1

Art. 816-Will of an alienARTICLE 816. The will of an alien who is abroad produces effect in the Philippines if made with the formalities prescribed by the law of the place in which he resides, or according to the formalities observed in his country, or in conformity with those which this Code prescribes. (n)_________________________________

G.R. No. 76714 June 2, 1994SALUD TEODORO VDA. DE PEREZ, petitioner, vs. HON. ZOTICO A. TOLETE, respondents. Dr. Jose F. Cunanan and his wife, Dr. Evelyn Perez-Cunanan, who became American citizens, established a successful medical practice in New York, U.S.A. The Cunanans lived at No. 2896 Citation Drive, Pompey, Syracuse, New York, with their children, Jocelyn, 18; Jacqueline, 16; and Josephine, 14.On August 23, 1979, Dr. Cunanan executed a last will and testament, bequeathing to his wife "all the remainder" of his real and personal property at the time of his death "wheresoever situated" (Rollo, p. 35). In the event he would survive his wife, he bequeathed all his property to his children and grandchildren with Dr. Rafael G. Cunanan, Jr. as trustee. He appointed his wife as executrix of his last will and testament and Dr. Rafael G. Cunanan, Jr. as substitute executor. Article VIII of his will states:

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

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

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

On January 9, 1982, Dr. Cunanan and his entire family perished when they were trapped by fire that gutted their home. Thereafter, Dr. Rafael G. Cunanan, Jr. as trustee and substitute executor of the two wills, filed separate proceedings for the probate thereof with the Surrogate Court of the County of Onondaga, New York. On April 7, these two wills were admitted to probate and letters testamentary were issued in his favor.On February 21, 1983, Salud Teodoro Perez, the mother of Dr. Evelyn P. Cunanan, and petitioner herein, filed with the Regional P. Cunanan, and petitioner herein, filed with the Regional Trial Court, Malolos, Bulacan a petition for the reprobate of the two bills ancillary to the probate proceedings in New York. She also asked that she be appointed the special administratrix of the estate of the deceased couple consisting primarily of a farm land in San Miguel, Bulacan.On March 9, the Regional Trial Court, Branch 16, Malolos, Bulacan, presided by Judge Gualberto J. de la Llana, issued an order, directing the issuance of letters of special administration in favor of petitioner upon her filing of a P10,000.00 bond. The following day, petitioner posted the bond and took her oath as special administration.As her first act of administration, petitioner filed a motion, praying that the Philippine Life Insurance Company be directed to deliver the proceeds in the amount of P50,000.00 of the life insurance policy taken by Dr. Jose F. Cunanan with Dr. Evelyn Perez-Cunanan and their daughter Jocelyn as beneficiaries. The trial court granted the motion.Counsel for the Philippine American Life Insurance Company then filed a manifestation, stating that said company then filed a manifestation, stating that said company had delivered to petitioner the amount of P49,765.85, representing the proceeds of the life insurance policy of Dr. Jose F. Cunanan.In a motion dated May 19, 1983, petitioner asked that Dr. Rafael Cunanan, Sr. be ordered to deliver to her a Philippine Trust Company passbook with P25,594.00 in savings deposit, and the Family Savings Bank time deposit certificates in the total amount of P12,412.52.On May 31, Atty. Federico Alday filed a notice of appearance as counsel for the heirs of Dr. Jose F. Cunanan, namely, Dr. Rafael Cunanan, Sr., Priscilla Cunanan Bautista, Lydia Cunanan Ignacio, Felipe F. Cunanan and Loreto Cunanan Concepcion (Cunanan heirs). He also manifested that before receiving petitioner's motion of May 19, 1983, his clients were unaware of the filing of the testate estate case and therefore, "in the interest of simple fair play," they should be notified of the proceedings (Records, p. 110). He prayed for deferment of the hearing on the motions of May 19, 1983.Petitioner then filed a counter manifestation dated June 13, 1983, asserting: (1) that the "Cunanan collaterals are neither heirs nor creditors of the late Dr. Jose F. Cunanan" and therefore, they had "no legal or proprietary interests to protect" and "no right to intervene"; (2) that the wills of Dr. Jose F. Cunanan and Dr. Evelyn Perez-Cunanan, being American citizens, were executed in accordance with the solemnities and formalities of New York laws,

and produced "effects in this jurisdiction in accordance with Art. 16 in relation to Art. 816 of the Civil Code"; (3) that under Article VIII of the two wills, it was presumed that the husband predeceased the wife; and (4) that "the Cunanan collaterals are neither distributees, legatees or beneficiaries, much less, heirs as heirship is only by institution" under a will or by operation of the law of New York (Records, pp. 112-113).On June 23, the probate court granted petitioner's motion of May 19, 1983. However, on July 21, the Cunanan heirs filed a motion to nullify the proceedings and to set aside the appointment of, or to disqualify, petitioner as special administratrix of the estates of Dr. Jose F. Cunanan and Dr. Evelyn Perez-Cunanan. The motion stated: (1) that being the "brothers and sisters and the legal and surviving heirs" of Dr. Jose F. Cunanan, they had been "deliberately excluded" in the petition for the probate of the separate wills of the Cunanan spouses thereby misleading the Bulacan court to believe that petitioner was the sole heir of the spouses; that such "misrepresentation" deprived them of their right to "due process in violation of Section 4, Rule 76 of the Revised Rules of Court; (2) that Dr. Rafael G. Cunanan, Jr., the executor of the estate of the Cunanan spouses, was likewise not notified of the hearings in the Bulacan court; (3) that the "misrepresentation and concealment committed by" petitioner rendered her unfit to be a special administratrix; (4) that Dr. Rafael G. Cunanan, Jr. had, by virtue of a verified power of attorney, authorized his father, Dr. Rafael Cunanan, Sr., to be his attorney-in-fact; and (5) that Dr. Rafael Cunanan, Sr. is qualified to be a regular administrator "as practically all of the subject estate in the Philippines belongs to their brother, Dr. Jose F. Cunanan" (Records, pp. 118-122). Hence, they prayed: (1) that the proceedings in the case be declared null and void; (2) that the appointment of petitioner as special administratrix be set aside; and (3) that Dr. Rafael Cunanan, Sr. be appointed the regular administrator of the estate of the deceased spouses.Thereafter, the Cunanan heirs filed a motion requiring petitioner to submit an inventory or accounting of all monies received by her in trust for the estate.In her opposition, petitioner asserted: (1) that she was the "sole and only heir" of her daughter, Dr. Evelyn Perez-Cunanan to the exclusion of the "Cunanan collaterals"; hence they were complete strangers to the proceedings and were not entitled to notice; (2) that she could not have "concealed" the name and address of Dr. Rafael G. Cunanan, Jr. because his name was prominently mentioned not only in the two wills but also in the decrees of the American surrogate court; (3) that the rule applicable to the case is Rule 77, not Rule 76, because it involved the allowance of wills proved outside of the Philippines and that nowhere in Section 2 of Rule 77 is there a mention of notice being given to the executor who, by the same provision, should himself file the necessary ancillary proceedings in this country; (4) that even if the Bulacan estate came from the "capital" of Dr. Jose F. Cunanan, he had willed all his worldly goods to his wife and nothing to his brothers and sisters; and (5) that Dr. Rafael G. Cunanan, Jr. had unlawfully disbursed $215,000.00 to the Cunanan heirs, misappropriated $15,000.00 for himself and irregularly assigned assets of the estates to his American lawyer (Records, pp. 151-160).In their reply, the Cunanan heirs stressed that on November 24, 1982, petitioner and the Cunanan heirs had entered into an agreement in the United States "to settle and divide equally the estates," and that under Section 2 of Rule 77 the "court shall fix a time and place for the hearing and cause notice thereof to be given as in case of an original will presented for allowance" (Records, pp. 184-185).Petitioner asked that Dr. Rafael G. Cunanan, Jr. be cited for contempt of court for failure to comply with the Order of June 23, 1983 and for appropriating money of the estate for his own benefit. She also alleged that she had impugned the agreement of November 24, 1982 before the Surrogate Court of Onondaga, New York which rendered a decision on April 13, 1983, finding that "all assets are payable to Dr. Evelyn P. Cunanan’s executor to be then distributed pursuant to EPTL4-1.1 subd [a] par [4]" (Rollo, p. 52).On their part, the Cunanan heirs replied that petitioner was estopped from claiming that they were heirs by the agreement to divide equally the estates. They asserted that by virtue of Section 2 of Rule 77 of the Rules of Court, the provisions of Sections 3, 4 and 5 of Rule 76 on the requirement of notice to all heirs, executors, devisees and legatees must be complied with. They reiterated their prayer: (1) that the proceedings in the case be nullified; (2) that petitioner be disqualified as special administratrix; (3) that she be ordered to submit an inventory of all goods, chattels and monies which she had received and to surrender the same to the court; and (4) that Dr. Rafael Cunanan, Sr. be appointed the regular administrator.Petitioner filed a rejoinder, stating that in violation of the April 13, 1983 decision of the American court Dr. Rafael G. Cunanan, Jr. made "unauthorized disbursements from the estates as early as July 7, 1982" (Records, p. 231). Thereafter, petitioner moved for the suspension of the proceedings as she had "to attend to the settlement proceedings" of the estate of the Cunanan spouses in New York (Records, p. 242). The Cunanans heirs opposed this motion and filed a manifestation, stating that petitioner had received $215,000.00 "from the Surrogate’s Court as part of legacy" based on the aforesaid agreement of November 24, 1982 On February 21, 1984, Judge de la Llana issued an order,

2

disallowing the reprobate of the two wills, recalling the appointment of petitioner as special administratrix, requiring the submission of petitioner of an inventory of the property received by her as special administratrix and declaring all pending incidents moot and academic. Judge de la Llana reasoned out that petitioner failed to prove the law of New York on procedure and allowance of wills and the court had no way of telling whether the wills were executed in accordance with the law of New York. In the absence of such evidence, the presumption is that the law of succession of the foreign country is the same as the law of the Philippines. However, he noted, that there were only two witnesses to the wills of the Cunanan spouses and the Philippine law requires three witnesses and that the wills were not signed on each and every page, a requirement of the Philippine law.On August 27, 1985, petitioner filed a motion for reconsideration of the Order dated February 21, 1984, where she had sufficiently proven the applicable laws of New York governing the execution of last wills and testaments.On the same day, Judge de la Llana issued another order, denying the motion of petitioner for the suspension of the proceedings but gave her 15 days upon arrival in the country within which to act on the other order issued that same day. Contending that the second portion of the second order left its finality to the discretion of counsel for petitioner, the Cunanans filed a motion for the reconsideration of the objectionable portion of the said order so that it would conform with the pertinent provisions of the Judiciary Reorganization Act of 1980 and the Interim Rules of Court.On April 30, 1985, the respondent Judge of Branch 18 of the Regional Trial Court, Malolos, to which the reprobate case was reassigned, issued an order stating that "(W)hen the last will and testament . . . was denied probate," the case was terminated and therefore all orders theretofore issued should be given finality. The same Order amended the February 21, 1984 Order by requiring petitioner to turn over to the estate the inventoried property. It considered the proceedings for all intents and purposes, closed.On August 12, petitioner filed a motion to resume proceedings on account of the final settlement and termination of the probate cases in New York. Three days later, petitioner filed a motion praying for the reconsideration of the Order of April 30, 1985 on the strength of the February 21, 1984 Order granting her a period of 15 days upon arrival in the country within which to act on the denial of probate of the wills of the Cunanan spouses. On August 19, respondent Judge granted the motion and reconsidered the Order of April 30, 1985.On August 29, counsel for petitioner, who happens to be her daughter, Natividad, filed a motion praying that since petitioner was ailing in Fort Lee, New Jersey, U.S.A. and therefore incapacitated to act as special administratrix, she (the counsel) should be named substitute special administratrix. She also filed a motion for the reconsideration of the Order of February 21, 1984, denying probate to the wills of the Cunanan spouses, alleging that respondent Judge "failed to appreciate the significant probative value of the exhibits . . . which all refer to the offer and admission to probate of the last wills of the Cunanan spouses including all procedures undertaken and decrees issued in connection with the said probate".Thereafter, the Cunanans heirs filed a motion for reconsideration of the Order of August 19, 1985, alleging lack of notice to their counsel.On March 31, 1986, respondent Judge to which the case was reassigned denied the motion for reconsideration holding that the documents submitted by petitioner proved "that the wills of the testator domiciled abroad were properly executed, genuine and sufficient to possess real and personal property; that letters testamentary were issued; and that proceedings were held on a foreign tribunal and proofs taken by a competent judge who inquired into all the facts and circumstances and being satisfied with his findings issued a decree admitting to probate the wills in question." However, respondent Judge said that the documents did not establish the law of New York on the procedure and allowance of wills (Records, p. 381).On April 9, 1986, petitioner filed a motion to allow her to present further evidence on the foreign law. After the hearing of the motion on April 25, 1986, respondent Judge issued an order wherein he conceded that insufficiency of evidence to prove the foreign law was not a fatal defect and was curable by adducing additional evidence. He granted petitioner 45 days to submit the evidence to that effect.However, without waiting for petitioner to adduce the additional evidence, respondent Judge ruled in his order dated June 20, 1986 that he found "no compelling reason to disturb its ruling of March 31, 1986" but allowed petitioner to "file anew the appropriate probate proceedings for each of the testator" (Records, p. 391).The Order dated June 20, 1986 prompted petitioner to file a second motion for reconsideration stating that she was "ready to submit further evidence on the law obtaining in the State of New York" and praying that she be granted "the opportunity to present evidence on what the law of the State of New York has on the probate and allowance of wills" (Records, p. 393).On July 18, respondent Judge denied the motion holding that to allow the probate of two wills in a single proceeding "would be a departure from the typical and established mode of probate where one petition takes care of one will." He pointed out that even in

