acting on the motion held that the will inquestion was a complete nullity and dismissed the petition without costs. On appeal the Supreme Courtupheld the decision of the probate court, induced by practical considerations. The Court said:

We pause to reflect. If the case were to be remanded for probate of the will, nothing willbe gained. On the contrary, this litigation will be protracted. And for aught that appears inthe record, in the event of probate or if the court rejects the will, probability exists that thecase will come up once again before us on the same issue of the intrinsic validity ornullity of the will. Result: waste of time, effort, expense, plus added anxiety. These arethe practical considerations that induce us to a belief that we might as well meet head-onthe issue of the validity of the provisions of the will in question. After all there exists a

justiciable controversy crying for solution.

In Saguimsim v. Lindayag (6 SCRA 874 [1962]) the motion to dismiss the petition by the surviving spousewas grounded on petitioner's lack of legal capacity to institute the proceedings which was fullysubstantiated by the evidence during the hearing held in connection with said motion. The Court upheldthe probate court's order of dismissal.

In Cayetano v. Leonides, supra one of the issues raised in the motion to dismiss the petition deals withthe validity of the provisions of the will. Respondent Judge allowed the probate of the will. The Court heldthat as on its face the will appeared to have preterited the petitioner the respondent judge should havedenied its probate outright. Where circumstances demand that intrinsic validity of testamentary provisionsbe passed upon even before the extrinsic validity of the will is resolved, the probate court should meet theissue. (Nepomuceno v. Court of Appeals,supra; Nuguid v. Nuguid, supra).

In the instant case private respondents filed a motion to dismiss the petition in Sp. Proceedings No. 591ACEB of the Regional Trial Court of Cebu on the following grounds: (1) petitioner has no legal capacity toinstitute the proceedings; (2) he is merely a universal heir; and (3) the widow and the adopted daughterhave been preterited (Rollo, p. 158). It was denied by the trial court in an order dated January 21, 1985for the reason that "the grounds for the motion to dismiss are matters properly to be resolved after ahearing on the issues in the course of the trial on the merits of the case (Rollo, p. 32). A subsequentmotion for reconsideration was denied by the trial court on February 15, 1985 (Rollo, p. 109).

For private respondents to have tolerated the probate of the will and allowed the case to progress whenon its face the will appears to be intrinsically void as petitioner and his brothers and sisters were institutedas universal heirs coupled with the obvious fact that one of the private respondents had been preteritedwould have been an exercise in futility. It would have meant a waste of time, effort, expense, plus added

futility. The trial court could have denied its probate outright or could have passed upon the intrinsicvalidity of the testamentary provisions before the extrinsic validity of the will was resolved (Cayetano v.Leonides, supra; Nuquid v. Nuguid, supra. The remedies of certiorari and prohibition were properlyavailed of by private respondents.

Thus, this Court ruled that where the grounds for dismissal are indubitable, the defendants had the rightto resort to the more speedy, and adequate remedies of certiorari and prohibition to correct a grave abuseof discretion, amounting to lack of jurisdiction, committed by the trial court in not dismissing the case,(Vda. de Bacang v. Court of Appeals, supra) and even assuming the existence of the remedy of appeal,the Court harkens to the rule that in the broader interests of justice, a petition for certiorari may beentertained, particularly where appeal would not afford speedy and adequate relief. (Maninang Court ofAppeals, supra).

PREMISES CONSIDERED, the petition is hereby DENIED for lack of merit and the questioned decisionof respondent Court of Appeals promulgated on August 30, 1985 and its Resolution dated October 23,1985 are hereby AFFIRMED.

G.R. No. 121719 September 16, 1999

SPOUSES VICENTE and MA. ROSALIA MANINANG, SPOUSES CECILIO and MA. SOCORRORUBIO, MA. THELMA P. MALLARI, ORLANDO F. PANDAY, JR., MA. VIVIAN P. GINGA, and H.J.


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RAMON F. PANDAY, petitioners,vs.COURT OF APPEALS, HON. GREGORIO E. MANIO, JR., and OSCAR J. MONTON, SR., respondents.

QUISUMBING, J .:

Before us is an appeal from the decision of the Court of Appeals 1in C.A. G.R. SP No. 36948, whichaffirmed the decision of the Regional Trial Court 2upholding the ruling of the Municipal TrialCourt 3declaring private respondent Oscar J. Monton, Sr. as the lawful possessor of the land covered byTCT No. 17957 and situated at Bgy. Bagong Bayan Grande, Naga City.

