Spec Pro Rule 73

SPECIAL PROCEEDINGS CASES – RULE 73NARTATEZ, CARELL

G.R. No. L-8409 December 28, 1956In the Matter of the Intestate of the deceased Andres Eusebio. EUGENIO

EUSEBIO, petitioner-appellee, vs. AMANDA EUSEBIO, JUAN EUSEBIO, DELFIN EUSEBIO, VICENTE EUSEBIO,

and CARLOS EUSEBIO, oppositors-appellants.

This case instituted on November 16, 1953, when Eugenio Eusebio filed with the Court of First Instance of Rizal, a petition for his appointment as administrator of the estate of his father, Andres Eusebio, who died on November 28, 1952, residing, according to said petition, in the City of Quezon. On December 4, 1953, Amanda, Virginia, Juan, Delfin, Vicente and Carlos, all surnamed Eusebio, objected to said petition, stating that they are illegitimate children of the deceased and that the latter was domiciled in San Fernando, Pampanga, and praying, therefore, that the case be dismissed upon the ground that venue had been improperly filed. By an order, dated March 10, 1954, said court overruled this objection and granted said petition. Hence, the case is before us on appeal taken, from said order, by Amanda Eusebio, and her aforementioned sister and brothers.

The appeal hinges on the situs of the residence of Andres Eusebio on November 28, 1952, for Rule 75, section 1, of the Rules of Court, provides:

Where estate of deceased persons settled. — If the decedent is an inhabitant of the Philippines at the time of his death, whether a citizens or an alien, his will shall be proved, or letters of administration granted, and his estate, in the Court of First Instance in the province in which he resides at the time of his death, and if he is an inhabitant of a foreign country, the Court of First Instance of any province in which he had estate. The court first taking cognizance of the settlement of the estate of a decedent, shall exercise jurisdiction to the exclusion of all other courts. The jurisdiction assumed by a court, so far as it depends on the place of residence of the decedent, or of the location of his estate, shall not be contested in a suit or proceeding, except in an appeal from that court, in the original case, or when the want of jurisdiction appears on the record.

It is not disputed that up to, at least, October 29, 1952, Andres Eusebio was, and had always been, domiciled in San Fernando, Pampanga, where he had his home, as well as some other properties. Inasmuch as his heart was in bad condition and his son, Dr. Jesus Eusebio, who treated him, resided at No. 41 P. Florentino St., Quezon City, on October 29, 1952, Andres Eusebio bought a house and lot at 889-A España Extention,

in said City (Exhibit 2). While transferring his belongings to this house, soon thereafter, the decedent suffered a stroke (probably heart failure), for which reason Dr. Eusebio took him to his (Dr. Eusebio's) aforementioned residence, where the decedent remained until he was brought to the UST Hospital, in the City of Manila, sometimes before November 26, 1952. On this date, he contracted marriage in articulo mortis with his common law wife, Concepcion Villanueva, in said hospital. Two (2) days later, he died therein of "acute left ventricular failure secondary to hypertensive heart disease", at the age of seventy-four (74) years (Exhibit A). Consequently, he never stayed or even slept in said house at España Extention.

It being apparent from the foregoing that the domicile of origin of the decedent was San Fernando, Pampanga, where he resided for over seventy (70) years, the presumption is that he retained such domicile, and, hence, residence, in the absence of satisfactory proof to the contrary, for it is well-settled that "a domicile once acquired is retained until a new domicile is gained" (Minor, Conflict of Laws, p.70; Restatement of the Law on Conflict of Laws, p. 47; In re Estate of Johnson, 192 Iowa, 78). Under the circumstances surrounding the case at bar, if Andres Eusebio established another domicile, it must have been one of choice, for which the following conditions are essential, namely: (1) capacity to choose and freedom of choice; (2) physical presence at the place chosen; and (3) intention to stay therein permanently (Minor, Conflict of Laws, pp. 109-110; Googrich, Conflict of Laws, p. 169; Velilla vs. Posadas, 62 Phil., 624; Zuellig vs. Republic of the Philippines, 46 Off. Gaz. Suppl. No. 11, p. 220). Admittedly, the decedent was juridically capable of choosing a domicile and had been in Quezon City several days prior to his demise. Thus, the issue narrows down to whether he intended to stay in that place permanently.

There is no direct evidence of such intent. Neither does the decedent appears to have manifested his wish to live indefinitely in said city. His son, petitioner-appellee, who took the witness stand, did not testify thereon, despite the allegation, in his answer to the aforemention, opposition of the appellants herein, that "the deceased (had) decided to reside . . . for the rest of his life, in Quezon City". Moreover, said appellee did not introduce the testimony of his legitimate full brother and son of the decedent, Dr. Jesus Eusebio, upon whose advice, presumably, the house and lot at No. 889-A España Extention was purchased, and who, therefore, might have cast some light on his (decedent's) purpose in buying said property. This notwithstanding, the lower court held that the decedent's intent to stay permanently in Quezon City is "manifest" from the acquisition of said property and the transfer of his belonging thereto. This conclusion is untenable.lawphil.net

SPECIAL PROCEEDINGS CASES – RULE 73

The aforementioned house and lot were bought by the decedent because he had been adviced to do so "due to his illness", in the very words of herein appellee. It is not improbable — in fact, its is very likely — that said advice was given and followed in order that the patient could be near his doctor and have a more effective treatment. It is well settled that "domicile is not commonly changed by presence in a place merely for one's own health", even if coupled with "knowledge that one will never again be able, on account of illness, to return home." (The Conflict of Laws, by Beale, Vol. I, pp. 172-173; see, also, Shenton vs. Abbott, Md., 15., A. 2d. 906; U.S. vs. Knight, D. C. Mont., 291 Fed. 129).

Again, the decedent did not part with, or alienate, his house in San Fernando, Pampanga. Moreover, some of his children, who used to live with him in San Fernando, Pampanga, remained in that municipality. Then, again, in the deed Exhibit 2, by virtue of which said property at No. 889-A España Extention, Quezon City, was conveyed to him, on October 29, 1952, or less than a month before his death, the decedent gave San Fernando, Pampanga, as his residence. Similarly, the "A" and "B" residence certificates used by the decedent in aknowledging said Exhibit 2, before a notary public, was issued in San Fernando, Pampanga. Lastly, the marriage contract Exhibit 1, signed by the deceased when he was married, in articulo mortis, to Concepcion Villanueva, at the UST Hospital, on November 26, 1952, or two (2) days prior to his demise, stated that his residence is San Fernando, Pampanga. It is worthy of notice that Alfonso Eusebio, one of the legitimate full brothers of the herein appellee, was a witness to said wedding, thus indicating that the children of the deceased by his first marriage, including said appellee, were represented on that occasion and would have objected to said statement about his residence, if it were false. Consequently, apart from appellee's failure to prove satisfactory that the decedent had decided to establish his home in Quezon City, the acts of the latter, shortly and immediately before his death, prove the contrary. At any rate, the presumption in favor of the retention of the old domicile 1— which is particularly strong when the domicile is one of the origin 2as San Fernando, Pampanga, evidently was, as regards said decedent — has not been offset by the evidence of record.

The lower court, however, rejected said Exhibits 1 and 2, upon being offered in evidence, and refused to entertain the same in the order appealed from. The reason therefor are deducible from its resolution in rejecting said documents during the hearing of the incident at bar. The court then held:

Exihibits "1" and "2" are rejecting but the same may be attached to the records for whatever action oppositors may want to take later on because until now the personality of the oppositors has not been established whether or not they

have a right to intervene in this case, and the Court cannot pass upon this question as the oppositors refuse to submit to the jurisdiction of this Court and they maintain that these proceedings should be dismissed. (P. 10, t. s. n.)

In short, the lower court believed that said documents should not be admitted in evidence before appellants had established their "personality" to intervene in the case, referring seemingly to their filiation. When appellants, however, sought, during said hearing, to establish their relation with the deceased, as his alleged illegitimate children, His Honor, the trial Judge sustained appellee's objection thereto stating:

Your stand until now is to question the jurisdiction of this Court, and it seems that you are now trying to prove the status of your client; you are leading so that. The main point here is your contention that the deceased was never a resident of Quezon City and that is why I allowed you to cross-examine. If you are trying to establish the status of the oppositors, I will sustain the objection, unless you want to submit to the jurisdiction of the Court. This is not yet the time to declare who are persons who should inherit. (p. 1, t. s. n.)

Thus, the lower court refused to consider appellant's evidence on the domicile of the decedent, because of their alleged lack of "personality", but, when tried to establish such "personality", they were barred from doing so on account of the question of venue raised by him. We find ourselves unable to sanction either the foregoing procedure adopted by the lower court or the inference it drew from the circumstances surrounding the case.

To begin with, His Honor, the trial Judge had taken inconsistent positions. While, on the one hand, he declared that appellants could not be permitted to introduce evidence on the residence of the decedent, for they contestedthe jurisdiction of court, on the other hand, he held, in the order appealed from, that, by cross-examining the appellee, said appellants had submitted themselves to the authority of the court.

What is more, this conclusion is refuted by the record. At the beginning of the hearing, in the lower court, appellants' counsel announced that he would take part therein "only to question the jurisdiction, for the purpose of dismissing this proceeding," (p. 2, t.s.n.). During the cross-examination of petitioner herein, said counsel tried to elicit the relation between the decedent and the appellants. As, the appellee objected thereto, the court said, addressing appellants' counsel: "Your stand until now is to question the jurisdiction of the court. . . . It you are trying to establish the status of the oppositors, I will sustain the objection, unless you want to submit to the jurisdiction of the court" (p.

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7, t.s.n.). Thereupon, appellants' counsel refused to do so, stating: "I will insist on my stand." Then, too, at the conclusion of the hearing, the court rejected Exhibits 1 and 2, for the reason that appellants "refuse to submit to the jurisdiction of this court and they maintain that these proceedings should bedismissed." Thus, appellants specially made of record that they were not submitting themselves to the jurisdiction of the court, except for the purpose only of assailing the same, and the court felt that appellants were not giving up their stand, which was, and is, a fact.

At any rate, appellants were entitled to establish facts tending to prove, not only their right to object to appellee's petition, but, also, that venue had been laid improperly. Such facts were: (a) their alleged relationship with the decedent, 3 which, if true, entitle them to proceed him under the Civil Code of the Philippines; and (b) his alleged residence is Pampanga. In other words, the lower court should have admitted Exhibits 1 and 2 in evidence and given thereto the proper effect, in connection with the issue under consideration.

Appellee, however, asks: "What will happen if this case be dismissed in the Court of First Instance of Quezon City on the ground of lack of jurisdiction or improper venue?" In this connection, it appears that on November 14, 1953, the Clerk of the Court of First Instance of Pampanga received a petition of appellants herein, dated November 4, 1953, for the settlement of the "Intestate Estate of the late Don Andres Eusebio". Attached to said petition was petition for the docketing thereof free charge, pursuant to Rule 3, section 22, of the Rules of Court. The latter petition was granted by an order dated November 16, 1953, which was received by the cashier of said court on November 17, 1953, on which date the case was docketed as Special Proceedings No. 957. On December 14, 1953, Jesus, Eugenio, Amando and Alfonso, all surnamed Eusebio (the children of the decedent by first marriage, including petitioner herein), moved for the dismissal of said proceedings, owing to the pendency of the present case, before the Court of First Instance of Rizal, since November 16, 1953. This motion was granted in an order dated December 21, 1953, relying upon the above Rule 75, section 1, of the Rules of Court, pursuant to which "the court first taking cognizance of the settlement of the estate of a decedent, shall exercise jurisdiction to the exclusion of all other courts."

Although said order is now final, it cannot affect the outcome of the case at bar. Said order did not pass upon the question of domicile or residence of the decedent. Moreover, in granting the court first taking cognizance of the case exclusive jurisdiction over the same, said provision of the Rules of Court evidently refers to cases triable before two or more courts with concurrent jurisdiction. It could not possibly have

intended to deprive a competent court of the authority vested therein by law, merely because a similar case had been previously filed before a court to which jurisdiction is denied by law, for the same would then be defeated by the will of one of the parties. More specially, said provision refers mainly to non-resident decedents who have properties in several provinces in the Philippines, for the settlement of their respective estates may undertaken before the court of first instance of either one of said provinces, not only because said courts then have concurrent jurisdiction — and, hence, the one first taking cognizance of the case shall exclude the other courts — but, also, because the statement to this effect in said section 1 of Rule 75 of the Rules of the Court immediately follows the last part of the next preceding sentence, which deals with non-resident decedents, whose estate may settled the court of first instance of any province in which they have properties.lawphil.net

In view, however, of the last sentence of said section, providing that:

. . . The jurisdiction assumed by a court, so far as it depends on the place of residence of the decedent, or of the location of his estate, shall not be contested in a suit or proceedings, except in an appeal from that court, in the original case, or when the want of jurisdiction appears on the record.

if proceedings for the settlement of the estate of a deceased resident are instituted in two or more courts, and the question of venue is raised before the same, the court in which the first case was filed shall have exclusive jurisdiction to decide said issue, and we so held in the case of Taciana Vda. De Borja vs. Tan, L-7792 (July 27, 1955). Should it be decided, in the proceedings before the said court, that venue had been improperly laid, the case pending therein should be dismissed and the corresponding proceedings may, thereafter, be initiated in the proper court.

In conclusion, we find that the decedent was, at the time of his death, domiciled in San Fernando, Pampanga; that the Court of First Instance of Rizal had no authority, therefore, to appoint an administrator of the estate of the deceased, the venue having been laid improperly; and that it should, accordingly, have sustained appellants' opposition and dismissed appellee's petition.

Wherefore, the order appealed from is hereby reversed and appellee's petition is dismissed, with costs against the appellee. It is so ordered.


G.R. No. L-40502 November 29, 1976VIRGINIA GARCIA FULE, and HONORABLE SEVERO A. MALVAR, Presiding Judge, Court of First Instance of Laguna, Branch Vl, petitioners, vs.THE HONORABLE COURT OF APPEALS, * PRECIOSA B. GARCIA and AGUSTINA B. GARCIA, respondents.G.R. No. L-42670 November 29, 1976VIRGINIA GARCIA FULE, petitioner, vs.HONORABLE ERNANI C. PAÑO, Presiding Judge of Court of First Instance of Rizal, Quezon City, Branch XVIII, and PRECIOSA B. GARCIA, respondents.

These two interrelated cases bring to Us the question of what the word "resides" in Section 1, Rule 73 of the Revised Rules Of Court, referring to the situs of the settlement of the estate of deceased persons, means. Additionally, the rule in the appointment of a special administrator is sought to be reviewed.

On May 2, 1973, Virginia G. Fule filed with the Court of First Instance of Laguna, at Calamba, presided over by Judge Severo A. Malvar, a petition for letters of administration, docketed as Sp. Proc. No. 27-C, alleging, inter alia, "that on April 26, 1973, Amado G. Garcia, a property owner of Calamba, Laguna, died intestate in the City of Manila, leaving real estate and personal properties in Calamba, Laguna, and in other places, within the jurisdiction of the Honorable Court." At the same time, she moved ex parte for her appointment as special administratrix over the estate. On even date, May 2, 1973, Judge Malvar granted the motion.

A motion for reconsideration was filed by Preciosa B. Garcia on May 8, 1973, contending that the order appointing Virginia G. Fule as special administratrix was issued without jurisdiction, since no notice of the petition for letters of administration has been served upon all persons interested in the estate; there has been no delay or cause for delay in the proceedings for the appointment of a regular administrator as the surviving spouse of Amado G. Garcia, she should be preferred in the appointment of a special administratrix; and, Virginia G. Fule is a debtor of the estate of Amado G. Garcia. Preciosa B. Garcia, therefore, prayed that she be appointed special administratrix of the estate, in lieu of Virginia G. Fule, and as regular administratrix after due hearing.

While this reconsideration motion was pending resolution before the Court, Preciosa B. Garcia filed on May 29, 1973 a motion to remove Virginia G. Fule as special administratrix alleging, besides the jurisdictional ground raised in the motion for reconsideration of May 8, 1973 that her appointment was obtained through erroneous, misleading and/or incomplete misrepresentations; that Virginia G. Fule has adverse interest against the estate; and that she has shown herself unsuitable as administratrix and as officer of the court.

In the meantime, the notice of hearing of the petition for letters of administration filed by Virginia G. Fule with the Court of First Instance of Calamba, Laguna, was published on May 17, 24, and 31, 1973, in the Bayanihan, a weekly publication of general circulation in Southern Luzon.

On June 6, 1973, Preciosa B. Garcia received a "Supplemental Petition for the Appointment of Regular Administrator ' filed by Virginia G. Fule. This supplemental petition modified the original petition in four aspects: (1) the allegation that during the lifetime of the deceased Amado G. Garcia, he was elected as Constitutional Delegate for the First District of Laguna and his last place of residence was at Calamba, Laguna; (2) the deletion of the names of Preciosa B. Garcia and Agustina Garcia as legal heirs of Amado G. Garcia; (3) the allegation that Carolina Carpio, who was simply listed as heir in the original petition, is the surviving spouse of Amado G. Garcia and that she has expressly renounced her preferential right to the administration of the estate in favor of Virginia G. Fule; and (4) that Virginia G. Fule be appointed as the regular administratrix. The admission of this supplemental petition was opposed by Preciosa B. Garcia for the reason, among others, that it attempts to confer jurisdiction on the Court of First Instance of Laguna, of which the court was not possessed at the beginning because the original petition was deficient.

On July 19, 1973, Preciosa B. Garcia filed an opposition to the original and supplemental petitions for letters of administration, raising the issues of jurisdiction, venue, lack of interest of Virginia G. Fule in the estate of Amado G. Garcia, and disqualification of Virginia G Fule as special administratrix.

An omnibus motion was filed by Virginia G. Fule on August 20, 1973, praying for authority to take possession of properties of the decedent allegedly in the hands of third persons as well as to secure cash advances from the Calamba Sugar Planters Cooperative Marketing Association, Inc. Preciosa B. Garcia opposed the motion, calling attention to the limitation made by Judge Malvar on the power of the special

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administratrix, viz., "to making an inventory of the personal and real properties making up the state of the deceased."

However, by July 2, 1973, Judge Malvar and already issued an order, received by Preciosa B. Garcia only on July 31, 1973, denying the motion of Preciosa B. Garcia to reconsider the order of May 2, 1973, appointing Virginia G. Fule as special administratrix, and admitting the supplementation petition of May 18,1973.

On August 31, 1973, Preciosa B. Garcia moved to dismiss the petition, because (1) jurisdiction over the petition or over the parties in interest has not been acquired by the court; (2) venue was improperly laid; and (3) Virginia G. Fule is not a party in interest as she is not entitled to inherit from the deceased Amado G. Garcia.

On September 28, 1973, Preciosa B. Garcia filed a supplemental motion to substitute Virginia G. Fule as special administratrix, reasoning that the said Virginia G. Fule admitted before before the court that she is a full-blooded sister of Pablo G. Alcalde, an illegitimate son of Andrea Alcalde, with whom the deceased Amado G. Garcia has no relation.

Three motions were filed by Preciosa B. Garcia on November 14, 1973, one, to enjoin the special administratrix from taking possession of properties in the hands of third persons which have not been determined as belonging to Amado G. Garcia; another, to remove the special administratrix for acting outside her authority and against the interest of the estate; and still another, filed in behalf of the minor Agustina B. Garcia, to dismiss the petition for want of cause of action, jurisdiction, and improper venue.

On November 28, 1973, Judge Malvar resolved the pending omnibus motion of Virgina G. Fule and the motion to dismiss filed by Preciosa B. Garcia. Resolving the motion to dismiss, Judge Malvar ruled that the powers of the special administratrix are those provided for in Section 2, Rule 80 of the Rules of Court, 1 subject only to the previous qualification made by the court that the administration of the properties subject of the marketing agreement with the Canlubang Sugar Planters Cooperative Marketing Association should remain with the latter; and that the special administratrix had already been authorized in a previous order of August 20, 1973 to take custody and possession of all papers and certificates of title and personal effects of the decedent with the Canlubang Sugar Planters Cooperative Marketing Association, Inc. Ramon Mercado, of the Canlubang Sugar Planters Cooperative Marketing Association, Inc., was ordered to deliver to Preciosa B. Garcia all certificates of title in her name without any qualifying words like "married to Amado Garcia" does not appear. Regarding the

motion to dismiss, Judge Malvar ruled that the issue of jurisdiction had already been resolved in the order of July 2, 1973, denying Preciosa B. Garcia's motion to reconsider the appointment of Virginia G. Fule and admitting the supplemental petition, the failure of Virginia G. Fule to allege in her original petition for letters of administration in the place of residence of the decedent at the time of his death was cured. Judge Malvar further held that Preciosa B. Garcia had submitted to the jurisdiction of the court and had waived her objections thereto by praying to be appointed as special and regular administratrix of the estate.

An omnibus motion was filed by Preciosa B. Garcia on December 27, 1973 to clarify or reconsider the foregoing order of Judge Malvar, in view of previous court order limiting the authority of the special administratrix to the making of an inventory. Preciosa B. Garcia also asked for the resolution of her motion to dismiss the petitions for lack of cause of action, and also that filed in behalf of Agustina B. Garcia. Resolution of her motions to substitute and remove the special administratrix was likewise prayed for.

On December 19, 1973, Judge Malvar issued two separate orders, the first, denying Preciosa B. Garcia's motions to substitute and remove the special administratrix, and the second, holding that the power allowed the special administratrix enables her to conduct and submit an inventory of the assets of the estate.

On January 7, 1974, Preciosa B. Garcia moved for reconsideration of the foregoing orders of November 28, 1973 and December 19, 1973, insofar as they sustained or failed to rule on the issues raised by her: (a) legal standing (cause of action) of Virginia G. Fule; (b) venue; (c) jurisdiction; (d) appointment, qualification and removal of special administratrix; and (e) delivery to the special administratrix of checks and papers and effects in the office of the Calamba Sugar Planters Cooperative Marketing Association, Inc.

On March 27, 1973, Judge Malvar issued the first questioned order denying Preciosa B. Garcia's motion for reconsideration of January 7, 1974. On July 19, 1974, Judge Malvar issued the other three questioned orders: one, directing Ramon Mercado, of the Calamba Sugar Planters Cooperative Marketing Association, Inc., to furnish Virginia G. Fule, as special administratrix, copy of the statement of accounts and final liquidation of sugar pool, as well as to deliver to her the corresponding amount due the estate; another, directing Preciosa B. Garcia to deliver to Virginia G. Fule two motor vehicles presumably belonging to the estate; and another, directing Ramon Mercado to deliver to the court all certificates of title in his possession in the name of Preciosa B. Garcia, whether qualified with the word "single" or "married to Amado Garcia."


During the hearing of the various incidents of this case (Sp. Proc. 27-C) before Judge Malvar, 2Virginia G. Fule presented the death certificate of Amado G. Garcia showing that his residence at the time of his death was Quezon City. On her part, Preciosa B. Garcia presented the residence certificate of the decedent for 1973 showing that three months before his death his residence was in Quezon City. Virginia G. Fule also testified that Amado G. Garcia was residing in Calamba, Laguna at the time of his death, and that he was a delegate to the 1971 Constitutional Convention for the first district of Laguna.

On July 26, 1974, Preciosa B. Garcia and Agustina B. Garcia commenced a special action for certiorari and/or prohibition and preliminary injunction before the Court of Appeals, docketed as CA-G.R. No. 03221-SP. primarily to annul the proceedings before Judge Malvar in Sp. Proc. No. 27-C of the Court of First Instance of Laguna, or, in the alternative, to vacate the questioned four orders of that court, viz., one dated March 27, 1974, denying their motion for reconsideration of the order denying their motion to dismiss the criminal and supplemental petitions on the issue, among others, of jurisdiction, and the three others, all dated July 19, 1974, directing the delivery of certain properties to the special administratrix, Virginia G. Fule, and to the court.

On January 30, 1975, the Court of Appeals rendered judgment annulling the proceedings before Judge Severo A. Malvar in Sp. Proc. 27-C of the Court of First Instance of Calamba, Laguna, for lack of jurisdiction.

Denied of their motion for reconsideration on March 31, 1975, Virginia G. Fule forthwith elevated the matter to Us on appeal by certiorari. The case was docketed as G.R. No. L-40502.

However, even before Virginia G. Fule could receive the decision of the Court of Appeals, Preciosa B. Garcia had already filed on February 1, 1975 a petition for letters of administration before the Court of First Instance of Rizal, Quezon City Branch, docketed as Sp. Proc. No. Q-19738, over the same intestate estate of Amado G. Garcia. On February 10, 1975, Preciosa B. Garcia urgently moved for her appointment as special administratrix of the estate. Judge Vicente G. Ericta granted the motion and appointed Preciosa B. Garcia as special administratrix upon a bond of P30,000.00. Preciosa B. Garcia qualified and assumed the office.

For the first time, on February 14, 1975, Preciosa B. Garcia informed Judge Ericta of the pendency of Sp. Proc. No. 27-C before Judge Malvar of the Court of First Instance of Laguna, and the annulment of the proceedings therein by the Court of Appeals on

January 30, 1975. She manifested, however, her willingness to withdraw Sp. Proc. Q-19738 should the decision of the Court of Appeals annulling the proceedings before the Court of First Instance of Laguna in Sp. Proc. No. 27-C have not yet become final, it being the subject of a motion for reconsideration.

On March 10, 1973, Judge Ericta ordered the suspension of the proceedings before his court until Preciosa B. Garcia inform the court of the final outcome of the case pending before the Court of Appeals. This notwithstanding, Preciosa B. Garcia filed on December 11, 1975, an "Urgent Petition for Authority to Pay Estate Obligations."

On December 13, 1975, Virginia G. Fule filed a "Special Appearance to Question Venue and Jurisdiction" reiterating the grounds stated in the previous special appearance of March 3, 1975, and calling attention that the decision of the Court of Appeals and its resolution denying the motion for reconsideration had been appealed to this Court; that the parties had already filed their respective briefs; and that the case is still pending before the Court.

On December 17, 1975, Judge Ernani Cruz Pano, who succeeded Judge Ericta, issued an order granting Preciosa B. Garcia's "Urgent Petition for Authority to Pay Estate Obligations" in that the payments were for the benefit of the estate and that there hangs a cloud of doubt on the validity of the proceedings in Sp. Proc. No. 27-C of the Court of First Instance of Laguna.

A compliance of this Order was filed by Preciosa B. Garcia on January 12,1976.

On February 4,1974, VIRGINIA G. FULE instituted G.R. No. L-42670, a petition for certiorari with temporary restraining order, to annul the proceedings in Sp. Proc. No. Q-19738 and to restrain Judge Ernani Cruz Paño from further acting in the case. A restraining order was issued on February 9, 1976.

We dismiss the appeal in G.R. No. L-40502 and the petition for certiorari in G.R. No. L-42670 for the reasons and considerations hereinafter stated.

1. Section 1, Rule 73 of the Revised Rules of Court provides: "If the decedent is an inhabitant of the Philippines at the time of his death, whether a citizen or an alien, his will shall be proved, or letters of administration granted, and his estate settled, in the Court of First Instance in the province in which he resides at the time of his death, and if he is an inhabitant of a foreign country, the Court of First Instance of any province in which he had estate. The court first taking cognizance of the settlement of the estate of

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a decedent, shall exercise jurisdiction to the exclusion of all other courts. The jurisdiction assumed by a court, so far as it depends on the place of residence of the decedent, or of the location of his estate, shall not be contested in a suit or proceeding, except in an appeal from that court, in the original case, or when the want of jurisdiction appears on the record." With particular regard to letters of administration, Section 2, Rule 79 of the Revised Rules of Court demands that the petition therefor should affirmatively show the existence of jurisdiction to make the appointment sought, and should allege all the necessary facts, such as death, the name and last residence of the decedent, the existence, and situs if need be, of assets, intestacy, where this is relied upon, and the right of the person who seeks administration, as next of kin, creditor, or otherwise, to be appointed. The fact of death of the intestate and his last residence within the country are foundation facts upon which all subsequent proceedings in the administration of the estate rest, and that if the intestate was not an inhabitant of the state at the time of his death, and left no assets in the state, no jurisdiction is conferred on the court to grant letters of administration. 3

The aforequoted Section 1, Rule 73 (formerly Rule 75, Section 1), specifically the clause "so far as it depends on the place of residence of the decedent, or of the location of the estate," is in reality a matter of venue, as the caption of the Rule indicates: "Settlement of Estate of Deceased Persons.Venue and Processes. 4 It could not have been intended to define the jurisdiction over the subject matter, because such legal provision is contained in a law of procedure dealing merely with procedural matters. Procedure is one thing; jurisdiction over the subject matter is another. The power or authority of the court over the subject matter "existed and was fixed before procedure in a given cause began." That power or authority is not altered or changed by procedure, which simply directs the manner in which the power or authority shall be fully and justly exercised. There are cases though that if the power is not exercised conformably with the provisions of the procedural law, purely, the court attempting to exercise it loses the power to exercise it legally. However, this does not amount to a loss of jurisdiction over the subject matter. Rather, it means that the court may thereby lose jurisdiction over the person or that the judgment may thereby be rendered defective for lack of something essential to sustain it. The appearance of this provision in the procedural law at once raises a strong presumption that it has nothing to do with the jurisdiction of the court over the subject matter. In plain words, it is just a matter of method, of convenience to the parties. 5

The Judiciary Act of 1948, as amended, confers upon Courts of First Instance jurisdiction over all probate cases independently of the place of residence of the deceased. Because of the existence of numerous Courts of First Instance in the

country, the Rules of Court, however, purposedly fixes the venue or the place where each case shall be brought. A fortiori, the place of residence of the deceased in settlement of estates, probate of will, and issuance of letters of administration does not constitute an element of jurisdiction over the subject matter. It is merely constitutive of venue. And it is upon this reason that the Revised Rules of Court properly considers the province where the estate of a deceased person shall be settled as "venue." 6

2. But, the far-ranging question is this: What does the term "resides" mean? Does it refer to the actual residence or domicile of the decedent at the time of his death? We lay down the doctrinal rule that the term "resides" connotes ex vi termini "actual residence" as distinguished from "legal residence or domicile." This term "resides," like, the terms "residing" and "residence," is elastic and should be interpreted in the light of the object or purpose of the statute or rule in which it is employed. 7 In the application of venue statutes and rules — Section 1, Rule 73 of the Revised Rules of Court is of such nature — residence rather than domicile is the significant factor. Even where the statute uses the word "domicile" still it is construed as meaning residence and not domicile in the technical sense. Some cases make a distinction between the terms "residence" and "domicile" but as generally used in statutes fixing venue, the terms are synonymous, and convey the same meaning as the term "inhabitant." 8 In other words, "resides" should be viewed or understood in its popular sense, meaning, the personal, actual or physical habitation of a person, actual residence or place of abode. It signifies physical presence in a place and actual stay thereat. In this popular sense, the term means merely residence, that is, personal residence, not legal residence or domicile. 9 Residence simply requires bodily presence as an inhabitant in a given place, while domicile requires bodily presence in that place and also an intention to make it one's domicile. 10 No particular length of time of residence is required though; however, the residence must be more than temporary. 11

3. Divergent claims are maintained by Virginia G. Fule and Preciosa B. Garcia on the residence of the deceased Amado G. Garcia at the time of his death. In her original petition for letters of administration before the Court of First Instance of Calamba, Laguna, Virginia G. Fule measely stated "(t)hat on April 26,1973, Amado G. Garcia, a property owner of Calamba, Laguna, died intestate in the City of Manila, leaving real estate and personal properties in Calamba, Laguna, and in other places within the jurisdiction of this Honorable Court." Preciosa B. Garcia assailed the petition for failure to satisfy the jurisdictional requirement and improper laying of venue. For her, the quoted statement avers no domicile or residence of the deceased Amado G. Garcia. To say that as "property owner of Calamba, Laguna," he also resides in Calamba, Laguna, is, according to her, non sequitur. On the contrary, Preciosa B. Garcia claims


that, as appearing in his death certificate presented by Virginia G. Fule herself before the Calamba court and in other papers, the last residence of Amado G. Garcia was at 11 Carmel Avenue, Carmel Subdivision, Quezon City. Parenthetically, in her amended petition, Virginia G. Fule categorically alleged that Amado G. Garcia's "last place of residence was at Calamba, Laguna."

On this issue, We rule that the last place of residence of the deceased Amado G. Garcia was at 11 Carmel Avenue, Carmel Subdivision, Quezon City, and not at Calamba, Laguna. A death certificate is admissible to prove the residence of the decedent at the time of his death. 12 As it is, the death certificate of Amado G. Garcia, which was presented in evidence by Virginia G. Fule herself and also by Preciosa B. Garcia, shows that his last place of residence was at 11 Carmel Avenue, Carmel Subdivision, Quezon City. Aside from this, the deceased's residence certificate for 1973 obtained three months before his death; the Marketing Agreement and Power of Attorney dated November 12, 1971 turning over the administration of his two parcels of sugar land to the Calamba Sugar Planters Cooperative Marketing Association, Inc.; the Deed of Donation dated January 8, 1973, transferring part of his interest in certain parcels of land in Calamba, Laguna to Agustina B. Garcia; and certificates of titles covering parcels of land in Calamba, Laguna, show in bold documents that Amado G. Garcia's last place of residence was at Quezon City. Withal, the conclusion becomes imperative that the venue for Virginia C. Fule's petition for letters of administration was improperly laid in the Court of First Instance of Calamba, Laguna. Nevertheless, the long-settled rule is that objection to improper venue is subject to waiver. Section 4, Rule 4 of the Revised Rules of Court states: "When improper venue is not objected to in a motion to dismiss, it is deemed waived." In the case before Us the Court of Appeals had reason to hold that in asking to substitute Virginia G. Fule as special administratrix, Preciosa B. Garcia did not necessarily waive her objection to the jurisdiction or venue assumed by the Court of First Instance of Calamba, Laguna, but availed of a mere practical resort to alternative remedy to assert her rights as surviving spouse, while insisting on the enforcement of the Rule fixing the proper venue of the proceedings at the last residence of the decedent.