New York "where the wills in question were first submitted for probate, they were dealt with in separate proceedings"On August 13, 1986, petitioner filed a motion for the reconsideration of the Order of July 18, 1986, citing Section 3, Rule 2 of the Rules of Court, which provides that no party may institute more than one suit for a single cause of action. She pointed out that separate proceedings for the wills of the spouses which contain basically the same provisions as they even named each other as a beneficiary in their respective wills, would go against "the grain of inexpensive, just and speedy determination of the proceedings" (Records, pp. 405-407).On September 11, 1986, petitioner filed a supplement to the motion for reconsideration, citing Benigno v. De La Peña, 57 Phil. 305 (1932), but respondent Judge found that this pleading had been filed out of time and that the adverse party had not been furnished with a copy thereof. In her compliance, petitioner stated that she had furnished a copy of the motion to the counsel of the Cunanan heirs and reiterated her motion for a "final ruling on her supplemental motion" On November 19, respondent Judge issued an order, denying the motion for reconsideration filed by petitioner on the grounds that "the probate of separate wills of two or more different persons even if they are husband and wife cannot be undertaken in a single petition" (Records, pp. 376-378).Hence, petitioner instituted the instant petition, arguing that the evidence offered at the hearing of April 11, 1983 sufficiently proved the laws of the State of New York on the allowance of wills, and that the separate wills of the Cunanan spouses need not be probated in separate proceedings.

IIPetitioner contends that the following pieces of evidence she had submitted before respondent Judge are sufficient to warrant the allowance of the wills:

(a) two certificates of authentication of the respective wills of Evelyn and Jose by the Consulate General of the Philippines (Exhs. "F" and "G");(b) two certifications from the Secretary of State of New York and Custodian of the Great Seal on the facts that Judge Bernard L. Reagan is the Surrogate of the Country of Onondaga which is a court of record, that his signature and seal of office are genuine, and that the Surrogate is duly authorized to grant copy of the respective wills of Evelyn and Jose (Exhs. "F-1" and "G-1");(c) two certificates of Judge Reagan and Chief Clerk Donald E. Moore stating that they have in their records and files the said wills which were recorded on April 7, 1982 (Exhs. "F-2" and "G-2");(d) the respective wills of Evelyn and Jose (Exhs. "F-3", "F-6" and Exh. "G-3" — "G-6");(e) certificates of Judge Reagan and the Chief Clerk certifying to the genuineness and authenticity of the exemplified copies of the two wills (Exhs. "F-7" and "F-7");(f) two certificates of authentication from the Consulate General of the Philippines in New York (Exh. "H" and "F").(g) certifications from the Secretary of State that Judge Reagan is duly authorized to grant exemplified copies of the decree of probate, letters testamentary and all proceedings had and proofs duly taken (Exhs. "H-1" and "I-1");(h) certificates of Judge Reagan and the Chief Clerk that letters testamentary were issued to Rafael G. Cunanan (Exhs. "H-2" and "I-2");(i) certification to the effect that it was during the term of Judge Reagan that a decree admitting the wills to probate had been issued and appointing Rafael G. Cunanan as alternate executor (Exhs. "H-3" and "I-10");(j) the decrees on probate of the two wills specifying that proceedings were held and proofs duly taken (Exhs. "H-4" and "I-5");(k) decrees on probate of the two wills stating that they were properly executed, genuine and valid and that the said instruments were admitted to probate and established as wills valid to pass real and personal property (Exhs. "H-5" and "I-5"); and(l) certificates of Judge Reagan and the Chief Clerk on the genuineness and authenticity of each other’s signatures in the exemplified copies of the decrees of probate, letters testamentary and proceedings held in their court (Exhs. "H-6" and "I-6").

Petitioner adds that the wills had been admitted to probate in the Surrogate Court’s Decision of April 13, 1983 and that the proceedings were terminated on November 29, 1984.The respective wills of the Cunanan spouses, who were American citizens, will only be effective in this country upon compliance with the following provision of the Civil Code of the Philippines:

Art. 816. The will of an alien who is abroad produces effect in the Philippines if made with the formalities prescribed by the law of the place in which he resides, or according to the formalities observed in his country, or in conformity with those which this Code prescribes.

Thus, proof that both wills conform with the formalities prescribed by New York laws or by Philippine laws is imperative.

3

The evidence necessary for the reprobate or allowance of wills which have been probated outside of the Philippines are as follows: (1) the due execution of the will in accordance with the foreign laws; (2) the testator has his domicile in the foreign country and not in the Philippines; (3) the will has been admitted to probate in such country; (4) the fact that the foreign tribunal is a probate court, and (5) the laws of a foreign country on procedure and allowance of wills (III Moran Commentaries on the Rules of Court, 1970 ed., pp. 419-429; Suntay v. Suntay, 95 Phil. 500 [1954]; Fluemer v. Hix, 54 Phil. 610 [1930]). Except for the first and last requirements, the petitioner submitted all the needed evidence.The necessity of presenting evidence on the foreign laws upon which the probate in the foreign country is based is impelled by the fact that our courts cannot take judicial notice of them (Philippine Commercial and Industrial Bank v. Escolin, 56 SCRA 266 [1974]).Petitioner must have perceived this omission as in fact she moved for more time to submit the pertinent procedural and substantive New York laws but which request respondent Judge just glossed over. While the probate of a will is a special proceeding wherein courts should relax the rules on evidence, the goal is to receive the best evidence of which the matter is susceptible before a purported will is probated or denied probate (Vda. de Ramos v. Court of Appeals, 81 SCRA 393 [1978]).There is merit in petitioner’s insistence that the separate wills of the Cunanan spouses should be probated jointly. Respondent Judge’s view that the Rules on allowance of wills is couched in singular terms and therefore should be interpreted to mean that there should be separate probate proceedings for the wills of the Cunanan spouses is too literal and simplistic an approach. Such view overlooks the provisions of Section 2, Rule 1 of the Revised Rules of Court, which advise that the rules shall be "liberally construed in order to promote their object and to assist the parties in obtaining just, speedy, and inexpensive determination of every action and proceeding."A literal application of the Rules should be avoided if they would only result in the delay in the administration of justice (Acain v. Intermediate Appellate Court, 155 SCRA 100 [1987]; Roberts v. Leonidas, 129 SCRA 33 [1984]).What the law expressly prohibits is the making of joint wills either for the testator’s reciprocal benefit or for the benefit of a third person (Civil Code of the Philippines, Article 818). In the case at bench, the Cunanan spouses executed separate wills. Since the two wills contain essentially the same provisions and pertain to property which in all probability are conjugal in nature, practical considerations dictate their joint probate. As this Court has held a number of times, it will always strive to settle the entire controversy in a single proceeding leaving no root or branch to bear the seeds of future litigation (Motoomull v. Dela Paz, 187 SCRA 743 [1990]).This petition cannot be completely resolved without touching on a very glaring fact — petitioner has always considered herself the sole heir of Dr. Evelyn Perez Cunanan and because she does not consider herself an heir of Dr. Jose F. Cunanan, she noticeably failed to notify his heirs of the filing of the proceedings. Thus, even in the instant petition, she only impleaded respondent Judge, forgetting that a judge whose order is being assailed is merely a nominal or formal party (Calderon v. Solicitor General, 215 SCRA 876 [1992]).The rule that the court having jurisdiction over the reprobate of a will shall "cause notice thereof to be given as in case of an original will presented for allowance" (Revised Rules of Court, Rule 27, Section 2) means that with regard to notices, the will probated abroad should be treated as if it were an "original will" or a will that is presented for probate for the first time. Accordingly, compliance with Sections 3 and 4 of Rule 76, which require publication and notice by mail or personally to the "known heirs, legatees, and devisees of the testator resident in the Philippines" and to the executor, if he is not the petitioner, are required.The brothers and sisters of Dr. Jose F. Cunanan, contrary to petitioner's claim, are entitled to notices of the time and place for proving the wills. Under Section 4 of Rule 76 of the Revised Rules of Court, the "court shall also cause copies of the notice of the time and place fixed for proving the will to be addressed to the designated or other known heirs, legatees, and devisees of the testator, . . . "WHEREFORE, the questioned Order is SET ASIDE. Respondent Judge shall allow petitioner reasonable time within which to submit evidence needed for the joint probate of the wills of the Cunanan spouses and see to it that the brothers and sisters of Dr. Jose F. Cunanan are given all notices and copies of all pleadings pertinent to the probate proceedings.SO ORDERED.____________________________________Art. 817

ARTICLE 817. A will made in the Philippines by a citizen or subject of another country, which is executed in accordance with the law of the country of which he is a citizen or subject, and which might be proved and allowed by the law of his own country, shall have the same effect as if executed according to the laws of the Philippines. (n)In re: Estate of Johnson, 39 Phil 156

November 16, 1918 G.R. No. L-12767

On February 4, 1916, Emil H. Johnson, a native of Sweden and a naturalized citizen of the United States, died in the city of Manila, leaving a will, dated September 9, 1915, by which he disposed of an estate, the value of which, as estimated by him, was P231,800. This document is an holographic instrument, being written in the testator’s own handwriting, and is signed by himself and two witnesses only, instead of three witnesses required by section 618 of the Code of Civil Procedure. This will, therefore, was not executed in conformity with the provisions of law generally applicable to wills executed by inhabitants of these Islands, and hence could not have been proved under section 618.On February 9, 1916, however, a petition was presented in the Court of First Instance of the city of Manila for the probate of this will, on the ground that Johnson was at the time of his death a citizen of the State of Illinois, United States of America; that the will was duly executed in accordance with the laws of that State; and hence could properly be probated here pursuant to section 636 of the Code of Civil Procedure. This section reads as follows:Will made here by alien. – A will made within the Philippine Islands by a citizen or subject of another state or country, which is executed in accordance with the law of the state or country of which he is a citizen or subject, and which might be proved and allowed by the law of his own state or country, may be proved, allowed, and recorded in the Philippine Islands, and shall have the same effect as if executed according to the laws of these Islands.The hearing on said application was set for March 6, 1916, and three weeks publication of notice was ordered in the “Manila Daily Bulletin.” Due publication was made pursuant to this order of the court. On March 6, 1916, witnesses were examined relative to the execution of the will; and upon March 16th thereafter the document was declared to be legal and was admitted to probate. At the same time an order was made nominating Victor Johnson and John T. Pickett as administrators of the estate, with the sill annexed. Shortly thereafter Pickett signified his desire not to serve, and Victor Johnson was appointed sole administrator.By the will in question the testator gives to his brother Victor one hundred shares of the corporate stock in the Johnson-Pickett Rope Company; to his father and mother in Sweden, the sum of P20,000; to his daughter Ebba Ingeborg, the sum of P5,000; to his wife, Alejandra Ibañez, the sum of P75 per month, if she remains single; to Simeona Ibañez, spinster, P65 per month, if she remains single. The rest of the property is left to the testator’s five children – Mercedes, Encarnacion, Victor, Eleonor and Alberto.The biographical facts relative to the deceased necessary to an understanding of the case are these: Emil H. Johnson was born in Sweden, May 25, 1877, from which country he emigrated to the United States and lived in Chicago, Illinois, from 1893 to 1898. On May 9, 1898, at Chicago, he was married to Rosalie Ackeson, and immediately thereafter embarked for the Philippine Islands as a soldier in the Army of the United States. As a result of relations between Johnson and Rosalie Ackeson a daughter, named Ebba Ingeborg, was born a few months after their marriage. This child was christened in Chicago by a pastor of the Swedish Lutheran Church upon October 16, 1898.After Johnson was discharged as a soldier from the service of the United States he continued to live in the Philippine Islands, and on November 20, 1902, the wife, Rosalie Johnson, was granted a decree of divorce from him in the Circuit Court of Cook County, Illinois, on the ground of desertion. A little later Johnson appeared in the United States on a visit and on January 10, 1903, procured a certificate of naturalization at Chicago. From Chicago he appears to have gone to Sweden, where a photograph, exhibited in evidence in this case, was taken in which he appeared in a group with his father, mother, and the little daughter, Ebba Ingeborg, who was then living with her grandparents in Sweden. When this visit was concluded, the deceased returned to Manila, where he prospered in business and continued to live until his death.In this city he appears to have entered into marital relations with Alejandra Ibañez, by whom he had three children, to wit, Mercedes, baptized May 31, 1903; Encarnacion, baptized April 29, 1906; and Victor, baptized December 9, 1907. The other two children mentioned in the will were borne to the deceased by Simeona Ibañez.On June 12, 1916, or about three months after the will had been probated, the attorneys for Ebba Ingeborg Johnson entered an appearance in her behalf and noted an exception to the other admitting the will to probate. On October 31, 1916, the same attorneys moved the court to vacate the order of March 16 and also various other orders in the case. On February 20, 1917, this motion was denied, and from this action of the trial court the present appeal has been perfected.As will be discerned, the purpose of the proceeding on behalf of the petitioner is to annul the decree of probate and put the estate into intestate administration, thus preparing the way for the establishment of the claim of the petitioner as the sole legitimate heir of her father.The grounds upon which the petitioner seeks to avoid the probate are four in number and may be stated, in the same sequence in which they are set forth in the petition, as follows:(1) Emil H. Johnson was a resident of the city of Manila and not a resident of the State of Illinois at the time the will in question was executed;