The facts of the case are as follows:

Private respondent Oscar J. Monton, Sr. filed a complaint for unlawful detainer against petitioners onAugust 31, 1992. 4He alleged that he is the absolute and registered owner of a parcel of land situated atBgy. Bagong Bayan Grande, Naga City and covered by TCT No. 17957. He claimed to have bought theland from Rosario Felipe Panday, mother of petitioners Rosalia, Socorro, Ma. Thelma, Orlando, Ma.

Vivian, and Ramon.

According to private respondent, he went to the disputed property sometime in August 1992 to constructa perimeter fence around it. However, he was prevented from doing so by petitioners. Private respondentdemanded that petitioners vacate the property, to no avail. Hence, his complaint for unlawful detainerbefore the Municipal Trial Court.

In their answer, petitioners assailed the validity of the deed of sale executed by Rosario in favor of privaterespondent, alleging that at the time of the sale, Rosario was suffering from schizophrenia and wasincapacitated to enter into a contract. They claimed ownership of the property through succession.

Petitioners, moreover, questioned the jurisdiction of the MTC over the case, since another case, 5for

annulment of sale with damages involving the same parties, was filed by petitioners before the RegionalTrial Court.

The MTC ruled in favor of private respondent, declaring him to be the lawful possessor of the disputedlands and ordering petitioners to vacate the premises and to pay back rentals.

The dispositive portion of the MTC decision read:

WHEREFORE, by preponderance of evidence, plaintiff OSCAR J. MONTON, SR. ishereby declared the lawful possessor of the premises in question and defendants arehereby ordered to vacate the same immediately and to deliver possession thereof to theplaintiff, to pay the reasonable rental thereof in the amount of P350.00 per month fromAugust 13, 1992 until the premises are fully vacated and to pay the costs. The

compulsory counterclaim not having been substantiated by evidence, the same isdismissed. 6

Petitioners appealed to the RTC, which, however, affirmed in totothe decision of the MTC. On appeal tothe Court of Appeals, the latter court likewise affirmed the decision of the RTC and the MTC.

Hence, the instant petition for review on certiorari.

Petitioners raise the following issues for our consideration:

I

MAY THERE BE UNLAWFUL DETAINER WHEN RESPONDENT HAS NEVER BEEN INPOSSESSION OF THE LAND IN QUESTION AND RESPONDENT HAS NEVER BEENRECOGNIZED BY PETITIONERS AS TRUE AND LAWFUL OWNER OF THE LAND.

II

MAY THE CITY COURT TAKE JURISDICTION OVER AN UNLAWFUL DETAINERCASE AND RENDER JUDGMENT THEREON WHEN THE OWNERSHIP ISSUE AND


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THE RIGHT OF POSSESSION OVER THE LAND SUBJECT OF THE DETAINER ISBEING LITIGATED IN A CASE EARLIER FILED BEFORE THE REGIONAL TRIALCOURT. 7

Anent the first issue, the following rule which lays down the requirements for filing a complaint for unlawfuldetainer is pertinent:

Sec. 1. Who may institute proceedings, and when. Subject to the provisions of thenext succeeding section, a person deprived of the possession of any land or building byforce, intimidation, threat, strategy, or stealth, or a lessor, vendor, vendee, or otherperson against whom the possession of any land or building is unlawfully withheld afterthe expiration or termination of the right to hold possession, by virtue of any contract,express or implied, or the legal representatives or assigns of any such lessor, vendor,vendee, or other person, may, at any time within one (1) year after such unlawfuldeprivation or withholding of possession, bring an action in the proper Municipal TrialCourt against the person or persons unlawfully withholding or depriving of possession, orany person or persons claiming under them, for the restitution of such possession,together with damages and costs. 8

As correctly pointed out by respondent Court of Appeals, nowhere does it appear in the abovecited rulethat, in an action for unlawful detainer, the person filing the complaint in this case, private respondentas vendee be in prior physical possession of the property.

As we held in one case:

Prior physical possession in the plaintiff is not an indispensable requirement in anunlawful detainer case brought by a vendee or other person against whom thepossession of any land is unlawfully withheld after the expiration or termination of a rightto hold possession. . . . . 9

Neither is it required that he be first recognized as the true and lawful owner of the property by the personagainst whom he asserts his right to possession. An action for unlawful detainer may be filed by one who

is not an owner of the property in dispute.

Petitioners assert that Rule 70, Section 1, of the Rules of Court is not applicable since it refers only "to asale where the right of the vendor is not questioned." We fail to see that portion of the rule where thisdistinction may be gleaned.

As regards the second issue, we have repeatedly held that the only issue for resolution in an action forunlawful detainer is possession of the disputedproperty. 10Thus, contrary to petitioners' belief, it was but proper for the courts below not to put intoconsideration the validity of private respondent's title. It simply is not an issue in this case.