4. Preciosa B. Garcia's challenge to Virginia G. Fule's appointment as special administratrix is another issue of perplexity. Preciosa B. Garcia claims preference to the appointment as surviving spouse. Section 1 of Rule 80 provides that "(w)hen there is delay in granting letters testamentary or of administration by any cause including an appeal from the allowance or disallowance of a will, the court may appoint a special administrator to take possession and charge of the estate of the deceased until the questions causing the delay are decided and executors or administrators appointed. 13 Formerly, the appointment of a special administrator was only proper

when the allowance or disallowance of a will is under appeal. The new Rules, however, broadened the basis for appointment and such appointment is now allowed when there is delay in granting letters testamentary or administration by any cause e.g., parties cannot agree among themselves. 14 Nevertheless, the discretion to appoint a special administrator or not lies in the probate court. 15 That, however, is no authority for the judge to become partial, or to make his personal likes and dislikes prevail over, or his passions to rule, his judgment. Exercise of that discretion must be based on reason, equity, justice and legal principle. There is no reason why the same fundamental and legal principles governing the choice of a regular administrator should not be taken into account in the appointment of a special administrator. 16Nothing is wrong for the judge to consider the order of preference in the appointment of a regular administrator in appointing a special administrator. After all, the consideration that overrides all others in this respect is the beneficial interest of the appointee in the estate of the decedent. 17 Under the law, the widow would have the right of succession over a portion of the exclusive property of the decedent, besides her share in the conjugal partnership. For such reason, she would have as such, if not more, interest in administering the entire estate correctly than any other next of kin. The good or bad administration of a property may affect rather the fruits than the naked ownership of a property. 18

Virginia G. Fule, however, disputes the status of Preciosa B. Garcia as the widow of the late Amado G. Garcia. With equal force, Preciosa B. Garcia maintains that Virginia G. Fule has no relation whatsoever with Amado G. Garcia, or that, she is a mere illegitimate sister of the latter, incapable of any successional rights. 19 On this point, We rule that Preciosa B. Garcia is prima facie entitled to the appointment of special administratrix. It needs be emphasized that in the issuance of such appointment, which is but temporary and subsists only until a regular administrator is appointed, 20 the appointing court does not determine who are entitled to share in the estate of the decedent but who is entitled to the administration. The issue of heirship is one to be determined in the decree of distribution, and the findings of the court on the relationship of the parties in the administration as to be the basis of distribution. 21 The preference of Preciosa B. Garcia is with sufficient reason. In a Donation Inter Vivos executed by the deceased Amado G. Garcia on January 8, 1973 in favor of Agustina B. Garcia, he indicated therein that he is married to Preciosa B. Garcia. 22 In his certificate of candidacy for the office of Delegate to the Constitutional Convention for the First District of Laguna filed on September 1, 1970, he wrote therein the name of Preciosa B. Banaticla as his spouse. 23 Faced with these documents and the presumption that a man and a woman deporting themselves as husband and wife have entered into a lawful contract of marriage, Preciosa B. Garcia can be reasonably

8


believed to be the surviving spouse of the late Amado G. Garcia. Semper praesumitur pro matrimonio.24

5. Under these circumstances and the doctrine laid down in Cuenco vs. Court of Appeals, 25 this Court under its supervisory authority over all inferior courts may properly decree that venue in the instant case was properly assumed by and transferred to Quezon City and that it is in the interest of justice and avoidance of needless delay that the Quezon City court's exercise of jurisdiction over the settlement of the estate of the deceased Amado G. Garcia and the appointment of special administratrix over the latter's estate be approved and authorized and the Court of First Instance of Laguna be disauthorized from continuing with the case and instead be required to transfer all the records thereof to the Court of First Instance of Quezon City for the continuation of the proceedings.

6. Accordingly, the Order of Judge Ernani Cruz Pano of December 17, 1975, granting the "Urgent Petition for Authority to Pay Estate Obligations" filed by Preciosa B. Garcia in Sp. Proc. No. Q-19738, subject matter of G.R. No. L-42670, and ordering the Canlubang Sugar Estate to deliver to her as special administratrix the sum of P48,874.70 for payment of the sum of estate obligations is hereby upheld.

IN VIEW OF THE FOREGOING, the petitions of petitioner Virginia Garcia Fule in G.R. No. L-40502 and in G.R. No. L42670 are hereby denied, with costs against petitioner.

SO ORDERED.

G.R. No. 128314 May 29, 2002RODOLFO V. JAO, petitioner, vs.COURT OF APPEALS and PERICO V. JAO, respondents.

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

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

Rodolfo moved for the dismissal of the petition on the ground of improper venue.2 He argued that the deceased spouses did not reside in Quezon City either during their lifetime or at the time of their deaths. The decedent’s actual residence was in Angeles City, Pampanga, where his late mother used to run and operate a bakery. As the health of his parents deteriorated due to old age, they stayed in Rodolfo’s residence at 61 Scout Gandia Street, Quezon City, solely for the purpose of obtaining medical treatment and hospitalization. Rodolfo submitted documentary evidence previously executed by the decedents, consisting of income tax returns, voter’s affidavits, statements of assets and liabilities, real estate tax payments, motor vehicle registration and passports, all indicating that their permanent residence was in Angeles City, Pampanga.1âwphi1.nêt

In his opposition,3 Perico countered that their deceased parents actually resided in Rodolfo’s house in Quezon City at the time of their deaths. As a matter of fact, it was conclusively declared in their death certificates that their last residence before they died was at 61 Scout Gandia Street, Quezon City.4 Rodolfo himself even supplied the entry appearing on the death certificate of their mother, Andrea, and affixed his own signature on the said document.

Rodolfo filed a rejoinder, stating that he gave the information regarding the decedents’ residence on the death certificates in good faith and through honest mistake. He gave his residence only as reference, considering that their parents were treated in their late years at the Medical City General Hospital in Mandaluyong, Metro Manila. Their stay in his house was merely transitory, in the same way that they were taken at different times for the same purpose to Perico’s residence at Legaspi Towers in Roxas Boulevard. The death certificates could not, therefore, be deemed conclusive evidence of the decedents’ residence in light of the other documents showing otherwise.5


The court required the parties to submit their respective nominees for the position.6 Both failed to comply, whereupon the trial court ordered that the petition be archived.7

Subsequently, Perico moved that the intestate proceedings be revived.8 After the parties submitted the names of their respective nominees, the trial court designated Justice Carlos L. Sundiam as special administrator of the estate of Ignacio Jao Tayag and Andrea Jao.9

On April 6, 1994, the motion to dismiss filed by petitioner Rodolfo was denied, to wit:

A mere perusal of the death certificates of the spouses issued separately in 1988 and 1989, respectively, confirm the fact that Quezon City was the last place of residence of the decedents. Surprisingly, the entries appearing on the death certificate of Andrea V. Jao were supplied by movant, Rodolfo V. Jao, whose signature appears in said document. Movant, therefore, cannot disown his own representation by taking an inconsistent position other than his own admission. xxx xxx xxx.

WHEREFORE, in view of the foregoing consideration, this court DENIES for lack of merit movant’s motion to dismiss.

SO ORDERED.10

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

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

SO ORDERED.11

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

I

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

II

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

III

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

IV

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

V

RESPONDENT COURT ERRED IN GIVING MORE WEIGHT TO THE ENTRY OF PETITIONER AND PRIVATE RESPONDENT IN THE RESPECTIVE DEATH CERTIFICATES OF THE DECEDENTS RATHER THAN THE OVERWHELMING EVIDENCE SHOWING THE CLEAR INTENTION OF THE

10


DECEDENTS TO ESTABLISH THEIR PERMANENT RESIDENCE IN ANGELES CITY.

VI

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

VII

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

The main issue before us is: where should the settlement proceedings be had --- in Pampanga, where the decedents had their permanent residence, or in Quezon City, where they actually stayed before their demise?

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

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

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

Petitioner Rodolfo invokes our ruling in the case of Eusebio v. Eusebio, et al.,14 where we held that the situs of settlement proceedings shall be the place where the decedent had his permanent residence or domicile at the time of death. In determining residence at the time of death, the following factors must be considered, namely, the decedent had: (a) capacity to choose and freedom of choice; (b) physical presence at the place chosen; and (c) intention to stay therein permanently.15 While it appears that the decedents in this case chose to be physically present in Quezon City for medical convenience, petitioner avers that they never adopted Quezon City as their permanent residence.1âwphi1.nêt

The contention lacks merit.

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

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

Furthermore, the decedents’ respective death certificates state that they were both residents of Quezon City at the time of their demise. Significantly, it was petitioner himself who filled up his late mother’s death certificate. To our mind, this unqualifiedly shows that at that time, at least, petitioner recognized his deceased mother’s residence to be Quezon City. Moreover, petitioner failed to contest the entry in Ignacio’s death certificate, accomplished a year earlier by respondent.


The recitals in the death certificates, which are admissible in evidence, were thus properly considered and presumed to be correct by the court a quo. We agree with the appellate court’s observation that since the death certificates were accomplished even before petitioner and respondent quarreled over their inheritance, they may be relied upon to reflect the true situation at the time of their parents’ death.

The death certificates thus prevailed as proofs of the decedents’ residence at the time of death, over the numerous documentary evidence presented by petitioner. To be sure, the documents presented by petitioner pertained not to residence at the time of death, as required by the Rules of Court, but to permanent residence or domicile. In Garcia-Fule v. Court of Appeals,16 we held:

xxx xxx xxx the term "resides" connotes ex vi termini "actual residence" as distinguished from "legal residence or domicile." This term "resides", like the terms "residing" and "residence", is elastic and should be interpreted in the light of the object or purpose of the statute or rule in which it is employed. In the application of venue statutes and rules – Section 1, Rule 73 of the Revised Rules of Court is of such nature – residence rather than domicile is the significant factor. Even where the statute uses the word "domicile" still it is construed as meaning residence and not domicile in the technical sense. Some cases make a distinction between the terms "residence" and "domicile" but as generally used in statutes fixing venue, the terms are synonymous, and convey the same meaning as the term "inhabitant." In other words, "resides" should be viewed or understood in its popular sense, meaning, the personal, actual or physical habitation of a person, actual residence or place of abode. It signifies physical presence in a place and actual stay thereat. In this popular sense, the term means merely residence, that is, personal residence, not legal residence or domicile. Residence simply requires bodily presence as an inhabitant in a given place, while domicile requires bodily presence in that place and also an intention to make it one’s domicile. No particular length of time of residence is required though; however, the residence must be more than temporary.17

Both the settlement court and the Court of Appeals found that the decedents have been living with petitioner at the time of their deaths and for some time prior thereto. We find this conclusion to be substantiated by the evidence on record. A close perusal of the challenged decision shows that, contrary to petitioner’s assertion, the court below considered not only the decedents’ physical presence in Quezon City, but also other factors indicating that the decedents’ stay therein was more than temporary. In the absence of any substantial showing that the lower courts’ factual findings stemmed

from an erroneous apprehension of the evidence presented, the same must be held to be conclusive and binding upon this Court.

Petitioner strains to differentiate between the venue provisions found in Rule 4, Section 2,18 on ordinary civil actions, and Rule 73, Section 1, which applies specifically to settlement proceedings. He argues that while venue in the former understandably refers to actual physical residence for the purpose of serving summons, it is the permanent residence of the decedent which is significant in Rule 73, Section 1. Petitioner insists that venue for the settlement of estates can only refer to permanent residence or domicile because it is the place where the records of the properties are kept and where most of the decedents’ properties are located.

Petitioner’s argument fails to persuade.

It does not necessarily follow that the records of a person’s properties are kept in the place where he permanently resides. Neither can it be presumed that a person’s properties can be found mostly in the place where he establishes his domicile. It may be that he has his domicile in a place different from that where he keeps his records, or where he maintains extensive personal and business interests. No generalizations can thus be formulated on the matter, as the question of where to keep records or retain properties is entirely dependent upon an individual’s choice and peculiarities.

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

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

SO ORDERED.

12


G.R. No. L-6622 July 31, 1957

Intestate Estate of the deceased MARCELO DE BORJA. CRISANTO DE BORJA, administrator-appellant, vs.JUAN DE BORJA, ET AL., oppositors-appellees.

The case. — Quintin, Francisco, Crisanta and Juliana, all surnamed de Borja, are legitimate children of Marcelo de Borja who, upon his demise sometime in 1924 or 1925, left a considerable amount of property. Intestate proceedings must have followed, and the pre-war records of the case either burned, lost or destroyed during the last war, because the record shows that in 1930 Quintin de Borja was already the administrator of the Intestate Estate of Marcelo de Borja.

In the early part of 1938, Quintin de Borja died and Crisanto de Borja, son of Francisco de Borja, was appointed and took over as administrator of the Estate. Francisco de Borja, on the other hand, assumed his duties as executor of the will of Quintin de Borja, but upon petition of the heirs of said deceased on the ground that his interests were conflicting with that of his brother's estate he was later required by the Court to resign as such executor and was succeeded by Rogelio Limaco, a son-in-law of Quintin de Borja.

It also appears that on February 16, 1940, at the hearing set for the approval of the statement of accounts of the late administrator of the Intestate Estate of Marcelo de Borja, then being opposed by Francisco de Borja, the parties submitted an agreement, which was approved by the Court (Exh. A). Said agreement, translated into English, reads as follows:

1. All the accounts submitted and those that are to be submitted corresponding to this year will be considered approved;

2. No heir shall claim anything of the harvests from the lands in Cainta that came from Exequiel Ampil, deceased, nor from the land in Tabuatin, Nueva Ecija;

3. That the amounts of money taken by each heir shall be considered as deposited in conjunction with the other properties of the intestate and shall form part of the mass without drawing any interest;

4. That it shall be understood as included in this mass the sum of twelve thousand pesos (P12,000) that the sisters Crisanta and Juliana de Borja paid of their own money as part of the price the lands and three thousand pesos (P3,000) the price of the machinery for irrigation;

5. The right, interests or participation that the deceased Quintin de Borja has or may have in Civil Case No. 6190 of the Court of First Instance of Nueva Ecija, shall be likewise included in the total mass of the inheritance of the Intestate;

6. Not only the lands in Tabuatin but also those in Cainta coming from the now deceased Exequiel Ampil shall also from part of the total mass of the inheritance of the Intestate of the late Marcelo de Borja;

7. Once the total of the inheritance of the intestate is made up as specified before in this Agreement, partition thereof will be made as follows:

From the total mass shall be deducted in case or in kind, Twelve Thousand Pesos (P12,000) that shall be delivered to Da. Juliana de Borja and Da. Crisanta de Borja in equal shares, and the rest shall be divided among the four heirs, i. e., Don Francisco de Borja, the heirs of Quintin de Borja, Da. Juliana de Borja, and Da. Crisanta de Borja, in equal parts. (TRANSLATION)

The Intestate remained under the administration of Crisanto de Borja until the then outbreak of the war. From then on and until the termination of the war, there was a lull and state of inaction in Special proceeding No. 2414 of the Court of First Instance of Rizal, Pasig branch (In the Matter of the Intestate Estate of Marcelo de Borja), until upon petition filed by Miguel B. Dayco, as administrator of the estate of his deceased mother, Crisanta de Borja, who is one of heirs, for reconstitution of the records of this case, the Court on December 11, 1945, ordered the reconstitution of the same, requiring the administrator to submit his report and a copy of the project of partition.

On January 3, 1946, the administrator, Dr. Crisanto de Borja, filed his accounts for the period ranging from March 1 to December 22, 1945, which according to the heirs of


Quintin de Borja were so inadequate and general that on February 28, 1946, they filed a motion for specification. On April 30, 1946, they also filed their opposition to said statement of accounts alleging that the income reported in said statement was very much less than the true and actual income of the estate and that the expenses appearing therein were exaggerated and/or not actually incurred, and prayed that the statement of accounts submitted by the administrator be disapproved.

The administrator later filed another report of his administration, dated August 9, 1949, corresponding to the period lapsed from December 23, 1945, to July 31, 1949, showing a cash balance of P71.96, but with pending obligation amounting to P35,415.

On August 22, 1949, Juan de Borja and sisters, heirs of the deceased Quintin de Borja, filed their opposition to the statement of accounts filed by the administrator on the ground that same was not detailed enough to enable the interested parties to verify the same; that they cannot understand why the Intestate could suffer any loss considering that during the administration of the same by Quintin de Borja, the Estate accumulated gains of more than P100,000 in the form of advances to the heirs as well as cash balance; that they desired to examine the accounts of Dr. Crisanto de Borja to verify the loss and therefore prayed that the administrator be ordered to deposit with the Clerk of Court all books, receipts, accounts and other papers pertaining to the Estate of Marcelo de Borja. This motion was answered by the administrator contending that the Report referred to was already clear and enough, the income as well as the expenditures being specified therein; that he had to spend for the repairs of the properties of the Estate damaged during the Japanese occupation; that the allegation that during the administration of Quintin de Boria the Estate realized a profit of P100,000 was not true, because instead of gain there was even a shortage in the funds although said administrator had collected all his fees (honorarios) and commissions corresponding to the entire period of his incumbency; that the obligations mentioned in said report will be liquidated before the termination of the proceedings in the same manner as it is done in any other intestate case; that he was willing to submit all the receipts of the accounts for the examination of the interested parties before the Clerk or before the Court itself; that this Intestate could be terminated, the project of partition having been allowed and confirmed by the Supreme Court and that the Administrator was also desirous of terminating it definitely for the benefit of all the parties.

On September 14, 1949, the administrator filed another statement of accounts covering the period of from March 1, 1945, to July 31, 1949, which showed a cash balance of P71.95, with pending obligations in the sum of P35,810.

The heirs of Quintin de Borja, Juan de Borja and his sisters, registered their opposition said statement of accounts and prayed the Court to disapprove the same and to appoint an account to go over the books of the administrator and to submit a report thereon as soon as possible. The heir Juliana de Borja also formally offered her objection to the approval of the accounts submitted by the administrator and prayed further that said administrator be required to submit a complete accounting of his administration of the Estate from 1937 to 1949. On the other hand, Francisco de Borja and Miguel B. Dayco, as the only heir of the deceased Crisanta de Borja, submitted to the Court an agreement to relieve the administrator from accounting for the period of the Japanese occupation; that as to the accounting from 1937 to 1941, they affirmed their conformity with the agreement entered into by all the heirs appearing in the Bill of Exceptions of Juliana de Borja; and they have no objection to the approval of the statement of accounts submitted by the administrator covering of the years 1945 to 1949.

On December 6, 1949, the administrator, answered the opposition of the heir Juliana de Borja, alleging that the corresponding statement of accounts for the years 1937, 1938, 1939, 1940 and 1941 were presented and approved by the Court before and during the Japanese occupation, but the records of the same were destroyed in the Office of the Clerk of that Court during the liberation of the province of Rizal, and his personal records were also lost during the Japanese occupation, when his house was burned; that Judge Peña who was presiding over the Court in 1945 impliedly denied the petition of heirs to require him to render an accounting for the period from 1942 to the early part of 1945, for the reason that whatever money obtained from the Estate during said period could not be made the subject of any adjudication it having been declared fiat money and without value, and ordered that the statement of accounts be presented only for the period starting from March 1, 1945. The administrator further stated that he was anxious to terminate this administration but some of the heirs had not yet complied with the conditions imposed in the project of partition which was approved by the Supreme Court; that in accordance with said partition agreement, Juliana de Borja must deliver to the administrator all the jewelry, objects of value, utensils and other personal belongings of the deceased spouses Marcelo de Borja and Tircila Quiogue, which said heir had kept and continued to retain in her possession; that the heirs of Quintin de Borja should deliver to the administrator all the lands and a document transferring in favor of the Intestate the two parcels of land with a total area of 71 hectares of cultivated land in Cabanatuan, Nueva Ecija which were in the possession of said heirs, together with the house of Feliciana Mariano Vda. de Sarangaya, which were the objects of Civil Case No. 6190 mentioned in Paragraph 11 of the project of partition; that as consequence of the said dispossession the heirs of Quintin de Borja must deliver to the administrator the products of the 71 hectares of

14


land in Cabanatuan, Nueva Ecija, and the rentals of the house of Feliciana Mariano or else render to the Court an accounting of the products of these properties from the time they took possession of the same in 1937 to the present; that there was a pending obligation amounting to P36,000 as of September 14, 1949, which the heirs should pay before the properties adjudicated to them would be delivered. The Court, however, ordered the administrator on December 10, 1949, to show and prove by evidence why he should not be accounts the proceeds of his administration from 1937.

Meantime, Juliana de Borja filed a Constancia denying possession of any jewelry belonging to the deceased spouses Marcelo de Borja and Tarcilla Quiogue or any other personal belonging of said spouses, and signified her willingness to turn over to the administrator the silver wares mentioned in Paragraph III of the project of partition, which were the only property in her care, on the date that she would expect the delivery to her of her share in the inheritance from her deceased parents.

On July 6, 1950, Juan de Borja and his sisters Marcela, Saturnina, Eufracia, Jacoba and Olimpia, all surnamed de Borja, as heirs of Quintin de Borja, filed a motion for the delivery to them of their inheritance in the estate, tendering to the administrator a document ceding and transferring to the latter all the rights, interests and participation of Quintin de Borja in Civil Case No. 7190 of the Court of First Instance of Nueva Ecija, pursuant to the provisions of the project of Partition, and expressing their willingness to put up a bond if required to do so by the Court, and on July 18, 1950, the Court ordered the administrator to deliver to Marcela, Juan, Saturniana, Eufracia, Jacoba and Olimpia, all surnamed de Borja, all the properties adjudicated to them in the Project of Partition dated February 8, 1944, upon the latter's filing a bond in the sum of P10,000 conditioned upon the payment of such obligation as may be ordered by the Court after a hearing on the controverted accounts of the administrator. The Court considered the fact that the heirs had complied with the requirement imposed by the Project of Partition when they tendered the document ceding and transferring the rights and interests of Quintin de Borja in the aforementioned lands and expressed the necessity of terminating the proceedings as soon as practicable, observing that the Estate had been under administration for over twenty-five years already. The Court, however, deferred action on the petition filed by the special administratrix of the Intestate Estate of Juliana de Borja until after compliance with the conditions imposed by the project of partition. But on July 20, 1950, apparently before the properties were delivered to the heirs, Francisco de Borja and Miguel B. Dayco filed a motion informing the Court that the two parcels of land located in Cabanatuan, Nueva Ecija, produced some 21,300 cavans of palay, amounting to P213,000 at P10 per cavan, which were enjoyed by some heirs; that the administrator Crisanto de Borja had not taken possession of the

same for circumstances beyond his control; and that there also existed the sum of P70,204 which the former administrator, Quintin de Borja, received from properties that were redeemed, but which amount did not come into the hands of the present, administrator because according to reliable information, same was delivered to the heir Juliana de Borja who deposited it in her name at the Philippine National Bank. It was, therefore prayed that the administrator be required to exert the necessary effort to ascertain the identity of the person or persons who were in possession of the same amount and of the value of the products of the lands in Mayapyap, Cabanatuan, Nueva Ecija, and to recover the same for the Intestate Estate.

On July 28, 1950, the special administratrix of the estate of Juliana de Borja, then deceased, filed an answer to the motion of these two heirs, denying the allegation that said heir any product of the lands mentioned from Quintin de Borja, and informed the Court that the Mayapyap property had always been in the possession of Francisco de Borja himself and prayed the court that the administrator be instructed to demand all the fruits and products of said property from Francisco de Borja.

On July 28, 1950, the heirs of Quintin de Borja also filed their opposition to the said motion of Francisco de Borja and Miguel B. Dayco on the ground that the petition was superfluous because the present proceeding was only for the approval of the statement of accounts filed by the administrator; that said motion was improper because it was asking the Court to order the administrator to perform what he was duty bound to do; and that said heirs were already barred or stopped from raising that question in view of their absolute ratification of and assent to the statement of accounts submitted by the administrator.

On August 16, 1950, by order of the Court, the properties adjudicated to Juliana de Borja in the project of Partition were finally delivered to the estate of said heir upon the filing of a bond for P20,000. In that same order, the Court denied the administrator's motion to reconsider the order of July 18, 1950, requiring him to deliver to the heirs of Quintin de Borja the properties corresponding to them, on the ground that there existed no sufficient reason to disturb said order. It also ruled that as the petition of Francisco de Borja and Miguel B. Dayco made mention of certain properties allegedly belonging to the Intestate, said petition should properly be considered to gather with the final accounts of the administrator.

The administrator raised the matter by certiorari to this Tribunal, which was, docketed as G.R. No. L-4179, and on May 30, 1951, We rendered decision affirming the order complained of, finding that the Juan de Borja and sisters have complied with the


requirement imposed in the Project of Partition upon the tender of the document of cession of rights and quit-claim executed by Marcela de Borja, the administratrix of the Estate of Quintin de Borja, and holding that the reasons advanced by the administrator in opposing the execution of the order of delivery were trivial.

On August 27, 1951, the administrator filed his amended statement of accounts covering the period from March 1, 1945, to July 31, 1949, which showed a cash balance of P36,660. An additional statement of accounts filed on August 31, 1961 for the period of from August 1, 1949, to August 31, 1951, showed a cash balance of P5,851.17 and pending obligations in the amount of P6,165.03.

The heirs of Quintin de Borja again opposed the approval of the statements of accounts charging the administrator with having failed to include the fruits which the estate should have accrued from 1941 to 1951 amounting to P479,429.70, but as the other heirs seemed satisfied with the accounts presented by said administrator and as their group was only one of the 4 heirs of Intestate Estate, they prayed that the administrator be held liable for only P119,932.42 which was 1/4 of the amount alleged to have been omitted. On October 4, 1951, the administrator filed a reply to said opposition containing a counterclaim for moral damages against all the heirs of Quintin de Borja in the sum of P30,000 which was admitted by the Court over the objection of the heirs of Quintin de Borja that the said pleading was filed out of time.

The oppositors, the heirs of Quintin de Borja, then filed their answer to the counterclaim denying the charges therein, but later served interrogatories on the administrator relative to the averments of said counterclaim. Upon receipt of the answer to said interrogatories specifying the acts upon which the claim for moral damages was based, the oppositors filed an amended answer contending that inasmuch as the acts, manifestations and pleadings referred to therein were admittedly committed and prepared by their lawyer, Atty. Amador E. Gomez, same cannot be made the basis of a counterclaim, said lawyer not being a party to the action, and furthermore, as the acts upon which the claim for moral damages were based had been committed prior to the effectivity of the new Civil Code, the provisions of said Code on moral damages could not be invoked. On January 15, 1952, the administrator filed an amended counterclaim including the counsel for the oppositors as defendant.

There followed a momentary respite in the proceedings until another judge was assigned to preside over said court to dispose of the old case pending therein. On August 15, 1952, Judge Encarnacion issued an order denying admission to administrator's amended counterclaim directed against the lawyer, Atty. Amador E.

Gomez, holding that a lawyer, not being a party to the action, cannot be made answerable for counterclaims. Another order was also issued on the same date dismissing the administrator's counterclaim for moral damages against the heirs of Quintin de Borja and their counsel for the alleged defamatory acts, manifestation and utterances, and stating that granting the same to be meritorious, yet it was a strictly private controversy between said heirs and the administrator which would not in any way affect the interest of the Intestate, and, therefore, not proper in an intestate proceedings. The Court stressed that to allow the ventilation of such personal controversies would further delay the proceedings in the case which had already lagged for almost 30 years, a situation which the Court would not countenance.

Having disposed of these pending incidents which arose out of the principal issue, that is, the disputed statement of accounts submitted by the administrator, the Court rendered judgment on September 5, 1952, ordering the administrator to distribute the funds in his possession to the heirs as follows: P1,395.90 to the heirs of Quintin de Borja; P314.99 to Francisco de Borja; P314.99 to the Estate of Juliana de Borja and P314.99 to Miguel B. Dayco, but as the latter still owed the intestate the sum of P900, said heirs was ordered to pay instead the 3 others the sum of P146.05 each. After considering the testimonies of the witnesses presented by both parties and the available records on hand, the Court found the administrator guilty of maladministration and sentenced Crisanto de Borja to pay to the oppositors, the heirs of Quintin de Borja, the sum of P83,337.31, which was 1/4 of the amount which the state lost, with legal interest from the date of the judgment. On the same day, the Court also issued an order requiring the administrator to deliver to the Clerk of that Court PNB Certificate of Deposit No. 211649 for P978.50 which was issued in the name of Quintin de Borja.

The administrator, Dr. Crisanto de Borja, gave notice to appeal from the lower Court's orders of August 15, 1952, the decision of September 5, 1952, and the order of even date, but when the Record on Appeal was finally approved, the Court ordered the exclusion of the appeal from the order of September 5, 1952, requiring the administrator to deposit the PNB Certificate of Deposit No. 2114649 with the Clerk of Court, after the oppositors had shown that during the hearing of that incident, the parties agreed to abide by whatever resolution the Court would make on the ownership of the funds covered by that deposit.

The issues. — Reducing the issues to bare essentials, the questions left for our determination are: (1) whether the counsel for a party in a case may be included as a defendant in a counterclaim; (2) whether a claim for moral damages may be entertained in a proceeding for the settlement of an estate; (3) what may be considered as acts of maladministration and whether an administrator, as the one in the case at

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bar, may be held accountable for any loss or damage that the estate under his administration may incur by reason of his negligence, bad faith or acts of maladministration; and (4) in the case at bar has the Intestate or any of the heirs suffered any loss or damage by reason of the administrator's negligence, bad faith or maladministration? If so, what is the amount of such loss or damage?

I. — Section 1, Rule 10, of the Rules of Court defines a counterclaim as:

SECTION 1. Counterclaim Defined. — A counterclaim is any claim, whether for money or otherwise, which a party may have against the opposing party. A counterclaim need not dismiss or defeat the recovery sought by the opposing party, but may claim relief exceeding in amount or different in kind from that sought by the opposing party's claim.

It is an elementary rule of procedure that a counterclaim is a relief available to a party-defendant against the adverse party which may or may not be independent from the main issue. There is no controversy in the case at bar, that the acts, manifestations and actuations alleged to be defamatory and upon which the counterclaim was based were done or prepared by counsel for oppositors; and the administrator contends that as the very oppositors manifested that whatever civil liability arising from acts, actuations, pleadings and manifestations attributable to their lawyer is enforceable against said lawyer, the amended counterclaim was filed against the latter not in his individual or personal capacity but as counsel for the oppositors. It is his stand, therefore, that the lower erred in denying admission to said pleading. We differ from the view taken by the administrator. The appearance of a lawyer as counsel for a party and his participation in a case as such counsel does not make him a party to the action. The fact that he represents the interests of his client or that he acts in their behalf will not hold him liable for or make him entitled to any award that the Court may adjudicate to the parties, other than his professional fees. The principle that a counterclaim cannot be filed against persons who are acting in representation of another — such as trustees — in their individual capacities (Chambers vs. Cameron, 2 Fed. Rules Service, p. 155; 29 F. Supp. 742) could be applied with more force and effect in the case of a counsel whose participation in the action is merely confined to the preparation of the defense of his client. Appellant, however, asserted that he filed the counterclaim against said lawyer not in his individual capacity but as counsel for the heirs of Quintin de Borja. But as we have already stated that the existence of a lawyer-client relationship does not make the former a party to the action, even this allegation of appellant will not alter the result We have arrived at.

Granting that the lawyer really employed intemperate language in the course of the hearings or in the preparation of the pleadings filed in connection with this case, the remedy against said counsel would be to have him cited for contempt of court or take other administrative measures that may be proper in the case, but certainly not a counterclaim for moral damages.

II. — Special Proceedings No. 6414 of the Court of First Instance of Rizal (Pasig branch) was instituted for the purpose of settling the Intestate Estate of Marcelo de Borja. In taking cognizance of the case, the Court was clothed with a limited jurisdiction which cannot expand to collateral matters not arising out of or in any way related to the settlement and adjudication of the properties of the deceased, for it is a settled rule that the jurisdiction of a probate court is limited and special (Guzman vs. Anog, 37 Phil. 361). Although there is a tendency now to relax this rule and extend the jurisdiction of the probate court in respect to matters incidental and collateral to the exercise of its recognized powers (14 Am. Jur. 251-252), this should be understood to comprehend only cases related to those powers specifically allowed by the statutes. For it was even said that:

Probate proceedings are purely statutory and their functions limited to the control of the property upon the death of its owner, and cannot extend to the adjudication of collateral questions (Woesmes, The American Law of Administration, Vol. I, p. 514, 662-663).

It was in the acknowledgment of its limited jurisdiction that the lower court dismissed the administrator's counterclaim for moral damages against the oppositors, particularly against Marcela de Borja who allegedly uttered derogatory remarks intended to cast dishonor to said administrator sometime in 1950 or 1951, his Honor's ground being that the court exercising limited jurisdiction cannot entertain claims of this kind which should properly belong to a court general jurisdiction. From what ever angle it may be looked at, a counterclaim for moral damages demanded by an administrator against the heirs for alleged utterances, pleadings and actuations made in the course of the proceeding, is an extraneous matter in a testate or intestate proceedings. The injection into the action of incidental questions entirely foreign in probate proceedings should not be encouraged for to do otherwise would run counter to the clear intention of the law, for it was held that:

The speedy settlement of the estate of deceased persons for the benefit of the creditors and those entitled to the residue by way of inheritance or legacy after


the debts and expenses of administration have been paid, is the ruling spirit of our probate law (Magabanua vs. Akel, 72 Phil., 567, 40 Off Gaz., 1871).