4

(2) The will is invalid and inadequate to pass real and personal property in the State of Illinois;(3) The order admitting the will to probate was made without notice to the petitioner; and(4) The order in question was beyond the jurisdiction of the court.It cannot of course be maintained that a court of first instance lacks essential jurisdiction over the probate of wills. The fourth proposition above stated must, accordingly, be interpreted in relation with the third and must be considered as a corollary deduced from the latter. Moreover, both the third and fourth grounds stated take precedence, by reason of their more fundamental implications, over the first two; and a logical exposition of the contentions of the petitioner is expressed in the two following propositions:(I) The order admitting the will to probate was beyond the jurisdiction of the court and void because made without notice to the petitioner;(II) The judgment from which the petitioner seeks relief should be set aside because the testator was not a resident of the State of Illinois and the will was not in conformity with the laws of that State.In the discussion which is to follow we shall consider the problems arising in this cae in the order last above indicated. Upon the question, then, of the jurisdiction of the court, it is apparent from an inspection of the record of the proceedings in the court below that all the steps prescribed by law as prerequisites to the probate of a will were complied with in every respect and that the probate was effected in external conformity with all legal requirements. This much is unquestioned. It is, however, pointed out in the argument submitted in behalf of the petitioner, that, at the time the court made the order of publication, it was apprised of the fact that the petitioner lived in the United States and that as daughter and heir she was necessarily interested in the probate of the will. It is, therefore, insisted that the court should have appointed a date for the probate of the will sufficiently far in the future to permit the petitioner to be present either in person or by representation; and it is said that the failure of the court thus to postpone the probate of the will constitutes an infringement of that provision of the Philippine Bill which declared that property shall not be taken without due process of law.On this point we are of the opinion that the proceedings for the probate of the will were regular and that the publication was sufficient to give the court jurisdiction to entertain the proceeding and to allow the will to be probated.As was said in the case of In re Davis (136 Cal., 590, 596), “the proceeding as to the probate of a will is essentially one in rem, and in the very nature of things the state is allowed a wide latitude in determining the character of the constructive notice to be given to the world in a proceeding where it has absolute possession of the res. It would be an exceptional case where a court would declare a statute void, as depriving a party of his property without due process of law, the proceeding being strictly in rem, and the res within the state, upon the ground that the constructive notice prescribed by the statute was unreasonably short.”In that case the petitioner had been domiciled in the Hawaiian Islands at the time of the testator’s death; and it was impossible, in view of the distance and means of communication then existing, for the petitioner to appear and oppose the probate on the day set for the hearing in California. It was nevertheless held that publication in the manner prescribed by statute constituted due process of law. (See Estate of Davis, 151 Cal., 318; Tracy vs. Muir, 151 Cal., 363.)In the Davis case (136 Cal., 590) the court commented upon the fact that, under the laws of California, the petitioner had a full year within which she might have instituted a proceeding to contest the will; and this was stated as one of the reasons for holding that publication in the manner provided by statute was sufficient. The same circumstance was commented upon in O’Callaghan vs. O’Brien (199 U. S., 89), decided in the Supreme Court of the United States. This case arose under the laws of the State of Washington, and it was alleged that a will had been there probated without the notice of application for probate having been given as required by law. It was insisted that this was an infringement of the Fourteenth Amendment of the Constitution of the United States. This contention was, however, rejected and it was held that the statutory right to contest the will within a year was a complete refutation of the argument founded on the idea of a violation of the due process provision.The laws of these Islands, in contrast with the laws in force in perhaps all of the States of the American Union, contain no special provision, other than that allowing an appeal in the probate proceedings, under which relief of any sort can be obtained from an order of a court of first instance improperly allowing or disallowing a will. We do, however, have a provision of a general nature authorizing a court under certain circumstances to set aside any judgment, order, or other proceeding whatever. This provision is found in section 113 of the Code of Civil Procedure, which reads as follows:Upon such terms as may be just the court may relieve a party or his legal representative from a judgment, order or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect; Provided, That application therefor be made within a reasonable time, but in no case exceeding six months after such judgment, order, or proceeding was taken.

The use of the word “judgment, order or other proceeding” in this section indicates an intention on the part of the Legislature to give a wide latitude to the remedy here provided, and in our opinion its operation is not to be restricted to judgments or orders entered in ordinary contentious litigation where a plaintiff impleads a defendant and brings him into court by personal service of process. In other words the utility of the provision is not limited to actions proper but extends to all sorts of judicial proceedings.In the second section of the Code of Civil Procedure it is declared that the provisions of this Code shall be liberally construed to promote its object and to assist the parties in obtaining speedy justice. We think that the intention thus exhibited should be applied in the interpretation of section 113; and we hold that the word “party,” used in this section, means any person having an interest in the subject matter of the proceeding who is in a position to be concluded by the judgment, order, to other proceeding taken.The petitioner, therefore, in this case could have applied, under the section cited, at any time within six months for March 16, 1916, and upon showing that she had been precluded from appearing in the probate proceedings by conditions over which she had no control and that the order admitting the will to probate had been erroneously entered upon insufficient proof or upon a supposed state of facts contrary to the truth, the court would have been authorized to set the probate aside and grant a rehearing. It is no doubt true that six months was, under the circumstances, a very short period of time within which to expect the petitioner to appear and be prepared to contest the probate with the proof which she might have desired to collect from remote countries. Nevertheless, although the time allowed for the making of such application was inconveniently short, the remedy existed; and the possibility of its use is proved in this case by the circumstance that on June 12, 1916, she in fact here appeared in court by her attorneys and excepted to the order admitting the will to probate.It results that, in conformity with the doctrine announced in the Davis case, above cited, the proceedings in the court below were conducted in such manner as to constitute due process of law. The law supplied a remedy by which the petitioner might have gotten a hearing and have obtained relief from the order by which she is supposed to have been injured; and though the period within which the application should have been made was short, the remedy was both possible and practicable.From what has been said it follows that the order of March 16, 1916, admitting the will of Emil H. Johnson to probate cannot be declared null and void merely because the petitioner was unavoidably prevented from appearing at the original hearing upon the matter of the probate of the will in question. Whether the result would have been the same if our system of procedure had contained no such provision as that expressed in section 113 is a matter which we need not here consider.Intimately connected with the question of the jurisdiction of the court, is another matter which may be properly discussed at this juncture. This relates to the interpretation to be placed upon section 636 of the Code of Civil Procedure. The position is taken by the appellant that this section is applicable only to wills of liens; and in this connection attention is directed to the fact that the epigraph of this section speaks only of the will made here by an alien and to the further fact that the word “state” in the body of the section is not capitalized. From this it is argued that section 636 is not applicable to the will of a citizen of the United States residing in these Islands.We consider these suggestions of little weight and are of the opinion that, by the most reasonable interpretation of the language used in the statute, the words “another state or country” include the United States and the States of the American Union, and that the operation of the statute is not limited to wills of aliens. It is a rule of hermeneutics that punctuation and capitalization are aids of low degree in interpreting the language of a statute and can never control against the intelligible meaning of the written words. Furthermore, the epigraph, or heading,, of a section, being nothing more than a convenient index to the contents of the provision, cannot have the effect of limiting the operative words contained in the body of the text. It results that if Emil H. Johnson was at the time of his death a citizen of the United States and of the State of Illinois, his will was provable under this section in the courts of the Philippine Islands, provided the instrument was so executed as to be admissible to probate under the laws of the State of Illinois.We are thus brought to consider the second principal proposition stated at the outset of this discussion, which raises the question whether the order f probate can be set aside in this proceeding on the other ground stated in the petition, namely, that the testator was not a resident of the State of Illinois and that the will was not made in conformity with the laws of that State.The order of the Court of First Instance admitting the will to probate recites, among other things:That upon the date when the will in question was executed Emil H. Johnson was a citizen of the United States, naturalized in the State of Illinois, County of Cook, and that the will in question was executed in conformity with the dispositions of the law f the State of Illinois.We consider this equivalent to a finding that upon the date of the execution of the will the testator was a citizen of the State of Illinois and that the will was executed in conformity with the laws of that State. Upon the last point the finding is express; and in our opinion the statement that the testator was a citizen of the United States,

5

naturalized in the State of Illinois, should be taken to imply that he was a citizen of the State of Illinois, as well as of the United States.The naturalization laws of the United States require, as a condition precedent to the granting of the certificate of naturalization, that the applicant should have resided at least five years in the United States and for one year within the State or territory where the court granting the naturalization papers is held; and in the absence of clear proof to the contrary it should be presumed that a person naturalized in a court of a certain State thereby becomes a citizen of that State as well as of the United States.In this connection it should be remembered that the Fourteenth Amendment to the Constitution of the United States declares, in its opening words, that all persons naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.It is noteworthy that the petition by which it is sought to annul the probate of this will does not assert that the testator was not a citizen of Illinois at the date when the will was executed. The most that is said on this point is he was “never a resident of the State of Illinois after the year 1898, but became and was a resident of the city of Manila,” etc. But residence in the Philippine Islands is compatible with citizenship in Illinois; and it must be considered that the allegations of the petition on this point are, considered in their bearing as an attempt to refute citizenship in Illinois, wholly insufficient.As the Court of First Instance found that the testator was a citizen of the State of Illinois and that the will was executed in conformity with the laws of that State, the will was necessarily and properly admitted to probate. And how is it possible to evade the effect of these findings?In Section 625 of the Code of Civil Procedure it is declared that “the allowance by the court of a will of real or personal property shall be conclusive as to its due execution.”The due execution of a will involves conditions relating to a number of matters, such as the age and mental capacity of the testator, the signing of the document by the testator, or by someone in his behalf, and the acknowledgment of the instrument by him in the presence of the required number of witnesses who affix their signatures to the will to attest the act. The proof of all these requisites is involved in the probate; and as to each and all of them the probate is conclusive. (Castañeda vs. Alemany, 3 Phil. Rep., 426; Pimentel vs. Palanca, 5 Phil. Rep., 436; Chiong Joc-Soy vs. Vaño, 8 Phil. Rep., 119; Sanchez vs. Pascual, 11 Phil. Rep., 395; Montañano vs. Suesa, 14 Phil. Rep., 676.)Our reported cases do not contain the slightest intimation that a will which has been probated according to law, and without fraud, can be annulled, in any other proceeding whatever, on account of any supposed irregularity or defect in the execution of the will or on account of any error in the action of the court upon the proof adduced before it. This court has never been called upon to decide whether, in case the probate of a will should be procured by fraud, relief could be granted in some other proceeding; and no such question is now presented. But it is readily seen that if fraud were alleged, this would introduce an entirely different factor in the cae. In Austrua vs. Ventenilla (21 Phil. Rep., 180, 184), it was suggested but not decided that relief might be granted in case the probate of a will were procured by fraud.The circumstance that the judgment of the trial court recites that the will was executed in conformity with the law of Illinois and also, in effect, that the testator was a citizen of that State places the judgment upon an unassailable basis so far as any supposed error apparent upon the fact of the judgment is concerned. It is, however, probable that even if the judgment had not contained these recitals, there would have been a presumption from the admission of the will to probate as the will of a citizen of Illinois that the facts were as recited in the order of probate.As was said by this court in the case of Banco Español-Filipino vs. Palanca (37 Phil. Rep., 921), “There is no principle of law better settled than that after jurisdiction has once been acquired, every act of a court of general jurisdiction shall be presumed to have been rightly done. This rule is applied to every judgment or decree rendered in the various stages of the proceedings from their initiation to their completion (Voorhees vs. United States Bank, 10 Pet., 314; 35 U. S., 449); and if the record is silent with respect to any fact which must have established before the court could have rightly acted, it will be presumed that such fact was properly brought to its knowledge.”The Court of First Instance is a court of original and general jurisdiction; and there is no difference in its faculties in this respect whether exercised in matters of probate or exerted in ordinary contentious litigation. The trial court therefore necessarily had the power to determine the facts upon which the propriety of admitting the will to probate depended; and the recital of those facts in the judgment was probably not essential to its validity. No express ruling is, however, necessary on this point.What has been said effectually disposes of the petition considered in its aspect as an attack upon the order of probate for error apparent on the face of the record. But the petitioner seeks to have the judgment reviewed, it being asserted that the findings of the trial court – especially on the question of the citizenship of the testator – are not supported by the evidence. It needs but a moment’s reflection, however, to show that in such a proceeding as this it is not possible to reverse the original order on the ground that the findings of the trial court are unsupported by the proof