The question of ownership is immaterial in an action for unlawful detainer. It is, thus, of no moment if, at

the same time that an action for unlawful detainer is being litigated, there is another action respecting thesame property and the same parties involving the issue of ownership. The rights asserted and the reliefsprayed for are different in the two cases.

An action for annulment of sale like the one filed by petitioners against private respondent is notprejudicial to an action for unlawful detainer. 11

The question is, may the pendency of such an action for consignation or specificperformance, or annulment of a sale, as in this case, be successfully pleaded inabatement of an action for unlawful detainer? This Court has invariably given a negativeanswer. 12

ACCORDINGLY, the instant petition is DISMISSED and the decision of the Court of Appeals in C.A. G.R.

SP No. 36948 is hereby AFFIRMED.

Costs against petitioners.

G.R. No. L-21993 June 21, 1966

ANGELA RODRIGUEZ, MARIA RODRIGUEZ, ET AL.,petitioners,vs.


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HON. JUAN DE BORJA, as Judge of the Court of First Instance of Bulacan, Branch III,ANATOLIA PANGILINAN and ADELAIDA JACALAN,respondents.

Lorenzo Somulong for petitioners.Torres and Torres for respondents.

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

Petitioners Angela, Maria, Abelardo and Antonio, surnamed Rodriguez, petition this Court for a writof certiorariand prohibition to the Court of First Instance of Bulacan, for its refusal to grant their motion todismiss its Special Proceeding No. 1331, which said Court is alleged to have taken cognizance of withoutjurisdiction.

The facts and issues are succinctly narrated in the order of the respondent court, dated June 13, 1963(Petition, Annex 0), in this wise:

It is alleged in the motion to dismiss filed by Angela, Maria, Abelardo and Antonio Rodriguez,through counsel, that this Court "has no jurisdiction to try the above-entitled case in view of thependency of another action for the settlement of the estate of the deceased Rev. Fr. Celestino

Rodriguez in the Court of First Instance of Rizal, namely, Sp. Proceedings No. 3907 entitled 'Inthe matter of the Intestate Estate of the deceased Rev. Fr. Celestino Rodriguez which was filedahead of the instant case".

The records show that Fr. Celestino Rodriguez died on February 12, 1963 in the City of Manila;that on March 4, 1963, Apolonia Pangilinan and Adelaida Jacalan delivered to the Clerk of Courtof Bulacan a purported last will and testament of Fr. Rodriguez; that on March 8, 1963, MariaRodriguez and Angela Rodriguez, through counsel filed a petition for leave of court to allow themto examine the alleged will; that on March 11, 1963 before the Court could act on the petition, thesame was withdrawn; that on March 12, 1963, aforementioned petitioners filed before the Courtof First Instance of Rizal a petition for the settlement of the intestate estate of Fr. Rodriguezalleging, among other things, that Fr. Rodriguez was a resident of Paraaque, Rizal, and diedwithout leaving a will and praying that Maria Rodriguez be appointed as Special Administratrix of

the estate; and that on March 12, 1963 Apolonia Pangilinan and Adelaida Jacalan filed a petitionin this Court for the probation of the will delivered by them on March 4, 1963. It was stipulated bythe parties that Fr. Rodriguez was born in Paraaque, Rizal; that he was Parish priest of theCatholic Church of Hagonoy, Bulacan, from the year 1930 up to the time of his death in 1963; thathe was buried in Paraaque, and that he left real properties in Rizal, Cavite, Quezon City andBulacan.

The movants contend that since the intestate proceedings in the Court of First Instance of Rizalwas filed at 8:00 A.M. on March 12, 1963 while the petition for probate was filed in the Court ofFirst Instance of Bulacan at 11:00 A.M. on the same date, the latter Court has no jurisdiction toentertain the petition for probate, citing as authority in support thereof the case of Ongsingco Vda.de Borja vs. Tan and De Borja, G.R. No. 7792, July 27, 1955.

The petitioners Pangilinan and Jacalan, on the other hand, take the stand that the Court of FirstInstance of Bulacan acquired jurisdiction over the case upon delivery by them of the will to theClerk of Court on March 4, 1963, and that the case in this Court therefore has precedence overthe case filed in Rizal on March 12, 1963.