III. and IV. — This appeal arose from the opposition of the heirs of Quintin de Borja to the approval of the statements of accounts rendered by the administrator of the Intestate Estate of Marcelo de Borja, on the ground that certain fruits which should have been accrued to the estate were unaccounted for, which charge the administrator denied. After a protracted and extensive hearing on the matter, the Court, finding the administrator, Dr. Crisanto de Borja, guilty of certain acts of maladministration, held him liable for the payment to the oppositors, the heirs of Quintin de Borja, of 1/4 of the unreported income which the estate should have received. The evidence presented in the court below bear out the following facts:

(a) The estate owns a 6-door building, Nos. 1541, 1543, 1545, 1547, 1549 and 1551 in Azcarraga Street, Manila, situated in front of the Arranque market. Of this property, the administrator reported to have received for the estate the following rentals:

Period of timeTotal rentals

Annualmonthly rental

March to December, 1945 P3,085.00 P51.42

January to December, 1946 4,980.00 69.17





Total P40,295.00

The oppositors, in disputing this record income, presented at the witness stand Lauro Aguila, a lawyer who occupied the basement of Door No. 1541 and the whole of Door

No. 1543 from 1945 to November 15, 1949, and who testified that he paid rentals on said apartments as follows:

1945

Door No. 1541 (basement)

February P20.00 Door No. 1543

March 20.00 For 7 months at P300

April 60.00 a month P2,100.00

May-December 800.00

Total P900.00

1946

January-December P1,200.00 January-December P4,080.00

1947

January P100.00 January P380.00

February 100.00 February 380.00

March 180.00 March 1-15 190.00

April-December 1,140.00 March 16-December 4,085.00

P1,820.00 P5,035.00

1948

January-December P1,920.00 January-December P5,150.00

1949

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January-November 15 P1,680.00 January-December P4,315.00

From the testimony of said witness, it appears that from 1945 to November 15,1949, he paid a total of P28,200 for the lease of Door No. 1543 and the basement of Door No. 1541. These figures were not controverted or disputed by the administrator but claim that said tenant subleased the apartments occupied by Pedro Enriquez and Soledad Sodora and paid the said rentals, not to the administrator, but to said Enriquez. The transcript of the testimony of this witness really bolster this contention — that Lauro Aguila talked with said Pedro Enriquez when he leased the aforementioned apartments and admitted paying the rentals to the latter and not to the administrator. It is interesting to note that Pedro Enriquez is the same person who appeared to be the administrator's collector, duly authorized to receive the rentals from this Azcarraga property and for which services, said Enriquez received 5 per cent of the amount he might be able to collect as commission. If we are to believe appellant's contention, aside from the commission that Pedro Enriquez received he also sublet the apartments he was occupying at a very much higher rate than that he actually paid the estate without the knowledge of the administrator or with his approval. As the administrator also seemed to possess that peculiar habit of giving little importance to bookkeeping methods, for he never kept a ledger or book of entry for amounts received for the estate, We find no record of the rentals the lessees of the other doors were paying. It was, however, brought about at the hearing that the 6 doors of this building are of the same sizes and construction and the lower Court based its computation of the amount this property should have earned for the estate on the rental paid by Atty. Aguila for the 1 1/2 doors that he occupied. We see no excuse why the administrator could not have taken cognizance of these rates and received the same for the benefit of the estate he was administering, considering the fact that he used to make trips to Manila usually once a month and for which he charged to the estate P8 as transportation expenses for every trip.

Basing on the rentals paid by Atty. Aguila for 1 1/2 doors, the estate received P112,800 from February 1, 1945, to November 15, 1949, for the 6 doors, but the lower Court held him accountable not only for the sum of P34,235 reported for the period ranging from March 1, 1945, to December 31, 1949, but also for a deficit of P90,525 or a total of P124,760. The record shows, however that the upper floor of Door No. 1549 was vacant in September, 1949, and as Atty. Aguila used to pay P390 a month for the use of an entire apartment from September to November, 1949, and he also paid P160 for the use of the basement of an apartment (Door No. 1541), the use, therefore, of said

upper floor would cost P230 which should be deducted, even if the computation of the lower Court would have to be followed.

There being no proper evidence to show that the administrator collected more rentals than those reported by him, except in the instance already mentioned, We are reluctant to bold him accountable in the amount for which he was held liable by the lower Court, and We think that under the circumstances it would be more just to add to the sum reported by the administrator as received by him as rents for 1945-1949 only, the difference between the sum reported as paid by Atty. Aguila and the sum actually paid by the latter as rents of 1 1/2 of the apartments during the said period, or P25,457.09 1/4 of which is P6,364.27 which shall be paid to the oppositors.

The record also shows that in July, 1950, the administrator delivered to the other heirs Doors Nos. 1545, 1547, 1549 and 1551 although Doors Nos. 1541 and 1543 adjudicated to the oppositors remained under his administration. For the period from January to June, 1950, that the entire property was still administered by him, the administrator reported to have received for the 2 oppositors' apartments for said period of six months at P168.33 a month, the sum of P1,010 which belongs to the oppositors and should be taken from the amount reported by the administrator.

The lower Court computed at P40 a month the pre-war rental admittedly received for every apartment, the income that said property would have earned from 1941 to 1944, or a total of P11,520, but as We have to exclude the period covered by the Japanese occupation, the estate should receive only P2,880 1/4 of which P720 the administrator should pay to the oppositors for the year 1941.

(b) The Intestate estate also owned a parcel of land in Mayapyap, Nueva Ecija, with an area of 71 hectares, 95 ares and 4 centares, acquired by Quintin de Borja the spouses Cornelio Sarangaya and Feliciana Mariano in Civil Case NO. 6190 of the Court of First Instance of said province, In virtue of the agreement entered into by the heirs, this property was turned over by the estate of Quintin de Borja to the intestate and formed part of the general mass of said estate. The report of the administrator failed to disclose any return from this property alleging that he had not taken possession of the same. He does not deny however that he knew of the existence of this land but claimed that when he demanded the delivery of the Certificate of Title covering this property, Rogelio Limaco, then administrator of the estate of Quintin de Borja, refused to surrender the same and he did not take any further action to recover the same.


To counteract the insinuation that the Estate of Quintin de Borja was in possession of this property from 1940 to 1950, the oppositors presented several witnesses, among them was an old man, Narciso Punzal, who testified that he knew both Quintin and Francisco de Borja; that before the war or sometime in 1937, the former administrator of the Intestate, Quintin de Borja, offered him the position of overseer (encargado) of this land but he was notable to assume the same due to the death of said administrator; that on July 7, 1951, herein appellant invited him to go to his house in Pateros, Rizal, and while in said house, he was instructed by appellant to testify in court next day that he was the overseer of the Mayapyap property for Quintin de Borja from 1937-1944, delivering the yearly proceeds of 1,000 cavanes of Palay to Rogelio Limaco; that he did not need to be afraid because both Quintin de Borja and Rogelio Limaco were already dead. But as he knew that the facts on which he was to testify were false, he went instead to the house of one of the daughters of Quintin de Borja, who, together with her brother, Atty. Juan de Borja, accompanied him to the house of the counsel for said oppositors before whom his sworn declaration was taken (Exh. 3).

Other witnesses, i.e., Isidro Benuya, Federico Cojo, Emilio de la Cruz and Ernesto Mangulabnan, testified that they were some of the tenants of the Mayapyap property; that they were paying their shares to the overseers of Francisco de Borja and sometimes to his wife, which the administrator was not able to contradict, and the lower Court found no reason why the administrator would fail to take possession of this property considering that this was even the subject of the agreement of February 16, 1940, executed by the heirs of the Intestate.

The lower Court, giving due credence to the testimonies of the witnesses for the oppositors, computed the loss the estate suffered in the form of unreported income from the rice lands for 10 years at P67,000 (6,700 a year)and the amount of P4,000 from the remaining portion of the land not devoted to rice cultivation which was being leased at P20 per hectare. Consequently, the Court held the administrator liable to appellees in the sum of P17,750 which is 1/4 of the total amount which should have accrued to the estate for this item.

But if We exclude the 3 years of occupation, the income for 7 years would be P46,900 for the ricelands and P2,800 (at P400 a year) for the remaining portion not developed to rice cultivation or a total of P48,700, 1/4 of which is P12,175 which We hold the administrator liable to the oppositors.

(c) The Hacienda Jalajala located in said town of Rizal, was divided into 3 parts: the Punta section belonged to Marcelo de Borja, the Bagombong pertained to Bernardo de

Borja and Francisco de Borja got the Jalajala proper. For the purpose of this case, we will just deal with that part called Junta. This property has an area of 1,345, hectares, 29 ares and 2 centares (Exh. 36) of which, according to the surveyor who measured the same, 200 hectares were of cultivated rice fields and 100 hectares dedicated to the planting of upland rice. It has also timberland and forest which produce considerable amount of trees and firewoods. From the said property which has an assessed value of P115,000 and for which the estates pay real estate tax of P1,500 annually, the administrator reported the following:

Year Income

Expenditure (not including administration's fees

1945........... P625.00 P1,310.42

1946............. 1,800.00 3,471.00

1947............. 2,550.00 2,912.91

1948............. 1,828.00 3,311.88

1949............. 3,204.50 4,792.09

1950............. 2,082.00 2,940.91

P12,089.50 P18,739.21

This statement was assailed by the oppositors and to substantiate their charge that the administrator did not file the true income of the property, they presented several witnesses who testified that there were about 200 tenants working therein; that these tenants paid to Crisanto de Borja rentals at the rate of 6 cavanes of palay per hectare; that in the years of 1943 and 1944, the Japanese were the ones who collected their rentals, and that the estate could have received no less than 1,000 cavanes of palay yearly. After the administrator had presented witnesses to refute the facts previously testified to by the witnesses for the oppositors, the Court held that the report of the administrator did not contain the real income of the property devoted to rice cultivation, which was fixed at 1,000 cavanes every year — for 1941, 1942, 1945, 1946, 1947,

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1948, 1949 and 1950, or a total of 8,000 cavanes valued at P73,000. But as the administrator accounted for the sum of P11,155 collected from rice harvests and if to this amount we add the sum of P8,739.20 for expenses, this will make a total of P19,894.20, thus leaving a deficit of P53,105.80, ¼ of which will be P13,276.45 which the administrator is held liable to pay the heirs of Quintin de Borja.

It was also proved during the hearing that the forest land of this property yields considerable amount of marketable firewoods. Taking into consideration the testimonies of witnesses for both parties, the Court arrived at the conclusion that the administrator sold to Gregorio Santos firewoods worth P600 in 1941, P3,500 in 1945 and P4,200 in 1946 or a total of P8,300. As the report included only the amount of P625, there was a balance of P7,675 in favor of the estate. The oppositors were not able to present any proof of sales made after these years, if there were any and the administrator was held accountable to the oppositors for only P1,918.75.

(d) The estate also, owned ricefields in Cainta, Rizal, with a total area of 22 hectares, 76 ares and 66 centares. Of this particular item, the administrator reported an income of P12,104 from 1945 to 1951. The oppositors protested against this report and presented witnesses to disprove the same.

Basilio Javier worked as a tenant in the land of Juliana de Borja which is near the land belonging to the Intestate, the 2 properties being separated only by a river. As tenant of Juliana de Borja, he knew the tenants working on the property and also knows that both lands are of the same class, and that an area accommodating one cavan of seedlings yields at most 100 cavanes and 60 cavanes at the least. The administrator failed to overcome this testimony. The lower Court considering the facts testified to by this witness made a finding that the property belonging to this Intestate was actually occupied by several persons accommodating 13 ½ cavanes of seedlings; that as for every cavan of seedlings, the land produces 60 cavanes of palay, the whole area under cultivation would have yielded 810 cavanes a year and under the 50-50 sharing system (which was testified by witness Javier), the estate would have received no less than 405 cavanes every year. Now, for the period of 7 years — from 1941 to 1950, excluding the 3 years of war — the corresponding earning of the estate should be 2,835 cavanes, out of which the 405 cavanes from the harvest of 1941 is valued at P1,215 and the rest 2,430 cavanes at P10 is valued at P24,300, or all in all P25,515. If from this amount the reported income of P12,104 is deducted, there will be a balance of P13,411.10 1/4 of which or P3,352.75 the administrator is held liable to pay to the oppositors.

(e) The records show that the administrator paid surcharges and penalties with a total of P988.75 for his failure to pay on time the taxes imposed on the properties under his administration. He advanced the reason that he lagged in the payment of those tax obligations because of lack of cash balance for the estate. The oppositors, however, presented evidence that on October 29, 1939, the administrator received from Juliana de Borja the sum of P20,475.17 together with certain papers pertaining to the intestate (Exh. 4),aside from the checks in the name of Quintin de Borja. Likewise, for his failure to pay the taxes on the building at Azcarraga for 1947, 1948 and 1949, said property was sold at public auction and the administrator had to redeem the same at P3,295.48, although the amount that should have been paid was only P2,917.26. The estate therefore suffered a loss of P378.22. Attributing these surcharges and penalties to the negligence of the administrator, the lower Court adjudged him liable to pay the oppositors ¼ of P1,366.97, the total loss suffered by the Intestate, or P341.74.

(f) Sometime in 1942, a big fire razed numerous houses in Pateros, Rizal, including that of Dr. Crisanto de Borja. Thereafter, he claimed that among the properties burned therein was his safe containing P15,000 belonging to the estate under his administration. The administrator contended that this loss was already proved to the satisfaction of the Court who, approved the same by order of January 8, 1943, purportedly issued by Judge Servillano Platon(Exh. B). The oppositors contested the genuineness of this order and presented on April 21, 1950, an expert witness who conducted several tests to determine the probable age of the questioned document, and arrived at the conclusion that the questioned ink writing "(Fdo)" appearing at the bottom of Exhibit B cannot be more than 4 years old (Exh. 39). However, another expert witness presented by the administrator contradicted this finding and testified that this conclusion arrived at by expert witness Mr. Pedro Manzañares was not supported by authorities and was merely the result of his own theory, as there was no method yet discovered that would determine the age of a document, for every document has its own reaction to different chemicals used in the tests. There is, however, another fact that called the attention of the lower Court: the administrator testified that the money and other papers delivered by Juliana de Borja to him on October 29, 1939, were saved from said fire. The administrator justified the existence of these valuables by asserting that these properties were locked by Juliana de Borja in her drawer in the "casa solariega" in Pateros and hence was not in his safe when his house, together with the safe, was burned. This line of reasoning is really subject to doubt and the lower Court opined, that it runs counter to the ordinary course of human behaviour for an administrator to leave in the drawer of the "aparador" of Juliana de Borja the money and other documents belonging to the estate under his administration, which delivery has receipted for, rather than to keep it in his safe together with the


alleged P15,000 also belonging to the Intestate. The subsequent orders of Judge Platon also put the defense of appellant to bad light, for on February 6, 1943, the Court required Crisanto de Borja to appear before the Court of examination of the other heirs in connection with the reported loss, and on March 1, 1943, authorized the lawyers for the other parties to inspect the safe allegedly burned (Exh. 35). It is inconceivable that Judge Platon would still order the inspection of the safe if there was really an order approving the loss of those P15,000. We must not forget, in this connection, that the records of this case were burned and that at the time of the hearing of this incident in 1951, Judge Platon was already dead. The lower Court also found no reason why the administrator should keep in his such amount of money, for ordinary prudence would dictate that as an administration funds that come into his possession in a fiduciary capacity should not be mingled with his personal funds and should have been deposited in the Bank in the name of the intestate. The administrator was held responsible for this loss and ordered to pay ¼ thereof, or the sum of P3,750.

(g) Unauthorized expenditures —

1. The report of the administrator contained certain sums amounting to P2,130 paid to and receipted by Juanita V. Jarencio the administrator's wife, as his private secretary. In explaining this item, the administrator alleged that he needed her services to keep receipts and records for him, and that he did not secure first the authorization from the court before making these disbursements because it was merely a pure administrative function.

The keeping of receipts and retaining in his custody records connected with the management of the properties under administration is a duty that properly belongs to the administrator, necessary to support the statement of accounts that he is obliged to submit to the court for approval. If ever his wife took charge of the safekeeping of these receipts and for which she should be compensated, the same should be taken from his fee. This disbursement was disallowed by the Court for being unauthorized and the administrator required to pay the oppositors ¼, thereof or P532.50.

2. The salaries of Pedro Enriquez, as collector of the Azcarraga property; of Briccio Matienzo and Leoncio Perez, as encargados, and of Vicente Panganiban and Herminigildo Macetas as forest-guards were found justified, although un authorized, as they appear to be reasonable and necessary for the care and preservation of the Intestate.

3. The lower Court disallowed as unjustified and unnecessary the expenses for salaries paid to special policemen amounting to P1,509. Appellant contended that he sought for the services of Macario Kamungol and others to act as special policemen during harvest time because most of the workers tilting the Punta property were not natives of Jalajala but of the neighboring towns and they were likely to run away with the harvest without giving the share of the estate if they were not policed. This kind of reasoning did not appear to be convincing to the trial judge as the cause for such fear seemed to exist only in the imagination. Granting that such kind of situation existed, the proper thing for the administrator to do would have been to secure the previous authorization from the Court if he failed to secure the help of the local police. He should be held liable for this unauthorized expenditure and pay the heirs of Quintin de Borja ¼ thereof or P377.25.

4. From the year 1942 when his house was burned, the administrator and his family took shelter at the house belonging to the Intestate known as "casa solariega" which, in the Project of Partition was adjudicated to his father, Francisco de Borja. This property, however, remained under his administration and for its repairs he spent from 1945-1950, P1465,14, duly receipted.

None of these repairs appear to be extraordinary for the receipts were for nipa, for carpenters and thatchers. Although it is true that Rule 85, section 2 provides that:

SEC. 2. EXECUTOR OR ADMINISTRATOR TO KEEP BUILDINGS IN REPAIR. — An executor or administrator shall maintain in tenant able repair the houses and other structures and fences belonging to the estate, and deliver the same in such repair to the heirs or devisees when directed so to do by the court.

yet considering that during his occupancy of the said "casa solariega" he was not paying any rental at all, it is but reasonable that he should take care of the expenses for the ordinary repair of said house. Appellant asserted that had he and his family not occupied the same, they would have to pay someone to watch and take care of said house. But this will not excuse him from this responsibility for the disbursements he made in connection with the aforementioned repairs because even if he stayed in another house, he would have had to pay rentals or else take charge also of expenses for the repairs of his residence. The administrator should be held liable to the oppositors in the amount of P366.28.

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5. Appellant reported to have incurred expenses amounting to P6,304.75 for alleged repairs on the rice mill in Pateros, also belonging to the Intestate. Of the disbursements made therein, the items corresponding, to Exhibits I, I-1, I-21, L-26, L-15, L-64 and L-65, in the total sum of P570.70 were rejected by the lower court on the ground that they were all unsigned although some were dated. The lower Court, however, made an oversight in including the sum of P150 covered by Exhibit L-26 which was duly signed by Claudio Reyes because this does not refer to the repair of the rice-mill but for the roofing of the house and another building and shall be allowed. Consequently, the sum of P570.70 shall be reduced to P420.70 which added to the sum of P3,059 representing expenditures rejected as unauthorized to wit:

Exhibit L-59 ............. P500.00 Yek Wing

Exhibit L-60 ............. 616.00 Yek Wing




Exhibit Q-2 ............. 323.00 scale "Howe"

Total ...................... P3,059.00

will give a total of P3,479 1/4 of which is P869.92 that belongs to the oppositors.

6. On the expenses for planting in the Cainta ricefields: — In his statement of accounts, appellant reported to have incurred a total expense of P5,977 for the planting of the ricefields in Cainta, Rizal, from the agricultural year 1945-46 to 1950-51. It was proved that the prevailing sharing system in this part of the country was on 50-50 basis. Appellant admitted that expenses for planting were advanced by the estate and liquidated after each harvest. But the report, except for the agricultural year 1950 contained nothing of the payments that the tenants should have made. If the total expenses for said planting amounted to P5,977, ½ thereof or P2,988.50 should have been paid by the tenants as their share of such expenditures, and as P965 was reported by the administrator as paid back in 1950, there still remains a balance of

P2,023.50 unaccounted for. For this shortage, the administrator is responsible and should pay the oppositors ¼ thereof or P505.87.

7. On the transportation expenses of the administrator: — It appears that from the year 1945 to 1951, the administrator charged the estate with a total of P5,170 for transportation expenses. The un receipted disbursements were correspondingly itemized, a typical example of which is as follows:

1950

Gastos de viaje del administrador From Pateros

To Pasig ................ 50 x P4.00 = P200.00

To Manila ...............50 x P10.00 = P500.00

To Cainta ................ 8 x P8.00 = P64.00

To Jalajala ............... 5 x P35.00 = P175.00

= P399.00

(Exhibit W-54).

From the report of the administrator, We are being made to believe that the Intestate estate is a losing proposition and assuming arguendo that this is true, that precarious financial condition which he, as administrator, should know, did not deter Crisanto de Borja from charging to the depleted funds of the estate comparatively big amounts for his transportation expenses. Appellant tried to justify these charges by contending that he used his own car in making those trips to Manila, Pasig and Cainta and a launch in visiting the properties in Jalajala, and they were for the gasoline consumed. This rather unreasonable spending of the estate's fund prompted the Court to observe that one will have to spend only P0.40 for transportation in making a trip from Pateros to Manila and practically the same amount in going to Pasig. From his report for 1949 alone, appellant made a total of 97 trips to these places or an average of one trip for every 3 1/2 days. Yet We must not forget that it was during this period that the administrator failed or refused to take cognizance of the prevailing rentals of commercial places in


Manila that caused certain loss to the estate and for which he was accordingly held responsible. For the reason that the alleged disbursements made for transportation expenses cannot be said to be economical, the lower Court held that the administrator should be held liable to the oppositors for ¼ thereof or the sum of P1,292.50, though We think that this sum should still be reduced to P500.

8. Other expenses:

The administrator also ordered 40 booklets of printed contracts of lease in the name of the Hacienda Jalajala which cost P150. As the said hacienda was divided into 3 parts one belonging to this Intestate and the other two parts to Francisco de Boria and Bernardo de Borja, ordinarily the Intestate should only shoulder ¹/3 of the said expense, but as the tenants who testified during the hearing of the matter testified that those printed forms were not being used, the Court adjudged the administrator personally responsible for this amount. The records reveal, that this printed form was not utilized because the tenants refused to sign any, and We can presume that when the administrator ordered for the printing of the same, he did not foresee this situation. As there is no showing that said printed contracts were used by another and that they are still in the possession of the administrator which could be utilized anytime, this disbursement may be allowed.

The report also contains a receipt of payment made to Mr. Severo Abellera in the sum of P375 for his transportation expenses as one of the two commissioners who prepared the Project of Partition. The oppositors were able to prove that on May 24, 1941, the Court authorized the administrator to withdraw from the funds of the intestate the sum of P300 to defray the transportation expenses of the commissioners. The administrator, however, alleged that he used this amount for the payment of certain fees necessary in connection with the approval of the proposed plan of the Azcarraga property which was then being processed in the City Engineer's Office. From that testimony, it would seem that appellant could even go to the extent of disobeying the order of the Court specifying for what purpose that amount should be appropriated and took upon himself the task of judging for what it will serve best. Since he was not able to show or prove that the money intended and ordered by the Court to be paid for the transportation expenses of the commissioners was spent for the benefit of the estate as claimed, the administrator should be held responsible therefor and pay to the oppositors ¼ of P375 or the sum ofP93.75.

The records reveal that for the service of summons to the defendants in Civil Case No. 84 of the Court of First Instance of Rizal, P104 was paid to the Provincial Sheriff of the

same province (Exhibit H-7). However, an item for P40 appeared to have been paid to the Chief of Police on Jalajala allegedly for the service of the same summons. Appellant claimed that as the defendants in said civil case lived in remote barrios, the services of the Chief of Police as delegate or agent of the Provincial Sheriff were necessary. He forgot probably the fact that the local chiefs of police are deputy sheriffs ex-officio. The administrator was therefore ordered by the lower Court to pay ¼ of said amount or P10 to the oppositors.

The administrator included in his Report the sum of P550 paid to Atty. Filamor for his professional services rendered for the defense of the administrator in G.R. No. L-4179, which was decided against him, with costs. The lower Court disallowed this disbursement on the ground that this Court provided that the costs of that litigation should not be borne by the estate but by the administrator himself, personally.

Costs of a litigation in the Supreme Court taxed by the Clerk of Court, after a verified petition has been filed by the prevailing party, shall be awarded to said party and will only include his fee and that of his attorney for their appearance which shall not be more than P40; expenses for the printing and the copies of the record on appeal; all lawful charges imposed by the Clerk of Court; fees for the taking of depositions and other expenses connected with the appearance of witnesses or for lawful fees of a commissioner (De la Cruz, Philippine Supreme Court Practice, p. 70-71). If the costs provided for in that case, which this Court ordered to be chargeable personally against the administrator are not recoverable by the latter, with more reason this item could not be charged against the Intestate. Consequently, the administrator should pay the oppositors ¼ of the sum of P550 or P137.50.

(e) The lower Court in its decision required appellant to pay the oppositors the sum of P1,395 out of the funds still in the possession of the administrator.

In the statement of accounts submitted by the administrator, there appeared a cash balance of P5,851.17 as of August 31, 1961. From this amount, the sum of P1,002.96 representing the Certificate of Deposit No. 21619 and Check No. 57338, both of the Philippine National Bank and in the name of Quintin de Borja, was deducted leaving a balance of P4,848. As Judge Zulueta ordered the delivery to the oppositors of the amount of P1,890 in his order of October 8, 1951; the delivery of the amount of P810 to the estate of Juliana de Borja in his order of October 23, 1951, and the sum of P932.32 to the same estate of Juliana de Borja by order of the Court of February 29, 1952, or a total of P3,632.32 after deducting the same from the cash in the possession of the administrator, there will only be a remainder of P134.98.

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The Intestate is also the creditor of Miguel B. Dayco, heir and administrator of the estate of Crisanta de Borja, in the sum of P900 (Exhibits S and S-1). Adding this credit to the actual cash on hand, there will be a total of P1,034.98, ¼, of which or P258.74 properly belongs to the oppositors. However, as there is only a residue of P134.98 in the hands of the administrator and dividing it among the 3 groups of heirs who are not indebted to the Intestate, each group will receive P44.99, and Miguel B. Dayco is under obligation to reimburse P213.76 to each of them.

The lower Court ordered the administrator to deliver to the oppositors the amount of P1,395.90 and P314.99 each to Francisco de Borja and the estate of Juliana de Borja, but as We have arrived at the computation that the three heirs not idebted to the Intestate ought to receive P44.99 each out of the amount of P134.98, the oppositors are entitled to the sum of P1,080.91 — the amount deducted from them as taxes but which the Court ordered to be returned to them — plus P44.99 or a total of P1,125.90. It appearing however, that ina Joint Motion dated November 27, 1952, duly approved by the Court, the parties agreed to fix the amount at P1,125.58, as the amount due and said heirs have already received this amount in satisfaction of this item, no other sum can be chargeable against the administrator.

(f) The probate Court also ordered the administrator to render an accounting of his administration during the Japanese occupation on the ground that although appellant maintained that whatever money he received during that period is worthless, same having been declared without any value, yet during the early years of the war, or during 1942-43, the Philippine peso was still in circulation, and articles of prime necessity as rice and firewood commanded high prices and were paid with jewels or other valuables.

But We must not forget that in his order of December 11, 1945, Judge Peña required the administrator to render an accounting of his administration only from March 1, 1945, to December of the same year without ordering said administrator to include therein the occupation period. Although the Court below mentioned the condition then prevailing during the war-years, We cannot simply presume, in the absence of proof to that effect, that the administrator received such valuables or properties for the use or in exchange of any asset or produce of the Intestate, and in view of the aforementioned order of Judge Peña, which We find no reason to disturb, We see no practical reason for requiring appellant to account for those occupation years when everything was affected by the abnormal conditions created by the war. The records of the Philippine National Bank show that there was a current account jointly in the names of Crisanto de Borja and Juanita V. Jarencio, his wife, with a balance of P36,750.35 in Japanese

military notes and admittedly belonging to the Intestate and We do not believe that the oppositors or any of the heirs would be interested in an accounting for the purpose of dividing or distributing this deposit.

(g) On the sum of P13,294 for administrator's fees:

It is not disputed that the administrator set aside for himself and collected from the estate the sum of P13,294 as his fees from 1945 to 1951 at the rate of P2,400 a year. There is no controversy as to the fact that this appropriated amount was taken without the order or previous approval by the probate Court. Neither is there any doubt that the administration of the Intestate estate by Crisanto de Borja is far from satisfactory.

Yet it is a fact that Crisanto de Borja exercised the functions of an administrator and is entitled also to a certain amount as compensation for the work and services he has rendered as such. Now, considering the extent and size of the estate, the amount involved and the nature of the properties under administration, the amount collected by the administrator for his compensation at P200 a month is not unreasonable and should therefore be allowed.

It might be argued against this disbursement that the records are replete with instances of highly irregular practices of the administrator, such as the pretended ignorance of the necessity of a book or ledger or at least a list of chronological and dated entries of money or produce the Intestate acquired and the amount of disbursements made for the same properties; that admittedly he did not have even a list of the names of the lessees to the properties under his administration, nor even a list of those who owed back rentals, and although We certainly agree with the probate Court in finding appellant guilty of acts of maladministration, specifically in mixing the funds of the estate under his administration with his personal funds instead of keeping a current account for the Intestate in his capacity as administrator, We are of the opinion that despite these irregular practices for which he was held already liable and made in some instances to reimburse the Intestate for amounts that were not properly accounted for, his claim for compensation as administrator's fees shall be as they are hereby allowed.

Recapitulation. — Taking all the matters threshed herein together, the administrator is held liable to pay to the heirs of Quintin de Borja the following:

Under Paragraphs III and IV:


XXXX

In view of the foregoing, the decision appealed from is modified by reducing the amount that the administrator was sentenced to pay the oppositors to the sum of P46,210.78 (instead of P83,337.31), plus legal interests on this amount from the date of the decision appealed from, which is hereby affirmed in all other respects. Without pronouncement as to costs. It is so ordered.

G.R. No. L-81147 June 20, 1989

VICTORIA BRINGAS PEREIRA, petitioner, vs.THE HONORABLE COURT OF APPEALS and RITA PEREIRA NAGAC, respondents.

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

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

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

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

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

Not satisfied with the resolution of the lower court, petitioner brought the case to the Court of Appeals. The appellate court affirmed the appointment of private respondent as administratrix in its decision dated December 15, 1987. 4

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

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Anent the first issue, petitioner contends that there exists no estate of the deceased for purposes of administration for the following reasons: firstly, the death benefits from PAL, PALEA, PESALA and the SSS belong exclusively to her, being the sole beneficiary and in support of this claim she submitted letter-replies from these institutions showing that she is the exclusive beneficiary of said death benefits; secondly, the savings deposits in the name of her deceased husband with the PNB and the PCIB had been used to defray the funeral expenses as supported by several receipts; and, finally, the only real property of the deceased has been extrajudicially settled between the petitioner and the private respondent as the only surviving heirs of the deceased.

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

Petitioner asks this Court to declare that the properties specified do not belong to the estate of the deceased on the basis of her bare allegations as aforestated and a handful of documents. Inasmuch as this Court is not a trier of facts, We cannot order an unqualified and final exclusion or non-exclusion of the property involved from the estate of the deceased. 5

The resolution of this issue is better left to the probate court before which the administration proceedings are pending. The trial court is in the best position to receive evidence on the discordant contentions of the parties as to the assets of the decedent's estate, the valuations thereof and the rights of the transferees of some of the assets, if any. 6 The function of resolving whether or not a certain property should be included in the inventory or list of properties to be administered by the administrator is one clearly within the competence of the probate court. However, the court's determination is only provisional in character, not conclusive, and is subject to the final decision in a separate action which may be instituted by the parties. 7

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

The general rule is that when a person dies leaving property, the same should be judicially administered and the competent court should appoint a qualified

administrator, in the order established in Section 6, Rule 78, in case the deceased left no will, or in case he had left one, should he fail to name an executor therein. 8 An exception to this rule is established in Section 1 of Rule 74. 9 Under this exception, when all the heirs are of lawful age and there are no debts due from the estate, they may agree in writing to partition the property without instituting the judicial administration or applying for the appointment of an administrator.

Section 1, Rule 74 of the Revised Rules of Court, however, does not preclude the heirs from instituting administration proceedings, even if the estate has no debts or obligations, if they do not desire to resort for good reasons to an ordinary action for partition. While Section 1 allows the heirs to divide the estate among themselves as they may see fit, or to resort to an ordinary action for partition, the said provision does not compel them to do so if they have good reasons to take a different course of action. 10 It should be noted that recourse to an administration proceeding even if the estate has no debts is sanctioned only if the heirs have good reasons for not resorting to an action for partition. Where partition is possible, either in or out of court, the estate should not be burdened with an administration proceeding without good and compelling reasons. 11

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

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

In one case, 13 We said:

Again the petitioner argues that only when the heirs do not have any dispute as to the bulk of the hereditary estate but only in the manner of partition does section 1, Rule 74 of the Rules of Court apply and that in this case the parties are at loggerheads as to the corpus of the hereditary estate because respondents succeeded in sequestering some assets of the intestate. The argument is unconvincing, because, as the respondent judge has indicated, questions as to what property


belonged to the deceased (and therefore to the heirs) may properly be ventilated in the partition proceedings, especially where such property is in the hands of one heir.

In another case, We held that if the reason for seeking an appointment as administrator is merely to avoid a multiplicity of suits since the heir seeking such appointment wants to ask for the annulment of certain transfers of property, that same objective could be achieved in an action for partition and the trial court is not justified in issuing letters of administration. 14 In still another case, We did not find so powerful a reason the argument that the appointment of the husband, a usufructuary forced heir of his deceased wife, as judicial administrator is necessary in order for him to have legal capacity to appear in the intestate proceedings of his wife's deceased mother, since he may just adduce proof of his being a forced heir in the intestate proceedings of the latter. 15

We see no reason not to apply this doctrine to the case at bar. There are only two surviving heirs, a wife of ten months and a sister, both of age. The parties admit that there are no debts of the deceased to be paid. What is at once apparent is that these two heirs are not in good terms. The only conceivable reason why private respondent seeks appointment as administratrix is for her to obtain possession of the alleged properties of the deceased for her own purposes, since these properties are presently in the hands of petitioner who supposedly disposed of them fraudulently. We are of the opinion that this is not a compelling reason which will necessitate a judicial administration of the estate of the deceased. To subject the estate of Andres de Guzman Pereira, which does not appear to be substantial especially since the only real property left has been extrajudicially settled, to an administration proceeding for no useful purpose would only unnecessarily expose it to the risk of being wasted or squandered. In most instances of a similar nature, 16 the claims of both parties as to the properties left by the deceased may be properly ventilated in simple partition proceedings where the creditors, should there be any, are protected in any event.

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

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

WHEREFORE, the letters of administration issued by the Regional Trial Court of Bacoor to Rita Pereira Nagac are hereby revoked and the administration proceeding dismissed without prejudice to the right of private respondent to commence a new action for partition of the property left by Andres de Guzman Pereira. No costs.

SO ORDERED.

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

ANGELA RODRIGUEZ, MARIA RODRIGUEZ, ET AL., petitioners, vs.HON. JUAN DE BORJA, as Judge of the Court of First Instance of Bulacan, Branch III, ANATOLIA PANGILINAN and ADELAIDA JACALAN, respondents.

Petitioners Angela, Maria, Abelardo and Antonio, surnamed Rodriguez, petition this Court for a writ of certiorariand prohibition to the Court of First Instance of Bulacan, for its refusal to grant their motion to dismiss its Special Proceeding No. 1331, which said Court is alleged to have taken cognizance of without jurisdiction.