adduced before that court. The only proceeding in which a review of the evidence can be secured is by appeal, and the case is not before us upon appeal from the original order admitting the will to probate. The present proceedings by petition to set aside the order of probate, and the appeal herein is from the order denying this relief. It is obvious that on appeal from an order refusing to vacate a judgment it is not possible to review the evidence upon which the original judgment was based. To permit this would operate unduly to protract the right of appeal.However, for the purpose of arriving at a just conception of the case from the point of view of the petitioner, we propose to examine the evidence submitted upon the original hearing, in connection with the allegations of the petition, in order to see, first, whether the evidence submitted to the trial court was sufficient to justify its findings, and, secondly, whether the petition contains any matter which would justify the court in setting the judgment, aside. In this connection we shall for a moment ignore the circumstance that the petition was filed after the expiration of the six months allowed by section 113 of the Code of Civil Procedure.The principal controversy is over the citizenship of the testator. The evidence adduced upon this point in the trial court consists of the certificate of naturalization granted upon January 10, 1903, in the Circuit Court of Cook County, Illinois, in connection with certain biographical facts contained in the oral evidence. The certificate of naturalization supplies incontrovertible proof that upon the date stated the testator became a citizen of the United States, and inferentially also a citizen of said State. In the testimony submitted to the trial court it appears that, when Johnson first came to the United States as a boy, he took up his abode in the State of Illinois and there remained until he came as a soldier in the United States Army to the Philippine Islands. Although he remained in these Islands for sometime after receiving his discharge, no evidence was adduced showing that at the time he returned to the United States, in the autumn of 1902, he had then abandoned Illinois as the State of his permanent domicile, and on the contrary the certificate of naturalization itself recites that at that time he claimed to be a resident of Illinois.Now, if upon January 10, 1903, the testator became a citizen of the United States and of the State of Illinois, how has he lost the character of citizen with respect to either of these jurisdictions? There is no law in force by virtue of which any person of foreign nativity can become a naturalized citizen of the Philippine Islands; and it was, therefore, impossible for the testator, even if he had so desired, to expatriate himself from the United States and change his political status from a citizen of the United States to a citizen of these Islands. This being true, it is to be presumed that he retained his citizenship in the State of Illinois along with his status as a citizen of the United States. It would be novel doctrine to Americans living in the Philippine Islands to be told that by living here they lose their citizenship in the State of their naturalization or nativity.We are not unmindful of the fact that when a citizen of one State leaves it and takes up his abode in another State with no intention of returning, he immediately acquires citizenship in the State of his new domicile. This is in accordance with that provision of the Fourteenth Amendment to the Constitution of the United States which says that every citizen of the United States is a citizen of the State where in he resides. The effect of this provision necessarily is that a person transferring his domicile from one State to another loses his citizenship in the State of his original above upon acquiring citizenship in the State of his new abode. The acquisition of the new State citizenship extinguishes the old. That situation, in our opinion, has no analogy to that which arises when a citizen of an American State comes to reside in the Philippine Islands. Here he cannot acquire a new citizenship; nor by the mere change of domicile does he lose that which he brought with him.The proof adduced before the trial court must therefore be taken as showing that, at the time the will was executed, the testator was, as stated in the order of probate, a citizen of the State of Illinois. This, in connection with the circumstance that the petition does not even so much as deny such citizenship but only asserts that the testator was a resident of the Philippine Islands, demonstrates the impossibility of setting the probate aside for lack of the necessary citizenship on the part of the testator. As already observed, the allegation of the petition on this point is wholly insufficient to justify any relief whatever.Upon the other point – as to whether the will was executed in conformity with the statutes of the State of Illinois – we note that it does not affirmatively appear from the transaction of the testimony adduced in the trial court that any witness was examined with reference to the law of Illinois on the subject of the execution of will. The trial judge no doubt was satisfied that the will was properly executed by examining section 1874 of the Revised Statutes of Illinois, as exhibited in volume 3 of Starr & Curtis’s Annotated Illinois Statutes, 2nd ed., p. 426; and he may have assumed that he could take judicial notice of the laws of Illinois under section 275 of the Code of Civil Procedure. If so, he was in our opinion mistaken. that section authorizes the courts here to take judicial notice, among other things, of the acts of the legislative department of the United States. These words clearly have reference to Acts of the Congress of the United States; and we would hesitate to hold that our courts can, under this provision, take judicial notice of the multifarious laws of the various American States. Nor do we think that any such authority can be derived from the broader language, used in the same action, where it is said that our courts may take

6

judicial notice of matters of public knowledge “similar” to those therein enumerated. The proper rule we think is to require proof of the statutes of the States of the American Union whenever their provisions are determinative of the issues in any action litigated in the Philippine courts.Nevertheless, even supposing that the trial court may have erred in taking judicial notice of the law of Illinois on the point in question, such error is not now available to the petitioner, first, because the petition does not state any fact from which it would appear that the law of Illinois is different from what the court found, and, secondly, because the assignment of error and argument for the appellant in this court raises no question based on such supposed error. Though the trial court may have acted upon pure conjecture as to the law prevailing in the State of Illinois, its judgment could not be set aside, even upon application made within six months under section 113 of the Code of Civil procedure, unless it should be made to appear affirmatively that the conjecture was wrong. The petitioner, it is true, states in general terms that the will in question is invalid and inadequate to pass real and personal property in the State of Illinois, but this is merely a conclusion of law. The affidavits by which the petition is accompanied contain no reference to the subject, and we are cited to no authority in the appellant’s brief which might tent to raise a doubt as to the correctness of the conclusion of the trial court. It is very clear, therefore, that this point cannot be urged as of serious moment.But it is insisted in the brief for the appellant that the will in question was not properly admissible to probate because it contains provisions which cannot be given effect consistently with the laws of the Philippine Islands; and it is suggested that as the petitioner is a legitimate heir of the testator she cannot be deprived of the legitime to which she is entitled under the law governing testamentary successions in these Islands. Upon this point it is sufficient to say that the probate of the will does not affect the intrinsic validity of its provisions, the decree of probate being conclusive only as regards the due execution of the will. (Code of Civil Procedure, secs. 625, 614; Sahagun vs. De Gorostiza, 7 Phil. Rep., 347, 349; Chiong Joc-Soy vs. Vaño, 8 Phil. Rep., 119, 121; Limjuco vs. Ganara, 11 Phil. Rep., 393, 395.)If, therefore, upon the distribution of this estate, it should appear that any legacy given by the will or other disposition made therein is contrary to the law applicable in such case, the will must necessarily yield upon that point and the law must prevail. Nevertheless, it should not be forgotten that the intrinsic validity of the provisions of this will must be determined by the law of Illinois and not, as the appellant apparently assumes, by the general provisions here applicable in such matters; for in the second paragraph of article 10 of the Civil Code it is declared that “legal and testamentary successions, with regard to the order of succession, as well as to the amount of the successional rights and to the intrinsic validity of their provisions, shall be regulated by the laws of the nation of the person whose succession is in question, whatever may be the nature of the property and the country where it may be situate.”From what has been said, it is, we think, manifest that the petition submitted to the court below on October 31, 1916, was entirely insufficient to warrant the setting aside of the other probating the will in question, whether said petition be considered as an attack on the validity of the decree for error apparent, or whether it be considered as an application for a rehearing based upon the new evidence submitted in the affidavits which accompany the petition. And in this latter aspect the petition is subject to the further fatal defect that it was not presented within the time allowed by law.It follows that the trial court committed no error in denying the relief sought. The order appealed from is accordingly affirmed with costs. So ordered.

_________________________________________________

Art. 818. Two or more persons cannot make a will jointly, or in the same instrument, either for their reciprocal benefit or for the benefit of a third person. (669)______________

In re Will of Victor Bilbao. RAMON N. BILBAO, petitioner-appellant,vs. DALMACIO BILBAO, CLEOFAS BILBAO, EUSEBIA BILBAO, CATALINA BILBAO, FILEMON ABRINGE and FRANCISCO ACADEMIA, oppositors-appellee.

The will in question was executed on October 6, 1931, on a single page or sheet by the deceased Victor Bilbao jointly with his wife Ramona M. Navarro. The two testators in their testament directed that “all of our respective private properties both real and personal, and all of our conjugal properties, and any other property belonging to either or both of us, be given and transmitted to anyone or either of us, who may survive the other, or who may remain the surviving spouse of the other.”The petition for probate was opposed by one Filemon Abringe, a near relative of the deceased, among other grounds, that the alleged will was executed by the husband and wife for their reciprocal benefit and therefore not valid, and that it was not executed and attested to as required by law. After hearing, the trial court found the will to have been executed conjointly by the deceased husband and wife for their reciprocal benefit, and that a will of that kind is neither contemplated by Act No. 190, known as