The Court of First Instance, as previously stated denied the motion to dismiss on the ground that adifference of a few hours did not entitle one proceeding to preference over the other; that, as early asMarch 7, movants were aware of the existence of the purported will of Father Rodriguez, deposited in theCourt of Bulacan, since they filed a petition to examine the same, and that movants clearly filed theintestate proceedings in Rizal "for no other purpose than to prevent this Court (of Bulacan) fromexercising jurisdiction over the probate proceedings". Reconsideration having been denied, movants, nowpetitioners, came to this Court, relying principally on Rule 73, section 1 of the Rules of Court, andinvoking our ruling in Ongsingco vs. Tan and De Borja, L-7792, July 27, 1955.

SECTION 1. Where estate of deceased persons settled. If the decedent is an inhabitant of thePhilippines at the time of his death, whether a citizen or an alien, his will shall be proved, orletters of administration granted, and his estate settled, in the Court of First Instance in theprovince in which he resides at the time of his death, and if he is an inhabitant of a foreigncountry, the Court of First Instance of any province which he had estate. The court first takingcognizance of the settlement of the estate of a decedent, shall exercise jurisdiction to theexclusion of all other courts. The jurisdiction assumed by a court, as far as it depends on the


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place of residence of the decedent, or of the location of his estate, shall not be contested in a suitor proceeding, except in an appeal from that court, in the original case, or when the want ofjurisdiction appears on the record.

We find this recourse to be untenable. The jurisdiction of the Court of First Instance of Bulacan becamevested upon the delivery thereto of the will of the late Father Rodriguez on March 4, 1963, even if no

petition for its allowance was filed until later, because upon the will being deposited the court could, motuproprio, have taken steps to fix the time and place for proving the will, and issued the correspondingnotices conformably to what is prescribed by section 3, Rule 76, of the Revised Rules of Court (Section 3,Rule 77, of the old Rules):

SEC. 3. Court to appoint time for proving will. Notice thereof to be published.When a will isdelivered to, or a petition for the allowance of a will is filed in, the Court having jurisdiction, suchCourt shall fix a time and place for proving the will when all concerned may appear to contest theallowance thereof, and shall cause notice of such time and place to be published three (3) weekssuccessively, previous to the time appointed, in a newspaper of general circulation in theprovince.

But no newspaper publication shall be made where the petition for probate has been filed by the

testator himself.

The use of the disjunctive in the words "when a will is delivered to OR a petition for the allowance of a willis filed" plainly indicates that the court may act upon the mere deposit therein of a decedent's testament,even if no petition for its allowance is as yet filed. Where the petition for probate is made after the depositof the will, the petition is deemed to relate back to the time when the will was delivered. Since thetestament of Fr. Rodriguez was submitted and delivered to the Court of Bulacan on March 4, whilepetitioners initiated intestate proceedings in the Court of First Instance of Rizal only on March 12, eightdays later, the precedence and exclusive jurisdiction of the Bulacan court is incontestable. 1wph1.t

But, petitioners object, section 3 of revised Rule 76 (old Rule 77) speaks of a will being delivered to "theCourt having jurisdiction," and in the case at bar the Bulacan court did not have it because the decedentwas domiciled in Rizal province. We can not disregard Fr. Rodriguez's 33 years of residence as parish

priest in Hagonoy, Bulacan (1930-1963); but even if we do so, and consider that he retained throughoutsome animus revertendito the place of his birth in Paraaque, Rizal, that detail would not imply that theBulacan court lacked jurisdiction. As ruled in previous decisions, the power to settle decedents' estates isconferred by law upon all courts of first instance, and the domicile of the testator only affects the venuebut not the jurisdiction of the Court (In reKaw Singco, 74 Phil. 239; Reyes vs. Diaz, 73 Phil. 484; Bernabevs. Vergara, 73 Phil. 676). Neither party denies that the late Fr. Rodriguez is deceased, or that he leftpersonal property in Hagonoy, province of Bulacan (t.s.n. p. 46, hearing of June 11, 1963, Annex "H",Petition, Rec., p. 48). That is sufficient in the case before us.

In the Kaw Singcocase (ante) this Court ruled that:

"... If we consider such question of residence as one affecting the jurisdiction of the trial courtover the subject-matter, the effect shall be that the whole proceedings including all decisions on

the different incidents which have arisen in court will have to be annulled and the same case willhave to be commenced anew before another court of the same rank in another province. Thatthis is of mischievous effect in the prompt administration of justice is too obvious to requirecomment. (Cf. Tanunchuan vs. Dy Buncio & Co., G.R. No. 48206, December 31, 1942).Furthermore, section 600 of Act No. 190, providing that the estate of a deceased person shall besettled in the province where he had last resided, could not have been intended as defining thejurisdiction of the probate court over the subject matter, because such legal provision is containedin a law of procedure dealing merely with procedural matters, and, as we have said time andagain, procedure is one thing and jurisdiction over the subject matter is another. (AttorneyGeneral vs. Manila Railroad Company, 20 Phil. 523.) The law of jurisdiction Act No. 136,Section 56, No. 5 confers upon Courts of First Instance jurisdiction over all probate casesindependently of the place of residence of the deceased.1Since, however, there are many Courtsof First Instance in the Philippines, the Law of Procedure, Act No. 190, section 600, fixes the