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 the pendency 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 'In the matter of the Intestate Estate of the deceased Rev. Fr. Celestino Rodriguez which was filed ahead 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 Court of Bulacan a purported last will and

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testament of Fr. Rodriguez; that on March 8, 1963, Maria Rodriguez and Angela Rodriguez, through counsel filed a petition for leave of court to allow them to examine the alleged will; that on March 11, 1963 before the Court could act on the petition, the same was withdrawn; that on March 12, 1963, aforementioned petitioners filed before the Court of First Instance of Rizal a petition for the settlement of the intestate estate of Fr. Rodriguez alleging, among other things, that Fr. Rodriguez was a resident of Parañaque, Rizal, and died without 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 petition in this Court for the probation of the will delivered by them on March 4, 1963. It was stipulated by the parties that Fr. Rodriguez was born in Parañaque, Rizal; that he was Parish priest of the Catholic Church of Hagonoy, Bulacan, from the year 1930 up to the time of his death in 1963; that he was buried in Parañaque, and that he left real properties in Rizal, Cavite, Quezon City and Bulacan.

The movants contend that since the intestate proceedings in the Court of First Instance of Rizal was filed at 8:00 A.M. on March 12, 1963 while the petition for probate was filed in the Court of First Instance of Bulacan at 11:00 A.M. on the same date, the latter Court has no jurisdiction to entertain 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 First Instance of Bulacan acquired jurisdiction over the case upon delivery by them of the will to the Clerk of Court on March 4, 1963, and that the case in this Court therefore has precedence over the 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 a difference of a few hours did not entitle one proceeding to preference over the other; that, as early as March 7, movants were aware of the existence of the purported will of Father Rodriguez, deposited in the Court of Bulacan, since they filed a petition to examine the same, and that movants clearly filed the intestate proceedings in Rizal "for no other purpose than to prevent this Court (of Bulacan) from exercising jurisdiction over the probate proceedings". Reconsideration having been denied, movants, now petitioners, came to this Court, relying principally on Rule 73, section 1 of the Rules of Court, and invoking 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 the Philippines at the time of his death, whether a citizen or an alien, his will shall be proved, or letters of administration granted, and his estate settled, in the Court of First Instance in the province in which he resides at the time of his death, and if he is an inhabitant of a foreign country, the Court of First Instance of any province which he had estate. The court first taking cognizance of the settlement of the estate of a decedent, shall exercise jurisdiction to the exclusion of all other courts. The jurisdiction assumed by a court, as far as it depends on the place of residence of the decedent, or of the location of his estate, shall not be contested in a suit or proceeding, except in an appeal from that court, in the original case, or when the want of jurisdiction appears on the record.

We find this recourse to be untenable. The jurisdiction of the Court of First Instance of Bulacan became vested 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, motu proprio, have taken steps to fix the time and place for proving the will, and issued the corresponding notices 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 is delivered to, or a petition for the allowance of a will is filed in, the Court having jurisdiction, such Court shall fix a time and place for proving the will when all concerned may appear to contest the allowance thereof, and shall cause notice of such time and place to be published three (3) weeks successively, previous to the time appointed, in a newspaper of general circulation in the province.

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 will is 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 deposit of the will, the petition is deemed to relate back to the time when the will was delivered. Since the testament of Fr. Rodriguez was submitted and delivered to the Court of Bulacan on March 4, while petitioners initiated intestate proceedings in the Court of First Instance of Rizal only on


March 12, eight days later, the precedence and exclusive jurisdiction of the Bulacan court is incontestable.1äwphï1.ñët

But, petitioners object, section 3 of revised Rule 76 (old Rule 77) speaks of a will being delivered to "the Court having jurisdiction," and in the case at bar the Bulacan court did not have it because the decedent was 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 throughout some animus revertendi to the place of his birth in Parañaque, Rizal, that detail would not imply that the Bulacan court lacked jurisdiction. As ruled in previous decisions, the power to settle decedents' estates is conferred by law upon all courts of first instance, and the domicile of the testator only affects the venue but not the jurisdiction of the Court (In re Kaw Singco, 74 Phil. 239; Reyes vs. Diaz, 73 Phil. 484; Bernabe vs. Vergara, 73 Phil. 676). Neither party denies that the late Fr. Rodriguez is deceased, or that he left personal 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 Singco case (ante) this Court ruled that:

"... If we consider such question of residence as one affecting the jurisdiction of the trial court over 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 will have to be commenced anew before another court of the same rank in another province. That this is of mischievous effect in the prompt administration of justice is too obvious to require comment. (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 be settled in the province where he had last resided, could not have been intended as defining the jurisdiction of the probate court over the subject matter, because such legal provision is contained in a law of procedure dealing merely with procedural matters, and, as we have said time and again, procedure is one thing and jurisdiction over the subject matter is another. (Attorney General 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 cases independently of the place of residence of the deceased.1 Since, however, there are many Courts of 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

the deceased is not an element of jurisdiction over the subject matter but merely of venue. And it is upon this ground that in the new Rules of Court the province where the estate of a deceased person shall be settled is properly called "venue" (Rule 75, section 1.) Motion for reconsideration is 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 wrong venue by express provisions of Rule 73 (old Rule 75) of the Rules of Court, since the same enjoins that:

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

This disposition presupposes that two or more courts have been asked to take cognizance of the settlement of the estate. Of them only one could be of proper venue, yet the rule grants precedence to that 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 commencing intestate proceedings in Rizal, after they learned of the delivery of the decedent's will to the Court of Bulacan, was in bad faith, patently done with a view to divesting the latter court of the precedence awarded it by the Rules. Certainly the order of priority established in Rule 73 (old Rule 75) was not designed to convert the settlement of decedent's estates into a race between applicants, with the administration of the properties as the price for the fleetest.

The other reason is that, in our system of civil law, intestate succession is only subsidiary or subordinate to the testate, since intestacy only takes place in the absence of a valid operative will. 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 its validity;

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

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(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 of testate succession could an intestate succession be instituted in the form of pre-established action". The institution of intestacy proceedings in Rizal may not thus proceed while the probate of the purported will of Father Rodriguez is pending.

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

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

G.R. No. L-18148 February 28, 1963

DEOGRACIAS BERNARDO, executor of the testate estate of the deceased EUSEBIO CAPILI; and the instituted heirs, namely: ARMANDO CAPILI and ARTURO BERNARDO, ET AL., petitioners, vs.HON. COURT OF APPEALS and THE HEIRS OF THE LATE HERMOGENA REYES, namely: FRANCISCO REYES, ET AL., and JOSE ISIDORO, ET AL., respondents.

This is a petition by certiorari for the review of the decision of the Court of Appeals affirming that of the Court of First Instance of Bulacan holding that the probate court in Special Proceeding 1101 had jurisdiction to determine the validity of the deed of donation in question and to pass upon the question of title or ownership of the properties mentioned therein.

The facts are briefly stated in the appealed decision of the Court of Appeals as follows:

Eusebio Capili and Hermogena Reyes were husband and wife. The first died on July 27, 1958 and a testate proceeding for the settlement of his estate was instituted in the Court of the Fist Instance of Bulacan. His will was admitted to probate on October 9, 1958, disposing of his properties in favor of his widow; his cousins Armando, Ursula, and Buenaventura, all surnamed Capili; and Arturo, Deogracias and Eduardo, all surnamed Bernardo. Hermogena Reyes herself died on April 24, 1959. Upon petition of Deogracias Bernardo, executor of the estate of the deceased Eusebio Capili, she was substituted by her collateral relatives and intestate heirs, namely, Marcos, Vicente, Francisco and Dominga, all surnamed Reyes; and Jose, Constancia, Raymunda and Elena, all surnamed Isidoro.

On June 12, 1959, the executor filed a project of partition in the testate proceeding in accordance with the terms of the will, adjudicating the estate of Eusebio Capili among the testamentary heirs with the exception of Hermogena Reyes, whose share was alloted to her collateral relatives aforementioned. On June 16, 1959 these relatives filed an opposition to the executor's project of partition and submitted a counter-project of partition of their own, claiming 1/2 of the properties mentioned in the will of the deceased Eusebio Capili on the theory that they belonged not to the latter alone but to the conjugal partnership of the spouses.

The probate court, in two orders dated June 24, 1959 and February 10, 1960, respectively, set the two projects of partition for hearing, at which evidence was presented by the parties, followed by the submission of memoranda discussing certain legal issues. In the memorandum for the executor and the instituted heirs it was contended: (1) that the properties disposed of in the will of the deceased Eusebio Capili belonged to him exclusively and not to the conjugal partnership, because Hermogena Reyes had donated to him her half share of such partnership; (2) that the collateral heirs of Hermogena Reyes had no lawful standing or grounds to question the validity of the donation; and


(3) that even assuming that they could question the validity of the donation, the same must be litigated not in the testate proceeding but in a separate civil action.

Wherefore, the parties respectfully pray that the foregoing stipulation of facts be admitted and approved by this Honorable Court, without prejudice to the parties adducing other evidence to prove their case not covered by this stipulation of facts. 1äwphï1.ñët

The oppositors and heirs of Hermogena Reyes, on their part, argued that the deed of donation itself was determinative of the original conjugal character to the properties, aside from the legal presumption laid down in Article 160 of the Civil Code, and that since the donation was null and void the deceased Eusebio Capili did not become owner of the share of his wife and therefore could not validly dispose of it in his will.

On September 14, 1960, the probate court, the Honorable M. Mejia presiding, issued an order declaring the donation void without making any specific finding as to its juridical nature, that is, whether it was inter vivos or mortis causa, for the reason that, considered under the first category, it falls under Article 133 of the Civil Code, which prohibits donations between spouses during the marriage; and considered under the second category, it does not comply with the formalities of a will as required by Article 728 in relation to Article 805 of the same Code, there being no attestation clause. In the same order the court disapproved both projects of partition and directed the executor to file another," dividing the property mentioned in the last will and testament of the deceased Eusebio Capili and the properties mentioned in the deed of donation, Exhibit B, between the instituted heirs of the deceased Eusebio Capili and the legal heirs of the deceased Hermogena Reyes, upon the basis that the said properties were conjugal properties of the deceased spouses." On September 27, 1960, the executor filed a motion for new trial, reiterating and emphasizing the contention previously raised in their memorandum that the probate court had no jurisdiction to take cognizance of the claim of the legal heirs of Hermogena Reyes involving title to the properties mentioned in the will of Eusebio Capili and taking exception to the court's declaration of the nullity of the donation "without stating facts or provision of law on which it was based." The motion for new trial was denied in an order dated October 3, 1960.

On appeal to the Court of Appeals the order appealed from being affirmed, petitioners filed this present petition for review by certiorari.

The petitioners-appellants contend that the appellate court erred in not declaring that the probate court, having limited and special jurisdiction, had generally no power to adjudicate title and erred in applying the exception to the rule.

In a line of decisions, this Court consistently held that as a general rule, question as to title to property cannot be passed upon on testate or intestate proceedings,"1 except where one of the parties prays merely for the inclusion or exclusion from the inventory of the property, in which case the probate court may pass provisionally upon the question without prejudice to its final determination in a separate action.2 However, we have also held that when the parties interested are all heirs of the deceased, it is optional to them to submit to the probate court a question as to title to property, and when so submitted, said probate court may definitely pass judgment thereon (Pascual v. Pascual, 73 Phil. 561; Manalac v. Ocampo, et al., 73 Phil. 661); and that with the consent of the parties, matters affecting property under judicial administration may be taken cognizance of by the court in the course of intestate proceeding, provided interests of third persons are not prejudiced (Cunanan v. Amparo, 80 Phil. 229, 232).

In the light of this doctrine, may it be said correctly that the trial court as well as the Court of Appeals erred in upholding the power of the probate court in this case to adjudicate in the testate proceedings, the question as to whether the properties herein involved belong to the conjugal partnership of Eusebio Capili and Hermogena Reyes, or to the deceased husband exclusively?

At the outset, let it be clarified that the matter at issue is not a question of jurisdiction, in the sense advanced by appellants that the trial court had completely no authority to pass upon the title to the lands in dispute, and that its decision on the subject is null and void and does not bind even those who had invoked its authority and submitted to its decision because, it is contended, jurisdiction is a creature of law and parties to an action can not vest, extend or broaden it. If appellants' contention is correct, then there can be no exception to the no-jurisdiction theory. But as has been stated in the case of Cunanan v. Amparo (supra) the Supreme Court speaking through Mr. Justice Pedro Tuason: "Determination of title to property is within the jurisdiction of Courts of First Instance. The responding Soriano's objection (that the probate court lacked jurisdiction to order the delivery of the possession of the lots to the estate) relates exclusively to the procedure, which is distinct from jurisdiction. It affects only personal rights to a mode of practice (the filing of an independent ordinary action) which may be waived".

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Strictly speaking, it is more a question of jurisdiction over the person, not over the subject matter, for the jurisdiction to try controversies between heirs of a deceased person regarding the ownership of properties alleged to belong to his estate, has been recognized to be vested in probate courts. This is so because the purpose of an administration proceeding is the liquidation of the estate and distribution of the residue among the heirs and legatees. Liquidation means determination of all the assets of the estate and payment of all the debts and expenses.3 Thereafter, distribution is made of the decedent's liquidated estate among the persons entitled to succeed him. The proceeding is in the nature of an action of partition, in which each party is required to bring into the mass whatever community property he has in his possession. To this end, and as a necessary corollary, the interested parties may introduce proofs relative to the ownership of the properties in dispute. All the heirs who take part in the distribution of the decedent's estate are before the court, and subject to the jurisdiction thereof, in all matters and incidents necessary to the complete settlement of such estate, so long as no interests of third parties are affected.4

In the case now before us, the matter in controversy is the question of ownership of certain of the properties involved — whether they belong to the conjugal partnership or to the husband exclusively. This is a matter properly within the jurisdiction of the probate court which necessarily has to liquidate the conjugal partnership in order to determine the estate of the decedent which is to be distributed among his heirs who are all parties to the proceedings, including, of course, the widow, now represented because of her death, by her heirs who have been substituted upon petition of the executor himself and who have appeared voluntarily. There are no third parties whose rights may be affected. It is true that the heirs of the deceased widow are not heirs of the testator-husband, but the widow is, in addition to her own right to the conjugal property. And it is this right that is being sought to be enforced by her substitutes. Therefore, the claim that is being asserted is one belonging to an heir to the testator and, consequently, it complies with the requirement of the exception that the parties interested (the petitioners and the widow, represented by dents) are all heirs claiming title under the testator.

Petitioners contend additionally that they have never submitted themselves to the jurisdiction of the probate court, for the purpose of the determination of the question of ownership of the disputed properties. This is not borne by the admitted facts. On the contrary, it is undisputed that they were the ones who presented the project of partition claiming the questioned properties as part of the testator's asset. The respondents, as representatives or substitutes of the deceased widow opposed the project of partition and submitted another. As the Court of Appeals said, "In doing so all of them must be

deemed to have submitted the issue for resolution in the same proceeding. Certainly, the petitioners can not be heard to insist, as they do, on the approval of their project of partition and, thus, have the court take it for granted that their theory as to the character of the properties is correct, entirely without regard to the opposition of the respondents". In other words, by presenting their project of partition including therein the disputed lands (upon the claim that they were donated by the wife to her husband), petitioners themselves put in issue the question of ownership of the properties — which is well within the competence of the probate court — and just because of an opposition thereto, they can not thereafter withdraw either their appearance or the issue from the jurisdiction of the court. Certainly, there is here a waiver where the parties who raise the objection are the ones who set the court in motion.5 They can not be permitted to complain if the court, after due hearing, adjudges question against them.6

Finally, petitioners-appellants claim that appellees are estopped to raise the question of ownership of the properties involved because the widow herself, during her lifetime, not only did not object to the inclusion of these properties in the inventory of the assets of her deceased husband, but also signed an extra-judicial partition of those inventoried properties. But the very authorities cited by appellants require that to constitute estoppel, the actor must have knowledge of the facts and be appraised of his rights at the time he performs the act constituting estoppel, because silence without knowledge works no estoppel.7 In the present case, the deceased widow acted as she did because of the deed of donation she executed in favor of her husband not knowing that such deed was illegal, if inter-vivos, and ineffectual if mortis-causa, as it has not been executed with the required formalities similar to a will.

WHEREFORE, the decision of the Court of Appeals being in accordance with law, the same is hereby affirmed with costs against appellants. So ordered.

G.R. No. 108581 December 8, 1999

LOURDES L. DOROTHEO, petitioner, vs.


COURT OF APPEALS, NILDA D. QUINTANA, for Herself and as Attorney-in-Fact of VICENTE DOROTHEO and JOSE DOROTHEO, respondents.

May a last will and testament admitted to probate but declared intrinsically void in an order that has become final and executory still be given effect? This is the issue that arose from the following antecedents:

Private respondents were the legitimate children of Alejandro Dorotheo and Aniceta Reyes. The latter died in 1969 without her estate being settled. Alejandro died thereafter. Sometime in 1977, after Alejandro's death, petitioner, who claims to have taken care of Alejandro before he died, filed a special proceeding for the probate of the latter's last will and testament. In 1981, the court issued an order admitting Alejandro's will to probate. Private respondents did not appeal from said order. In 1983, they filed a "Motion To Declare The Will Intrinsically Void." The trial court granted the motion and issued an order, the dispositive portion of which reads:

WHEREFORE, in view of the foregoing, Order is hereby issued declaring Lourdes Legaspi not the wife of the late Alejandro Dorotheo, the provisions of the last will and testament of Alejandro Dorotheo as intrinsically void, and declaring the oppositors Vicente Dorotheo, Jose Dorotheo and Nilda Dorotheo Quintana as the only heirs of the late spouses Alejandro Dorotheo and Aniceta Reyes, whose respective estates shall be liquidated and distributed according to the laws on intestacy upon payment of estate and other taxes due to the government.1

Petitioner moved for reconsideration arguing that she is entitled to some compensation since she took care of Alejandro prior to his death although she admitted that they were not married to each other. Upon denial of her motion for reconsideration, petitioner appealed to the Court of Appeals, but the same was dismissed for failure to file appellant's brief within the extended periodgranted. 2 This dismissal became final and executory on February 3, 1989 and a corresponding entry of judgment was forthwith issued by the Court of Appeals on May 16, 1989. A writ of execution was issued by the lower court to implement the final and executory Order. Consequently, private respondents filed several motions including a

motion to compel petitioner to surrender to them the Transfer Certificates of Titles (TCT) covering the properties of the late Alejandro. When petitioner refused to surrender the TCT's, private respondents filed a motion for cancellation of said titles and for issuance of new titles in their names. Petitioner opposed the motion.

An Order was issued on November 29, 1990 by Judge Zain B. Angas setting aside the final and executory Order dated January 30, 1986, as well as the Order directing the issuance of the writ of execution, on the ground that the order was merely "interlocutory", hence not final in character. The court added that the dispositive portion of the said Order even directs the distribution of the estate of the deceased spouses. Private respondents filed a motion for reconsideration which was denied in an Order dated February 1, 1991. Thus, private respondents filed a petition before the Court of Appeals, which nullified the two assailed Orders dated November 29, 1990 and February 1, 1991.

Aggrieved, petitioner instituted a petition for review arguing that the case filed by private respondents before the Court of Appeals was a petition under Rule 65 on the ground of grave abuse of discretion or lack of jurisdiction. Petitioner contends that in issuing the two assailed orders, Judge Angas cannot be said to have no jurisdiction because he was particularly designated to hear the case. Petitioner likewise assails the Order of the Court of Appeals upholding the validity of the January 30, 1986 Order which declared the intrinsic invalidity of Alejandro's will that was earlier admitted to probate.

Petitioner also filed a motion to reinstate her as executrix of the estate of the late Alejandro and to maintain thestatus quo or lease of the premises thereon to third parties. 3 Private respondents opposed the motion on the ground that petitioner has no interest in the estate since she is not the lawful wife of the late Alejandro.

The petition is without merit. A final and executory decision or order can no longer be disturbed or reopened no matter how erroneous it may be. In setting aside the January 30, 1986 Order that has attained finality, the trial court in effect nullified the entry of judgment made by the Court of Appeals. It is well settled that a lower court cannot reverse or set aside decisions or orders of a superior court, for to do so would be to negate the hierarchy of courts and nullify the essence of review. It has been ruled that a final judgment on probated will, albeit erroneous, is binding on the whole world. 4

It has been consistently held that if no appeal is taken in due time from a judgment or order of the trial court, the same attains finality by mere lapse of time. Thus, the order

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allowing the will became final and the question determined by the court in such order can no longer be raised anew, either in the same proceedings or in a different motion. The matters of due execution of the will and the capacity of the testator acquired the character ofres judicata and cannot again be brought into question, all juridical questions in connection therewith being for once and forever closed. 5 Such final order makes the will conclusive against the whole world as to its extrinsic validity and due execution. 6

It should be noted that probate proceedings deals generally with the extrinsic validity of the will sought to be probated, 7 particularly on three aspects:

n whether the will submitted is indeed, the decedent's last will and testament;

n compliance with the prescribed formalities for the execution of wills;

n the testamentary capacity of the testator; 8

n and the due execution of the last will and testament. 9

Under the Civil Code, due execution includes a determination of whether the testator was of sound and disposing mind at the time of its execution, that he had freely executed the will and was not acting under duress, fraud, menace or undue influence and that the will is genuine and not a forgery, 10 that he was of the proper testamentary age and that he is a person not expressly prohibited by law from making a will. 11

The intrinsic validity is another matter and questions regarding the same may still be raised even after the will has been authenticated. 12 Thus, it does not necessarily follow that an extrinsically valid last will and testament is always intrinsically valid. Even if the will was validly executed, if the testator provides for dispositions that deprives or impairs the lawful heirs of their legitime or rightful inheritance according to the laws on succession, 13 the unlawful provisions/dispositions thereof cannot be given effect. This is specially so when the courts had already determined in a final and executory decision that the will is intrinsically void. Such determination having attained that character of finality is binding on this Court which will no longer be disturbed. Not that this Court finds the will to be intrinsically valid, but that a final and executory decision of which the party had the opportunity to challenge before the higher tribunals must stand and should no longer be reevaluated. Failure to avail of the remedies provided by law

constitutes waiver. And if the party does not avail of other remedies despite its belief that it was aggrieved by a decision or court action, then it is deemed to have fully agreed and is satisfied with the decision or order. As early as 1918, it has been declared that public policy and sound practice demand that, at the risk of occasional errors, judgments of courts must at some point of time fixed by law 14 become final otherwise there will be no end to litigation. Interes rei publicae ut finis sit litium — the very object of which the courts were constituted was to put an end to controversies. 15 To fulfill this purpose and to do so speedily, certain time limits, more or less arbitrary, have to be set up to spur on the slothful. 16 The only instance where a party interested in a probate proceeding may have a final liquidation set aside is when he is left out by reason of circumstances beyond his control or through mistake or inadvertence not imputable to negligence, 17 which circumstances do not concur herein.

Petitioner was privy to the suit calling for the declaration of the intrinsic invalidity of the will, as she precisely appealed from an unfavorable order therefrom. Although the final and executory Order of January 30, 1986 wherein private respondents were declared as the only heirs do not bind those who are not parties thereto such as the alleged illegitimate son of the testator, the same constitutes res judicata with respect to those who were parties to the probate proceedings. Petitioner cannot again raise those matters anew for relitigation otherwise that would amount to forum-shopping. It should be remembered that forum shopping also occurs when the same issue had already been resolved adversely by some other court. 18 It is clear from the executory order that the estates of Alejandro and his spouse should be distributed according to the laws of intestate succession.

Petitioner posits that the January 30, 1986 Order is merely interlocutory, hence it can still be set aside by the trial court. In support thereof, petitioner argues that "an order merely declaring who are heirs and the shares to which set of heirs is entitled cannot be the basis of execution to require delivery of shares from one person to another particularly when no project of partition has been filed." 19 The trial court declared in the January 30, 1986 Order that petitioner is not the legal wife of Alejandro, whose only heirs are his three legitimate children (petitioners herein), and at the same time it nullified the will. But it should be noted that in the same Order, the trial court also said that the estate of the late spouses be distributed according to the laws of intestacy. Accordingly, it has no option but to implement that order of intestate distribution and not to reopen and again re-examine the intrinsic provisions of the same will.


It can be clearly inferred from Article 960 of the Civil Code, on the law of successional rights that testacy is preferred to intestacy. 20 But before there could be testate distribution, the will must pass the scrutinizing test and safeguards provided by law considering that the deceased testator is no longer available to prove the voluntariness of his actions, aside from the fact that the transfer of the estate is usually onerous in nature and that no one is presumed to give — Nemo praesumitur donare. 21 No intestate distribution of the estate can be done until and unless the will had failed to pass both its extrinsic and intrinsic validity. If the will is extrinsically void, the rules of intestacy apply regardless of the intrinsic validity thereof. If it is extrinsically valid, the next test is to determine its intrinsic validity — that is whether the provisions of the will are valid according to the laws of succession. In this case, the court had ruled that the will of Alejandro was extrinsically valid but the intrinsic provisions thereof were void. Thus, the rules of intestacy apply as correctly held by the trial court.

Furthermore, Alejandro's disposition in his will of the alleged share in the conjugal properties of his late spouse, whom he described as his "only beloved wife", is not a valid reason to reverse a final and executory order. Testamentary dispositions of properties not belonging exclusively to the testator or properties which are part of the conjugal regime cannot be given effect. Matters with respect to who owns the properties that were disposed of by Alejandro in the void will may still be properly ventilated and determined in the intestate proceedings for the settlement of his and that of his late spouse's estate.

Petitioner's motion for appointment as administratrix is rendered moot considering that she was not married to the late Alejandro and, therefore, is not an heir.

WHEREFORE, the petition is DENIED and the decision appealed from is AFFIRMED.

SO ORDERED.

G.R. No. 75773 April 17, 1990

TOMAS JIMENEZ, VISITACION JIMENEZ, DIGNO JIMENEZ, ANTONIO JIMENEZ, AMADEO JIMENEZ, MODESTO JIMENEZ and VIRGINIA JIMENEZ, petitioners,

vs.HONORABLE INTERMEDIATE APPELLATE COURT, HON. AMANDA VALERA-CABIGAO, in her capacity as Presiding Judge, Regional Trial Court, Branch XXXVII, Lingayen, Pangasinan, LEONARDO JIMENEZ, JR. and CORAZON JIMENEZ, respondents.

This is a petition for review on certiorari seeking to reverse and set aside the decision 1 of the Court of Appeals dated May 29, 1986 which dismissed the petition for certiorari and mandamus in AC-G.R. No. 06578 entitled "Tomas Jimenez, et. al. vs. Hon. Amanda Valera-Cabigao."

The facts are as follows:

The marriage of Leonardo (Lino) Jimenez and Consolacion Ungson produced four (4) children, namely: Alberto, Leonardo, Sr., Alejandra and Angeles. During the existence of the marriage, Lino Jimenez acquired five (5) parcels of land in Salomague, Bugallon, Pangasinan.

After the death of Consolacion Ungson, Lino married Genoveva Caolboy with whom he begot the seven petitioners herein: Tomas, Visitacion, Digno, Antonio, Amadeo, Modesto and Virginia, all surnamed Jimenez. Lino Jimenez died on August 11, 1951 while Genoveva Caolboy died on November 21, 1978.

Thereafter, in April 1979, Virginia Jimenez filed a petition before the Court of First Instance of Pangasinan, Branch V, docketed as Special Proceedings No. 5346, praying to be appointed as administratrix of the properties of the deceased spouses Lino and Genoveva. Enumerated in her petition were the supposed heirs of the deceased spouses which included herein co-petitioners and the four children of Lino Jimenez by Consolacion Ungson, his previous wife. 2

In October, 1979, herein private respondent Leonardo Jimenez, Jr., son of Leonardo Jimenez, Sr., filed a motion for the exclusion of his father's name and those of Alberto, Alejandra, and Angeles from the petition, inasmuch as they are children of the union of Lino Jimenez and Consolacion Ungson and not of Lino Jimenez and Genoveva

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Caolboy and because they have already received their inheritance consisting of five (5) parcels of lands in Salomague, Bugallon, Pangasinan. 3

On March 23, 1981, petitioner Virginia Jimenez was appointed administrator of the Intestate Estate of Lino Jimenez and Genoveva Caolboy. 4 On May 21, 1981, she filed an inventory of the estate of the spouses Lino Jimenez and Genoveva Caolboy wherein she included the five (5) parcels of land in Salomague, Bugallon, Pangasinan. As a consequence, Leonardo Jimenez, Jr. moved for the exclusion of these properties from the inventory on the ground that these had already been adjudicated to Leonardo Sr., Alberto, Alejandra and Angeles by their deceased father Lino Jimenez. Private respondent Leonardo Jimenez, Jr. presented testimonial and documentary evidence in support of his motion while petitioner Virginia Jimenez, other than cross-examining the witnesses of Leonardo, presented no evidence of her own, oral or documentary.

On September 29, 1981, the probate court ordered the exclusion of the five (5) parcels of land from the inventory on the basis of the evidence of private respondent Leonardo Jimenez, Jr. which consisted among others of: (1) Tax Declaration showing that the subject properties were acquired during the conjugal partnership of Lino Jimenez and Consolacion Ungson; and, (2) a Deed of Sale dated May 12, 1964 wherein Genoveva Caolboy stated, that the subject properties had been adjudicated by Lino Jimenez to his children by a previous marriage, namely: Alberto, Leonardo, Alejandra and Angeles. 5 The motion for reconsideration of said order was denied on January 26, 1982. 6

Petitioner Virginia Jimenez then went to the Court of Appeals on a petition for certiorari and prohibition, docketed thereat as CA-G.R. No. SP-13916, seeking the annulment of the order dated September 29, 1981 as well as the order of January 26, 1982. On November 18, 1982, the Court of Appeals dismissed the petition because (1) Genoveva Caolboy, petitioners' mother, had admitted that the subject parcels of land had been adjudicated to the children of the previous nuptial; (2) the subject properties could not have been acquired during the marriage of Lino Jimenez to Genoveva Caolboy because they were already titled in the name of Lino Jimenez even prior to 1921, long before Lino's marriage to Genoveva in 1940; (3) the claim of Virginia Jimenez was barred by prescription because it was only in 1981 when they questioned the adjudication of the subject properties, more than ten (10) years after Genoveva had admitted such adjudication in a public document in 1964; and, (4) petitioner Virginia Jimenez was guilty of laches. This decision became final and executory. 7

Two (2) years after, petitioners filed an amended complaint dated December 10, 1984 before the Regional Trial Court of Pangasinan, Branch XXXVII, docketed thereat as Civil Case No. 16111, to recover possession/ownership of the subject five (5) parcels of land as part of the estate of Lino Jimenez and Genoveva Caolboy and to order private respondents to render an accounting of the produce therefrom. Private respondents moved for the dismissal of the complaint on the grounds that the action was barred by prior judgment in CA-G.R. No. SP-13916 dated November 18, 1982 and by prescription and laches. However, petitioners opposed the motion to dismiss contending that (1) the action was not barred by prior judgment because the probate court had no jurisdiction to determine with finality the question of ownership of the lots which must be ventilated in a separate action; and, (2) the action instituted in 1981 was not barred by prescription or laches because private respondents' forcible acquisition of the subject properties occurred only after the death of petitioners' mother, Genoveva Caolboy in 1978.

On February 13, 1985, the trial court resolved to dismiss the complaint on the ground of res judicata. 8 On May 31, 1985, petitioners' motion for reconsideration of the resolution was denied. As earlier intimated, the petition forcertiorari and mandamus filed by petitioners before the appellate court was likewise denied due course and dismissed in a decision dated May 29, 1986. 9

Hence, this recourse.

The issue in this case is whether in a settlement proceeding (testate or intestate) the lower court has jurisdiction to settle questions of ownership and whether res judicata exists as to bar petitioners' present action for the recovery of possession and ownership of the five (5) parcels of land. In the negative, is the present action for reconveyance barred by prescription and/or laches?

We reverse. Petitioners' present action for recovery of possession and ownership is appropriately filed because as a general rule, a probate court can only pass upon questions of title provisionally. Since the probate, court's findings are not conclusive being prima facie, 10 a separate proceeding is necessary to establish the ownership of the five (5) parcels of land. 11

The patent reason is the probate court's limited jurisdiction and the principle that questions of title or ownership, which result in inclusion or exclusion from the inventory of the property, can only be settled in a separate action. 12


All that the said court could do as regards said properties is determine whether they should or should not be included in the inventory or list of properties to be administered by the administrator. If there is a dispute as to the ownership, then the opposing parties and the administrator have to resort to an ordinary action for a final determination of the conflicting claims of title because the probate court cannot do so. 13

The provisional character of the inclusion in the inventory of a contested property was again reiterated in the following cases: Pio Barreto Realty Development, Inc. vs. Court of Appeals, 14 Junquera vs. Borromeo, 15Borromeo vs. Canonoy, 16 Recto vs. de la Rosa. 17 It has also been held that in a special proceeding for the probate of a will, the question of ownership is an extraneous matter which the probate court cannot resolve with finality. 18 This pronouncement no doubt applies with equal force to an intestate proceeding as in the case at bar.

Res judicata 19 does not exist because of the difference in the causes of actions. Specifically in S.P. No. 5346, the action was for the settlement of the intestate estate of Lino Jimenez and Genoveva Caolboy while Civil Case No. 16111 was an action for the recovery of possession and ownership of the five (5) parcels of land. Moreover, while admittedly, the Court of First Instance of Pangasinan, Branch V in S.P. No. 5346 had jurisdiction, the same was merely limited jurisdiction. Any pronouncement by said court as to title is not conclusive and could still be attacked in a separate proceeding. Civil Case No. 16111, on the other hand. was lodged before the Regional Trial Court of Pangasinan, Branch XXXVII in the exercise of the court's general jurisdiction. It was, in fact, such "separate or ordinary proceedings" contemplated by the rules for a final determination of the issue of ownership of the disputed properties. To repeat, since the determination of the question of title to the subject properties in S.P. 5346 was merely provisional, petitioners are not barred from instituting the appropriate action in Civil Case No. 16111.

Indeed, the grounds relied upon by private respondents in their motion to dismiss do not appear to be indubitable.Res judicata has been shown here to be unavailable and the other grounds of prescription and laches pleaded by private respondents are seriously disputed. The allegation in the complaint is that the heirs of Leonardo Jimenez, Sr. (referring to private respondents,) forcibly intruded into and took possession of the disputed properties only in 1978, after the death of Genoveva Caolboy. Since the action for reconveyance was instituted in 1984, it would appear that the same has not yet prescribed or otherwise barred by laches.

There are a number of factual issues raised by petitioners before the lower court which cannot be resolved without the presentation of evidence at a full-blown trial and which make the grounds for dismissal dubitable. Among others, the alleged admission made by petitioners' mother in the deed of sale is vehemently denied, as well as the fact itself of adjudication, there being no showing that the conjugal partnership of Lino Jimenez and Consolacion Ungson had been liquidated nor that a judicial or extra-judicial settlement of the estate of Lino Jimenez was undertaken whereby such adjudication could have been effected.