the Code of Civil Procedure nor permitted by article 669 of the Civil Code which provides:Two or more persons cannot make a will conjointly or in the same instrument, either for their reciprocal benefit or for the benefit of a third person.The only assignment of error made in the appeal is that “the lower court erred in not finding that a joint and reciprocal will particularly between husband and wife is valid under the present law.” The thesis of the appellant is, that “Chapter XXXI, particularly sections 614, 618, Act 190, appears to be a complete enactment on the subject of execution of wills and may thus be regarded as the expression of the whole law thereon, and that it must be deemed to have impliedly repealed the provision of the Civil Code (Title III, Chapter I) on the matter ;” that inasmuch as the present law on wills as embodied in the Code of Civil Procedure has been taken from American law, it should be interpreted in accordance with the said law, and because joint and reciprocal wills are neither regarded as invalid nor on the contrary they are allowed, then article 669 of the Civil Code prohibiting the execution of joint wills whether reciprocal or for the benefit of a third party should be considered as having been repealed and superseded by the new law.We have made a rather extensive study of the cases decided by our Supreme Court covering the field of wills, with particular attention to any reference to or ruling on article 669 of the Civil Code but we have failed to find any case wherein that particular codal provision has been discussed or applied, declaring it either repealed or still in force. The sole question and issue squarely raised in this appeal is, therefore one of first impression and naturally we are constrained to act and to proceed with care and caution, realizing the importance and far-reaching effects of any doctrine to be laid down by us in the present case.We cannot agree to the contention of the appellant that the provisions of the Code of Civil Procedure on wills have completely superseded Chapter I, Title III of the Civil Code on the same subject matter, resulting in the complete repeal of said Civil Code provisions. In the study we have made of this subject, we have found a number of cases decided by this court wherein several articles of the Civil Code regarding wills have not only been referred to but have also been applied side by side with the provisions of the Code of Civil Procedure.In the case of in the matter of the will Kabigting (14 Phil. 463), where the will was executed in the year 1908, articles 662 and 663 of the Civil Code regarding capacity and incapacity of persons to dispose by will, have been cited and applied together with section 618 of the Code of Civil Procedure regarding requisites of wills.In the case of Torres and Lopez De Bueno vs. Lopez (48 Phil. 772), article 666 of the Civil Code regarding mental capacity of the testator has been cited and applied together with section 614 and 634 of the Code of Civil Procedure regarding a will executed in 1924.In the case of Marin vs. Nacianceno (19 Phil. 238), article 667 of the Civil Code was cited in the dissenting opinion of Mr. Justice Torres.In the cases of Postigo vs. Borjal (13 Phil. 240); In re Estate of Calderon (26 Phil. 333); Natividad vs. Gabino (36 Phil. 663) wherein the wills involved had been executed after the enactment of the Code of Civil Procedure, particularly the sections regarding wills, article 675 of the Civil Code regarding interpretation of wills was cited and applied.In the case of Samson vs. Naval (41 Phil. 838), article 739 of the Civil Code regarding revocation of wills has been applied in harmony with section 623 of the Code of Civil Procedure. The will involved was executed in 1915 when the Code of Civil Procedure was already in force.The above-cited authorities all go to show that it is not exactly correct to say that the provisions of the Code of Civil Procedure regarding wills completely cover the subject matter and therefore have superseded the provisions of the Civil Code on the point.It is also contended that in the case of Macrohon Ong Ham vs. Saavedra (51 Phil. 267) a will executed in the year 1923, which was made jointly by husband and wife in the same instrument, was admitted to probate by the Court of First Instance of Zamboanga and the decision was affirmed by this court, thereby proving that this tribunal has disregarded the prohibition regarding the execution of wills conjointly under article 669 of the Civil Code, meaning that said article has already been repealed. After examining said case we find the contention untenable. It is true that the will already described was allowed probate by the trial court, but there was no appeal from the order approving the will on the ground of its validity, but only on the manner the properties involved were to be distributed or otherwise disposed of. The Supreme Court never touched this point of invalidity nor the applicability of article 669 of the Civil Code, but merely ruled that a testator may die both testate and intestate, depending upon the properties sought to be disposed of by him and those to be inherited by his heirs on intestate succession when not covered by the will. As a rule this Tribunal does not pass upon the legality, enforceability, or applicability of a law unless that the point is raised and put in issue, and it is necessary to rule upon it in order to determine the case.The provision of article 669 of the Civil Code prohibiting the execution of a will by two or more persons conjointly or in the same instrument either for their reciprocal benefit or for the benefit of a third person, is not unwise and is not against public policy. The

7

reason for this provision, especially as regards husbands and wife is that when a will is made jointly or in the same instrument, the spouse who is more aggressive, stronger in will or character and dominant is liable to dictate the terms of the will for his or her own benefit or for that of third persons whom he or she desires to favor. And, where the will is not only joint but reciprocal, either one of the spouses who may happen to be unscrupulous, wicked, faithless, or desperate, knowing as he or she does the terms of the will whereby the whole property of the spouses both conjugal and paraphernal goes to the survivor, may be tempted to kill or dispose of the other.Considering the wisdom of the provisions of this article 669 and the fact that it has not been repealed, at least not expressly, as well as the consideration that its provisions are not incompatible with those of the Code of Civil Procedure on the subject of wills, we believe and rule that said article 669 of the Civil Code is still in force. And we are not alone in this opinion. Mr. Justice Willard as shown by his notes on the Civil Code, on page 18 believes that this article 669 is still in force. Sinco and Capistrano in their work on the Civil Code, Vol. II, page 33, favorably cite Justice Willard’s opinion that this article is still in force. Judge Camus in his book on the Civil Code does not include this article among those he considers repealed. Lastly, we find that this article 669 has been reproduced word for word in article 818 of the New Civil Code (Republic Act No. 386). The implication is that the Philippine Legislature that passed this Act and approved the New Civil Code, including the members of the Code Commission who prepared it, are of the opinion that the provisions of article 669 of the old Civil Code are not incompatible with those of the Code of Civil Procedure.In the case of Testate estate of the late Bernabe Rodriguez (CA-G.R. No. 1627 -R, July 1, 1948; 46 O.G. reference to this article 669 of the Civil Code, though indirectly. In the will involved therein, the testator Rodriguez instituted his wife his universal heir and the latter in her separate will equally instituted her husband Rodriguez as her universal heir; in other words they were reciprocal beneficiaries in their respective separate wills. Opposition to the probate of the will of Rodriguez was base on the prohibition contained in article 669 of the Civil Code. The Court of Appeals said that what the law prohibits under said article is two or more persons making a will conjointly or in the same instrument and not reciprocity in separate wills.In conclusion, we believe and hold that the provision of the Code of Civil procedure regarding wills have not repealed all the articles of the old Civil Code on the same subject matter, and that article 669 of the Civil Code is not incompatible or inconsistent with said provision of the Article 669 of the Civil Code is still in force.In view of the foregoing, the decision appealed form, is hereby affirmed, with costs.____________________________________________________________Dacanay vs. Florendo, 87 Phil 114 --- can’t find =(____________________________________________

ARTICLE 827. If a will, executed as required by this Code, incorporates into itself by reference any document or paper, such document or paper shall not be considered a part of the will unless the following requisites are present: (1) The document or paper referred to in the will must be in existence at the time of the execution of the will; (2) The will must clearly describe and identify the same, stating among other things the number of pages thereof; (3) It must be identified by clear and satisfactory proof as the document or paper referred to therein; and (4) It must be signed by the testator and the witnesses on each and every page, except in case of voluminous books of account or inventories. (n)___________________________________________________G.R. No. 17857             June 12, 1922In re will of Josefa Zalamea y Abella, deceased. PEDRO UNSON, petitioner-appellee, vs. ANTONIO ABELLA, ET AL., opponents-appellants.

On July 19, 1918, Doña Josefa Zalamea y Abella, single, 60 years old, who was residing in the municipality of Pagsanjan, Province of Laguna, executed her last will and testament with an attached inventory of her properties, Exhibits A and A-1, in the presence of three witnesses, who signed with her all the pages of said documents. The testatrix died on the 6th of January, 1921, and, as the record shows, the executor appointed in the will, Pedro Unson, filed in the court of First Instance of Laguna on the 19th of January of the same year an application for the probate of the will and the issuance of the proper letters of administration in his favor. To said application an opposition was presently by Antonio Abella, Ignacia Abella, Avicencia Abella, and Santiago Vito, alleging that the supposed will of the deceased Zalamea was not executed in conformity with the provinces of the law, inasmuch as it was not paged correlatively in letters, nor was there any attestation clause in it, nor was it signed by the testatrix and the witnesses in the presence of each other. Trial having been held, the judge a quo overruled the opposition of the contestants, and ordered the probate of the will, Exhibit A, and the inventory, Exhibit A-1, holding that both documents contained the true and last will of the deceased Josefa Zalamea. From the judgment of the court below, the contestants have appealed, and in their brief they assign three errors, which, in their opinion, justify the reversal of the judgment appealed from. The first error assigned by the appellants as committed by the court below is its finding to the effect that Exhibit A, said to be the

will of the deceased Josefa Zalamea, was executed with all the solemnities required by the law. The arguments advanced by appellants' counsel in support of the first assignment of error tend to impeach the credibility of the witnesses for the proponent, specially that of Eugenio Zalamea. We have made a careful examination of the evidence, but have not found anything that would justify us in disturbing the finding of the court a quo. The attesting witnesses, Eugenio Zalamea and Gonzalo Abaya, clearly testify that together with the other witness to the will, Pedro de Jesus, they did sign each and every page of the will and of the inventory in the presence of each other and of the testatrix, as the latter did likewise sign all the pages of the will and of the inventory in their presence. In their brief the appellants intimate that one of the pages of the will was not signed by the testatrix, nor by the witnesses on the day of the execution of the will, that is, on the 19th of July, 1918, basing their contention on the testimony of Aurelio Palileo, who says that on one occasion Gonzalo Abaya told him that one of the pages of the will had not been signed by the witnesses, nor by the testatrix on the day of its execution. Palileo's testimony is entirely contradicted by Gonzalo Abaya not only in the direct, but in the rebuttal, evidence as well. To our mind, Palileo's testimony cannot prevail over that of the attesting witnesses, Gonzalo Avaya and Eugenio Zalamea. The appellants impeach the credibility of Eugenio Zalamea, for having made a sworn declaration before the justice of the peace of Santa Cruz, Laguna, before the trial of this case, to the effect that he was really one of the witnesses to the will in question, which fact was corroborated by himself at the trial. The appellants take Zalamea's testimony in connection with the dismissal of a criminal case against a nephew of his, in whose success he was interested, and infer from this fact the partiality of his testimony. We deem this allegation of little importance to impeach the credibility of the witness Zalamea, especially because his testimony is corroborated by the other attesting witness. Gonzalo Abaya, and by attorney Luis Abaya, who had prepared the testament at the instance of the testatrix. The foregoing is sufficient for us to conclude that the first assignment of error made by the appellants is groundless. The appellants contend that the court below erred in admitting the will to probate notwithstanding the omission of the proponent to produce one of the attesting witnesses. At the trial of this case the attorneys for the proponent stated to the court that they had necessarily to omit the testimony of Pedro de Jesus, one of the persons who appear to have witnessed the execution of the will, for there were reasonable grounds to believe that said witness was openly hostile to the proponent, inasmuch as since the announcement of the trial of the petition for the probate of the will, said witness has been in frequent communication with the contestants and their attorney, and has refused to hold any conference with the attorneys for the proponent. In reply to this, the attorney for the contestants, said to the court, "without discussing for the present whether or not in view of those facts (the facts mentioned by the attorneys for the petitioner), in the hypothesis that the same are proven, they are relieved from producing that witness, for while it is a matter not decided, it is a recognized rule that the fact that a witness is hostile does not justify a party to omit his testimony; without discussing this, I say, I move that said statement be stricken out, and if the proponent wants these facts to stand to stand in the record, let him prove them." The court a quo ruled, saying, "there is no need." To this ruling of the court, the attorney for the appellants did not take any exception. In the case of Avera vs. Garcia and Rodriguez (42 Phil., 145), recently decided by this court, in deciding the question whether a will can be admitted to probate, where opposition is made, upon the proof of a single attesting witness, without producing or accounting for the absence of the other two, it was said; "while it is undoubtedly true that an uncontested will may be proved by the testimony of only one of the three attesting witnesses, nevertheless in Cabang vs. Delfinado (34 Phil., 291), this court declared after an elaborate examination of the American and English authorities that when a contest is instituted, all of the attesting witnesses must be examined, if alive and within reach of the process of the court.

In the present case no explanation was made at the trial as to why all three of the attesting witnesses were not produced, but the probable reason is found in the fact that, although the petition for the probate of this will had been pending from December 21, 1917, until the date set for the hearing, which was April 5, 1919, no formal contest was entered until the very day set for the hearing; and it is probable that the attorney for the � proponent, believing in good faith that probate would not be contested, repaired to the court with only one of the three attesting witnesses at hand, and upon finding that the will was contested, incautiously permitted the case to go to proof without asking for a postponement of the trial in order that he might produce all the attesting witnesses. Although this circumstance may explain why the three witnesses were not produced, it does not in itself supply any basis for changing the rule expounded in the case above referred to; and were it not for a fact now to be mentioned, this court would probably be compelled to reverse this case on the ground that the execution of the

8

will had not been proved by a sufficient number of attesting witnesses. It appears, however, that this point was not raised by the appellant in the lower court either upon the submission of the cause for determination in that court or upon the occasion of the filing of the motion for a new trial. Accordingly it is insisted for the appellee that this question cannot now be raised for t he first time in this court. We believe this point is well taken, and the first assignment of error must be declared not to be well taken. This exact question has been decided by the Supreme Court of California adversely to the contention of the appellant, and we see no reason why the same rule of practice should not be observed by us. (Estate of McCarty, 58 Cal., 335, 337.) There are at least two reasons why the appellate tribunals are disinclined to permit certain questions to be raised for the first time in the second instance. In the first place it eliminates the judicial criterion of the Court of First Instance upon the point there presented and makes the appellate court in effect a court of first instance with reference to that point, unless the case is remanded for a new trial. In the second place, it permits, if it does not encourage, attorneys to trifle with the administration of justice by concealing from the trial court and from their opponent the actual point upon which reliance is placed, while they are engaged in other discussions more simulated than real. These considerations are, we think, decisive. In ruling upon the point above presented we do not wish to be understood as laying down any hard and fast rule that would prove an embarrassment to this court in the administration of justice in the future. In one way or another we are constantly here considering aspects of cases and applying doctrines which have escaped the attention of all persons concerned in the litigation below; and this is necessary if this court is to contribute the part due from it in the correct decision of the cases brought before it. What we mean to declare is that when we believe that substantial justice has been done in the Court of First Instance, and the point relied on for reversal in this court appears to be one which ought properly to have been presented in that court, we will in the exercise of a sound discretion ignore such question upon appeal; and this is the more proper when the question relates to a defect which might have been cured in the Court of First Instance if attention had been called to it there. In the present case, if the appellant had raised this question in the lower court, either at the hearing or upon a motion for a new trial, that court would have had the power, and it would have been its duty, considering the tardy institution of the contest, to have granted a new trial in order that all the witnesses to the will might be brought into court. But instead of thus calling the error to the attention of the court and his adversary, the point is first raised by the appellant in this court. We hold that this is too late. Properly understood, the case of Cabang vs. Delfinado, supra, contains nothing inconsistent with the ruling we now make, for it appears from the opinion in that case that the proponent of the will had obtained an order for a republication and new trial for the avowed purpose of presenting the two additional attesting witnesses who had not been previously examined, but nevertheless subsequently failed without any apparent reason to take their testimony. Both parties in that case were therefore fully apprised that the question of the number of witnesses necessar to prove the will was in issue in the lower court.