venue or the place where each case shall be brought. Thus, the place of residence of thedeceased is not an element of jurisdiction over the subject matter but merely of venue. And it isupon this ground that in the new Rules of Court the province where the estate of a deceasedperson shall be settled is properly called "venue" (Rule 75, section 1.) Motion for reconsiderationis denied.

The estate proceedings having been initiated in the Bulacan Court of First Instance ahead of any other,that court is entitled to assume jurisdiction to the exclusion of all other courts, even if it were a case of


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wrong venue by express provisions of Rule 73 (old Rule 75) of the Rules of Court, since the same enjoinsthat:

The Court first taking cognizance of the settlement of the estate of a decedent shall exercisejurisdiction to the exclusion of all other courts. (Sec. 1)

This disposition presupposes that two or more courts have been asked to take cognizance of thesettlement of the estate. Of them only one could be of proper venue, yet the rule grants precedence tothat Court whose jurisdiction is first invoked, without taking venue into account.

There are two other reasons that militate against the success of petitioners. One is that their commencingintestate proceedings in Rizal, after they learned of the delivery of the decedent's will to the Court ofBulacan, was in bad faith, patently done with a view to divesting the latter court of the precedenceawarded it by the Rules. Certainly the order of priority established in Rule 73 (old Rule 75) was notdesigned to convert the settlement of decedent's estates into a race between applicants, with theadministration of the properties as the price for the fleetest.

The other reason is that, in our system of civil law, intestate succession is only subsidiary or subordinateto the testate, since intestacy only takes place in the absence of a valid operative will. Says Article 960 of

the Civil Code of the Philippines:

ART. 960. Legal or intestate succession takes place:

(1) If a person dies without a will, or with a void will, or one which has subsequently lost itsvalidity;

(2) When the will does not institute an heir to, or dispose of all the property belonging to thetestator. In such case, legal succession shall take place only with respect to the property in whichthe testator has not disposed;

(3) If the suspensive condition attached to the institution of heir does not happen or is not fulfilled,

or if the heir dies before the testator, or repudiates the inheritance, there being no substitution,and no right of accretion takes place;

(4) When the heir instituted is incapable of succeeding, except in cases provided in this Code.

Therefore, as ruled in Castro, et al. vs. Martinez, 10 Phil. 307, "only after final decision as to the nullity oftestate succession could an intestate succession be instituted in the form of pre-established action". Theinstitution of intestacy proceedings in Rizal may not thus proceed while the probate of the purported will ofFather Rodriguez is pending.

We rule that the Bulacan Court of First Instance was entitled to priority in the settlement of the estate inquestion, and that in refusing to dismiss the probate. proceedings, said court did not commit any abuse ofdiscretion. It is the proceedings in the Rizal Court that should be discontinued.

Wherefore, the writ of certiorariapplied for is denied. Costs against petitioners Rodriguez.

G.R. No. L-29184 January 30, 1989

BENEDICTO LEVISTE, petitioner,vs.THE COURT OF APPEALS, HON. JUDGE LUIS B. REYES, COURT OF FIRST INSTANCE OFMANILA, ROSA DEL ROSARIO, RITA BANU, CARMEN DE GUZMAN-MARQUEZ, JESUS R. DEGUZMAN, RAMON R. DE GUZMAN, JACINTO R. DE GUZMAN and ANTONIO R. DEGUZMAN, respondents.

Benedicto Leviste for and in his own behalf.

Gatchalian, Ignacio & Associates for respondents de Guzman.

GRIO-AQUINO,J.:


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The issue in this case is whether or not an attorney who was engaged on a contingent fee basis may, inorder to collect his fees, prosecute an appeal despite his client's refusal to appeal the decision of the trialcourt.

On September 7, 1963, the petitioner, a practicing attorney, entered into a written agreement with theprivate respondent Rosa del Rosario to appear as her counsel in a petition for probate of the holographic

will of the late Maxima C. Reselva. Under the will, a piece of real property at Sales Street, Quiapo, Manila,was bequeathed to Del Rosario. It was agreed that petitioner's contigent fee would be thirty-five per cent(35%) of the property that Rosa may receive upon the probate of the will (Annex "A", p. 59, Rollo).