The grounds stated in the motion to dismiss not being indubitable, the trial court committed grave abuse of discretion in dismissing the complaint in Civil Case No. 16111.

WHEREFORE, the questioned decision of the respondent appellate court is hereby REVERSED. Civil Case No. 16111 is reinstated and the Regional Trial Court of Pangasinan, Branch XXXVII is directed to proceed in said case with dispatch.

SO ORDERED.

G.R. No. L-42257 June 14, 1976

ILDEFONSO LACHENAL, ELIAS LACHENAL, IRENEA L. SANTOS, FLORA L. SANCHEZ and NATIVIDAD D. LACHENAL, petitioners, vs.HON. EMILIO V. SALAS, Presiding Judge of the Court of First Instance of Pasig, Rizal, Branch I, and FLAVIANA L. LEONIO, respondents.

Victorio Lachenal died on November 20, 1969. His testate estate is pending settlement in the Court of First Instance of Rizal, Pasig Branch I (Special Proceeding No. 5836).

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His son, Ildefonso Lachenal, was named executor of his will. Among the properties included in the inventory of his estate is a fishing boat called Lachenal VII.

On April 1, 1971 the executor filed in that proceeding a motion to require the spouses Lope L. Leonio and Flaviana Lachenal-Leonio to pay the rentals for the lease of Lachenal VII and to return the boat to Navotas, Rizal for drydocking and repair.

Mrs. Leonio, who was a daughter of the testator, opposed the executor's motion. She countered with a motion to exclude the fishing boat from the decedent's estate. She claimed that she is the owner of the boat because she purchased it from her father in 1967. The executor opposed the motion for exclusion.

The probate court in its order of January 28, 1972 designated a commissioner to receive the evidence of the parties relative to the ownership of the motorboat. Mrs. Leonio had already finished the presentation of her evidence before the commissioner.

The executor did not present his countervailing evidence. Instead, on July 8, 1975 he and the testator's other children named Flora, Elias and Irenea, and the children of a deceased child filed in the Caloocan City Branch of the Court of First Instance of Rizal an action against the Leonio spouses and the other three children of the testator named Crispula, Modesto and Esperanza, for the recovery of the motorboat Lachenal VII, allegedly valued at P150,000, together with back rentals and damages (Civil Case No. 3597).

It was alleged in the complaint that Victorio Lachenal in 1964 leased the said motorboat to his son-in-law, Lope L. Leonio, for a monthly rental of P2,000 and that after Victorio's death, the executor of his estate demanded from Leonio the return of the boat and the payment of the back rentals.

On July 20, 1975 the said plaintiffs in Civil Case No. 3597 filed in the probate court their own motion to exclude the said motorboat from the decedent's estate on the ground that the, probate court has no jurisdiction to decide the question as to its ownership because that matter has to be resolved by the Caloocan court where Civil Case No. 3597 is pending.

The probate court denied that motion. It held that it has jurisdiction over the issue of ownership because the heirs had agreed to present their evidence on that point before a commissioner.

It invoked the rule that generally "questions of title to property cannot be passed upon in testate or intestate proceedings, except when the parties interested are all heirs of the deceased in which event it is optional upon them to submit to the probate court the question as to title to property and when so submitted, said probate court may definitely pass judgment thereon. The reason is that questions of collation or of advancement are generally inevitably involved therein which are proper matters to be passed upon in the due course of administration. And it has also been held that with the consent of the parties, matters affecting property under administration may be taken cognizance of by the court in the course of the intestate proceedings provided the interests of third persons are not prejudiced." (3 Moran's Comments on the Rules of Court, 1970 Edition, page 473, citing Alvarez vs. Espiritu, L-18833, August 14, 1965, 14 SCRA 892, 899; Pascual vs. Pascual, 73 Phil. 561; Vda. de Manalac vs. Ocampo, 73 Phil. 661; Cunanan vs. Amparo, 80 Phil. 227; Dinglasan vs. Ang Chia, 88 Phil. 476; Baquial vs. Amihan, 92 Phil. 501).

On January 5, 1976 the executor and his co-plaintiffs in Civil Case No. 3597 filed these special civil actions of prohibition and certiorari against the probate court.

The issue is whether the probate court should be allowed to continue the hearing on the ownership of the fishing boat or whether that question should be left to the determination of the Caloocan court where the subsequent separate action (now in the pre-trial stage) for the recovery of the motorboat is pending.

We hold that the title to the fishing boat should be determined in Civil Case No. 3597 because it affects the lessee thereof, Lope L Leonio, the decedent's son-in-law, who, although married to his daughter or compulsory heir, is nevertheless a third person with respect to his estate. "The administrator may not pull him against his will, by motion, into the administration proceeding" (De la Cruz vs. Camon, 63 O.G. 8704, 16 SCRA 886; De Paula vs. Escay, infra).

This case falls under the general rule that questions as to title to property cannot be passed upon in the testate or intestate proceeding but should be ventilated in a separate action (Ongsingco vs. Tan, 97 Phil. 330, 334; Bernardo vs. Court of Appeals ,117 Phil. 835; Magallanes vs. Kayanan, L-31048, January 20, 1976; Recto vs. Dela Rosa, L-42799, March 16, 1976).

Where a party in a probate proceeding prays for the inclusion in, or exclusion from, the inventory of a piece of property, the court may provisionally pass upon the question without prejudice to its final determination in a separate action (Garcia vs. Garcia, 67


Phil. 353; Guinguing vs. Abuton, 48 Phil. 144, 147; Junquera vs. Borromeo, L-18498, March 30, 1967, 19 SCRA 656; Borromeo vs. Canonoy, L-25010, March 30, 1967, 19 SCRA 667).

The Court of First Instance is a court of general original jurisdiction invested with power to take cognizance of all kinds of cases: civil cases, criminal cases, special proceedings, land registration, guardianship, naturalization, admiralty and insolvency cases (Sec. 39, Judiciary Law; De Paula vs. Escay, 97 Phil. 617, 619; Manalo vs. Mariano, L-33850, January 22, 1976).

Whether a particular matter should be resolved by the Court of First Instance in the exercise of its general jurisdiction or of its limited jurisdiction as a special court (probate, land registration, etc.) is in reality not a question of over the subject matter. It is in essence a procedural question involving a mode of practice "which may be waived" (Cunanan vs. Amparo, supra, page 232; Cf. Reyes vs. Diaz, 73 Phil. 484 rejurisdiction over the issue).

Probate jurisdiction includes all matters relating to the settlement of estates and the probate of wills of persons (Sec. 599, Act 190), particularly the administration of the decedent's estate, the payment of his debts, questions as to collation or advancements to the heirs, the liquidation of the conjugal partnership, and the partition and distribution of the estate (De La Cruz vs. Camon, supra).

For the recovery or protection or the property rights of the decedent. an executor or administrator may bring or defend in the right of the decedent, actions for causes which survive. Actions to recover real or personal property, or an interest therein, from the decedent's estate, or to enforce a lien thereon, and actions to recover damages for an injury to or property, real or personal, may be commenced against an executor or administrator (Secs. 1 and 2, Rule 87, Rules of Court).

In the instant case, the executor, by virtue of section 2 of Rule 87, filed a separate action in the Caloocan court for the recovery of the fishing boat and back rentals from the Leonio spouses.

In the De la Cruz case, supra, it was held that rentals allegedly due to the decedent's estate may not be collected by the administrator by filing a motion in the testate proceeding. The said rentals do not constitute property in the administrator's hands and are not thus within the effective control of the probate court. The proper procedure in collecting such rentals is to file an independent action in the Court of First Instance

so that the right of the estate thereto may be threshed out in a full-dress trial on the merits.

The ruling in the De la Cruz case applies with stronger force to this case because here the executor seeks to recover not only the rentals but also the leased property itself, as to which the wife of the lessee had asserted adverse title.

Normally, it is expedient and convenient that the question of title to property, which arises between the decedent's estate and other persons, should be adjucated in a separate action because such a question requires the presentation of appropriate pleadings (complaint, motion to dismiss, answer, counterclaim and reply). A resort to the modes of discovery may be necessary so that the issues may be clearly defined and the trial may be expedited. Those matters can be effectively accomplished in an ordinary action rather than in the testamentary or intestate proceeding (Mangaliman vs. Gonzales, L-21033, December 28, 1970, 36 SCRA 462).

The court may also have to resolve ancillary issues as to damages and counterclaims for money or property. Ultimately, execution has to be issued. The execution of a judgment is usually made by the Court of First Instance in an ordinary action and not in a special proceeding (See Magallanes vs. Kayanan, supra).

In the instant case, in as much as the controversy over the fishing boat concerns members of the same family, the Caloocan court should endeavor before trial to persuade the litigants to agree upon some compromise (Arts. 222 and 2029, Civil Code; Sec. 1[j], Rule 16, Rules of Court).

WHEREFORE, the probate court's orders of September 17 and October 20, 1975, asserting its jurisdiction to decide the title to the fishing boat, Lachenal VII, are set aside. No costs.

SO ORDERED.

G.R. No. L-39532 July 20, 1979

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Testate Estate of Jose M. Valero, FLORA VALERO VDA. DE RODRIGUEZ and ROSIE VALERO DE GUTIERREZ, petitioners-appellants, vs.COURT OF APPEALS and CARMEN VALERO-RUSTIA, respondents-appellees.

This is supposedly a case about collation. As factual background, it should be stated that the spouses, Beatriz Bautista and Jose M. Valero, did not beget any child during their marriage In 1951 Beatriz adopted Carmen (Carmencita) Bautista. Jose wanted also to adopt her but because, by his first marriage, he had two children named Flora Valero Vda. de Rodriguez and Rosie Valero Gutierrez. he was disqualified to adopt Carmen. Jose manifested in the adoption proceeding that he consented to the use by Carmen of his surname Valero. (See Civil Case No. 12475, Manila CFI; Art. 338[1], Civil Code and art. 28, Child and Youth Welfare Code.)

On September 18, 1964, Jose M. Valero donated to Carmen B. Valero (who was already married to Doctor Sergio Rustia) his one-half proindiviso share (apparently his inchoate share) in two conjugal lots, with the improvements thereon, located at San Lorenzo Village, Makati, Rizal, with an area of 1,500 square meters. His wife, Beatriz, consented to the donation. However, the deed of donation was not registered.

On January 13, 1966, Jose M. Valero, who was then seventy-three years old, executed his last will and testament wherein he enumerated the conjugal properties of himself and his wife, including the two San Lorenzo Village lots. In that will, he did not mention the donation. He devised to his wife properties sufficient to constitute her legitime and bequeathed the remainder to his two children, Mrs. Rodriguez and Mrs. Gutierrez.

About a month later, or on February 15, 1966, the Valero spouses, by means of a deed of absolute sale, conveyed the San Lorenzo Village lots and the improvements thereon to Carmen B. Valero-Rustia for the sum of one hundred twenty thousand pesos. The sale was registered on the following day. Transfer Certificates of Title Nos. 163270 and 163271 were issued to the vendee, Mrs. Rustia.

On December 4, 1967 she mortgaged the two lots to the Quezon City Development Bank as security for a loan of fifty thousand pesos (page 204, Rollo).

Beatriz B. Valero died intestate on September 12, 1972, survived by her husband and her adopted child. Her estate is pending settlement in Special Proceeding No. 88896 of the Court of First Instance of Manila. Mrs. Rustia was named administratrix of her adopted mother's estate.

More than a month later, or on October 18, 1972, Jose M. Valero died testate, survived by his two children, Mrs. Rodriguez and Mrs. Gutierrez. His will was duly probated in Special Proceeding No. 88677, also of the Court of First Instance of Manila. Lawyer Celso F. Unson, the executor, submitted an inventory wherein, following the list of conjugal assets in the testator's will, the two San Lorenzo Village lots were included as part of the testate estate.

That inclusion provoked Mrs. Rustia, the adopted child of Mrs. Valero, and Mrs. Rodriguez and Mrs. Gutierrez, the legitimate children of the testator, Jose M. Valero, to file (through Mrs. Rustia's lawyer) in the testate proceeding a motion for the exclusion of the two San Lorenzo Village lots from the testator's inventoried estate.

Adduced as reason for the exclusion is the fact that since February 16, 1966 Mrs. Rustia has been the registered owner of the lots as shown by two Torrens titles, copies of which were attached to the motion.

The executor opposed the motion on the ground that the two lots were donated to Mrs. Rustia and the donation would allegedly involve collation and the donee's title to the lots. The executor revealed that he was informed by Mrs. Gutierrez and Mrs. Rodriguez (supposed movants) that the two lots should be included in the inventory. Thus, the issue of collation was prematurely raised.

The probate court in its order of August 9, 1973 excluded the two lots from the inventory of the testator's estate but with the understanding "that the same are subject to collation".

On December 4, 1973 or one hundred twelve days after Mrs. Rustia was served with a copy of that order, she filed a motion for its reconsideration. She insisted that she is the owner of the two San Lorenzo Village lots as indicated in the Torrens titles. No one opposed that motion. At the hearing of that motion, Mrs. Rustia's lawyer apprised the court that the executor informed him over the phone that he was not opposing the motion.


The probate court in its order of December 14, 1973 ruled that the two lots were unconditionally excluded from the inventory of Jose M. Valero's estate, meaning "that they are not subject to collation". That order is the bone of contention in this case.

Mrs. Rodriguez (without being joined by her sister, Mrs. Gutierrez) filed a motion for the reconsideration of the order of December 14, 1973. She alleged that the two San Lorenzo Village lots were really conveyed to Mrs. Rustia by way of donation because the consideration for the sale was allegedly only one-fifth of the true value of the lots. Mrs. Rodriguez further contended that the order of August 9, 1973 was final in character.

In reply, Mrs. Rustia countered that the prior order was interlocutory and that in 1966 the true value of the two lots was around P120,000 and that their value increased considerably in 1973 or 1974. Moreover, the relatively low price of the sale could be attributed to the fact that Mrs. Rustia and her husband lived with the Valeros and were taking care of them.

The probate court denied the motion for reconsideration. Mrs. Rodriguez and Mrs. Gutierrez, in their petition for certiorari in the Court of Appeals, assailed the probate court's order declaring that the two lots were not subject to collation.

The Court of Appeals held that the order of exclusion dated August 9, 1973 was interlocutory and that it could be changed or Modified at anytime during the course of the administration proceedings.

It further held that it was immaterial whether the two lots were donated or sold to Mrs. Rustia as "a mere subterfuge to avoid payment of the donor's and donee's taxes". According to the Appellate Court, it was immaterial because under article 1061 of the Civil Code, only compulsory heirs are required to make collation for the determination of their legitimes and, under section 2, Rule 90 of the Rules of Court, only heirs are involved in questions as to advancement and Mrs. Rustia is not an heir of the testator, Jose M. Valero (Vda. de Rodriguez vs. Valero Rustia, CA-G. R. No. SP- 02944, August 28, 1974, per G. S. Santos, Gaviola, Jr. and De Castro, JJ.).

From that decision, an appeal was made to this Court. The appeal was not given due course. However, upon motion for reconsideration and over Mrs. Rustia's opposition, the appeal was later allowed.

The appellants' only assignment of error is that the Court of Appeals should have held that the probate court's order of exclusion dated August 9, 1973 was not interlocutory but was a final and appealable order valid that the order of December 14, 1973 modifying the order of August 3 is void.

We hold that the order of exclusion dated August 9, 1973 was not a final order. It was interlocutory in the sense that it did not settle once and for all the title to the San Lorenzo Village lots. The probate court in the exclusion incident could not determine the question of title.

The prevailing rule is that for the purpose of determining whether a certain property should or should not be included in the inventory, the probate court may pass upon the title thereto but such determination is not conclusive and is subject to the final decision in a separate action regarding ownership which may be instituted by the parties (3 Moran's Comments on the Rules of Court, 1970 Edition, pages 448-9 and 473; Lachenal vs. Salas, L-42257, June 14, 1976, 71 SCRA 262, 266).

We hold further that the dictum of the Court of Appeals and the probate court that the two disputed lots are not subject to collation was a supererogation and was not necessary to the disposition of the case which merely involved the issue of inclusion in, or exclusion from, the inventory of the testator's estate. The issue of collation was not yet justifiable at that early stage of the testate proceeding. It is not necessary to mention in the order of exclusion the controversial matter of collation.

Whether collation may exist with respect to the two lots and whether Mrs. Rustia's Torrens titles thereto are indefeasible are matters that may be raised later or may not be raised at all. How those issues should be resolved, if and when they are raised, need not be touched upon in the adjudication of this appeal.

The intestate and testate proceedings for the settlement of the estates of the deceased Valero spouses were consolidated, as ordered by the lower court on November 21, 1974, so that the conjugal estate of the deceased spouses may be properly liquidated, as contemplated in section 2, Rule 73 of the Rules of Court and Act No. 3176 (Pages 223 and 235-6, Rollo).

We have examined the expedientes of the two cases. We found that the proceedings have not yet reached the stage when the question of collation or advancement to an heir may be raised and decided. The numerous debts of the decedents are still being paid. The net remainder (remanente liquido) of their conjugal estate has not yet been

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determined. On the other hand, up to this time, no separate action has been brought by the appellants to nullify Mrs. Rustia's Torrens titles to the disputed lots or to show that the sale was in reality a donation.

In this appeal, it is not proper to pass upon the question of collation and to decide whether Mrs. Rustia's titles to the disputed lots are questionable. The proceedings below have not reached the stage of partition and distribution when the legitimes of the compulsory heirs have to be determined.

WHEREFORE, we affirm the decision of the Court of Appeals and the orders of the, lower court dated August 9 and December 14, 1973, excluding from the inventory of Jose M. Valeros estate the two San Lorenzo Village lots now registered in the name of Carmen B. Valero-Rustia, but we delete from that decision and the two orders any ruling regarding collation which is a matter that may be passed upon by the probate court at the time when it is seasonably raised by the interested parties, if it is ever raised at all. No costs.

SO ORDERED.

G.R. No. L-62431-33 August 31, 1984

PIO BARRETTO REALTY DEVELOPMENT, INC., petitioner, vs.THE HON. COURT OF APPEALS (SIXTH DIVISION) and HONOR MOSLARES, respondents.

This petition for certiorari to review the decision of the Court of Appeals promulgated on June 30, 1982 in CA-G.R. Nos. 12599-R, 12600-R, and 12601-R entitled "Honor P. Moslares, petitioner v. Honorable Reynaldo P. Honrado, et al., respondents, was filed

as part of the effort to expedite the final settlement of the estate of the deceased NICOLAI DREPIN.

The dispositive portion of the decision of the respondent Court of Appeals reads as follows:

WHEREFORE, all the foregoing considered, judgment is hereby rendered:

(a) making permanent the temporary restraining order issued:

(b) declaring null and void the impugned orders of April 15, 1980, July 2, 1980, September 30, 1980, and October 20, 1980, for having been issued in grave abuse of discretion and in excess of jurisdiction, with the September and October orders having the additional defect of due process violation;

(c) declaring null and void the Deed of Undertaking and Deed of Sale in favor of respondent Pio Barretto Realty Development, Inc., for being mere consequences of null orders;

(d) ordering the Register of Deeds of Rizal to cancel the transfer certificates of title issued to Pio Barreto Realty Development, (TCT Nos. N-50539, N-50540, N-50541) and to transfer the same to the Estate of Nicolai Drepin with the annotation that this transfer to the estate is subject to the final decision in Civil Case No. 41287 of the CFI of Pasig, Metro Manila; and

(e) denying the prayer for the exclusion of the three titled lots involved from Special Proceedings Nos. 7257, 7261, and 7269 of the CFI of Makati Branch Civil Case No. 41287 abovementioned.

The proceedings for the settlement of the estate of Drepin were initiated shortly after his death on July 29, 1972 with the filing of a petition for probate of his holographic will on August 23, 1972.


In this holographic will the late Drepin listed twenty-two (22) persons as his alleged creditors, and within the six (6) months after publication within which to file claims against the estate, twelve (12) persons filed their respective claims. The total amount of obligations that may be chargeable against the Drepin Estate is P1,299,652.66.

The only asset of the testate estate of Drepin consists of three (3) parcels of titled land with an area of approximately eighty (80) hectares, and another parcel with an area of eighty-one (81) hectares still pending registration. The estate is saddled with claims of creditors named in the Drepin will and creditors who have filed their claims within the reglementary period. The only way to pay their claims is to sell the Drepin lots, so that from the proceeds of the sale, the debts of the estate could be paid, and any remaining balance distributed to the Drepin heirs.

Since the filing of the petition for probate of the Drepin will, on August 23, 1972, nine (9) offers had been made for the purchase of the Drepin lands, among them, that of GM Management Phils., dated August 15, 1978, through its President Honor P. Moslares. Basis for Moslares' letter proposal is a deed of sale with mortgage executed by the decedent in his favor on October 9, 1970. It appears that on said date, the deceased sold 80.3980 hectares of land absolutely and perpetually to Honor P. Moslares for the sum of P2,600,000.00 with a downpayment of P300,000.00. To secure the payment of the remaining P2,300,000.00, the latter mortgaged the land to the former. The parties further agreed not to register the sale yet until P1,300,000.00 shall have been paid to Drepin and P1,000.000.00 paid to Drepin's creditors.

Subsequently, on June 25, 1971, Drepin and Moslares entered into a "Joint Venture Agreement". Said agreement listed Drepin as the registered "owner" of the lots and denominated Moslares as "developer" tasked with converting the lands into a residential subdivision. The agreement specified:

(h) That the Developer agrees to reserve the right of the registered Owner of the land to ask for immediate CASH payment against an "Absolute Deed of Sale " on the said above mentioned properties, subject of this "Joint Venture Agreement" on the amount of not less than TWO MILLION THREE HUNDRED THOUSAND (P2,300,000.00) PESOS, after the big loan is granted to the Developer in or about thirty (30) days to forty-five (45) days from the signing of this Joint Venture Agreement and the "Special Power of Attorney",

(i) However, if the Owner of the property Mr. Nicolai Drepin not choose to be paid on this said above mentioned property in CASH of TWO MILLION THREE HUNDRED THOUSAND (P2,300,000.00) PESOS, this "joint venture agreement is still in full force and effect, OTHERWISE if full payment of TWO MILLION THREE HUNDRED THOUSAND (P2,300,000.00) PESOS receipt is acknowledged by the said Mr. Nicolai Drepin, the "Joint Venture Agreement" is automatically cancelled and declared no force and effect.

Before the agreement could be implemented, Nicolai Drepin died.

Upon learning of the existence of Special Proceedings No. 7257, 7261 and 7269 herein respondent Moslares, on August 15, 1978, informed the Judicial Administrator Atty. Tomas Trinidad that he is already the owner of the properties made subject matter of the Special Proceedings and proposed that he be permitted to pay the balance on the sale with mortgage in accordance with the terms of his written proposal. The probate court, on August 17, 1978 issued an order approving respondent Moslares' proposal and authorizing administrator Trinidad to enter into the appropriate agreement. This was reiterated by the court in its order dated January 9, 1979, with the condition that GM Management Phils. had only up to February 28, 1979 to comply with its letter-offer dated August 15, 1978 and "failure on their part to comply with the same within the period specified, the contract with the decedent shall be deemed resolved and ineffective." Counsel for heir claimant Cornelia Tejano was Revise given up to said date to make and submit a more beneficial offer. Neither GM Management nor counsel for Tejano was able to perform as required.

Requests for revision of payment and extension of period within which to pay the balance of P1,600,000.00 were made by Moslares. Further, he filed a Manifestation and Urgent Motion proposing transfer of the certificate of titles over the land subject of the proceedings so as to enable him to generate funds to liquidate the payable balance. The same were left unacted upon by the probate court.

Meanwhile, on September 25,1979, A Deed of Undertaking was entered into by respondent Moslares and the Administrator to implement the Contract of Sale with Mortgage. Such deed provided for the mode of payment which Moslares was to follow as well as the clearing and transfer of the certificates of title in the name of Moslares. The latter proviso was to enable Moslares to secure the loan needed to pay for the balance of the purchase price. Postdated checks were issued by Moslares to cover the amount embraced in said undertaking. Approval of the agreement with Moslares was

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strongly urged by the Administrator. No action was taken by the court thereon. At the hearing of October 19, 1979, Moslares tendered P1,600,000.00 to the Judicial Administrator. This was opposed by counsel for heir Tejano, Atty. Ramon Encarnacion, on the ground that respondent Moslares had only until February 28, 1979 within which to pay the same. Attorney Encarnacion thereupon brought to the attention of the court an offer to buy the properties for P3,000,000.00 by herein petitioner Pio Barretto Realty Development, Inc. Because of the differing contentions and the new offer, the probate court ordered the parties to submit memoranda and set a conference on November 28, 1979 to discuss the new offer.

On November 12, 1979, respondent Moslares submitted his memorandum containing three points to wit:

l. Actually, Honor P. Moslares is already owner of the Property, subject matter of this proceedings, and as such, could no longer be the subject matter of this testate proceedings. The payment made by Honor P. Moslares to the Judicial Administrator through this Honorable Court on 19 October, 1979, is in compliance with the Contract entered into between him and the late Nicolai Drepin, in 1970;

2. The Order of this Honorable Court dated 9 January, 1979, particularly with reference to the period, mentioned in No. 1, page 2 of the Order of this Honorable Court giving Honor P. Moslares up to 28 February, 1979, within which to comply with his letter-offer to the Court dated 15 August, 1978, is not yet final, said period having been extended;

3. The Order of this Honorable Court dated 9 January, 1979, particularly No. 2, Page 2 thereof, barred Counsel for Cornelia B. Tejano from making any further offer, his right to do so having expired on 28 February, 1979.

Thereupon, the probate court judge directed Moslares through the administrator Atty. Trinidad, to furnish copies of — (1) Deed of Absolute Sale; (2) Special Power of Attorney; and (3) Joint Venture Agreement. The same were promptly submitted.

On February 28, 1979, March 6, 1980 and April 15, 1980, letters to Judicial Administrator Trinidad were sent by respondent Moslares seeking further extension of

time within which to pay the balance of his obligation to the estate, and for favorable recommendations to the probate court in his reports saying: "Help me now, this is ours. We can make money of all this sacrifice we had on the pass (sic)."

On April 15, 1980, the probate court reiterated its order dated August 17, 1978 authorizing the Administrator to finalize the sale with GM Management Phils. and giving respondent Moslares ten (10) days from date to deposit the necessary amount to cover the value of the checks as each fallsdue. Failure to do so would result in the automatic rescission of the authority to sell to GM Management Phils. and the Administrator would be permitted to accept other offers in the best interest of the Estate. This order was the probate court's prompt action on a "Report with Motion for Cancellation of Order Approving Sale to GM Management, Phils. Honor P. Moslares, if it fails to make good the April 15, 1980 check "As Token Payment in Good Faith", filed by administrator Trinidad on the same day, April 15, 1980.

GM Management sought reconsideration and amendment of the Order of April 15, 1980 to conform to the provisions of the Deed of Undertaking.

On May 23, 1980, administrator Trinidad filed a "Report with Motion to Authorize Administrator to Screen Offers to Purchase Estate and Others.

On May 31, 1980, respondent Moslares filed another manifestation praying that his pending motions be acted upon and that the motion of administrator Trinidad be denied for lack of merit.

On June 30, 1980, administrator Trinidad made the following "Observation and Report on the Motion of Buyer GM Management Phils. for reconsideration" —

2. Two checks, one for P50,000.00 and one for P250,000.00 were deposited on April 28, 1980 after the Order of the Probate Court. BOTH BOUNCED. DAIF (Drawn against insufficient funds).

3. Another check for P300,000.00 is now held by the Administrator, postdated for today, June 30, 1980 and Administrator just received, June 29, 1980 a telegram asking to withhold deposit until after 30 days from amendatory order of the Probate Court.

xxx xxx xxx


6. The motion of Administrator is reiterated.

On July 2, 1980, the probate court issued the following order:

Finding the Motion of the Administrator well-taken and in the best interests of the Estate, the administrator is authorized to enter into agreement with any other interested parties on a first paid first served basis without prejudice to G.M. Management Philippines to continue with its offer and make good the same in as an ordinary buyer on the same first paid first served basis.

Respondent Moslares filed a motion for reconsideration of said July 2, 1980 order on the ground that:

1. The Honorable Probate Court has no jurisdiction over the three (3) parcels of land, consisting of 80.3980 hectares subject matter of the Deed of Sale which the late Nicolai Drepin, conveyed to Movant Honor P. Moslares. The only right which pertains to the ESTATE, is the right to demand from Honor P. Moslares, the balance of the Deed of Sale, which has been fixed by this Honorable Court at ONE MILLION SIX HUNDRED THOUSAND (P1,600,000.00) PESOS, Philippine Currency;

2. As of November, 1979, the law that governs between the ESTATE and MOVANT, Honor P. Moslares, is the DEED OF UNDERTAKING executed by the Administrator in favor of Movant Honor P. Moslares, pursuant to the authority given by the Honorable Probate Court to the Administrator contained in the Order dated August 15, 1978, reiterated in the Order dated January 9, 1979, and in the Order dated 15 April 1980; and

3. The Honorable Probate Court has no jurisdiction to decree rescission of the Contract into (sic) between the decedent and Movant Honor P. Moslares on the 9th day of October, 1970.

This motion for reconsideration was opposed by administrator Trinidad as well as the Tejano heirs through counsel, arguing that the probate court has jurisdiction to issue the questioned orders because petitioner submitted himself to the court's jurisdiction

and his checks bounced also that the Deed of Undertaking was validly cancelled as a result of the valid rescission of Trinidad's authority to sell to petitioner.

On September 30, 1980, the probate court issued an order denying respondent Moslares' motion for reconsideration for lack of merit. And on October 10, 1980 administrator Trinidad executed the Deed of Sale in favor of Pio Barretto Realty, Inc. transferring the titles to the properties in question in the name of the latter. The same was duly registered. On October 20, 1980, the probate court approved the report of administrator Trinidad dated October 16, 1980, with xerox copies of the Deed of Sale in favor of Pio Barretto Realty, Inc. of the estate of Nicolai Drepin pursuant to respondent court's order authorizing the sale, and of the approved Deed of Undertaking with the vendee.

An urgent Motion and Manifestation was filed by respondent Moslares on April 8, 1981 praying that his motion for reconsideration of the orders be already resolved, followed by an Omnibus Motion on April 27, 1981 to resolve all pending motions and praying that the Deed of Sale and Deed of Undertaking in favor of Pio Barretto be cancelled. The same remained unacted upon.

On May 18, 1981, respondent filed Civil Case No. 41287 before the Court of First Instance of Rizal in Pasig, Metro Manila to determine title and ownership over the Drepin lands.

On June 23, 1981, a petition for certiorari was filed by respondent Moslares before the Court of Appeals which issued a temporary restraining order. Judgment was rendered by respondent court in favor of respondent Moslares, the dispositive portion of which has been quoted.

Barretto filed a motion for reconsideration which was denied on November 12, 1982. Hence, this petition.

In its decision, the Court of Appeals laid down the two principal issues involved in the case, as follows: (1) whether or not the respondent judge (Judge R. Honrado) acted without or in excess of jurisdiction or with grave abuse of discretion in refusing to exclude the parcels of land involved from the testate proceedings of the Drepin estate; and (2) whether or not the respondent judge acted without or in excess of jurisdiction or with grave abuse of discretion in issuing the impugned orders dated April 15, 1980, July 2, 1980, September 30, 1980, and October 20, 1980.

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We are in full accord with the respondent court's resolution of the first issue, and we quote:

For continually presuming that the three titled lots were part of the Drepin estate and for refusing to provisionally pass upon the question of exclusion, did the respondent court act without or in excess of jurisdiction or with grave abuse of discretion?

We hold that even with such presumption and refusal, the respondent court still acted within its jurisdiction and not with grave abuse of discretion. After all, the jurisprudence and rule are both to the effect that the probate court "may" provisionally pass upon the question of exclusion, not "should". The obvious reason is the probate court's limited jurisdiction and the principle that questions of title or ownership, which result to inclusion in or exclusion from the inventory of the property, can only be settled in a separate action. Hence, even if respondent court presumed an the way that the properties sold by Drepin to petitioner were part of Drepin's estate, that would not prevent nor defeat petitioner's remedy in a separate suit.

And We hold that Civil Case No. 41287 is just such a suit instituted to settle the question of ownership over the lots covered originally by TCTs Nos. 259060, 259061 and 259062, despite the claim for damages, because of the composite effect of the prayer in the complaint thereof ...

xxx xxx xxx

In effect, We are saying that the question of whether the properties sold by Drepin to Petitioner should be excluded from the probate proceedings below, can not be determined with finality by Us in this case, because in this petition We are merely reviewing the acts of the respondent CFI as a probate court. Any ruling by the probate court to include those properties "is only provisional in character and is without prejudice to a judgment in a separate action on the issue of title or ownership" (Sebial v. Sebial, L-23419, June 27, 1975, 64 SCRA 385). Consequently, in reviewing the exercise of such limited probate jurisdiction, We cannot order an unqualified and final exclusion of the properties involved, as prayed for; to do so would expand the probate

court's jurisdiction beyond the perimeters set by law and jurisprudence. It is fitting and proper that this issue be ventilated and finally resolved in the already instituted Civil Case No. 41287, even as We hold that respondent court's act of not excluding the lots involved did not constitute grave abuse of discretion. In view of this limitation, We need not resolve the issue of whether there was novation of the Deed of Sale with Mortgage, or not.

This same elemental principle, we found occasion to reiterate in the cases of Junquera v. Borromeo (19 SCRA 656); Borromeo v. Canonoy (19 SCRA 667); Recto v. dela Rosa (75 SCRA 226); Lachenal v. Salas (71 SCRA 202); Bolisay v. Alcid (85 SCRA 213); Vda. de Rodriguez v. Court of Appeals (91 SCRA 540).

However, from here, the road forks as we disagree with the respondent court's findings on the second issue.

In his petition for certiorari before the Court of Appeals, respondent Moslares assails the issuance of the four impugned orders by the probate court on the ground that the court had no jurisdiction to rescind the Deed of Sale with the Mortgage entered into by the deceased during his lifetime, due to the limited jurisdiction of the probate court merely to settle and liquidate the estates of a decedent and not to pass upon questions of title to property.

On the other hand, the petitioner argues that in voiding and nullifying the four orders of the probate court, the Court of Appeals, in effect, would have the former court recognize the alleged ownership of Mr. Moslares over the three titled Drepin lots involved in this case contrary to its pronouncement in settling the first issue.