In the case at bar, we do not think this question properly to have been raised at the trial, but in the memorandum submitted by the attorney for the appellants to the trial court, he contended that the will could not be admitted to probate because one of the witnesses to the will was not produced, and that the voluntary non-production of this witness raises a presumption against the pretension of the proponent. The trial court found that the evidence introduced by the proponent, consisting of the testimony of the two attesting witnesses and the other witness who was present at the execution, and had charge of the preparation of the will and the inventory, Exhibits A and A-1, was sufficient. As announced in Cabang vs. Delfinado, supra, the general rule is that, where opposition is made to the probate of a will, the attesting witnesses must be produced. But there are exceptions to this rule, for instance, when a witness is dead, or cannot be served with process of the court, or his reputation for truth has been questioned or he appears hostile to the cause of the proponent. In such cases, the will may be admitted to probate without the testimony of said witness, if, upon the other proofs adduced in the case, the court is satisfied that the will has been duly executed. Wherefore, we find that the non-production of the attesting witness, Pedro de Jesus, as accounted for by the attorney for the proponent at the trial, does not render void the decree of the court a quo, allowing the probate. But supposing that said witness, when cited, had testified adversely to the application, this would not by itself have change the result reached by the court a quo, for section 632 of the Code of Civil Procedure provides that a will can be admitted to probate,

notwithstanding that one or more witnesses do not remember having attested it, provided the court is satisfied upon the evidence adduced that the will has been executed and signed in the manner prescribed by the law. The last error assigned by the appellants is made to consist in the probate of the inventory, Exhibit A-1, despite the fact that this exhibit has no attestation clause in it, and its paging is made in Arabic numerals and not in letters. In the third paragraph of the will, reference is made to the inventory, Exhibit A-1, and at the bottom of said will, the testatrix Josefa Zalamea says:

In witness whereof, I sign this will composed of ten folios including the page containing the signatures and the attestation of the witnesses; I have likewise signed the inventory attached to this will composed of ten folios in the presence of Messrs. Gonzalo Abaya, Eugenio Zalamea, Pedro de Jesus, in this municipality of Pagsanjan, Laguna, Philippine Islands, this 19th of July, 1918.

And the attestation clause is as follows: The foregoing will composed of ten folios including this one whereunto we have affixed our signatures, as well as the inventory of the properties of Doña Josefa Zalamea y Abella, was read to Doña Josefa Zalamea y Abella, and the latter affixed her name to the last, and each and every page of this will and inventory composed of ten folios in our presence; and she declared this to be her last will and testament and at her request we have affixed hereunto our respective signatures in her presence and in the presence of each other as witnesses to the will and the inventory this 19th of July, 1918, at Pagsanjan, Laguna, P.I.

(Sgd.) GONZALO ABAYA, EUGENIO ZALAMEA,

PEDRO DE JESUS.In view of the fact that the inventory is referred to in the will as an integral part of it, we find that the foregoing attestation clause is in compliance with section 1 of Act No. 2645, which requires this solemnity for the validity of a will, and makes unnecessary any other attestation clause at the end of the inventory. As to the paging of the will in Arabic numerals, instead of in letters, we adhere to the doctrine announced in the case of Aldaba vs. Roque (p. 378, ante), recently decided by this court. In that case the validity of the will was assailed on the ground that its folios were paged with the letters A, B, C, etc., instead of with the letters "one," two," "three," etc. It was held that this way of numbering the pages of a will is in compliance with the spirit of the law, inasmuch as either one of these methods indicates the correlation of the pages and serves to prevent the abstraction of any of them. In the course of the decision, we said: "It might be said that the object of the law in requiring that the paging be made in letters is to make falsification more difficult, but it should be noted that since all the pages of the testament are signed at the margin by the testatrix and the witnesses, the difficulty of forging the signatures in either case remains the same. In other words the more or less degree of facility to imitate the writing of the letters A, B, C, etc., does not make for the easiness to forge the signatures. And as in the present case there exists the guaranty of the authenticity of the testament, consisting in the signatures on the left margins of the testament and the paging thereof as declared in the attestation clause, the holding of this court in Abangan vs. Abangan (40 Phil., 476), might as well be repeated:

"The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid substitution of wills and testaments and to guaranty their truth and authenticity. Therefore the laws on this subject should be interpreted in such a way as to attain these primordial ends. But, on the other hand, also one must not lose sight of the fact that it is not the object of the law to restrain and curtail the exercise of the right to make a will. So when an interpretation whatsoever, that adds nothing but demands more requisites entirely unnecessary, useless, and frustrative of the testator's last will, must be disregarded."

In that case the testament was written on one page, and the attestation clause on another. Neither one of these pages was numbered in any way, and it was held: "In a will consisting of two sheets the first of which contains all the testamentary dispositions and is signed at the bottom by the testator and three witnesses, and the second contains only the attestation clause and is signed also at the bottom by the three witnesses it is not necessary that both sheets be further signed on their margins by the testator and the witnesses, or be paged."This means that, according to the particular case, the emission of paging does not necessarily render the testament invalid. The law provides that the numbering of the pages should be in letters placed on the upper part of the sheet, but if the paging should be placed in the lower part, would the testament be void for this sole reason? We believe not. The law also provides that the testator and the witnesses must sign the left margin of each of the sheets of the testament; but if they should sign on the right margin, would this fact also annul the testament? Evidently not. This court has already held in Avera vs. Garcia and Rodriguez (42 Phi., 145):

"It is true that the statute says that the testator and the instrumental witnesses shall sign their names on the left margin of each and every page; and it is undeniable that

9

the general doctrine is to the effect that all statutory requirements as to the execution of wills must be fully complied with. The same execution for wills must be fully complied with. The same doctrine is also deducible from cases heretofore decided by this court.""Still some details at time creep into legislative enactments which are so trivial that it would be absurd to suppose that the Legislature could have attached any decisive importance to them. The provision to the effect that the signatures of the testator and witnesses shall be written on the left margin of each page — rather than on the margin — seems to be of this character. So far as concerns the authentication of the will, and of every part thereof, it can make no possible difference whether the names appear on the left or on the right margin, provided they are on one or the other. In Craig vs. Tatlonghari (G. R. No. 12558, decided March 23, 1918, not reported), this court declared a will void which was totally lacking in the signatures required to be written on its several pages; and in the case of Re Estate of Saguinsin (41 Phil., 875) a will was likewise declared void which contained the necessary signatures on the margin of each leaf (folio), but not in the margin of each page containing written matter."

We do not desire to intimate that the numbering in letters is a requisite of no importance. But since its principal object is to give the correlation of the pages, we hold that his object may be attained by writing one, two, three, etc., as well as by writing A, B, C, etc.We see no reason why the same rule should not be applied where the paging is in Arabic numerals, instead of in letters, as in the inventory in question. So that, adhering to the view taken by this court in the case of Abangan vs. Abangan, and followed in Aldava vs. Roque, with regard to the appreciation of the solemnities of a will, we find that the judgement appealed from should be, as is hereby, affirmed with the costs against the appellants. So ordered. _____________________Art. 830ARTICLE 830. No will shall be revoked except in the following cases: (1) By implication of law; or (2) By some will, codicil, or other writing executed as provided in case of wills; or (3) By burning, tearing, cancelling, or obliterating the will with the intention of revoking it, by the testator himself, or by some other person in his presence, and by his express direction. If burned, torn, cancelled, or obliterated by some other person, without the express direction of the testator, the will may still be established, and the estate distributed in accordance therewith, if its contents, and due execution, and the fact of its unauthorized destruction, cancellation, or obliteration are established according to the Rules of Court. (n)

CRISTINA SAMSON, DELFINA NAVAL, and SOR CONSOLACION EUGENIO, petitioners-appellants, vs. MONICA NAVAL, ROSA NAVAL, and CELESTINA NAVAL, objectors-appellants.

On September 20, 1915, attorney Perfecto Gabriel presented in the Court of First Instance of the city of Manila for allowance as the will of Simeona F. Naval, who died in said city two days previously, a document executed by her of February 13, 1915, and in which he was appointed executor. The case was recorded as No. 13386 and, after hearing the petition for allowance filed by said executor, it was denied on the ground that said document was not duly executed by the deceased as her last will and testament, inasmuch as she did not sign it in the presence of three witness and the two witnesses did not sign it in the presence of each other. Thereafter the nieces and legatees of the same deceased filed in the same court for allowance as her will, another document executed by her on October 31, 1914, and, consequently, the case was registered under another number, which was No. 13579. The petition for allowance was opposed by Monica Naval, Rosa Naval, and Cristina Naval on the ground that the will, the allowance of which is asked, could not be allowed, because of the existence of another will of subsequent date, executed during her lifetime by the same Simeona F. Naval, and because said will has been revoked by another executed subsequently by her during her lifetime, and further, because sail will has not been executed with the formalities required by existing laws. Trial having taken place, at which evidence was adduced, the court on February 8, 1916, issued an order, admitting said second document and ordering its allowance as the last will and testament o said deceased. From said order the opponents appealed to this court and transmitted to us the corresponding declarations. Tow of the opponents, that is, Rosa and Cristina Naval, assigned, as errors committed by the court, the following:1. The finding of the court that the will of October 31, 1914, has not been revoked by that of February 13, 1915;2. The act of the court in permitting the petitioner to institute and proceed with the proceedings relative to the last case for the allowance of the will, No. 13579, notwithstanding that proceedings had already been had in the other case No. 13386 and final judgment rendered therein; and3. The act of the court in denying the motion for continuance of the trial on the allowance of the will of October 31, 1914, which motion