In accordance with their agreement, Leviste performed the following services as Del Rosario's counsel:

(1) Thoroughly researched and studied the law on probate and succession;

(2) Looked for and interviewed witnesses, and took their affidavits;

(3) Filed the petition for. probate is Special Proceeding No. 58325;

(4) Made the proper publications;

(5) Presented at the trial the following witnesses:

a) Eleuterio de Jesus

b) Lucita de Jesus

c) Purita L. Llanes

d) Rita Banu

e) Jesus Lulod.

On August 20, 1965, Leviste received a letter from Ms. Del Rosario, informing him that she wasterminating his services as her counsel due to "conflicting interest." This consisted, according to the letter,in petitioner's moral obligation to protect the interest of his brother-in-law, Gaudencio M. Llanes, whomDel Rosario and the other parties in the probate proceeding intended to eject as lessee of the propertywhich was bequeathed to Del Rosario under the will (Annex "B", p. 60, Rollo).

On September 20, 1965, petitioner filed a "Motion to Intervene to Protect His Rights to Fees forProfessional Services." (Annex "B", p. 60, Rollo.)

In an order dated November 12, 1965 the trial court denied his motion on the ground that he had "not fileda claim for attorney's fees nor recorded his attorney's lien." (p. 3, Rollo.)

On November 23, 1965, petitioner filed a "Formal Statement of Claim for Attorney's Fees and Recordingof Attorney's Lien,' which was noted in the court's order of December 20, 1965 (Annexes "D" and "E", pp.63 & 64, Rollo).

Although the order denying his motion to intervene had become final, petitioner continued to receivecopies of the court's orders, as well the pleadings of the other parties in the case. He also continued to filepleadings. The case was submitted for decision without the respondents' evidence.

On November 23, 1966, Del Rosario and Rita Banu, the special administratrix-legatee, filed a "Motion ToWithdraw Petition for Probate" alleging that Del Rosario waived her rights to the devise in her favor andagreed that the De Guzman brothers and sisters who opposed her petition for probate, shall inherit all theproperties left by the decedent. (Annex "F", p. 65, Rollo.)

In an order of April 13, 1967 the trial court denied the motion to withdraw the petition for being contrary topublic policy (Annex "G", pp. 66-67, Rollo).

Nonetheless, on August 28, 1967, the court disallowed the will, holding that the legal requirements for itsvalidity were not satisfied as only two witnesses testified that the will and the testatrix's signature were inthe handwriting of Maxima Reselva.


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The petitioner filed an appeal bond, notice of appeal, and record on appeal. The private respondents fileda motion to dismiss the appeal on the ground that petitioner was not a party in interest.

The petitioner opposed the motion to dismiss his appeal, claiming that he has a direct and materialinterest in the decision sought to be reviewed. He also asked that he be substituted as party-petitioner, inlieu of his former client, Ms. Del Rosario.

On March 28, 1968, the trial judge dismissed the appeal and denied petitioner's motion for substitution.

The petitioner filed in the Court of Appeals a petition for mandamus(CA-G.R. No. 41248) praying that thetrial court be ordered to give due course to his appeal and to grant his motion for substitution.

On May 22, 1968, the Court of Appeals dismissed the petition for being insufficient in form and substanceas the petitioner did not appear to be the proper party to appeal the decision in Special Proceeding No.58325 (Annex 1, p. 77, Rollo).

Upon the denial of his motion for reconsideration, petitioner appealed by certiorari to this Court, assigningthe following errors against the Court of Appeals' resolution:

1. The Court of Appeals erred in finding that the petitioner appears not to be the properparty to appeal the decision in Sp. Proc. No. 58325 of the Court of First Instance ofManila.

2. Assuming the petitioner's right of appeal is doubtful, the Court of Appeals erred indismissing his petition for mandamus; and

3. The Court of Appeals erred in not reversing the decision in Sp. Proc. No. 58325denying the probate of the holographic will of the late Maxima C. Reselva, said decisionbeing patently erroneous.

Under his first assignment of error, petitioner argues that by virtue of his contract of services with Del

Rosario, he is a creditor of the latter, and that under Article 1052 of the Civil Code which provides:

ART. 1052. If the heir repudiates the inheritance to the prejudice of his own creditors, thelatter may petition the court to authorize them to accept it in the name of the heir.

The acceptance shall benefit the creditors only to an extent sufficient to cover the amountof their credits. The excess, should there be any, shall in no case pertain to therenouncer, but shall be adjudicated to the persons to whom, in accordance with the rulesestablished in this Code, it may belong.

he has a right to accept for his client Del Rosario to the extent of 35% thereof the devise in her favor(which she in effect repudiated) to protect his contigent attorney's fees.