It is to be noted that the last agreement entered into by the deceased prior to his death, that is, the Joint Venture Agreement listing Drepin as owner of the properties in question, and the surrender to administrator Trinidad of the certificates of title, had led the probate court to enter or include said properties in its inventory of the deceased's estate. Thus, provisionally, ownership thereof was recognized as vested in the estate. Subsequently, in the course of the probate proceedings, the sale of the properties was found to be necessary to settle the deceased's obligations. It was then that herein private respondent Moslares submitted himself to the jurisdiction of the court in an "Offer to Buy" said properties, based on his previous agreement with the deceased during the latter's lifetime.


It is noteworthy that contrary to Moslares' assertion of ownership, he had offered to buy the Drepin lands from the probate court. Surely, this is not conduct ordinarily expected of one who is the owner of the property. Further, the fact that subsequent to the Deed of Sale, the deceased as buyer and as absolute owner entered into an agreement with the respondent merely as developer of the lands in question evidences a change of cause or object as well as a change of relation between the parties. Moslares' own acts negate his claims in this petition that he had acquired ownership of the properties. Thus, the transparency of respondent's argument becomes readily apparent.

Having submitted his letter-proposal to the court, the same was approved, allowing Moslares to pay the balance of the purchase price agreed upon by respondent and the decedent in the amount of One Million Six Hundred Thousand Pesos (P1,600,000.00) specifying the time and manner of payment thereof. Thus, he was given preference and priority over other persons or groups offering to buy the estate. Having failed to comply with the conditions of payment of the contract, the same was rescinded by the probate court. Now, respondent questions this rescission which he maintains to be beyond the jurisdiction of the court.

Estoppel works to preclude respondent from questioning the jurisdiction of the court. By offering to buy the properties in question, respondent has clearly recognized the jurisdiction of the probate court to which he had effectively submitted himself. It is well settled that a party is estopped from disputing the jurisdiction of the court after invoking it himself (Tible v. Aquino, 65 SCRA 207). After voluntarily submitting a cause and encountering an adverse decision on the merits, it is too late for the loser to question the jurisdiction or power of the court (People v. Munar, 53 SCRA 278; Capilitan v. dela Cruz, 55 SCRA 706; Summit Guaranty and Insurance Co., Inc., v. Court of Appeals, 110 SCRA 241; Tajonera v. Lamoroza, 110 SCRA 438). A party will not be allowed to make a mockery of justice by taking inconsistent positions. Doctrine of estoppel bars a party from trifling with the courts (Depositario v. Hervias, 121 SCRA 756).

The merits of the case likewise lead to similar conclusions.

It cannot but be conceded that the limited jurisdiction of a probate court prohibits it from determining rights to property left by a decedent which depends on the contract (Goodin v. Casselman 200 N.W. 94, 51 N.D. 543). However, actions of the probate court, in the case at bar, do not refer to the adjudication of rights under the contract entered into by the deceased during his lifetime. It is to be noted that the dealings of the respondent with the court arose out of the latter's bid to sell property under its authority to sell, mortgage or otherwise encumber property of the estate to pay or settle

against the estate (Rule 89, Revised Rules of Court). Thus, respondent bound himself under an agreement with the court separate and distinct from that which he had with the decedent. In rescinding such contract, the court merely seeks to enforce its right to put an end to an agreement which had ceased to be a working proposition. Surely, this is well within the power of the probate court. Though of limited and special jurisdiction, it cannot be denied, however, that when the law confers jurisdiction upon a court, the latter is deemed to have all the necessary powers to exercise such jurisdicton to make it effective (Zuniga v. Court of Appeals, 95 SCRA 740).

We cannot allow an absurd situation to arise where the Drepin estate will never be settled and liquidated because even if Moslares cannot pay the agreed purchase price of the Drepin lands, still the probate court can no longer sell the lands to other prospective buyers. Under the theory of respondent, it is insisted that the probate court has no authority to cancel his unfulfilled offer to buy, notwithstanding the fact that he failed miserably to comply with the terms of his own offer to buy. It is to be remembered that Moslares had already been granted undue leniency by the probate court to meet his obligations to pay. But, the saga of Moslares' bouncing checks remains. Three reports of Administrator Trinidad had been submitted as annexes to the petition for certiorari. The report, dated June 30, 1980 showed that two of Moslares' checks were dishonored, having been drawn against insufficient funds. The August 18, 1980 report stated that: "All the checks submitted to the probate court for payment bounced." And in the report dated April 15, 1981, it was further averred by the administrator that "... believing that the bouncing checks were not intended to defraud the Estate," "he refrained from prosecuting Honor P. Moslares criminally under the law on dishonored checks."

It is also to be emphasized that it was not respondent's contract of sale with decedent that had been invalidated but rather the administrator's authority to sell to respondent. Although the court recognized the Deed of Sale with Mortgage, still the same was not being enforced as such but was used only as basis for the terms and conditions of respondent's agreement with the court. To enforce the same is truly beyond the scope of the probate court's jurisdiction. The court's actions constitute a refusal to pass upon the validity of the contract to sell.

Further, the probate court has ample discretion in determining whether conditions of a particular sale would be beneficial to the estate and this is generally respected by the appellate courts (Court of First Instance v. Court of Appeals, 106 SCRA 114, Fernandez, et al., v. Montejo, 109 Phil. 701). To attack the nullity of the order of the probate court to sell property of the deceased, it must be shown that the contract of sale is null and void (Rafols v. Barba, 119 SCRA 147). The infirmity of the subject deed

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of sale is premised on the alleged nullity of the order of the court authorizing the sale. The validity of said order may not be attacked in a collateral proceeding, the supposed ground for declaring it void for lack of jurisdiction not being apparent on the face thereof (Rafols v. Barba, supra). Nevertheless, respondent could have prevented the sale of the Drepin lands. Section 3, Rule 89 of the Revised Rules of Court, to wit:

Section 3. Persons interested may prevent such sale, etc., by giving bond. — No such authority to sell mortgage, or otherwise encumber real or personal estate shall be granted if any person interested in the estate gives a bond, in a sum to be fixed by the court, conditioned to pay the debts, expenses of administration, and legacies within such tune as the court directs; and such bond shall be for the security of the creditors, as well as of the executor or administrator, and may be prosecuted for the benefit of either.

provides respondent with the legal means by which he could have forestalled the sale of the Drepin lands to the petitioner. (Court of First Instance v. Court of Appeals, supra) If third persons oppose an application for leave to sell the property of the decedent, claiming title to the property, the title claim, cannot be adjudicated by the probate court, but it can hold approval of the sale in abeyance until the question of ownership shall have been decided in a proper action (Baquial v. Amihan, 92 Phil. 501). But this, he failed to do. Ergo, we find no reason to disturb the questioned orders of the probate court.

Moreover, the respondent is not without remedy if truly his claim of ownership is proper and meritorious. Since the probate court has no jurisdiction over the question of title and ownership of the properties, the respondents may bring a separate action if they wish to question the petitioner's titles and ownership (Vda. de Rodriguez v. Court of Appeals, 91 SCRA 540). Though an order of the probate court approving the sale of the decedent's property is final, the respondent may file a complaint in the proper court for the rescission of the sale. (Pizarro v. Court of Appeals, 99 SCRA 72). Likewise, the initial question of respondent regarding the propriety of including the properties in question in the inventory of the probate court as he claims ownership thereof may therein be finally and conclusively settled (Vda. de Rodriguez v. Court of Appeals, supra; Lachenal v. Salas, 71 SCRA 202). The respondent has ample protection of his rights for the province of the probate court remains merely the settlement of the estate and may not be extended beyond (Pizarro v. Court of Appeals, supra).

WHEREFORE, in view of the foregoing, the petition for certiorari is hereby GRANTED. The decision of the Court of Appeals (now Intermediate Appellate Court), dated June 30, 1982 is REVERSED and SET ASIDE. The permanent restraining order issued against the trial court is hereby DISMISSED. The impugned orders of the probate court dated April 15, 1980, July 2, 1980, September 30, 1980 and October 20, 1980 are accordingly REINSTATED.

SO ORDERED.

G.R. No. L-18498 March 30, 1967

TESTATE ESTATE OF VITO BORROMEO. JOSE H. JUNQUERA, petitioner-appellee, vs.CRISPIN BORROMEO, ET AL., oppositors-appellants. REPUBLIC OF THE PHILIPPINES, intervenor-appellant.

Vito Borromeo, a widower and permanent resident of the City of Cebu, died on March 13, 1952, in Parañaque, Rizal, at the age of 88 years, without forced heirs but leaving extensive properties in the province of Cebu.

On April 19 of the same year, Jose H. Junquera, filed with the Court of First Instance of said province a petition for the probate of a one page document as the last will left by said deceased, devising all his properties to Tomas, Fortunato and Amelia, all surnamed Borromeo, in equal and undivided shares, and designating Junquera as executor thereof (Special Proceedings No. 916-R). The document — now in the record as Exhibit "A" — was dated May 17, 1946, drafted in Spanish, and allegedly signed, and thumbmarked by said deceased, in the presence of Dr. Cornelio G. Gandionco, Eusebio Cabiluna and Filiberto Leonardo as attesting witnesses. On June 14, 1952, the probate court appointed Junquera as special administrator of the estate.


On November 14 of the same year, Teofilo Borromeo filed an opposition to the probate of the will based on the following grounds: (1) that the formalities required by law had not been complied with; (2) that the testator was mentally incapable of making a will at the time of its execution; (3) that the will was procured by undue and improper influence, on the part of the beneficiaries and/or some other person; (4) that the signature of the testator was procured by fraud; and (5) that the testator acted by mistake or did not intend the instrument he signed to be his will at the time he affixed his signature thereto.

Upon motion of the abovenamed oppositor, on June 9, 1953, the Court removed Junquera as special administrator and appointed Dr. Patricio Beltran in his place.

On November 27, 1953, Vitaliana Borromeo, a niece of the deceased, filed her own opposition to the probate of the will, on the ground that the signature "Vito Borromeo" appearing thereon was a forgery. Other oppositions were subsequently filed by Patrocinio Borromeo de Tabotabo (her opposition was later withdrawn), Lilia Morre de Tabotabo, Lamberto Morre, Patricia Morre de Ranario, Aurora Morre de Borromeo, Ramon Ocampo, Isagani Morre and Rosario Morre, invoking substantially the same grounds mentioned heretofore.

Meanwhile, Tomas, Amelia and Fortunato Borromeo, manifestly on behalf of the "Cebu Arcade Company, T. L. Borromeo y Cia.", a duly organized partnership controlled by them, filed a motion to exclude from the inventory of the Estate previously filed by the new special administrator, thirteen parcels of land situated in the City of Cebu with a total area of 2,148 square meters, alleging that during his lifetime the deceased testator had sold said lots to them, as evidenced by the document now in the record as Exhibit F-1 executed on May 17, 1945, confirming the alleged previous sale. After due hearing, the court, in its order of July 16, 1954, denied the motion for exclusion, ruling that movants' remedy was to file a separate accion reivindicatoria against the administrator.

On October 28, 1955, the Republic of the Philippines filed a motion for leave to intervene and join the oppositors in contesting the probate of the will, on the ground that, should the estate be adjudicated the latter by intestacy, it stood to collect a considerable amount by way of estate and inheritance taxes. In its order of December 10 of the same year, the Court allowed the intervention.

After a prolonged trial, on May 28, 1960, the Court rendered a decision denying the probate of the will and declaring itself without jurisdiction to pass upon the question of

ownership over the thirteen lots which the Cebu Arcade etc. claimed as its own. All the parties appealed — the proponents of the will from the portion of the decision denying probate, and the oppositors and the Republic of the Philippines, from that portion thereof where the court refused to decide the question of ownership of the thirteen lots already mentioned.

The proponents of the disputed will, mainly with the testimony of the three attesting witnesses, Cornelio Gandionco, Filiberto Leonardo and Eusebio Cabiluna, sought to prove the following facts:

In the morning of May 17, 1945, Tomas Borromeo, complying with the request of Vito Borromeo, went to the house of Atty. Filiberto Leonardo to request him to be a witness at the execution of the latter's last will. Dr. Cornelio Gandionco, who at the time happened to be in the house of Leonardo, was likewise requested to act as such. Together, the three went to the residence of Vito Borromeo at Ramos Street, Cebu City. Upon their arrival the third witness, Eusebio Cabiluna, who was living on the ground floor of the house, was asked to come upstairs. Thereafter, in their presence, Vito Borromeo executed first, the document Exhibit "F" (deed of confirmation of an alleged previous sale to Cebu Arcade Company, T. L. Borromeo y Cia.) witnessed by Gandionco and Cabiluna. Later, Vito Borromeo, being of sound and disposing mind, and without pressure or influence exerted on him, dictated the substance of his will to Tomas Borromeo, who in turn typewrote it in proper legal language. The document was then read by Vito Borromeo, who later signed and thumbmarked it (Exhibit "A") and carbon copies thereof (Exhibits "E" and "K") in the presence of the attesting witnesses, who, in turn, signed the will and its copies in the presence of Vito Borromeo and of each other.

Proponents also placed the Rev. Fr. Julio Corres, a Spanish Catholic priest who was the confessor of Vito Borromeo from 1942 to 1946, the Rev. Fr. Sergio Alfafara, who was his confessor from 1946 to 1947, and Vicenta Mañacap, a mid-wife who lived in the testator's house and had served him from May 1945 up to his death on March 30, 1952 on the witness stand. The gist of their testimony is to the effect that at the time of the execution of the will, Vito Borromeo was still strong and could move around freely with the aid of a cane; that he was still mentally alert and was a man of strong will; that his right hand was unimpaired and he could write with it unaided; that as a matter of fact — according to Vicenta Mañacap — he still wrote personal letters to Tomas Borromeo, could eat by himself and even played the piano.

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On the other hand, the oppositors presented several witnesses who testified that the signatures purporting to be those of Vito Borromeo on the document Exhibit "A" and its copies were forgeries; that they were too good and too perfect signatures and, therefore, quite impossible for the deceased — an ailing man already 82 years old on May 17, 1945 — to write; that he was found "positive for bacillus leprosy" by Dr. Antonio Garcia as early as 1926 or 1927, having been treated for it consistently by injections of chaulmoogra oil administered by Dr. Max Borromeo and Dr. Cornelio Gandionco; that Vito Borromeo's usual signatures during his better days had always been characterized by certain flourishes, technically called "rubric"; that Vito Borromeo had also reared and educated two of the oppositors, Crispin Borromeo and the late Teofilo Borromeo and there was no conceivable reason why they were left out in the will, if any such will had really been made by him knowingly; that the testamentary witness Cornelio Gandionco, is a nephew of the other witness, Filiberto Leonardo, and was the fiance of Angeles Borromeo, a sister of Tomas Borromeo, one of the instituted heirs; that the third testamentary witness, Eusebio Cabiluna is the real father of Fortunato Borromeo, another instituted heir, who admittedly grew up and was reared by Vito Borromeo and his wife Juliana Evangelista since he was barely three months; that Amelia Borromeo, the third instituted heir, is a younger sister of Tomas Borromeo and dependent upon him; that on May 17, 1945, the deceased's leprosy was so far advanced that the fingers of his right hand were already hardened and atrophied, this making it difficult, if not impossible, for him to write; and that on the same date, his sense of hearing and his eyesight had been considerably impaired, his eyes being always watery due to the progress of his leprosy.

The oppositors also presented Felipe Logan of the National Bureau of Investigation and Jose G. Villanueva, as handwriting experts, who testified, after examining the supposed signatures of the deceased in Exhibit "A" and comparing them with his accepted standard signatures, that the questioned signatures were forgeries. The proponents, however, presented their own handwriting expert, Martin Ramos, who testified to the contrary.

The trial court refused to believe the testimony of the attesting witnesses and, as a result, denied the petition for probate, because, in its opinion, they appeared not to be "wholly disinterested persons" and because of the serious discrepancies in their testimonies with respect to the number of copies made of the disputed document. The court also found that the physical condition of the deceased at the time of the execution of the questioned document was such that it was highly improbable, if not impossible, for him to have affixed his signatures on the documents Exhibits A, E and K in the spontaneous and excellent manner they appear to have been written. Thus,

the court was also led to believe the testimony of the handwriting experts for oppositors, — adverse to the genuineness of the signatures of Vito Borromeo on the questioned document — more than that of the handwriting expert presented by the proponents of the will.

It seems clear, therefore, that the main issue to be decided in the present appeal is whether or not the evidence of record is sufficient to prove the due execution of the will in question.1äwphï1.ñët

It must be conceded that in this jurisdiction, the subscribing witnesses to a contested will are regarded as the best witnesses in connection with its due execution. It is similarly true, however, that to deserve full credit, their test, testimony must be reasonable and unbiased, and that, as in the case of any other witness, their testimony may be overcome by any competent evidence — direct or circumstantial (Board, etc. vs. Shasser, 10 Kan. 585, 168 Pac. 836 [1917]).

It is also an appellate practice of long standing in this jurisdiction to accord great weight to the findings of fact made by the trial court and not to disturb them unless said court had failed to consider material facts and circumstances or had given undue weight to, or misconstrued the testimony of particular witnesses, the reason for this being that the trial judge had full opportunity to hear and observe the conduct and demeanor of the witnesses while testifying and was consequently in a better position than the reviewing court to determine the question of their credibility. While this is not applicable to the present case because His Honor, the judge who penned the appealed decision was not the same judge before whom the evidence of the parties was presented, it must be stated that, judging from the carefully written decision under review, it was only after a thorough study of the record that His Honor arrived at the conclusion that the subscribing witnesses do not appear to be wholly disinterested persons.

On the matter of the number of copies made of the questioned will allegedly signed by the testator and the three subscribing witnesses, His Honor found that Cabiluna was very uncertain and confused; that a certain stage of his examination, he said that only two copies of the will were prepared — the original and one carbon copy — while at another stage he affirmed that he did not know whether or not there was a duplicate and that all he could say was that he had affixed his signature three times (Transcript, Marquiala, August 22, 1958, pp. 49-50). In truth, however, he really signed six (6) times — twice on the original and twice on each of the two copies. Adding confusion to the situation is the answer he gave when he was asked if Vito Borromeo also signed the carbon copy, to which his answer was "I did not see" (Idem., p. 50).


On the other hand, the other subscribing witness, Atty. Filiberto Leonardo, testified categorically that there were only the original and one carbon copy of the will and that the testator and all the subscribing witnesses signed both (Transcript, Marquiala, December 23, 1953, pp. 167, 210, and 218). However, the naked and highly disturbing fact is that, contrary to what is inferable from the vacillating testimony of Cabiluna and the categorical assertion of Atty. Leonardo, the proponents of the questioned will themselves presented three copies of said will; the original, a carbon duplicate copy and a carbon triplicate copy, now in the record as Exhibits A, E and K, respectively.

While it is true that the testimony of these subscribing witnesses was given around eight years after the alleged execution of the questioned will, still we believe that the transaction in which they claim to have taken an important part is of such character and importance that it can not be a very easy matter for anyone of them to have a hazy recollection of the number of copies signed by the testator and by them. Stranger still would it be for them to say something in open contradiction with the reality on the matter. If, as may be clearly deduced from their testimony — Cabiluna and Leonardo's — there was only the original and one copy signed by the testator and the subscribing witnesses, why is it that three — original and two copies — were really in existence and were produced in court during the trial?

In the case of the third subscribing witness, Dr. Cornelio Gandionco, the imputation was made by two witnesses, Dr. Teofilo Borromeo and Judge Crispin Borromeo, that he was the fiance of Angeles Borromeo, sister of Tomas Borromeo, who is one of the three heirs instituted in the questioned will, evidently to show that he is not a completely disinterested witness. The evidence to this effect appears to have remained unimpeached, although the proponents of the will could have done it by calling on Dr. Gandionco himself or on Angeles Borromeo to deny the imputation.

Moreover, the evidence also disclose that Dr. Gandionco was the uncle of the other subscribing witness, Atty. Leonardo, and that, in fact, they were living together at the time of the alleged execution of the will. This circumstance — apparently trivial — can not be taken lightly because in view of appellee's claim that Angeles Borromeo was the fiance of Dr. Gandionco, it would not be unreasonable to entertain the suspicion that both subscribing witnesses were not wholly disinterested. Material to this point is the fact established by the evidence that Atty. Leonardo was the notary public before whom the document Exhibit 4-A — which purports to convey to a partnership controlled by the heirs instituted in the questioned will thirteen parcels of land situated in the commercial center of Cebu City — was supposedly acknowledged by the testator on the same date May 17, 1945.

In the light of the foregoing, We can not see our way clear to holding that the trial court erred in refusing to give full credit to the testimony of the three subscribing witnesses.

It has also been held that the condition and physical appearance of a questioned document constitute a valuable factor which, if correctly evaluated in the light of surrounding circumstances, may help in determining whether it is genuine or forged. Subscribing witnesses may forget or exaggerate what they really know, saw, heard or did; they may be biased and, therefore, tell only half truths to mislead the court or favor one party to the prejudice of the other. This can not be said of the condition and physical appearance of the questioned document itself. Both, albeit silently, will reveal the naked truth, hiding nothing, forgetting nothing, and exaggerating nothing. For this reason, independently of the conflicting opinions expressed by the handwriting experts called to the witness stand by the parties, we have carefully examined and considered the physical appearance and condition of the original and two copies of the questioned will found in the record — particularly the signatures attributed to the testator — and We have come to the conclusion that the latter could not have been written by him.

Upon the face of the original and two copies of the contested will (Exhibits A, E and K) appear a total of six alleged signatures of the testator. They are all well written along a practically straight line, without any visible sign of tremor or lack of firmness in the hand that wrote them. In fact, in the respects just adverted to, they appear better written than the unquestioned signatures, of attesting witnesses Gandionco and Cabiluna, inspite of the fact that on the date of the alleged execution of the will (May 17, 1945) the testator was considerably older and in a much poorer physical condition than they. According to the evidence, the testator was then a sick man, eighty-two years old, with the entire left half of his body paralyzed since six years before, while the oldest attesting witness (Cabiluna) was around sixty-five years of age and Leonardo and Gandionco were only forty-four and forty-five years old respectively, and were all in good health. Despite the obviously very poor physical condition of the testator, Leonardo claims that he signed the alleged will unaided, writing his name thereon slowly but continuously or without interruption, and that, on the same occasion, he signed his name several times not only on the original of the will and its copies but also on the original and several copies of the alleged confirmatory sale Exhibit F-1 and on his residence certificate. Considering all the attendant circumstances, we agree with the lower court that Vito Borromeo could not have written the questioned signatures.

In view of what has been said heretofore, We find it unnecessary to examine and consider in detail the conflicting testimony of the handwriting experts presented by the parties: Martin Ramos by the proponents of the will, to sustain the genuineness of the questioned signatures, and Felipe Logan and Jose G. Villanueva, by the oppositors, to

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prove that said signatures are forgeries. We shall limit ourselves in this connection to quoting with approval the following portion of the appealed decision:

What the Court finds to be a weakness in the conclusions of Martin Ramos, based on his comparative examination of the questioned and standard signatures of Vito Borromeo, is his apparent assumption that all the signatures were made by Vito Borromeo under equality or similarity of circumstances, that is, that in all instances Vito Borromeo had normal use of both of his hands, — the right and the left. He failed to take into account that when Vito Borromeo allegedly affixed those signatures on May 17, 1945 on Exhibits 'A', 'E', and 'K' the left portion of his body, including the left hand, was already paralyzed, and Vito Borromeo was represented to have written his name alone by himself and unaided. Maybe, if he was previously apprised of those circumstances, he would hesitate to make the conclusion that those flawless signatures reading Vito Borromeo, written straight and in a form as good as, if not better than, the signatures of three much younger attesting witnesses, were positively in the handwriting of the 82-year old, ailing, and paralytic Vito Borromeo. The Court consequently, finds itself not disposed to adopt his conclusions, but on the contrary is inclined toward the views of the other two experts witnesses, Felipe Logan and Jose G. Villanueva.

As stated at the outset, the contested will is claimed to have been signed and thumbmarked by the testator. An examination of the thumbmarks, however, readily shows that, as the lower court found, the same are "glaringly far from being distinct and clear"; that "they are not a possible means of identification" nor can "they possibly be identified to be those of Vito Borromeo, or for that matter, of any other person whatsoever". It is, therefore, obvious, that they are of little use in the resolution of the issue before Us.

We shall now consider the appeal, taken by the oppositors and the Republic of the Philippines from that portion of the decision where the lower court declined to decide with finality the question of who owns the thirteen parcels of land subject-matter of the confirmatory sale Exhibit F-1 and whether or not they should be included in or excluded from the inventory of properties of the Estate of the deceased Vito Borromeo.

It appears that on February 11, 1954 Tomas, Amelia, and Fortunato Borromeo, through counsel, filed a motion for the exclusion from the inventory of the Estate of the thirteen lots therein mentioned, with a total area of 2,348 square meters, claiming that the same had been sold by the deceased Vito Borromeo during his lifetime to the Cebu

Arcade, T. L. Borromeo y Cia. This motion for exclusion was denied by the lower court in its order of July 16, 1954, and the ruling was reiterated in the appealed decision "for the same reasons and considerations" upon which it rejected the probate of the will. The ruling on the matter, however, was expressly made provisional in nature.

We believe, and so hold, that the resolution of the lower court on this matter is correct because said court, acting in its capacity as a probate court, had no jurisdiction to determine with finality the question of ownership involved. That such matter must be litigated in a separate action has been the established jurisprudence in this jurisdiction (Ongsinco vs. Borja, L-7635, July 25, 1955; Mallari vs. Mallari, L-4656, February 23, 1953; Garcia vs. Martin, G.R. No. L-9233, June 29, 1957; Cordova vs. Ocampo, 73 Phil. 661; Pascual vs. Pascual, 73 Phil. 561 and others), except where a party merely prays for the inclusion or exclusion from the inventory of any particular property, in which case the probate court may pass upon provisionally, the question of inclusion or exclusion, but without prejudice to its final determination in an appropriate separate action (Garcia vs. Garcia, 67 Phil. 353; Marcelino vs. Antonio, 70 Phil. 388; Guinguing vs. Abuton, 48 Phil. 144, 147).

In view of all the foregoing, the decision appealed from is affirmed, with costs.

G.R. No. L-56340 June 24, 1983

SPOUSES ALVARO PASTOR, JR. and MA. ELENA ACHAVAL DE PASTOR, petitioners, vs.THE COURT OF APPEALS, JUAN Y. REYES, JUDGE OF BRANCH I, COURT OF FIRST INSTANCE OF CEBU and LEWELLYN BARLITO QUEMADA, respondents.

I. FACTS:

This is a case of hereditary succession.

Alvaro Pastor, Sr. (PASTOR, SR.), a Spanish subject, died in Cebu City on June 5, 1966, survived by his Spanish wife Sofia Bossio (who also died on October 21, 1966),


their two legitimate children Alvaro Pastor, Jr. (PASTOR, JR.) and Sofia Pastor de Midgely (SOFIA), and an illegitimate child, not natural, by the name of Lewellyn Barlito Quemada QUEMADA PASTOR, JR. is a Philippine citizen, having been naturalized in 1936. SOFIA is a Spanish subject. QUEMADA is a Filipino by his mother's citizenship.

On November 13, 1970, QUEMADA filed a petition for the probate and allowance of an alleged holographic will of PASTOR, SR. with the Court of First Instance of Cebu, Branch I (PROBATE COURT), docketed as SP No. 3128-R. The will contained only one testamentary disposition: a legacy in favor of QUEMADA consisting of 30% of PASTOR, SR.'s 42% share in the operation by Atlas Consolidated Mining and Development Corporation (ATLAS) of some mining claims in Pina-Barot, Cebu.

On November 21, 1970, the PROBATE COURT, upon motion of QUEMADA and after an ex parte hearing, appointed him special administrator of the entire estate of PASTOR, SR., whether or not covered or affected by the holographic will. He assumed office as such on December 4, 1970 after filing a bond of P 5,000.00.

On December 7, 1970, QUEMADA as special administrator, instituted against PASTOR, JR. and his wife an action for reconveyance of alleged properties of the estate, which included the properties subject of the legacy and which were in the names of the spouses PASTOR, JR. and his wife, Maria Elena Achaval de Pastor, who claimed to be the owners thereof in their own rights, and not by inheritance. The action, docketed as Civil Case No. 274-R, was filed with the Court of First Instance of Cebu, Branch IX.

On February 2, 1971, PASTOR, JR. and his sister SOFIA filed their opposition to the petition for probate and the order appointing QUEMADA as special administrator.

On December 5, 1972, the PROBATE COURT issued an order allowing the will to probate. Appealed to the Court of Appeals in CA-G.R. No. 52961- R, the order was affirmed in a decision dated May 9, 1977. On petition for review, the Supreme Court in G.R. No. L-46645 dismissed the petition in a minute resolution dated November 1, 1977 and remanded the same to the PROBATE COURT after denying reconsideration on January 11, 1978.

For two years after remand of the case to the PROBATE COURT, QUEMADA filed pleading after pleading asking for payment of his legacy and seizure of the properties subject of said legacy. PASTOR, JR. and SOFIA opposed these pleadings on the

ground of pendency of the reconveyance suit with another branch of the Cebu Court of First Instance. All pleadings remained unacted upon by the PROBATE COURT.

On March 5, 1980, the PROBATE COURT set the hearing on the intrinsic validity of the will for March 25, 1980, but upon objection of PASTOR, JR. and SOFIA on the e ground of pendency of the reconveyance suit, no hearing was held on March 25. Instead, the PROBATE COURT required the parties to submit their respective position papers as to how much inheritance QUEMADA was entitled to receive under the wig. Pursuant thereto, PASTOR. JR. and SOFIA submitted their Memorandum of authorities dated April 10, which in effect showed that determination of how much QUEMADA should receive was still premature. QUEMADA submitted his Position paper dated April 20, 1980. ATLAS, upon order of the Court, submitted a sworn statement of royalties paid to the Pastor Group of tsn from June 1966 (when Pastor, Sr. died) to February 1980. The statement revealed that of the mining claims being operated by ATLAS, 60% pertained to the Pastor Group distributed as follows:

1. A. Pastor, Jr. ...................................40.5%

2. E. Pelaez, Sr. ...................................15.0%

3. B. Quemada .......................................4.5%

On August 20, 1980, while the reconveyance suit was still being litigated in Branch IX of the Court of First Instance of Cebu, the PROBATE COURT issued the now assailed Order of Execution and Garnishment, resolving the question of ownership of the royalties payable by ATLAS and ruling in effect that the legacy to QUEMADA was not inofficious. [There was absolutely no statement or claim in the Order that the Probate Order of December 5, 1972 had previously resolved the issue of ownership of the mining rights of royalties thereon, nor the intrinsic validity of the holographic will.]

The order of August 20, 1980 found that as per the holographic will and a written acknowledgment of PASTOR, JR. dated June 17, 1962, of the above 60% interest in the mining claims belonging to the Pastor Group, 42% belonged to PASTOR, SR. and only 33% belonged to PASTOR, JR. The remaining 25% belonged to E. Pelaez, also of the Pastor Group. The PROBATE COURT thus directed ATLAS to remit directly to QUEMADA the 42% royalties due decedent's estate, of which QUEMADA was authorized to retain 75% for himself as legatee and to deposit 25% with a reputable banking institution for payment of the estate taxes and other obligations of the estate. The 33% share of PASTOR, JR. and/or his assignees was ordered garnished to

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answer for the accumulated legacy of QUEMADA from the time of PASTOR, SR.'s death, which amounted to over two million pesos.

The order being "immediately executory", QUEMADA succeeded in obtaining a Writ of Execution and Garnishment on September 4, 1980, and in serving the same on ATLAS on the same day. Notified of the Order on September 6, 1980, the oppositors sought reconsideration thereof on the same date primarily on the ground that the PROBATE COURT gravely abused its discretion when it resolved the question of ownership of the royalties and ordered the payment of QUEMADA's legacy after prematurely passing upon the intrinsic validity of the will. In the meantime, the PROBATE COURT ordered suspension of payment of all royalties due PASTOR, JR. and/or his assignees until after resolution of oppositors' motion for reconsideration.

Before the Motion for Reconsideration could be resolved, however, PASTOR, JR., this time joined by his wife Ma. ELENA ACHAVAL DE PASTOR, filed with the Court of Appeals a Petition for certiorari and Prohibition with a prayer for writ of preliminary injunction (CA-G.R. No. SP- 11373-R). They assailed the Order dated August 20, 1980 and the writ of execution and garnishment issued pursuant thereto. The petition was denied on November 18, 1980 on the grounds (1) that its filing was premature because the Motion for Reconsideration of the questioned Order was still pending determination by the PROBATE COURT; and (2) that although "the rule that a motion for reconsideration is prerequisite for an action for certiorari is never an absolute rule," the Order assailed is "legally valid. "

On December 9, 1980, PASTOR, JR. and his wife moved for reconsideration of the Court of Appeal's decision of November 18, 1980, calling the attention of the appellate court to another order of the Probate Court dated November 11, 1980 (i.e., while their petition for certiorari was pending decision in the appellate court), by which the oppositors' motion for reconsideration of the Probate Court's Order of August 20, 1980 was denied. [The November 11 Order declared that the questions of intrinsic validity of the will and of ownership over the mining claims (not the royalties alone) had been finally adjudicated by the final and executory Order of December 5, 1972, as affirmed by the Court of Appeals and the Supreme Court, thereby rendering moot and academic the suit for reconveyance then pending in the Court of First Instance of Cebu, Branch IX. It clarified that only the 33% share of PASTOR, JR. in the royalties (less than 7.5% share which he had assigned to QUEMADA before PASTOR, SR. died) was to be garnished and that as regards PASTOR, SR.'s 42% share, what was ordered was just the transfer of its possession to the custody of the PROBATE COURT through the special administrator. Further, the Order granted QUEMADA 6% interest on his unpaid

legacy from August 1980 until fully paid.] Nonetheless, the Court of Appeals denied reconsideration.

Hence, this Petition for Review by certiorari with prayer for a writ of pre y injunction, assailing the decision of the Court of Appeals dated November 18, 1980 as well as the orders of the Probate Court dated August 20, 1980, November 11, 1980 and December 17, 1980, Med by petitioners on March 26, 1981, followed by a Supplemental Petition with Urgent Prayer for Restraining Order.

In April 1981, the Court (First Division) issued a writ of preliminary injunction, the lifting of which was denied in the Resolution of the same Division dated October 18, 1982, although the bond of petitioners was increased from P50,000.00 to P100,000.00.