was presented for the sole purpose of introducing evidence to show the falsity of the signature appearing in said will and submitting said signature to the Bureau of Science for analysis.The other opponent, Monica Naval, assigned, besides the first two errors already mentioned, the finding of the court that the disallowance of the will of said deceased, dated February 13, 1915, on the ground that is was not executed in such form that it could transmit real and personal property, according to section 618 of the Code of Civil Procedure, also had the effect of annulling the revocatory clause in said will.From the evidence it appears, as we have already stated, that the trial court declared that the first document presented by the executor of the deceased, Simeona F. Naval, as a will executed by her on February 13, 1915, and which was the subject-matter of case No. 13386 of said court, could not be allowed, on the ground that it was not executed with the requisites and formalities prescribed by law. Article 739 of the Civil Code provides that a former will is by operation of law revoked by another valid subsequent will, if the testator does not state in the later will his desire that the former should subsist wholly or partly. In harmony with this provision of substantive law, we find section 623 of the Code of Civil Procedure, which provides that no will shall be revoked, except by implication of law, otherwise than by some will, codicil, or other writing executed as provided in case of wills.Therefore, according to the legal provisions, in order that the will of February 13, 1915, that is, the first document presented as the will of the deceased Simeona F. Naval, could have the effect of revoking that which was presented afterwards by the petitioners as executed by the same deceased on October 31, 1914, that is, on a date previous to the execution of the first, it was necessary and indispensable that the later will, that is, that first presented for allowance, should be perfect or valid, that it, executed as provided by lay in case of wills.It also appears from the record that the opponents themselves maintained that said later will, that is, that of February 13, 1915, was not perfect, or executed as provided by law in case of wills, and the Court of First Instance of Manila has so held in disallowing said documents as the will of the deceased. So that it very evident that the second will presented, that is, that of October 31, 1914, was not and could not have been revoked by the first, and the court was not in error in so holding in the order appealed from. We deem it unnecessary to add a single word mere or cite well-known doctrines and opinions of jurists in support of what has already been stated.As to the second error assigned by the opponents, we believe it sufficient to refer to what the court below stated in the judgment appealed from. It is as follows:The court finds no incongruency in the presentation of a prior will when another will of subsequent date has been disallowed. Disregarding the fact that the petitioners in this case were not those who presented the will in No. 13386, in which the petition was presented by the same D. Perfecto Gabriel as executor, it is proper to take into account that the object of a petition for allowance is to ask for an order declaring that a will has been executed in accordance with the requisites and formalities required by law. This is a question for the court to decide and is out of the control of the party who presents the will. The allowance or disallowance of a will by a competent court depends upon whether the evidence adduced at the trial shows or does not show that the formalities required by law have been complied with, and this cannot be determined in advance, as a general rule, by the person who presents the testament. for he has not always concurred in or seen the execution of the will.If, therefore, the personal who presents a will and asks that if be allowed does not secure its allowance, and he has in his possession another will, or has information that another exists, he does not contradict himself by asking for the allowance of the will of earlier date merely because the later will was declared invalid by the proper court. If in this case there is any who adopts a contradictory position, it is the respondent himself, inasmuch as in case No. 13386 he alleged, as a ground for the disallowance of the will then presented, that it was not executed in accordance with the law, and now he maintains the contrary, for he claims that said will revoked that which is now presented.With respect to the third error, it is beyond doubt that the court did not commit it, for it appears that when the examination of the witness, Cristina Samson, was finished and the court told Attorney Lualhati, counsel for the respondents, to continue adducing his evidence, he said he had no more proof, although he added that he would ask the court to grant him permission to send the will of 1914 to the Bureau of Science, which petition was objected to by the attorney for the proponents and denied by the court. Immediately thereafter the attorney for the opponents asked for the continuance of the trial, which was also denied by the court, after objection was made by the proponents. The attorney for the opponents excepted to said ruling.Therefore, the petition of said attorney for the remission of said will to the Bureau of Science, in the terms in which it was made to the court, after ha had stated that he had no more evidence to present, signified that he left it to the discretion of the court to grant it or not. Furthermore, no exception was taken to the order to the order denying this motion, and although the attorney for the opponents excepted to the order denying the motion for continuance of the trial, such exception was completely useless and ineffective for the

10

purpose of alleging before this court that the trial court erred in that respect, for said resolution, being one of those left to the discretion of the court in the exercise of it functions, according to section 141 of the Code of Civil Procedure, it could not be the subject of an exception, unless the court, in denying said motion, abused its discretional power and thereby prejudiced the essential rights of the respondents, which is not the case here.The error which, in addition to the first two already mentioned, has been assigned by the opponent and appellant, Monica Naval, and refers, according to her, to the court’s action in declaring that the disallowance of the will of the deceased Simeona F. Naval, dated February 13, 1915, for the reason that it was not executed in such manner and from that it could transmit real and personal property, according to the provisions of section 618 of the Code of Civil Procedure, also had the effect of annulling the revocatory clause of said will.First of all, it is not true that the court made such statement in the terms given in said assignment of error, that is, it is not true that the court declared that, because said will was not executed in the form required by law in order that it may transmit real and personal property, according to the provisions of section 618, the disallowance of said will also had the effect of annulling the revocatory clause therein contained. In the order appealed from there is no declaration or conclusion made in these terms. The court did not say that the annulment of the revocatory clause in said will was the effect or consequence of the fact that it was not allowed on the ground that it was not executed in the form required by law in order that it may transmit real and personal property. Referring to the construction, given by the respondent to sections 618 and 623 of the Code of Civil Procedure, to the effect that a subsequent will may revoke a previous will, although the later will has not been allowed by the competent court, it being sufficient that the intention of the testator to revoke the previous will should be clearly expressed, and that, while the requisite of allowance is necessary in order that it may transmit property from one person to another, it is not necessary in order that it might procedure other effects, for example, the effect of a revocatory clause, or a clause of aknowledgment of a child, – what the court declared, we repeat, was that although the revocation of a will should have been effected, not by means of another will or codicil, but by mans of a document, as authorized by said section 623, which document should have the requisites and conditions fixed in section 618, the presentation of the document to the court was necessary in order that the latter might allow it, by declaring that it was executed with the formalities required by law for the execution of a will, and finally concluding that, just as to, is to be proved that the requisites of section 618 have been complied with in order that a will may be of value through its allowance, so without such allowance the revocatory clause like the other provisions of the will, has no value or effect except to show extraneous matters, as, for example, the acknowledgment of natural children, of some debt or obligation. In such case, the document could produce effect, but not as will, but simply as a written admission made by the person executing it. And It is beyond doubt that the revocatory clause contained in a document, like the present, which contains provisions proper of a will, as those relating to legacies and distribution of the properties of the testator after his death as well as the appointment of executors, is not matter extraneous to the will, but merely a part thereof, intimately connected with it as well as with the will or wills, the revocation of which is declared in said clause; in short, the desire of the testator declared in the revocatory clause is related to the desire of the same testator expressed in the provisions of the testament in which said clause is found and to that which he might have expressed in the testaments which he may have previously executed. There is such relation between the revocatory clause and the will which contains it, that if the will does not produce legal effects, because it has not been executed in accordance with the provisions of the law, neither would the revocatory clause therein produce legal effects. And if, in the present case, the so-called will of the deceased, Simeona F. Naval, dated February 13, 1915, was not duly executed by her as her last will and testament, ad declared by the court in its decision of November 19, 1915, in case No. 13386, for which reason its allowance was denied, neither may it be maintained that the revocatory clause contained in said will is the expression of the last will of said deceased. The disallowance of the ill, therefore, produced the effect of annulling the revocatory clause, not exactly because said will was not executed in such from that it could transmit real and personal property, as inaccurately alleged by the appellant, Monica Naval, to be the court’s finding, upon which said assignment of error is based, but because it was proved that said will was not executed or signed with the formalities and requisites required by section 618 of the Code of Civil Procedure, a cause which also produces the nullity of the same will, according to section 634 of said law; and of course what is invalid in law can produce no effect whatever.If the instrument propounded as a revocation be in form a will, it must be perfect as such, and be subscribed and attested as is required by the statute. An instrument intended to be a will, but filing of its effect as such on account of some imperfection in its structure or for want of due execution, cannot be set up for the purpose of revoking a former will. A subsequent will containing a clause revoking an earlier will must, as a general rule, be admitted to probate before the clause of revocation can have any effect, and the same kind, quality, and

method of proof is required for the establishment of the subsequent will as was required for the establishment of the former will. (40 Cyc., p. 1178, and cases cited therein.)But admitting that the will said to have been executed by the deceased Simeona F. Naval on February 13, 1915, notwithstanding its inefficacy to transmit property for the reason that it has not been executed, according to the provisions of said section 618 of the Code of Civil Procedure, should be considered as executed by her in order to express her desire, appearing in one of its clauses, to revoke and annul any previous will of hers, as stated in clause 13, this being the argument adduced by the appellant, Monica naval, in support of said assignment of error – neither could it be maintained that, the allowance of said will having been denied by the court on November 11, 1915, said revocatory clause subsists and the intention expressed by the testratrix therein is valid and legally effective, for the simple reason that, in order that a will may be revoked by a document, it is necessary, according to the conclusive provisions of section 623 of said procedural law, that such documents be executed according to the provisions relating to will in section 618, and the will in question, or, according to the respondent, the so-called document, was not executed according to the provisions of said section, according to the express finding of the trial court in its order of November 11, 1915, acquiesced in by the opponent herself, and which is now final and executory. Therefore, the disallowance of said will and the declaration that it was not executed according to the provisions of law as to wills, produced the effect of annulling said revocatory clause.In support of the argument advanced in her brief said appellant, Monica Naval, cites the declaration made by the Supreme Court of Massachusetts in Wallis vs. Wallis (114 Mass., 510, 512)m which, according to the appellant herself, was in the following terms:If it be shown that a later will was duly executed and attested, containing a clause expressly revoking former will nothing else appearing as to its contents, it is nevertheless good as a revocation, but it can only be made available by setting it up in opposition to the probate of the earlier will.In the decision of said case the finding referred to be by the appellant appears not to have been made by the Supreme Court of Massachusetts.The syllabus of said decision says:When a will revoking a former will is in existence, it must be established in the Probate Court; but when it has been lost or destroyed, and its contents cannot be sufficiently proved to admit it to probate, it may nevertheless be availed of as a revocation in opposition to the probate of the will revoked by it.:And in the body of the decision there is a declaration, to which the appellant must have desired to refer in her brief, which declaration says:If it can be proved that a later will was duly executed, attested and subscribed, and that it contained a clause expressly revoking all former wills, but evidence of the rest of its contents cannot be obtained, it is nevertheless a good revocation; and it can be made available only by allowing it to be set up in opposition to the probate of the earlier will,. . .The facts of the case in which this decision was rendered are different from the facts of the case at bar. That was a case concerning a will filed by one of the children of the testatrix, Mary Wallis, as her last will, to the allowance of which another son objected, alleging that said will had been revoked by another executed by the same deceased subsequent to the will that was filed, and that it had been fraudulently destroyed or taken by his brother, the proponent and his wife, or by one of them, in order to deprive him of the rights conferred upon him by said will. Therefore, the will said to have been subsequently executed by the testatrix and in which, according to the oppositor, the clause revocatory of the former will appeared, was not presented by said oppositor, while the previous will was, in the contrary, filed for allowance by the son of the testratrix, who appeared to be favored therein, said oppositor having alleged that the subsequent will, that is, that containing the revocatory clause, had been drawn, subscribed and executed in accordance with the provisions of the law, a fact which he was ready to prove just as he was ready to prove that it had been destroyed or suppressed by the proponent, his brother and his wife, or one of them. In the case at bar, the subsequent will containing the revocatory clause of the previous will executed by the deceased Simeona F. Naval was presented to the court for allowance and it was disallowed – a fact which gave opportunity to the legatees of said deceased to present a previous will executed by her on October 31, 1914, and said two wills having been successively presented, evidence as to them was also successively adduced for their allowance by the court.Therefore, the declaration made by the Supreme Court of Massachusetts in Wallis vs. Wallis (supra), to the effect that a subsequent will containing a revocatory clause of previous wills, constitutes a valid revocation and may be used in objecting to the allowance of the previous will, even when it is not possible to obtain proof of the remainder of the contents of said subsequent will, refers to the case in which the latter had been taken away, destroyed or suppressed, and it was impossible to present it for allowance, but requires for that purpose that it be proved that said subsequent will has been executed, attested, and subscribed in due form and that it contained, furthermore, that revocatory clause. This is what said declaration and, in relation thereto, also what the