The argument is devoid of merit. Article 1052 of the Civil Code does not apply to this case. That legalprovision protects the creditor of a repudiating heir. Petitioner is not a creditor of Rosa del Rosario. Thepayment of his fees is contingent and dependent upon the successful probate of the holographic will.Since the petition for probate was dismissed by the lower court, the contingency did not occur. AttorneyLeviste is not entitled to his fee.

Furthermore, Article 1052 presupposes that the obligor is an heir. Rosa del Rosario is not a legal heir ofthe late Maxima C. Reselva. Upon the dismissal of her petition for probate of the decedent's will, she losther right to inherit any part of the latter's estate. There is nothing for the petitioner to accept in her name.

This Court had ruled in the case of Recto vs. Harden, 100 Phil. 1427, that "the contract (for contingentattorney's fees) neither gives, nor purports to give, to the appellee (lawyer) any right whatsoever, personal

or real, in and to her (Mrs. Harden's) aforesaid share in the conjugal partnership. The amount thereof issimply a basisfor thecomputationof said fees."

The Court of Appeals did not err in dismissing the petition for mandamus, for while it is true that, ascontended by the petitioner, public policy favors the probate of a will, it does not necessarily follow thatevery will that is presented for probate, should be allowed. The law lays down procedures which shouldbe observed and requisites that should be satisfied before a will may be probated. Those procedures andrequirements were not followed in this case resulting in the disallowance of the will. There being no validwill, the motion to withdraw the probate petition was inconsequential.


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Petitioner was not a party to the probate proceeding in the lower court. He had no direct interest in theprobate of the will. His only interest in the estate is an indirect interest as former counsel for a prospectiveheir. In Paras vs. Narciso, 35 Phil. 244, We had occassion to rule that one who is only indirectlyinterested in a will may not interfere in its probate. Thus:

... the reason for the rule excluding strangers from contesting the will, is not that thereby

the court maybe prevented from learning facts which would justify or necessitate a denialof probate, but rather that the courts and the litigants should not be molested by theintervention in the proceedings of persons with no interest in the estate which wouldentitle them to be heard with relation thereto. (Paras vs. Narciso, 35 Phil. 244, 246.)

Similary, in Morente vs. Firmalino, 40 O.G. 21st Supp. 1, We held:

We are of the opinion that the lower court did not err in holding that notice of anattorney's lien did not entitle the attorney-appellant to subrogate himself in lieu of hisclient. It only gives him the right to collect a certain amount for his services in case hisclient is awarded a certain sum by the court.

WHEREFORE, the petition for certiorariis denied for lack of merit. Costs against the petitioner.

Rule 76. Allowance or disallowance of will

[G.R. No. L-5405. January 31, 1956.]

ERNESTO M. GUEVARA, Petitioner, vs. ROSARIO GUEVARA and PEDRO C. QUINTO, Respondents.

D E C I S I O N

CONCEPCION,J.:

This is a petition for review by certiorari of a decision of the Court of Appeals. The pertinent facts are set forth in

said decision, from which we quote:chanroblesvirtuallawlibrary

This case being the sequel to, and aftermath of, a previous litigation between the parties that reached the

Supreme Court, through the former Court of Appeals, it becomes necessary to restate the essential antecedent

facts to view the issues in proper perspective. For this purpose, it is important to recall that on August 26, 1931,

Victorino L. Guevara, a resident of Bayambang, Pangasinan, executed a will (Exhibit A), distributing assorted

movables and a residential lot among his children, Rosario and Ernesto Guevara, and his stepchildren, Vivencio,

Eduvigis, Dionista, Candida, and Pio Guevara. To his second wife Augustia Posadas, the testator bequeathed, in

addition to various movables, a portion of 25 hectares to be taken out of a 259 odd hectare parcel outlined in Plan

Psu-68618, plus another five (5) hectares in settlement of her widows usufruct. The balance of the 259 odd

hectares he distributed as follows:chanroblesvirtuallawlibrary

100 hectares reserved for disposal during the testators lifetime and for payment of his debts and family expenses;

108.0854 hectares to his legitimate son Ernesto Guevara, including therein 43.2342 hectares by way of mejora;

21.6171 hectares to mi hija natural reconocida Rosario Guevara.

Ernesto Guevara was appointed executor without bond.

On July 12, 1933, the same testator executed a deed of sale in favor of Ernesto Guevara, conveying to the latter

the southern half of the 259-hectare lot heretofore mentioned, and expressly recognized Ernesto Guevara as

owner of the northern half.