Between December 21, 1981 and October 12, 1982, private respondent filed seven successive motions for early resolution. Five of these motions expressly prayed for the resolution of the question as to whether or not the petition should be given due course.

On October 18, 1982, the Court (First Division) adopted a resolution stating that "the petition in fact and in effect was given due course when this case was heard on the merits on September 7, (should be October 21, 1981) and concise memoranda in amplification of their oral arguments on the merits of the case were filed by the parties pursuant to the resolution of October 21, 1981 . . . " and denied in a resolution dated December 13, 1982, private respondent's "Omnibus motion to set aside resolution dated October 18, 1982 and to submit the matter of due course to the present membership of the Division; and to reassign the case to another ponente."

Upon Motion for Reconsideration of the October 18, 1982 and December 13, 1982 Resolutions, the Court en banc resolved to CONFIRM the questioned resolutions insofar as hey resolved that the petition in fact and in effect had been given due course.

II. ISSUES:

Assailed by the petitioners in these proceedings is the validity of the Order of execution and garnishment dated August 20, 1980 as well as the Orders subsequently issued allegedly to implement the Probate Order of December 5, 1972, to wit: the Order of November 11, 1980 declaring that the Probate Order of 1972 indeed resolved the issues of ownership and intrinsic validity of the will, and reiterating the Order of


Execution dated August 20, 1980; and the Order of December 17, 1980 reducing to P2,251,516.74 the amount payable to QUEMADA representing the royalties he should have received from the death of PASTOR, SR. in 1966 up to February 1980.

The Probate Order itself, insofar as it merely allowed the holographic will in probate, is not questioned. But petitioners denounce the Probate Court for having acted beyond its jurisdiction or with grave abuse of discretion when it issued the assailed Orders. Their argument runs this way: Before the provisions of the holographic win can be implemented, the questions of ownership of the mining properties and the intrinsic validity of the holographic will must first be resolved with finality. Now, contrary to the position taken by the Probate Court in 1980 — i.e., almost eight years after the probate of the will in 1972 — the Probate Order did not resolve the two said issues. Therefore, the Probate Order could not have resolved and actually did not decide QUEMADA's entitlement to the legacy. This being so, the Orders for the payment of the legacy in alleged implementation of the Probate Order of 1972 are unwarranted for lack of basis.

Closely related to the foregoing is the issue raised by QUEMADA The Probate Order of 1972 having become final and executory, how can its implementation (payment of legacy) be restrained? Of course, the question assumes that QUEMADA's entitlement to the legacy was finally adjudged in the Probate Order.

On the merits, therefore, the basic issue is whether the Probate Order of December 5, 1972 resolved with finality the questions of ownership and intrinsic validity. A negative finding will necessarily render moot and academic the other issues raised by the parties, such as the jurisdiction of the Probate Court to conclusively resolve title to property, and the constitutionality and repercussions of a ruling that the mining properties in dispute, although in the name of PASTOR, JR. and his wife, really belonged to the decedent despite the latter's constitutional disqualification as an alien.

On the procedural aspect, placed in issue is the propriety of certiorari as a means to assail the validity of the order of execution and the implementing writ.

III. DISCUSSION:

1. Issue of Ownership —

(a) In a special proceeding for the probate of a will, the issue by and large is restricted to the extrinsic validity of the will, i.e., whether the testator, being of sound mind, freely executed the will in accordance with the formalities prescribed by law. (Rules of Court,

Rule 75, Section 1; Rule 76, Section 9.) As a rule, the question of ownership is an extraneous matter which the Probate Court cannot resolve with finality. Thus, for the purpose of determining whether a certain property should or should not be included in the inventory of estate properties, the Probate Court may pass upon the title thereto, but such determination is provisional, not conclusive, and is subject to the final decision in a separate action to resolve title. [3 Moran, Comments on the Rules of Court (1980 ed.), p. 458; Valero Vda. de Rodriguez vs. Court of Appeals, 91 SCRA 540.]

(b) The rule is that execution of a judgment must conform to that decreed in the dispositive part of the decision. (Philippine-American Insurance Co. vs. Honorable Flores, 97 SCRA 811.) However, in case of ambiguity or uncertainty, the body of the decision may be scanned for guidance in construing the judgment. (Heirs of Presto vs. Galang, 78 SCRA 534; Fabular vs. Court of Appeals, 119 SCRA 329; Robles vs. Timario. 107 Phil. 809.)

The Order sought to be executed by the assailed Order of execution is the Probate Order of December 5, 1972 which allegedly resolved the question of ownership of the disputed mining properties. The said Probate Order enumerated the issues before the Probate Court, thus:

Unmistakably, there are three aspects in these proceedings: (1) the probate of the holographic will (2) the intestate estate aspect; and (3) the administration proceedings for the purported estate of the decedent in the Philippines.

In its broad and total perspective the whole proceedings are being impugned by the oppositors on jurisdictional grounds, i.e., that the fact of the decedent's residence and existence of properties in the Philippines have not been established.

Specifically placed in issue with respect to the probate proceedings are: (a) whether or not the holographic will (Exhibit "J") has lost its efficacy as the last will and testament upon the death of Alvaro Pastor, Sr. on June 5, 1966, in Cebu City, Philippines; (b) Whether or not the said will has been executed with all the formalities required by law; and (c) Did the late presentation of the holographic will affect the validity of the same?

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Issues In the Administration Proceedings are as follows: (1) Was the ex- parte appointment of the petitioner as special administrator valid and proper? (2) Is there any indispensable necessity for the estate of the decedent to be placed under administration? (3) Whether or not petition is qualified to be a special administrator of the estate; and (4) Whether or not the properties listed in the inventory (submitted by the special administrator but not approved by the Probate Court) are to be excluded.

Then came what purports to be the dispositive portion:

Upon the foregoing premises, this Court rules on and resolves some of the problems and issues presented in these proceedings, as follows:

(a) The Court has acquired jurisdiction over the probate proceedings as it hereby allows and approves the so-called holographic will of testator Alvaro Pastor, Sr., executed on July 31, 1961 with respect to its extrinsic validity, the same having been duly authenticated pursuant to the requisites or solemnities prescribed by law. Let, therefore, a certificate of its allowance be prepared by the Branch Clerk of this Court to be signed by this Presiding Judge, and attested by the seal of the Court, and thereafter attached to the will, and the will and certificate filed and recorded by the clerk. Let attested copies of the will and of the certificate of allowance thereof be sent to Atlas Consolidated Mining & Development Corporation, Goodrich Bldg., Cebu City, and the Register of Deeds of Cebu or of Toledo City, as the case may be, for recording.

(b) There was a delay in the granting of the letters testamentary or of administration for as a matter of fact, no regular executor and/or administrator has been appointed up to this time and - the appointment of a special administrator was, and still is, justified under the circumstances to take possession and charge of the estate of the deceased in the Philippines (particularly in Cebu) until the problems causing the delay are decided and the regular executor and/or administrator appointed.

(c) There is a necessity and propriety of a special administrator and later on an executor and/or administrator in these proceedings, in spite

of this Court's declaration that the oppositors are the forced heirs and the petitioner is merely vested with the character of a voluntary heir to the extent of the bounty given to him (under) the will insofar as the same will not prejudice the legitimes of the oppositor for the following reasons:

1. To submit a complete inventory of the estate of the decedent-testator Alvaro Pastor, Sr.

2. To administer and to continue to put to prolific utilization of the properties of the decedent;

3. To keep and maintain the houses and other structures and belonging to the estate, since the forced heirs are residing in Spain, and prepare them for delivery to the heirs in good order after partition and when directed by the Court, but only after the payment of estate and inheritance taxes;

(d) Subject to the outcome of the suit for reconveyance of ownership and possession of real and personal properties in Civil Case No. 274-T before Branch IX of the Court of First Instance of Cebu,the intestate estate administration aspect must proceed, unless, however, it is duly proven by the oppositors that debts of the decedent have already been paid, that there had been an extrajudicial partition or summary one between the forced heirs, that the legacy to be given and delivered to the petitioner does not exceed the free portion of the estate of the testator, that the respective shares of the forced heirs have been fairly apportioned, distributed and delivered to the two forced heirs of Alvaro Pastor, Sr., after deducting the property willed to the petitioner, and the estate and inheritance taxes have already been paid to the Government thru the Bureau of Internal Revenue.

The suitability and propriety of allowing petitioner to remain as special administrator or administrator of the other properties of the estate of the decedent, which properties are not directly or indirectly affected by the provisions of the holographic will (such as bank deposits, land in Mactan etc.), will be resolved in another order as separate incident, considering that this order should have been properly issued solely as a resolution on the issue of whether or not to allow and approve the aforestated will. (Emphasis supplied.)


Nowhere in the dispositive portion is there a declaration of ownership of specific properties. On the contrary, it is manifest therein that ownership was not resolved. For it confined itself to the question of extrinsic validity of the win, and the need for and propriety of appointing a special administrator. Thus it allowed and approved the holographic win "with respect to its extrinsic validity, the same having been duly authenticated pursuant to the requisites or solemnities prescribed by law." It declared that the intestate estate administration aspect must proceed " subject to the outcome of the suit for reconveyance of ownership and possession of real and personal properties in Civil Case 274-T before Branch IX of the CFI of Cebu." [Parenthetically, although the statement refers only to the "intestate" aspect, it defies understanding how ownership by the estate of some properties could be deemed finally resolved for purposes of testate administration, but not so for intestate purposes. Can the estate be the owner of a property for testate but not for intestate purposes?] Then again, the Probate Order (while indeed it does not direct the implementation of the legacy) conditionally stated that the intestate administration aspect must proceed "unless . . . it is proven . . . that the legacy to be given and delivered to the petitioner does not exceed the free portion of the estate of the testator," which clearly implies that the issue of impairment of legitime (an aspect of intrinsic validity) was in fact not resolved. Finally, the Probate Order did not rule on the propriety of allowing QUEMADA to remain as special administrator of estate properties not covered by the holographic will, "considering that this (Probate) Order should have been properly issued solely as a resolution on the issue of whether or not to allow and approve the aforestated will. "

(c) That the Probate Order did not resolve the question of ownership of the properties listed in the estate inventory was appropriate, considering that the issue of ownership was the very subject of controversy in the reconveyance suit that was still pending in Branch IX of the Court of First Instance of Cebu.

(d) What, therefore, the Court of Appeals and, in effect, the Supreme Court affirmed en toto when they reviewed the Probable Order were only the matters properly adjudged in the said Order.

(e) In an attempt to justify the issuance of the Order of execution dated August 20, 1980, the Probate Court in its Order of November 11, 1980 explained that the basis for its conclusion that the question of ownership had been formally resolved by the Probate Order of 1972 are the findings in the latter Order that (1) during the lifetime of the decedent, he was receiving royalties from ATLAS; (2) he had resided in the Philippines since pre-war days and was engaged in the mine prospecting business since 1937 particularly in the City of Toledo; and (3) PASTOR, JR. was only acting as dummy for his father because the latter was a Spaniard.

Based on the premises laid, the conclusion is obviously far-fetched.

(f) It was, therefore, error for the assailed implementing Orders to conclude that the Probate Order adjudged with finality the question of ownership of the mining properties and royalties, and that, premised on this conclusion, the dispositive portion of the said Probate Order directed the special administrator to pay the legacy in dispute.

2. Issue of Intrinsic Validity of the Holographic Will -

(a) When PASTOR, SR. died in 1966, he was survived by his wife, aside from his two legitimate children and one illegitimate son. There is therefore a need to liquidate the conjugal partnership and set apart the share of PASTOR, SR.'s wife in the conjugal partnership preparatory to the administration and liquidation of the estate of PASTOR, SR. which will include, among others, the determination of the extent of the statutory usufructuary right of his wife until her death. * When the disputed Probate order was issued on December 5, 1972, there had been no liquidation of the community properties of PASTOR, SR. and his wife.

(b) So, also, as of the same date, there had been no prior definitive determination of the assets of the estate of PASTOR, SR. There was an inventory of his properties presumably prepared by the special administrator, but it does not appear that it was ever the subject of a hearing or that it was judicially approved. The reconveyance or recovery of properties allegedly owned but not in the name of PASTOR, SR. was still being litigated in another court.

(c) There was no appropriate determination, much less payment, of the debts of the decedent and his estate. Indeed, it was only in the Probate Order of December 5, 1972 where the Probate Court ordered that-

... a notice be issued and published pursuant to the provisions of Rule 86 of the Rules of Court, requiring all persons having money claims against the decedent to file them in the office of the Branch Clerk of this Court."

(d) Nor had the estate tax been determined and paid, or at least provided for, as of December 5, 1972.

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(e) The net assets of the estate not having been determined, the legitime of the forced heirs in concrete figures could not be ascertained.

(f) All the foregoing deficiencies considered, it was not possible to determine whether the legacy of QUEMADA - a fixed share in a specific property rather than an aliquot part of the entire net estate of the deceased - would produce an impairment of the legitime of the compulsory heirs.

(g) Finally, there actually was no determination of the intrinsic validity of the will in other respects. It was obviously for this reason that as late as March 5, 1980 - more than 7 years after the Probate Order was issued the Probate Court scheduled on March 25, 1980 a hearing on the intrinsic validity of the will.

3. Propriety of certiorari —

Private respondent challenges the propriety of certiorari as a means to assail the validity of the disputed Order of execution. He contends that the error, if any, is one of judgment, not jurisdiction, and properly correctible only by appeal, not certiorari.

Under the circumstances of the case at bar, the challenge must be rejected. Grave abuse of discretion amounting to lack of jurisdiction is much too evident in the actuations of the probate court to be overlooked or condoned.

(a) Without a final, authoritative adjudication of the issue as to what properties compose the estate of PASTOR, SR. in the face of conflicting claims made by heirs and a non-heir (MA. ELENA ACHAVAL DE PASTOR) involving properties not in the name of the decedent, and in the absence of a resolution on the intrinsic validity of the will here in question, there was no basis for the Probate Court to hold in its Probate Order of 1972, which it did not, that private respondent is entitled to the payment of the questioned legacy. Therefore, the Order of Execution of August 20, 1980 and the subsequent implementing orders for the payment of QUEMADA's legacy, in alleged implementation of the dispositive part of the Probate Order of December 5, 1972, must fall for lack of basis.

(b) The ordered payment of legacy would be violative of the rule requiring prior liquidation of the estate of the deceased, i.e., the determination of the assets of the estate and payment of all debts and expenses, before apportionment and distribution

of the residue among the heirs and legatees. (Bernardo vs. Court of Appeals, 7 SCRA 367.)

(c) Neither has the estate tax been paid on the estate of PASTOR, SR. Payment therefore of the legacy to QUEMADA would collide with the provision of the National Internal Revenue Code requiring payment of estate tax before delivery to any beneficiary of his distributive share of the estate (Section 107 [c])

(d) The assailed order of execution was unauthorized, having been issued purportedly under Rule 88, Section 6 of the Rules of Court which reads:

Sec. 6. Court to fix contributive shares where devisees, legatees, or heirs have been in possession. — Where devisees, legatees, or heirs have entered into possession of portions of the estate before the debts and expenses have been settled and paid and have become liable to contribute for the payment of such debts and expenses, the court having jurisdiction of the estate may, by order for that purpose, after hearing, settle the amount of their several liabilities, and order how much and in what manner each person shall contribute, and may issue execution as circumstances require.

The above provision clearly authorizes execution to enforce payment of debts of estate. A legacy is not a debt of the estate; indeed, legatees are among those against whom execution is authorized to be issued.

... there is merit in the petitioners' contention that the probate court generally cannot issue a writ of execution. It is not supposed to issue a writ of execution because its orders usually refer to the adjudication of claims against the estate which the executor or administrator may satisfy without the necessity of resorting to a writ of execution. The probate court, as such, does not render any judgment enforceable by execution.

The circumstances that the Rules of Court expressly specifies that the probate court may issue execution (a) to satisfy (debts of the estate out of) the contributive shares of devisees, legatees and heirs in possession of the decedent's assets (Sec. 6. Rule 88), (b) to enforce payment of the expenses of partition (Sec. 3, Rule 90), and (c) to


satisfy the costs when a person is cited for examination in probate proceedings (Sec. 13, Rule 142) may mean, under the rule of inclusion unius est exclusion alterius, that those are the only instances when it can issue a writ of execution. (Vda. de Valera vs. Ofilada, 59 SCRA 96, 108.)

(d) It is within a court's competence to order the execution of a final judgment; but to order the execution of a final order (which is not even meant to be executed) by reading into it terms that are not there and in utter disregard of existing rules and law, is manifest grave abuse of discretion tantamount to lack of jurisdiction. Consequently, the rule that certiorari may not be invoked to defeat the right of a prevailing party to the execution of a valid and final judgment, is inapplicable. For when an order of execution is issued with grave abuse of discretion or is at variance with the judgment sought to be enforced (PVTA vs. Honorable Gonzales, 92 SCRA 172), certiorari will lie to abate the order of execution.

(e) Aside from the propriety of resorting to certiorari to assail an order of execution which varies the terms of the judgment sought to be executed or does not find support in the dispositive part of the latter, there are circumstances in the instant case which justify the remedy applied for.

Petitioner MA. ELENA ACHAVAL DE PASTOR, wife of PASTOR, JR., is the holder in her own right of three mining claims which are one of the objects of conflicting claims of ownership. She is not an heir of PASTOR, SR. and was not a party to the probate proceedings. Therefore, she could not appeal from the Order of execution issued by the Probate Court. On the other hand, after the issuance of the execution order, the urgency of the relief she and her co-petitioner husband seek in the petition for certiorari states against requiring her to go through the cumbersome procedure of asking for leave to intervene in the probate proceedings to enable her, if leave is granted, to appeal from the challenged order of execution which has ordered the immediate transfer and/or garnishment of the royalties derived from mineral properties of which she is the duly registered owner and/or grantee together with her husband. She could not have intervened before the issuance of the assailed orders because she had no valid ground to intervene. The matter of ownership over the properties subject of the execution was then still being litigated in another court in a reconveyance suit filed by the special administrator of the estate of PASTOR, SR.

Likewise, at the time petitioner PASTOR, JR. Med the petition for certiorari with the Court of Appeals, appeal was not available to him since his motion for reconsideration

of the execution order was still pending resolution by the Probate Court. But in the face of actual garnishment of their major source of income, petitioners could no longer wait for the resolution of their motion for reconsideration. They needed prompt relief from the injurious effects of the execution order. Under the circumstances, recourse to certiorari was the feasible remedy.

WHEREFORE, the decision of the Court of Appeals in CA G.R. No. SP-11373-R is reversed. The Order of execution issued by the probate Court dated August 20, 1980, as well as all the Orders issued subsequent thereto in alleged implementation of the Probate Order dated December 5, 1972, particularly the Orders dated November 11, 1980 and December 17, 1980, are hereby set aside; and this case is remanded to the appropriate Regional Trial Court for proper proceedings, subject to the judgment to be rendered in Civil Case No. 274-R.

SO ORDERED.

G.R. No. L-42678 April 9, 1987

PEDRO E. BAYBAYAN, CIPRIANO EVANGELISTA, and SPOUSES BARTOLOME and CONSUELO BAYBAYAN,petitioners, vs.HON. NARCISO A. AQUINO, as Presiding Judge CFI Pangasinan Branch XIV; Deputy Sheriff CONSTANCIO PAGADUAN; EULALIA EVANGELISTA, NORBERTO, PAULINA, FELIZA, all surnamed PADUA; DIONISIA, LAUREANO, JOSEFINA, LEONARDO, ANASTACIA, VALENTINA, all surnamed ORPIANO; SERVILLANO, GERTRUDES, PASTORA, LORENZO, FAUSTA, all surnamed DELFIN; and DIONISIO, FAUSTINA, AMADO BENJAMIN, all surnamed ORIA, respondents.

PADILLA, J.:

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This is a petition for certiorari to annul and set aside the Order issued by the respondent Judge on 4 December 1975, which dismissed, without prejudice, the petitioners' complaint filed in Civil Case No. 23 1 -R of the then Court of First Instance of Pangasinan, as well as the Order, dated 24 December 1975, which denied petitioners' motion for the reconsideration of said order.

The antecedent facts of the case are as follows:

On 19 January 1960, herein private respondents Norberto Padua, Paulina Padua, Felisa Padua, Dionisia Orpiano, Laureano Orpiano, Leonardo Orpiano, Josefina Orpiano, Valentina Orpiano, Servillano Delfin, Gertrudes Delfin, Pastors Delfin Lorenzo Delfin, Fausta Delfin, Dionisio Oria, Faustina Oria, Amado Oria, and Benjamin Oria, all claiming to be the nephews and nieces of one Vicente Oria who died intestate sometime in 1945 in Balungao, Pangasinan, filed a petition for the summary settlement of the decedent's estate, the value of which did not exceed P6,000.00. The petition was filed in the then Court of First Instance of Pangasinan, Tayug Branch. The case was docketed therein as Special Proceeding No. T-300. 1

After due publication and hearing, the probate court issued an order adjudicating the estate to the heirs of the decedent, who were ordered to submit a project of partition. 2 Sometime in 1971, the case was transferred to the Resales Branch of the Court of First Instance of Pangasinan where it was docketed as Spec. Proc. No. 24-R.

On 18 September 1974, the probate court confirmed the adjudication earlier made and ordered Eulalia Evangelista to deliver the respective shares of her co-heirs; to make an accounting of the produce thereof from 1960; and to deliver said produce to her co-heirs or pay its equivalent. A writ of execution was subsequently issued pursuant thereto. 3

A writ of possession was also issued sometime thereafter, and the private respondents were placed in possession of their respective shares. 4 However, when a representative of the private respondents went to cultivate the portion adjudicated to said private respondents, he was prevented by Jose Diaz and Cipriano Evangelista. In view thereof, the private respondents filed a motion to cite said Jose Diaz and Cipriano Evangelista in contempt of court. 5

As a consequence, herein petitioners Pedro Baybayan, Cipriano Evangelists, and the spouses Bartolome and Consuelo Baybayan, claiming to be the registered owners of

the lots involved, filed a complaint in the Court of First Instance of Pangasinan, Rosales Branch docketed therein as Civil Case No. 231-R, against the Deputy Sheriff and the herein private respondents, for the quieting of their title, plus damages, and to restrain said defendants from enforcing the writ of execution issued in Spec. Proc. No. 24-R. 6

Meanwhile, at the hearing of the motion for contempt in Spec. Proc. No. 24-R, the question of the Identity of the lands subject of Spec. Proc. No. 24-R, was brought up, so that the probate court ordered a relocation survey and commissioned a geodetic engineer to undertake said survey. After the survey, the commissioner submitted to the Court a report stating, among others, that the lands which were delivered by the Deputy Sheriff to the heirs of Vicente Oria, pursuant to the writ of possession issued by the probate court, are registered in the names of herein petitioners under TCT No. 50269 and TCT No. 50270 of the Register of Deeds of Pangasinan. 7

By reason thereof, the probate court, in an order dated 30 October 1975, dismissed the contempt charge against Jose Diaz and Cipriano Evangelists. However, the same court ordered the petitioners to amend their complaint filed in Civil Case No. 231-R since "it is necessary that an amended complaint be filed by Pedro Baybayan in order to determine whether or not the property in question is part of the property under Spec. Proc. No. 24-R, inasmuch as it is now the property claimed by him which is covered by Transfer Certificate of Title No. 50269." 8

Pursuant thereto, the herein petitioners filed an Omnibus Motion in Civil Case No. 231-R, to which was attached an amended complaint wherein some defendants were dropped. 9 The respondent Judge, however, found that the Amended Complaint did not comply with his order of 30 October 1975 to exclude Lot E and dismissed the case, "without prejudice on the part of the plaintiffs to file a proper complaint for the recovery of ownership or possession of the property in controversy which is Lot B in the relocation plan and formerly covered by Original Certificate of Title No. 23684, now under Transfer Certificate of Title No. 50269." 10

The petitioners filed a motion for reconsideration of the order, 11 but the motion was denied on 24 December 1975. 12 Thereupon, they filed with this Court a petition for certiorari for the review of the orders of the lower court. The Court treated the petition as a special civil action for certiorari. 13

Counsel for the petitioners, in this petition, contends that the respondent Judge had no authority under the law, both substantive and procedural, to issue the questioned


orders because the order to amend the complaint was issued in, and in connection with Spec. Proc. No. 24-R where the herein petitioners are not even parties.

The contention, in our opinion, is not meritorious. While it may be true that the order to amend the complaint filed in Civil Case No. 231-R was issued in Spec. Proc. No. 24-R, so that it cannot ordinarily bind the herein petitioners who are not parties in said special proceedings, it appears, however, that the petitioners voluntarily submitted themselves to the jurisdiction of the probate court, when they filed an Omnibus Motion in Civil Case No. 231-R, wherein they prayed for leave to amend their complaint in accordance with the order of the probate court of 30 October 1975. They cannot now be allowed belatedly to adopt an inconsistent posture by attacking the jurisdiction of the respondent trial Judge to whom they submitted their cause voluntarily. 14

We find, however, that the respondent Judge committed a grave abuse of discretion, amounting to lack of jurisdiction, in dismissing the complaint filed by the petitioners, for their alleged failure to amend their complaint to exclude therefrom Lot E which the respondent Judge found, in his order of 30 October 1975, issued in the probate court, to be owned by the petitioners Cipriano Evangelists and Consuelo Baybayan. The findings of the respondent Judge as to the ownership of Lot E after the hearing conducted in Spec. Proc. No. 24-R do not justify the order to amend the complaint since the determination of the ownership of the said lot by the respondent Judge presiding over a court exercising probate jurisdiction is not final or ultimate in nature and is without prejudice to the right of an interested party to raise the question of ownership in a proper action. 15

It is a well-settled rule in this jurisdiction, sanctioned and reiterated in a long fine of decisions, that "when questions arise as to ownership of property alleged to be a part of the estate of a deceased person, but claimed by some other person to be his property, not by virtue of any right of inheritance from the deceased, but by title adverse to that of the deceased and his estate, such questions cannot be determined in the courts of administrative proceedings. The Court of First Instance, acting, as a probate court, has no jurisdiction to adjudicate such contentions, which must be submitted to the Court of First Instance in the exercise of its general jurisdiction as a court of first instance." 16

Besides, the order to amend the complaint is vague and hazy and does not specify what the amendments should be or how the complaint should be amended so that the petitioners should not be faulted if the amended complaint subsequently filed by them

in Civil Case No. 231-R does not contain the allegations that the respondent Judge would want to appear therein.

WHEREFORE, the petition is GRANTED and a writ issued, setting aside the Orders issued by the respondent Judge on 7 December 1975 and 24 December 1975, in Civil Case No. 231-R of the then Court of First Instance of Pangasinan. Without costs.

SO ORDERED.

G.R. No. L-770 April 27, 1948

ANGEL T. LIMJOCO, petitioner, vs.INTESTATE ESTATE OF PEDRO O. FRAGRANTE, deceased, respondent.

Under date of May 21, 1946, the Public Service Commission, through Deputy Commissioner Fidel Ibañez, rendered its decision in case No. 4572 of Pedro O. Fragante, as applicant for a certificate of public convenience to install, maintain and operate an ice plant in San Juan, Rizal, whereby said commission held that the evidence therein showed that the public interest and convenience will be promoted in a proper and suitable manner "by authorizing the operation and maintenance of another ice plant of two and one-half (2-½) tons in the municipality of San Juan; that the original applicant Pedro O. Fragante was a Filipino Citizen at the time of his death; and that his intestate estate is financially capable of maintaining the proposed service". The commission, therefore, overruled the opposition filed in the case and ordered "that under the provisions of section 15 of Commonwealth Act No. 146, as amended a certificate of public convenience be issued to the Intestate Estate of the deceased Pedro Fragante, authorizing said Intestate Estate through its Special or Judicial Administrator, appointed by the proper court of competent jurisdiction, to maintain and operate an ice plant with a daily productive capacity of two and one-half (2-1/2) tons in

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the Municipality of San Juan and to sell the ice produced from said plant in the said Municipality of San Juan and in the Municipality of Mandaluyong, Rizal, and in Quezon City", subject to the conditions therein set forth in detail (petitioner's brief, pp. 33-34).

Petitioner makes four assignments of error in his brief as follows:

1. The decision of the Public Service Commission is not in accordance with law.

2. The decision of the Public Service Commission is not reasonably supported by evidence.

3. The Public Service Commission erred in not giving petitioner and the Ice and Cold Storage Industries of the Philippines, Inc., as existing operators, a reasonable opportunity to meet the increased demand.

4. The decision of the Public Service Commission is an unwarranted departure from its announced policy with respect to the establishment and operation of ice plant. (Pp. 1-2, petitioner's brief.)

In his argument petitioner contends that it was error on the part of the commission to allow the substitution of the legal representative of the estate of Pedro O. Fragante for the latter as party applicant in the case then pending before the commission, and in subsequently granting to said estate the certificate applied for, which is said to be in contravention of law.

If Pedro O. Fragante had not died, there can be no question that he would have had the right to prosecute his application before the commission to its final conclusion. No one would have denied him that right. As declared by the commission in its decision, he had invested in the ice plant in question P 35,000, and from what the commission said regarding his other properties and business, he would certainly have been financially able to maintain and operate said plant had he not died. His transportation business alone was netting him about P1,440 a month. He was a Filipino citizen and continued to be such till his demise. The commission declared in its decision, in view of the evidence before it, that his estate was financially able to maintain and operate the ice plant. The aforesaid right of Pedro O. Fragante to prosecute said application to its conclusion was one which by its nature did not lapse through his death. Hence, it constitutes a part of the assets of his estate, for which a right was property despite the

possibility that in the end the commission might have denied application, although under the facts of the case, the commission granted the application in view of the financial ability of the estate to maintain and operate the ice plant. Petitioner, in his memorandum of March 19, 1947, admits (page 3) that the certificate of public convenience once granted "as a rule, should descend to his estate as an asset". Such certificate would certainly be property, and the right to acquire such a certificate, by complying with the requisites of the law, belonged to the decedent in his lifetime, and survived to his estate and judicial administrator after his death.

If Pedro O. Fragrante had in his lifetime secured an option to buy a piece of land and during the life of the option he died, if the option had been given him in the ordinary course of business and not out of special consideration for his person, there would be no doubt that said option and the right to exercise it would have survived to his estate and legal representatives. In such a case there would also be the possibility of failure to acquire the property should he or his estate or legal representative fail to comply with the conditions of the option. In the case at bar Pedro O. Fragrante's undoubted right to apply for and acquire the desired certificate of public convenience — the evidence established that the public needed the ice plant — was under the law conditioned only upon the requisite citizenship and economic ability to maintain and operate the service. Of course, such right to acquire or obtain such certificate of public convenience was subject to failure to secure its objective through nonfulfillment of the legal conditions, but the situation here is no different from the legal standpoint from that of the option in the illustration just given.

Rule 88, section 2, provides that the executor or administrator may bring or defend actions, among other cases, for the protection of the property or rights of the deceased which survive, and it says that such actions may be brought or defended "in the right of the deceased".

Rule 82, section 1, paragraph (a), mentions among the duties of the executor or administrator, the making of an inventory of all goods, chattels, rights, credits, and estate of the deceased which shall come to his possession or knowledge, or to the possession of any other person for him.

In his commentaries on the Rules of Court (Volume II, 2nd ed., pages 366, 367) the present chief Justice of this Court draws the following conclusion from the decisions cited by him:


Therefore, unless otherwise expressly provided by law, any action affecting the property or rights (emphasis supplied) of a deceased person which may be brought by or against him if he were alive, may likewise be instituted and prosecuted by or against the administrator, unless the action is for recovery of money, debt or interest thereon, or unless, by its very nature, it cannot survive, because death extinguishes the right . . . .

It is true that a proceeding upon the application for a certificate of public convenience before the Public Service Commission is not an "action". But the foregoing provisions and citations go to prove that the decedent's rights which by their nature are not extinguished by death go to make up a part and parcel of the assets of his estate which, being placed under the control and management of the executor or administrator, can not be exercised but by him in representation of the estate for the benefit of the creditors, devisees or legatees, if any, and the heirs of the decedent. And if the right involved happens to consist in the prosecution of an unfinished proceeding upon an application for a certificate of public convenience of the deceased before the Public Service Commission, it is but logical that the legal representative be empowered and entitled in behalf of the estate to make the right effective in that proceeding.

Manresa (Vol. III, 6th ed., p. 11) says that No. 10 of article 334 and article 336 of the Civil Code, respectively, consider as immovable and movable things rights which are not material. The same eminent commentator says in the cited volume (p. 45) that article 336 of the Civil Code has been deficiently drafted in that it is not sufficiently expressive of all incorporeal rights which are also property for juridical purposes.

Corpus Juris (Vol. 50, p. 737) states that in the broad sense of the term, property includes, among other things, "an option", and "the certificate of the railroad commission permitting the operation of a bus line", and on page 748 of the same volume we read:

However, these terms (real property, as estate or interest) have also been declared to include every species of title, inchoate or complete, and embrace rights which lie in contract, whether executory or executed. (Emphasis supplied.)

Another important question raised by petitioner is whether the estate of Pedro O. Fragrante is a "person" within the meaning of the Public Service Act.

Words and Phrases, First Series, (Vol. 6, p, 5325), states the following doctrine in the jurisdiction of the State of Indiana:

As the estate of the decedent is in law regarded as a person, a forgery committed after the death of the man whose name purports to be signed to the instrument may be prosecuted as with the intent to defraud the estate. Billings vs. State, 107 Ind., 54, 55, 6 N. E. 914, 7 N. E. 763, 57 Am. Rep. 77.

The Supreme Court of Indiana in the decision cited above had before it a case of forgery committed after the death of one Morgan for the purpose of defrauding his estate. The objection was urged that the information did not aver that the forgery was committed with the intent to defraud any person. The Court, per Elliott, J., disposed of this objection as follows:

. . . The reason advanced in support of this proposition is that the law does not regard the estate of a decedent as a person. This intention (contention) cannot prevail. The estate of the decedent is a person in legal contemplation. "The word "person" says Mr. Abbot, "in its legal signification, is a generic term, and includes artificial as well as natural persons," 2 Abb. Dict. 271; Douglas vs. Pacific, etc. Co., 4 Cal. 304; Planters', etc., Bank vs. Andrews, 8 Port. (Ala.) 404. It said in another work that 'persons are of two kinds: natural and artificial. A natural person is a human being. Artificial persons include (1) a collection or succession of natural persons forming a corporation; (2) a collection of property to which the law attributes the capacity of having rights and duties. The latter class of artificial persons is recognized only to a limited extent in our law. "Examples are the estate of a bankrupt or deceased person." 2 Rapalje & L. Law Dict. 954. Our own cases inferentially recognize the correctness of the definition given by the authors from whom we have quoted, for they declare that it is sufficient, in pleading a claim against a decedent's estate, to designate the defendant as the estate of the deceased person, naming him. Ginn vs. Collins, 43 Ind. 271. Unless we accept this definition as correct, there would be a failure of justice in cases where, as here, the forgery is committed after the death of a person whose name is forged; and this is a result to be avoided if it can be done consistent with principle. We perceive no difficulty in avoiding such a result; for, to our minds, it seems reasonable that the estate of a decedent should be regarded as an artificial person. It is the creation of law for the purpose of enabling a disposition of the assets to be properly made, and, although natural persons as heirs, devises, or creditors, have an interest in the property, the artificial creature is a distinct legal entity. The interest which natural persons have in it is not complete until there has been a due

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administration; and one who forges the name of the decedent to an instrument purporting to be a promissory note must be regarded as having intended to defraud the estate of the decedent, and not the natural persons having diverse interests in it, since ha cannot be presumed to have known who those persons were, or what was the nature of their respective interest. The fraudulent intent is against the artificial person, — the estate — and not the natural persons who have direct or contingent interest in it. (107 Ind. 54, 55, 6 N.E. 914-915.)

In the instant case there would also be a failure of justice unless the estate of Pedro O. Fragrante is considered a "person", for quashing of the proceedings for no other reason than his death would entail prejudicial results to his investment amounting to P35,000.00 as found by the commission, not counting the expenses and disbursements which the proceeding can be presumed to have occasioned him during his lifetime, let alone those defrayed by the estate thereafter. In this jurisdiction there are ample precedents to show that the estate of a deceased person is also considered as having legal personality independent of their heirs. Among the most recent cases may be mentioned that of "Estate of Mota vs. Concepcion, 56 Phil., 712, 717, wherein the principal plaintiff was the estate of the deceased Lazaro Mota, and this Court gave judgment in favor of said estate along with the other plaintiffs in these words:

. . . the judgment appealed from must be affirmed so far as it holds that defendants Concepcion and Whitaker are indebted to he plaintiffs in the amount of P245,804.69 . . . .

Under the regime of the Civil Code and before the enactment of the Code of Civil Procedure, the heirs of a deceased person were considered in contemplation of law as the continuation of his personality by virtue of the provision of article 661 of the first Code that the heirs succeed to all the rights and obligations of the decedent by the mere fact of his death. It was so held by this Court in Barrios vs. Dolor, 2 Phil., 44, 46. However, after the enactment of the Code of Civil Procedure, article 661 of the Civil Code was abrogated, as held in Suiliong & Co. vs. Chio-Taysan, 12 Phil., 13, 22. In that case, as well as in many others decided by this Court after the innovations introduced by the Code of Civil Procedure in the matter of estates of deceased persons, it has been the constant doctrine that it is the estate or the mass of property, rights and assets left by the decedent, instead of the heirs directly, that becomes vested and charged with his rights and obligations which survive after his demise.

The heirs were formerly considered as the continuation of the decedent's personality simply by legal fiction, for they might not have been flesh and blood — the reason was

one in the nature of a legal exigency derived from the principle that the heirs succeeded to the rights and obligations of the decedent. Under the present legal system, such rights and obligations as survive after death have to be exercised and fulfilled only by the estate of the deceased. And if the same legal fiction were not indulged, there would be no juridical basis for the estate, represented by the executor or administrator, to exercise those rights and to fulfill those obligations of the deceased. The reason and purpose for indulging the fiction is identical and the same in both cases. This is why according to the Supreme Court of Indiana in Billings vs. State, supra, citing 2 Rapalje & L. Dictionary, 954, among the artificial persons recognized by law figures "a collection of property to which the law attributes the capacity of having rights and duties", as for instance, the estate of a bankrupt or deceased person.

Petitioner raises the decisive question of whether or not the estate of Pedro O. Fragrante can be considered a "citizen of the Philippines" within the meaning of section 16 of the Public Service Act, as amended, particularly the proviso thereof expressly and categorically limiting the power of the commission to issue certificates of public convenience or certificates of public convenience and necessity "only to citizens of the Philippines or of the United States or to corporations, copartnerships, associations, or joint-stock companies constituted and organized under the laws of the Philippines", and the further proviso that sixty per centum of the stock or paid-up capital of such entities must belong entirely to citizens of the Philippines or of the United States.

Within the Philosophy of the present legal system, the underlying reason for the legal fiction by which, for certain purposes, the estate of the deceased person is considered a "person" is the avoidance of injustice or prejudice resulting from the impossibility of exercising such legal rights and fulfilling such legal obligations of the decedent as survived after his death unless the fiction is indulged. Substantially the same reason is assigned to support the same rule in the jurisdiction of the State of Indiana, as announced in Billings vs. State, supra, when the Supreme Court of said State said:

. . . It seems reasonable that the estate of a decedent should be regarded as an artificial person. it is the creation of law for the purpose of enabling a disposition of the assets to be properly made . . . .

Within the framework and principles of the constitution itself, to cite just one example, under the bill of rights it seems clear that while the civil rights guaranteed therein in the majority of cases relate to natural persons, the term "person" used in section 1 (1) and (2) must be deemed to include artificial or juridical persons, for otherwise these latter


would be without the constitutional guarantee against being deprived of property without due process of law, or the immunity from unreasonable searches and seizures. We take it that it was the intendment of the framers to include artificial or juridical, no less than natural, persons in these constitutional immunities and in others of similar nature. Among these artificial or juridical persons figure estates of deceased persons. Hence, we hold that within the framework of the Constitution, the estate of Pedro O. Fragrante should be considered an artificial or juridical person for the purposes of the settlement and distribution of his estate which, of course, include the exercise during the judicial administration thereof of those rights and the fulfillment of those obligations of his which survived after his death. One of those rights was the one involved in his pending application before the Public Service Commission in the instant case, consisting in the prosecution of said application to its final conclusion. As stated above, an injustice would ensue from the opposite course.

How about the point of citizenship? If by legal fiction his personality is considered extended so that any debts or obligations left by, and surviving, him may be paid, and any surviving rights may be exercised for the benefit of his creditors and heirs, respectively, we find no sound and cogent reason for denying the application of the same fiction to his citizenship, and for not considering it as likewise extended for the purposes of the aforesaid unfinished proceeding before the Public Service Commission. The outcome of said proceeding, if successful, would in the end inure to the benefit of the same creditors and the heirs. Even in that event petitioner could not allege any prejudice in the legal sense, any more than he could have done if Fragrante had lived longer and obtained the desired certificate. The fiction of such extension of his citizenship is grounded upon the same principle, and motivated by the same reason, as the fiction of the extension of personality. The fiction is made necessary to avoid the injustice of subjecting his estate, creditors and heirs, solely by reason of his death to the loss of the investment amounting to P35,000, which he has already made in the ice plant, not counting the other expenses occasioned by the instant proceeding, from the Public Service Commission of this Court.

We can perceive no valid reason for holding that within the intent of the constitution (Article IV), its provisions on Philippine citizenship exclude the legal principle of extension above adverted to. If for reasons already stated our law indulges the fiction of extension of personality, if for such reasons the estate of Pedro O. Fragrante should be considered an artificial or juridical person herein, we can find no justification for refusing to declare a like fiction as to the extension of his citizenship for the purposes of this proceeding.

Pedro O. Fragrante was a Filipino citizen, and as such, if he had lived, in view of the evidence of record, he would have obtained from the commission the certificate for which he was applying. The situation has suffered but one change, and that is, his death. His estate was that of a Filipino citizen. And its economic ability to appropriately and adequately operate and maintain the service of an ice plant was the same that it received from the decedent himself. In the absence of a contrary showing, which does not exist here, his heirs may be assumed to be also Filipino citizens; and if they are not, there is the simple expedient of revoking the certificate or enjoining them from inheriting it.

Upon the whole, we are of the opinion that for the purposes of the prosecution of said case No. 4572 of the Public Service Commission to its final conclusion, both the personality and citizenship of Pedro O. Fragrante must be deemed extended, within the meaning and intent of the Public Service Act, as amended, in harmony with the constitution: it is so adjudged and decreed.

Decision affirmed, without costs. So ordered.

G.R. No. 133743 February 6, 2007EDGAR SAN LUIS, Petitioner, vs.FELICIDAD SAN LUIS, Respondent.x ---------------------------------------------------- xG.R. No. 134029 February 6, 2007RODOLFO SAN LUIS, Petitioner, vs.FELICIDAD SAGALONGOS alias FELICIDAD SAN LUIS, Respondent.

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Before us are consolidated petitions for review assailing the February 4, 1998 Decision 1 of the Court of Appeals in CA-G.R. CV No. 52647, which reversed and set aside the September 12, 1995 2 and January 31, 1996 3 Resolutions of the Regional Trial Court of Makati City, Branch 134 in SP. Proc. No. M-3708; and its May 15, 1998 Resolution 4 denying petitioners’ motion for reconsideration.

The instant case involves the settlement of the estate of Felicisimo T. San Luis (Felicisimo), who was the former governor of the Province of Laguna. During his lifetime, Felicisimo contracted three marriages. His first marriage was with Virginia Sulit on March 17, 1942 out of which were born six children, namely: Rodolfo, Mila, Edgar, Linda, Emilita and Manuel. On August 11, 1963, Virginia predeceased Felicisimo.

Five years later, on May 1, 1968, Felicisimo married Merry Lee Corwin, with whom he had a son, Tobias. However, on October 15, 1971, Merry Lee, an American citizen, filed a Complaint for Divorce 5 before the Family Court of the First Circuit, State of Hawaii, United States of America (U.S.A.), which issued a Decree Granting Absolute Divorce and Awarding Child Custody on December 14, 1973. 6

On June 20, 1974, Felicisimo married respondent Felicidad San Luis, then surnamed Sagalongos, before Rev. Fr. William Meyer, Minister of the United Presbyterian at Wilshire Boulevard, Los Angeles, California, U.S.A. 7 He had no children with respondent but lived with her for 18 years from the time of their marriage up to his death on December 18, 1992.

Thereafter, respondent sought the dissolution of their conjugal partnership assets and the settlement of Felicisimo’s estate. On December 17, 1993, she filed a petition for letters of administration 8 before the Regional Trial Court of Makati City, docketed as SP. Proc. No. M-3708 which was raffled to Branch 146 thereof.

Respondent alleged that she is the widow of Felicisimo; that, at the time of his death, the decedent was residing at 100 San Juanico Street, New Alabang Village, Alabang, Metro Manila; that the decedent’s surviving heirs are respondent as legal spouse, his six children by his first marriage, and son by his second marriage; that the decedent left real properties, both conjugal and exclusive, valued at P30,304,178.00 more or less; that the decedent does not have any unpaid debts. Respondent prayed that the

conjugal partnership assets be liquidated and that letters of administration be issued to her.

On February 4, 1994, petitioner Rodolfo San Luis, one of the children of Felicisimo by his first marriage, filed a motion to dismiss 9 on the grounds of improper venue and failure to state a cause of action. Rodolfo claimed that the petition for letters of administration should have been filed in the Province of Laguna because this was Felicisimo’s place of residence prior to his death. He further claimed that respondent has no legal personality to file the petition because she was only a mistress of Felicisimo since the latter, at the time of his death, was still legally married to Merry Lee.

On February 15, 1994, Linda invoked the same grounds and joined her brother Rodolfo in seeking the dismissal 10 of the petition. On February 28, 1994, the trial court issued an Order 11 denying the two motions to dismiss.

Unaware of the denial of the motions to dismiss, respondent filed on March 5, 1994 her opposition 12 thereto. She submitted documentary evidence showing that while Felicisimo exercised the powers of his public office in Laguna, he regularly went home to their house in New Alabang Village, Alabang, Metro Manila which they bought sometime in 1982. Further, she presented the decree of absolute divorce issued by the Family Court of the First Circuit, State of Hawaii to prove that the marriage of Felicisimo to Merry Lee had already been dissolved. Thus, she claimed that Felicisimo had the legal capacity to marry her by virtue of paragraph 2, 13 Article 26 of the Family Code and the doctrine laid down in Van Dorn v. Romillo, Jr. 14

Thereafter, Linda, Rodolfo and herein petitioner Edgar San Luis, separately filed motions for reconsideration from the Order denying their motions to dismiss. 15 They asserted that paragraph 2, Article 26 of the Family Code cannot be given retroactive effect to validate respondent’s bigamous marriage with Felicisimo because this would impair vested rights in derogation of Article 256 16 of the Family Code.

On April 21, 1994, Mila, another daughter of Felicisimo from his first marriage, filed a motion to disqualify Acting Presiding Judge Anthony E. Santos from hearing the case.

On October 24, 1994, the trial court issued an Order 17 denying the motions for reconsideration. It ruled that respondent, as widow of the decedent, possessed the legal standing to file the petition and that venue was properly laid. Meanwhile, the


motion for disqualification was deemed moot and academic 18 because then Acting Presiding Judge Santos was substituted by Judge Salvador S. Tensuan pending the resolution of said motion.

Mila filed a motion for inhibition 19 against Judge Tensuan on November 16, 1994. On even date, Edgar also filed a motion for reconsideration 20 from the Order denying their motion for reconsideration arguing that it does not state the facts and law on which it was based.

On November 25, 1994, Judge Tensuan issued an Order 21 granting the motion for inhibition. The case was re-raffled to Branch 134 presided by Judge Paul T. Arcangel.

On April 24, 1995, 22 the trial court required the parties to submit their respective position papers on the twin issues of venue and legal capacity of respondent to file the petition. On May 5, 1995, Edgar manifested 23 that he is adopting the arguments and evidence set forth in his previous motion for reconsideration as his position paper. Respondent and Rodolfo filed their position papers on June 14, 24 and June 20, 25 1995, respectively.

On September 12, 1995, the trial court dismissed the petition for letters of administration. It held that, at the time of his death, Felicisimo was the duly elected governor and a resident of the Province of Laguna. Hence, the petition should have been filed in Sta. Cruz, Laguna and not in Makati City. It also ruled that respondent was without legal capacity to file the petition for letters of administration because her marriage with Felicisimo was bigamous, thus, void ab initio. It found that the decree of absolute divorce dissolving Felicisimo’s marriage to Merry Lee was not valid in the Philippines and did not bind Felicisimo who was a Filipino citizen. It also ruled that paragraph 2, Article 26 of the Family Code cannot be retroactively applied because it would impair the vested rights of Felicisimo’s legitimate children.

Respondent moved for reconsideration 26 and for the disqualification 27 of Judge Arcangel but said motions were denied. 28

Respondent appealed to the Court of Appeals which reversed and set aside the orders of the trial court in its assailed Decision dated February 4, 1998, the dispositive portion of which states:

WHEREFORE, the Orders dated September 12, 1995 and January 31, 1996 are hereby REVERSED and SET ASIDE; the Orders dated February 28 and October 24,

1994 are REINSTATED; and the records of the case is REMANDED to the trial court for further proceedings.29

The appellante court ruled that under Section 1, Rule 73 of the Rules of Court, the term "place of residence" of the decedent, for purposes of fixing the venue of the settlement of his estate, refers to the personal, actual or physical habitation, or actual residence or place of abode of a person as distinguished from legal residence or domicile. It noted that although Felicisimo discharged his functions as governor in Laguna, he actually resided in Alabang, Muntinlupa. Thus, the petition for letters of administration was properly filed in Makati City.

The Court of Appeals also held that Felicisimo had legal capacity to marry respondent by virtue of paragraph 2, Article 26 of the Family Code and the rulings in Van Dorn v. Romillo, Jr. 30 and Pilapil v. Ibay-Somera. 31 It found that the marriage between Felicisimo and Merry Lee was validly dissolved by virtue of the decree of absolute divorce issued by the Family Court of the First Circuit, State of Hawaii. As a result, under paragraph 2, Article 26, Felicisimo was capacitated to contract a subsequent marriage with respondent. Thus –

With the well-known rule – express mandate of paragraph 2, Article 26, of the Family Code of the Philippines, the doctrines in Van Dorn, Pilapil, and the reason and philosophy behind the enactment of E.O. No. 227, — there is no justiciable reason to sustain the individual view — sweeping statement — of Judge Arc[h]angel, that "Article 26, par. 2 of the Family Code, contravenes the basic policy of our state against divorce in any form whatsoever." Indeed, courts cannot deny what the law grants. All that the courts should do is to give force and effect to the express mandate of the law. The foreign divorce having been obtained by the Foreigner on December 14, 1992, 32 the Filipino divorcee, "shall x x x have capacity to remarry under Philippine laws". For this reason, the marriage between the deceased and petitioner should not be denominated as "a bigamous marriage.

Therefore, under Article 130 of the Family Code, the petitioner as the surviving spouse can institute the judicial proceeding for the settlement of the estate of the deceased. x x x 33

Edgar, Linda, and Rodolfo filed separate motions for reconsideration 34 which were denied by the Court of Appeals.

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On July 2, 1998, Edgar appealed to this Court via the instant petition for review on certiorari. 35 Rodolfo later filed a manifestation and motion to adopt the said petition which was granted. 36

In the instant consolidated petitions, Edgar and Rodolfo insist that the venue of the subject petition for letters of administration was improperly laid because at the time of his death, Felicisimo was a resident of Sta. Cruz, Laguna. They contend that pursuant to our rulings in Nuval v. Guray 37 and Romualdez v. RTC, Br. 7, Tacloban City, 38 "residence" is synonymous with "domicile" which denotes a fixed permanent residence to which when absent, one intends to return. They claim that a person can only have one domicile at any given time. Since Felicisimo never changed his domicile, the petition for letters of administration should have been filed in Sta. Cruz, Laguna.

Petitioners also contend that respondent’s marriage to Felicisimo was void and bigamous because it was performed during the subsistence of the latter’s marriage to Merry Lee. They argue that paragraph 2, Article 26 cannot be retroactively applied because it would impair vested rights and ratify the void bigamous marriage. As such, respondent cannot be considered the surviving wife of Felicisimo; hence, she has no legal capacity to file the petition for letters of administration.

The issues for resolution: (1) whether venue was properly laid, and (2) whether respondent has legal capacity to file the subject petition for letters of administration.

The petition lacks merit.

Under Section 1, 39 Rule 73 of the Rules of Court, the petition for letters of administration of the estate of Felicisimo should be filed in the Regional Trial Court of the province "in which he resides at the time of his death." In the case of Garcia Fule v. Court of Appeals, 40 we laid down the doctrinal rule for determining the residence – as contradistinguished from domicile – of the decedent for purposes of fixing the venue of the settlement of his estate:

[T]he term "resides" connotes ex vi termini "actual residence" as distinguished from "legal residence or domicile." This term "resides," like the terms "residing" and "residence," is elastic and should be interpreted in the light of the object or purpose of the statute or rule in which it is employed. In the application of venue statutes and rules – Section 1, Rule 73 of the Revised Rules of Court is of such nature – residence rather than domicile is the significant factor. Even where the statute uses the word "domicile"

still it is construed as meaning residence and not domicile in the technical sense. Some cases make a distinction between the terms "residence" and "domicile" but as generally used in statutes fixing venue, the terms are synonymous, and convey the same meaning as the term "inhabitant." In other words, "resides" should be viewed or understood in its popular sense, meaning, the personal, actual or physical habitation of a person, actual residence or place of abode. It signifies physical presence in a place and actual stay thereat. In this popular sense, the term means merely residence, that is, personal residence, not legal residence or domicile. Residence simply requires bodily presence as an inhabitant in a given place, while domicile requires bodily presence in that place and also an intention to make it one’s domicile. No particular length of time of residence is required though; however, the residence must be more than temporary. 41 (Emphasis supplied)

It is incorrect for petitioners to argue that "residence," for purposes of fixing the venue of the settlement of the estate of Felicisimo, is synonymous with "domicile." The rulings in Nuval and Romualdez are inapplicable to the instant case because they involve election cases. Needless to say, there is a distinction between "residence" for purposes of election laws and "residence" for purposes of fixing the venue of actions. In election cases, "residence" and "domicile" are treated as synonymous terms, that is, the fixed permanent residence to which when absent, one has the intention of returning. 42 However, for purposes of fixing venue under the Rules of Court, the "residence" of a person is his personal, actual or physical habitation, or actual residence or place of abode, which may not necessarily be his legal residence or domicile provided he resides therein with continuity and consistency. 43 Hence, it is possible that a person may have his residence in one place and domicile in another.

In the instant case, while petitioners established that Felicisimo was domiciled in Sta. Cruz, Laguna, respondent proved that he also maintained a residence in Alabang, Muntinlupa from 1982 up to the time of his death. Respondent submitted in evidence the Deed of Absolute Sale 44 dated January 5, 1983 showing that the deceased purchased the aforesaid property. She also presented billing statements45 from the Philippine Heart Center and Chinese General Hospital for the period August to December 1992 indicating the address of Felicisimo at "100 San Juanico, Ayala Alabang, Muntinlupa." Respondent also presented proof of membership of the deceased in the Ayala Alabang Village Association 46 and Ayala Country Club, Inc., 47 letter-envelopes 48 from 1988 to 1990 sent by the deceased’s children to him at his Alabang address, and the deceased’s calling cards 49 stating that his home/city address is at "100 San Juanico, Ayala Alabang Village, Muntinlupa" while his office/provincial address is in "Provincial Capitol, Sta. Cruz, Laguna."


From the foregoing, we find that Felicisimo was a resident of Alabang, Muntinlupa for purposes of fixing the venue of the settlement of his estate. Consequently, the subject petition for letters of administration was validly filed in the Regional Trial Court 50 which has territorial jurisdiction over Alabang, Muntinlupa. The subject petition was filed on December 17, 1993. At that time, Muntinlupa was still a municipality and the branches of the Regional Trial Court of the National Capital Judicial Region which had territorial jurisdiction over Muntinlupa were then seated in Makati City as per Supreme Court Administrative Order No. 3. 51 Thus, the subject petition was validly filed before the Regional Trial Court of Makati City.

Anent the issue of respondent Felicidad’s legal personality to file the petition for letters of administration, we must first resolve the issue of whether a Filipino who is divorced by his alien spouse abroad may validly remarry under the Civil Code, considering that Felicidad’s marriage to Felicisimo was solemnized on June 20, 1974, or before the Family Code took effect on August 3, 1988. In resolving this issue, we need not retroactively apply the provisions of the Family Code, particularly Art. 26, par. (2) considering that there is sufficient jurisprudential basis allowing us to rule in the affirmative.

The case of Van Dorn v. Romillo, Jr. 52 involved a marriage between a foreigner and his Filipino wife, which marriage was subsequently dissolved through a divorce obtained abroad by the latter. Claiming that the divorce was not valid under Philippine law, the alien spouse alleged that his interest in the properties from their conjugal partnership should be protected. The Court, however, recognized the validity of the divorce and held that the alien spouse had no interest in the properties acquired by the Filipino wife after the divorce. Thus:

In this case, the divorce in Nevada released private respondent from the marriage from the standards of American law, under which divorce dissolves the marriage. As stated by the Federal Supreme Court of the United States in Atherton vs. Atherton, 45 L. Ed. 794, 799:

"The purpose and effect of a decree of divorce from the bond of matrimony by a competent jurisdiction are to change the existing status or domestic relation of husband and wife, and to free them both from the bond. The marriage tie, when thus severed as to one party, ceases to bind either. A husband without a wife, or a wife without a husband, is unknown to the law. When the law provides, in the nature of a penalty, that the guilty party shall not marry again, that party, as well as the other, is still absolutely freed from the bond of the former marriage."

Thus, pursuant to his national law, private respondent is no longer the husband of petitioner. He would have no standing to sue in the case below as petitioner’s husband entitled to exercise control over conjugal assets. As he is bound by the Decision of his own country’s Court, which validly exercised jurisdiction over him, and whose decision he does not repudiate, he is estopped by his own representation before said Court from asserting his right over the alleged conjugal property. 53

As to the effect of the divorce on the Filipino wife, the Court ruled that she should no longer be considered married to the alien spouse. Further, she should not be required to perform her marital duties and obligations. It held:

To maintain, as private respondent does, that, under our laws, petitioner has to be considered still married to private respondent and still subject to a wife's obligations under Article 109, et. seq. of the Civil Code cannot be just. Petitioner should not be obliged to live together with, observe respect and fidelity, and render support to private respondent. The latter should not continue to be one of her heirs with possible rights to conjugal property. She should not be discriminated against in her own country if the ends of justice are to be served. 54 (Emphasis added)

This principle was thereafter applied in Pilapil v. Ibay-Somera 55 where the Court recognized the validity of a divorce obtained abroad. In the said case, it was held that the alien spouse is not a proper party in filing the adultery suit against his Filipino wife. The Court stated that "the severance of the marital bond had the effect of dissociating the former spouses from each other, hence the actuations of one would not affect or cast obloquy on the other." 56

Likewise, in Quita v. Court of Appeals, 57 the Court stated that where a Filipino is divorced by his naturalized foreign spouse, the ruling inVan Dorn applies. 58 Although decided on December 22, 1998, the divorce in the said case was obtained in 1954 when the Civil Code provisions were still in effect.

The significance of the Van Dorn case to the development of limited recognition of divorce in the Philippines cannot be denied. The ruling has long been interpreted as severing marital ties between parties in a mixed marriage and capacitating the Filipino spouse to remarry as a necessary consequence of upholding the validity of a divorce obtained abroad by the alien spouse. In his treatise, Dr. Arturo M. Tolentino cited Van Dorn stating that "if the foreigner obtains a valid foreign divorce, the Filipino spouse shall have capacity to remarry under Philippine law." 59 In Garcia v. Recio, 60 the Court likewise cited the aforementioned case in relation to Article 26. 61

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In the recent case of Republic v. Orbecido III, 62 the historical background and legislative intent behind paragraph 2, Article 26 of the Family Code were discussed, to wit:

Brief Historical Background

On July 6, 1987, then President Corazon Aquino signed into law Executive Order No. 209, otherwise known as the "Family Code," which took effect on August 3, 1988. Article 26 thereof states:

All marriages solemnized outside the Philippines in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35, 37, and 38.

On July 17, 1987, shortly after the signing of the original Family Code, Executive Order No. 227 was likewise signed into law, amending Articles 26, 36, and 39 of the Family Code. A second paragraph was added to Article 26. As so amended, it now provides:

ART. 26. All marriages solemnized outside the Philippines in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35(1), (4), (5) and (6), 36, 37 and 38.

Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine law. (Emphasis supplied)

x x x xLegislative Intent

Records of the proceedings of the Family Code deliberations showed that the intent of Paragraph 2 of Article 26, according to Judge Alicia Sempio-Diy, a member of the Civil Code Revision Committee, is to avoid the absurd situation where the Filipino spouse remains married to the alien spouse who, after obtaining a divorce, is no longer married to the Filipino spouse.

Interestingly, Paragraph 2 of Article 26 traces its origin to the 1985 case of Van Dorn v. Romillo, Jr. The Van Dorn case involved a marriage between a Filipino citizen and a foreigner. The Court held therein that a divorce decree validly obtained by the alien spouse is valid in the Philippines, and consequently, the Filipino spouse is capacitated to remarry under Philippine law.63 (Emphasis added)

As such, the Van Dorn case is sufficient basis in resolving a situation where a divorce is validly obtained abroad by the alien spouse. With the enactment of the Family Code and paragraph 2, Article 26 thereof, our lawmakers codified the law already established through judicial precedent.1awphi1.net

Indeed, when the object of a marriage is defeated by rendering its continuance intolerable to one of the parties and productive of no possible good to the community, relief in some way should be obtainable. 64 Marriage, being a mutual and shared commitment between two parties, cannot possibly be productive of any good to the society where one is considered released from the marital bond while the other remains bound to it. Such is the state of affairs where the alien spouse obtains a valid divorce abroad against the Filipino spouse, as in this case.

Petitioners cite Articles 15 65 and 17 66 of the Civil Code in stating that the divorce is void under Philippine law insofar as Filipinos are concerned. However, in light of this Court’s rulings in the cases discussed above, the Filipino spouse should not be discriminated against in his own country if the ends of justice are to be served. 67 In Alonzo v. Intermediate Appellate Court, 68 the Court stated:

But as has also been aptly observed, we test a law by its results; and likewise, we may add, by its purposes. It is a cardinal rule that, in seeking the meaning of the law, the first concern of the judge should be to discover in its provisions the intent of the lawmaker. Unquestionably, the law should never be interpreted in such a way as to cause injustice as this is never within the legislative intent. An indispensable part of that intent, in fact, for we presume the good motives of the legislature, is to render justice.

Thus, we interpret and apply the law not independently of but in consonance with justice. Law and justice are inseparable, and we must keep them so. To be sure, there are some laws that, while generally valid, may seem arbitrary when applied in a particular case because of its peculiar circumstances. In such a situation, we are not bound, because only of our nature and functions, to apply them just the same, in


slavish obedience to their language. What we do instead is find a balance between the word and the will, that justice may be done even as the law is obeyed.

As judges, we are not automatons. We do not and must not unfeelingly apply the law as it is worded, yielding like robots to the literal command without regard to its cause and consequence. "Courts are apt to err by sticking too closely to the words of a law," so we are warned, by Justice Holmes again, "where these words import a policy that goes beyond them."

x x x x

More than twenty centuries ago, Justinian defined justice "as the constant and perpetual wish to render every one his due." That wish continues to motivate this Court when it assesses the facts and the law in every case brought to it for decision. Justice is always an essential ingredient of its decisions. Thus when the facts warrants, we interpret the law in a way that will render justice, presuming that it was the intention of the lawmaker, to begin with, that the law be dispensed with justice. 69

Applying the above doctrine in the instant case, the divorce decree allegedly obtained by Merry Lee which absolutely allowed Felicisimo to remarry, would have vested Felicidad with the legal personality to file the present petition as Felicisimo’s surviving spouse. However, the records show that there is insufficient evidence to prove the validity of the divorce obtained by Merry Lee as well as the marriage of respondent and Felicisimo under the laws of the U.S.A. In Garcia v. Recio, 70 the Court laid down the specific guidelines for pleading and proving foreign law and divorce judgments. It held that presentation solely of the divorce decree is insufficient and that proof of its authenticity and due execution must be presented. Under Sections 24 and 25 of Rule 132, a writing or document may be proven as a public or official record of a foreign country by either (1) an official publication or (2) a copy thereof attested by the officer having legal custody of the document. If the record is not kept in the Philippines, such copy must be (a) accompanied by a certificate issued by the proper diplomatic or consular officer in the Philippine foreign service stationed in the foreign country in which the record is kept and (b) authenticated by the seal of his office. 71

With regard to respondent’s marriage to Felicisimo allegedly solemnized in California, U.S.A., she submitted photocopies of the Marriage Certificate and the annotated text 72 of the Family Law Act of California which purportedly show that their marriage was done in accordance with the said law. As stated in Garcia, however, the Court cannot take judicial notice of foreign laws as they must be alleged and proved. 73

Therefore, this case should be remanded to the trial court for further reception of evidence on the divorce decree obtained by Merry Lee and the marriage of respondent and Felicisimo.

Even assuming that Felicisimo was not capacitated to marry respondent in 1974, nevertheless, we find that the latter has the legal personality to file the subject petition for letters of administration, as she may be considered the co-owner of Felicisimo as regards the properties that were acquired through their joint efforts during their cohabitation.

Section 6, 74 Rule 78 of the Rules of Court states that letters of administration may be granted to the surviving spouse of the decedent. However, Section 2, Rule 79 thereof also provides in part:

SEC. 2. Contents of petition for letters of administration. – A petition for letters of administration must be filed by an interested person and must show, as far as known to the petitioner: x x x.

An "interested person" has been defined as one who would be benefited by the estate, such as an heir, or one who has a claim against the estate, such as a creditor. The interest must be material and direct, and not merely indirect or contingent. 75

In the instant case, respondent would qualify as an interested person who has a direct interest in the estate of Felicisimo by virtue of their cohabitation, the existence of which was not denied by petitioners. If she proves the validity of the divorce and Felicisimo’s capacity to remarry, but fails to prove that her marriage with him was validly performed under the laws of the U.S.A., then she may be considered as a co-owner under Article 144 76 of the Civil Code. This provision governs the property relations between parties who live together as husband and wife without the benefit of marriage, or their marriage is void from the beginning. It provides that the property acquired by either or both of them through their work or industry or their wages and salaries shall be governed by the rules on co-ownership. In a co-ownership, it is not necessary that the property be acquired through their joint labor, efforts and industry. Any property acquired during the union is prima faciepresumed to have been obtained through their joint efforts. Hence, the portions belonging to the co-owners shall be presumed equal, unless the contrary is proven. 77

Meanwhile, if respondent fails to prove the validity of both the divorce and the marriage, the applicable provision would be Article 148 of the Family Code which has

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filled the hiatus in Article 144 of the Civil Code by expressly regulating the property relations of couples living together as husband and wife but are incapacitated to marry. 78 In Saguid v. Court of Appeals, 79 we held that even if the cohabitation or the acquisition of property occurred before the Family Code took effect, Article 148 governs. 80 The Court described the property regime under this provision as follows:

The regime of limited co-ownership of property governing the union of parties who are not legally capacitated to marry each other, but who nonetheless live together as husband and wife, applies to properties acquired during said cohabitation in proportion to their respective contributions. Co-ownership will only be up to the extent of the proven actual contribution of money, property or industry. Absent proof of the extent thereof, their contributions and corresponding shares shall be presumed to be equal.

x x x x

In the cases of Agapay v. Palang, and Tumlos v. Fernandez, which involved the issue of co-ownership of properties acquired by the parties to a bigamous marriage and an adulterous relationship, respectively, we ruled that proof of actual contribution in the acquisition of the property is essential. x x x

As in other civil cases, the burden of proof rests upon the party who, as determined by the pleadings or the nature of the case, asserts an affirmative issue. Contentions must be proved by competent evidence and reliance must be had on the strength of the party’s own evidence and not upon the weakness of the opponent’s defense. x x x 81

In view of the foregoing, we find that respondent’s legal capacity to file the subject petition for letters of administration may arise from her status as the surviving wife of Felicisimo or as his co-owner under Article 144 of the Civil Code or Article 148 of the Family Code.

WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals reinstating and affirming the February 28, 1994 Order of the Regional Trial Court which denied petitioners’ motion to dismiss and its October 24, 1994 Order which dismissed petitioners’ motion for reconsideration is AFFIRMED. Let this case be REMANDED to the trial court for further proceedings.

Spec Pro Rule 73

Documents

Transcript of Spec Pro Rule 73