Prior to this sale, on November 1, 1932, Victorino and his son Ernesto had jointly applied for registration of the big

parcel (case No. 15174), but in view of the sale from the former to the latter, the decree was issued in the name of

Ernesto Guevara exclusively and for the whole tract, a certificate of title (No. 51691 of Pangasinan) being issued in

his sole name on October 12, 1933.

Fifteen days previously, i.e., on September 27, 1933, Victorino Guevara died, but his will was not filed for probate.

About four years later, Rosario Guevara, claiming to be a recognized natural child of the deceased Victorino, andon the assumption that he had died intestate, brought suit against Ernesto Guevara to recover 423,492 square

meters of the tract covered by certificate of title No. 51691 as the portion that should correspond to her (Rosario)

by way of legitime.

The case reached the former Court of Appeals in due course and was decided in Rosario Guevaras favor (Exhibit

E); chan roblesvirtualawlibrarybut upon certiorari, the Supreme Court modified the judgment in December, 1943,

as follows (Exhibit F);


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Wherefore, that part of the decision of the Court of Appeals which declares in effect that notwithstanding exhibit

2 and the issuance of original certificate of title No. 51691 in the name of Ernesto M. Guevara, one-half of the land

described in said certificate of title belongs to the estate of Victorino L. Guevara and the other half to Ernesto M.

Guevara in consideration of the latters assumption of the obligation to pay all the debts of the deceased, is hereby

affirmed; chan roblesvirtualawlibrarybut the judgment of said court insofar as it awarded any relief to

the RespondentRosario Guevara in this action is hereby reversed and set aside, and the parties are hereby ordered

to present the document Exhibit A to the proper court for probate in accordance with law, without prejudice tosuch action as the provincial fiscal of Pangasinan may take against the responsible party or parties under section 4

of Rule 76. After the said document is approved and allowed by the court as the last will and testament of the

deceased Victorino L. Guevara, the heirs and legatees herein named may take such action, judicial or extrajudicial,

as may be necessary to partition the estate of the testator, taking into consideration the pronouncements made in

part II of this opinion. No finding as to costs in any of the three instances. (Appellants Brief, pp. 13-14.)

Claiming to act pursuant to the foregoing decision, Rosario Guevara commenced on October 5, 1945, special

proceedings No. 2646 in the Court of First Instance of Pangasinan for the probate of the will of Victorino Guevara.

In paragraph 10 of the petition, it was alleged:chanroblesvirtuallawlibrary

10. Que dicho testamento, o sus disposiciones testamentarias, ha sido de jure revocado, o revocados, en cuanto a

la parcela de terreno de 259 hectareas descrita en dicho testamento, por haber el testador enajenado o dispuesto

intervivos de la misma en la forma mencionada en las tres decisiones supra-mencionadas; chan

roblesvirtualawlibraryy que la solicitante pide la legalizacion de dicho testamento tan solo para los efectos del

reconocimiento de hija natural hecha en dicho testamento a favor de la demandante y en obediencia al mandato

de la Corte Suprema en su decision supra.(Record on Appeal, p. 5.)

Notice of the petition having been duly published pursuant to Rule of Court 77, section 4, Ernesto Guevara

appeared and opposed the probate. Pedro L. Quinto, counsel for Rosario in the former litigation, was allowed to

intervene in view of his duly recorded attorneys lien.

On January 31, 1946, Ernesto Guevara, through counsel, filed a motion to dismiss the petition on the grounds that

(a) the petition itself alleged that the will was revoked; chan roblesvirtualawlibrary(b) that whatever right to

probate the parties may have has already prescribed (Record on Appeal, p. 14); chan roblesvirtualawlibraryand (c)

that the purpose of the probate was solely to have PetitionerRosario declared an acknowledged natural child of

the deceased.

By order of December 9, 1946, Judge Sotero Rodas denied the motion to dismiss; chan roblesvirtualawlibrarybut

upon motion of reconsideration, Judge Maalac of the same court, on June 23, 1937, reconsidered and set aside

the previous resolution and ordered the petition dismissed on the ground that Rosario Guevaras petition did not

ask for the probate in toto of the will, contrary to the order of the Supreme Court; chan roblesvirtualawlibrarythat

her right to petition for the probate of the testament of Victorino L. Guevara had prescribed; chan

roblesvirtualawlibraryand that her action for judicial declaration of acknowledgment had likewise prescribed.

An amended petition for the probate of the will in toto and another petition to reconsider the previous order were

subsequently denied; chan roblesvirtualawlibra

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