11

syllabus of the decision thereof clearly says. The court, through Chief Justice Gray, in giving its opinion, thus began by saying:By our law, no will can be revoked by any subsequent instrument, other than a “will, codicil or writing, signed, attested and subscribed in the manner provided for making a will.” And when an instrument of revocation is in existence and capable of being propounded for probate, its validity should be tried by a direct proceeding instituted for the purpose in the Probate Court. It results, therefore, that while perfect parity does not exist between the case decided by the Supreme Court of Massachusetts, to which the appellant Monica Naval refers, and that which is not before us, it is wholly unquestionable that, whether the case deals with a subsequent will revocatory of a previous will, which may possibly be presented to a probate court for allowance, or of a subsequent will, also revocatory of a previous will, which could not be presented for allowance, because it has been taken or hidding, or mislaid – in order that such will may constitute a valid revocation and be utilized in the second case, although the remaining provisions may not be proven, in opposition to the allowance of the previous will, it is necessary to prove that it was executed, attested, and subscribed in due form, and, of course, also that it contained a clause expressly revoking the previous will, or, what is the same thing, that said subsequent will has been executed according to the provisions relating to wills, as expressed in section 623 of the procedural law in force. There can be no doubt whatever that this applies when the revocation had been made to appear in a writing or document susceptible of presentation for allowance, like the so-called will of the deceased Simeona F. Naval, dated February 13, 1915, and considered by said respondent and appellant as a mere document of revocation, for, as already seen in said decision invoked by her, the requisite as to signing, attesting, and subscribing in the form, required by law for the execution of wills in order that it may revoke a previous will, is also required in a will as well as in a codicil, or in a writing, and in referring to a document of revocation, it is also expressed that its validity should be proved in a direct proceeding, instituted for the purpose in a probate court. In the case at bar, the document, executed by the deceased, Simeona F. Naval, as her last will and testament, dated February 13, 1915, has been presented for allowance; it validity has been proved by means of said procedure in the Court of Probate of Manila, and that court denied its allowance, on the ground that the document in question had not been duly executed by the deceased, as her last will and testament, because she did not sign in the presence of three witnesses, and two of these witnesses did not sign in the presence of each other, or what is the same thing, that said document has not be attested and subscribed in the manner established by law for the execution of will, or, in other words, as provided by law in case of wills, as stated by section 623 of said procedural law, and this resolution was acquiesced in, as already stated, by the respondents in this case, and is, therefore, final and executory.In conclusions, the doctrine laid down in the decision of the Supreme Court of Massachusetts, invoked by the appellant, Monica Naval, is in conformity with the provision of said section 623 of our procedural law and article 739 of the Civil Code, and the will executed by the deceased Simeona F. Naval on October 31, 1914, not having been revoked, according to these provisions, by the will presented and alleged as executed by the same deceased subsequently on February 13, 1915, the allowance of which was denied by the Court of First Instance of Manila, the court below was not in error in ordering the allowance of said will, that is, of that of October 31, 1914, as the last will and testament of said deceased.Wherefore, the order appealed from is affirmed, with the costs of this instance against the appellants. So ordered.___________________________________________

Diaz vs. de Leon, 43 Phil 413In the mater of the estate of Jesus de Leon. IGNACIA DIAZ, petitioner-appellant, vs. ANA DE LEON, opponent-appellee.

The only question raised in this case is whether or to the will executed by Jesus de Leon, now, was revoked by him.The petitioner denies such revocation, while the contestant affirms the same by alleging that the testator revoked his will by destroying it, and by executing another will expressly revoking the former.We find that the second will Exhibit 1 executed by the deceased is not cloth with all the necessary requisites to constitute a sufficient revocation.But according to the statute governing the subject in this jurisdiction, the destruction of a will animo revocandi constitutes, in itself, a sufficient revocation. (Sec. 623, Code of Civil Procedure.)From the evidence submitted in this case, it appears that the testator, shortly after the execution of the first will in question, asked that the same be returned to him. The instrument was returned to the testator who ordered his servant to tear the document. This was done in his presence and before a nurse who testified to this effect. After some time, the testator, being asked by Dr. Cornelio Mapa about the will, said that it had been destroyed.The intention of revoking the will is manifest from the established fact that the testator was anxious to withdraw or change the provisions he had made in his first will. This fact is disclosed by the

testator’s own statements to the witnesses Canto and the Mother Superior of the Hospital where he was confined.The original will herein presented for probate having been destroyed with animo revocandi, cannot now be probated as the will and last testament of Jesus de Leon.Judgement is affirmed with costs against the petitioner. So ordered.__________________________________________Art. 838 - No will shall pass'property unless proved and allowed in accordance with Rules of Court

ARTICLE 838. No will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court. The testator himself may, during his lifetime, petition the court having jurisdiction for the allowance of his will. In such case, the pertinent provisions of the Rules of Court for the allowance of wills after the testator's death shall govern. i The Supreme Court shall formulate such additional Rules of Court as may be necessary for the allowance of wills on petition of the testator. Subject to the right of appeal, the allowance of the will, either during the lifetime of the testator or after his death, shall be conclusive as to its due execution. (n)

Testate Estate of Pilapil, 72 Phil 546 (useless fulltext written in Spanish…can’t find English version…just refer to Digest and Supplemental Notes)_______________________________

In re Estate of the deceased Gregorio Tolentino. ADELAIDA TOLENTINO, petitioner-appellee, vs. NATALIA FRANCISCO, ET AL., oppositors-appellants.

This petition was filed in the Court of First Instance of Manila by Adelaida Tolentino de Concepcion, for the purpose of procuring probate of the will of Gregorio Tolentino, deceased, who died at the hand of an assassin, in his home, No. 2541 Lico Street, in the District of Santa Cruz, Manila, on November 9, 1930. In the inception of the proceedings Eugene de Mitkiewicz was appointed special coadministrator, and he joined as coplaintiff in the petition. Opposition was made to the probate of the will by Ciriaco Francisco, Natalia Francisco, and Gervasia Francisco, all cousins of the deceased and residents of the City of Manila. Upon hearing the cause the trial court overruled the opposition, declared the will to have been properly executed, and allowed the probate thereof. From this order the three opponents appealed.At the time of his death on November 9, 1930, Gregorio Tolentino was sixty-six years of age. During the more vigorous years of his life he had been married to Benita Francisco, but she predeceased him years ago. By their industry and frugality the two had accumulated a very considerable estate which does not appear to have suffered any material diminution in the years of Tolentino’s widowhood. The pair had no children, and the generous instincts of the survivor prompted him to gather around him in his comfortable and commodious home a number of his wife’s kin; and by him various younger members of the connection were supported and educated. At one time Tolentino contemplated leaving his property mainly to these kin of his wife, of the surname Francisco; and for several years prior to his death, he had kept a will indicating this desire. However, in October, 1930, strained relations, resulting from grave disagreements, developed between Tolentino and the Francisco relations and he determined to make a new will in which, apart from certain legacies in favor of a few individuals, the bulk of his estate, worth probably about P150,000, should be given to Adelaida Tolentino de Concepcion, as his universal heir.To this end, on October 17, 1930, Tolentino went to the office of Eduardo Gutierrez Repide, an attorney at 97 General Luna, Manila, and informed him that he wanted to make a new will and desired Repide to draft it for him. After the necessary preliminary inquiries had been made, the attorney suggested to Tolentino to return later, bringing a copy of the will previously made. Accordingly, on the second day thereafter, Tolentino again appeared in Repide’s office with the prior will; and the attorney proceeded to reduce the new will to proper form. As the instrument was taking shape Tolentino stated that he wanted the will to be signed in Repide’s office, with Repide himself as one of the attesting witnesses. For the other two witnesses Tolentino requested that two attorneys attached to the office, namely, Leoncio B. Monzon and Ramon L. Sunico, should serve. For this reason, in the draft of the will, as it at first stood, the names of the three above mentioned were inserted as the names of the three attesting witnesses.When the instrument had been reduced to proper form it was placed in the hands of Tolentino, the testator, in order that he might take it home to reflect over its provisions and consider whether it conformed in all respects to his wishes. On the morning of October 21 he again appeared in Repide’s office and returned to him the draft of the will with certain corrections. Among the changes thus made was the suppression of the names of Monzon, Sunico, and Repide as attesting witnesses, these names being substituted by the names of Jose Syyap, Agustin Vergel de Dios, and Vicente Legarda. The explanation given by the testator for desiring this change was that he had met Jose Syyap on the Escolta, the day before, and had committed the indiscretion of communicating the fact that he (Tolentino) was having a new will made in which Monzon, Sunico, and Repide would appear as the attesting witnesses. Now Syyap had been the draftsman of the

12

former will of Tolentino, and in this same will the name of Syyap appeared as one of the attesting witnesses, the other two being Vicente Legarda and Vergel de Dios. When, therefore, Syyap learned that a new will was being drawn up without his intervention, he showed profound disappointment, saying to Tolentino that he considered it a gross offense that he, Legarda, and Vergel de Dios should be eliminated as witnesses to the new will. Upon this manifestation of feeling by Syyap, Tolentino decided to avail himself of Syyap, Legarda, and Vergel de Dios as witnesses to this will also, and he therefore requested Repide to change the names of the attesting witnesses. After this point had been settled Tolentino stated that he would request Syyap, Legarda, and Vergel de Dios to appear at the office of Repide for the purpose of signing the will. To this end Tolentino went away but returned later saying that he had spoken to Syyap about it and that the latter strenuously objected, observing that the will should be signed at a chop-suey restaurant ( panciteria). Tolentino further stated to his attorney in this conversation that he had arranged with Syyap and the other two intending witnesses to meet at five o’clock in the afternoon of the next day, which was October 22, for the purpose of executing the will.Pursuant to these instructions Repide made the desired changes in the will; and just before twelve o’clock noon of the next day Tolentino returned to Repide’s office and received from him the criminal document with a carbon copy thereof. Repide advised the testator that the copy should be executed with the same formality as the original in order that the intention of the testator should not be frustrated by the possible loss or destruction of the original.It is a custom in the office of Repide not to number the consecutive pages of a will, on the typewriting machine, the duty of numbering the pages being left to the testator himself. This precaution appears to have been born of experience, and has been adopted by Repide to prevent the possible destruction of a will by the mere erasure of the figures or letters indicating the pagination, ? a disaster which, in Repide’s experience, had occurred in at least one case. Accordingly, upon delivering the completed will and carbon copy to the testator, Repide took particular pains to instruct the testator to write the consecutive paging of both original and duplicate before signing the instrument.At his interview the testator suggested to Repide that the latter should also go to the place where the will was to be executed, so that he might be present at the formality. The attorney replied that it was impossible for him to do so as he had another engagement for the hour indicated, which would prevent his attendance.At about 4:30 p. m. on the same day, which was October 22, Tolentino started in his car to pick up Syyap and Vergel de Dios at their respective homes on Antipolo and Benavides streets. He then caused his chauffeur to drive with the three to La Previsora Filipina, on Rizal Avenue, where Vicente Legarda, the third intending witness was to be found. Arriving at this place, the three entered the office of Legarda, who was manager of the establishment, and they were invited to take seats, which they did. Tolentino then suggested that the three should go as his guests to a panciteria, where they could take refreshments and the will could be executed. Legarda replied that he must decline the invitation for he had an engagement to go to the Cosmos Club the same afternoon. Upon this Tolentino asked Legarda to permit the will to be signed in his office, and to this request Legarda acceded.Tolentino thereupon drew two documents from his pocket saving that it was his last will and testament, done in duplicate, and he proceeded to read the original to the witnesses. After this had been completed, Legarda himself took the will in hand and read it himself. He then returned it to Tolentino, who thereupon proceeded, with pen and ink, to number the pages of the will thus, “Pagina Primera”, “Pagina Segunda”, etc. He then paged the duplicate copy of the will in the same way. He next proceeded to sign the original will and each of its pages by writing his name “G. Tolentino” in the proper places. Following this, each of the three witnesses signed their own respective names at the end of the will, at the end of the attesting clause, and in the left margin of each page of the instrument. During this ceremony all of the persons concerned in the act of attestation were present together, and all fully advertent to the solemnity that engaged their attention.After the original of the will had been executed in the manner just stated, the testator expressed his desire that the duplicate should be executed in the same manner. To this Syyap objected, on the ground that it was unnecessary; and in this view he was supported by Vergel de Dios, with the result that the wishes of the testator on this point could not be carried out. As the party was about to break up Tolentino used these words: “For God’s sake, as a favor, I request you not to let any one know the contents of this will.” The meeting then broke up and Tolentino returned Syyap and Vergel de Dios to their homes in his car. He then proceeded to the law office of Repide, arriving about 6:15 p. m. After preliminary explanations had been made, Tolentino requested Repide to keep the will overnight in his safe, as it was already too late to place it in the compartment which Tolentino was then renting in the Oriental Safe Deposit, in the Kneedler Building. In this connection the testator stated that he did not wish to take the will to his home, as he knew that his relatives were watching him and would take advantage of any carelessness on his part to pry into his papers. Also, in this conversation Tolentino informed Repide of the refusal of Syyap to execute the duplicate of the will.

After a good part of an hour had thus been spent at Repide’s office by the testator and after the original of the will had been deposited in Repide’s safe, Tolentino took the attorney to the latter’s residence in Ermita, and then returned to his own home, where he remained without again going out that night. But promptly at nine o’clock the next morning Tolentino presented himself at Repide’s office for the purpose of securing the will. Repide happened to be out and Tolentino went away, but again returned the next day and received the will. With the instrument thus in his possession he proceeded at once to the Oriental Safe Deposit and there left the instrument in his private compartment, No. 333, in which place it remained until withdrawn some two weeks later by order of the court.On the morning of November 9, 1930, Gregorio Tolentino was found dead in his bed, having perished by the hands of an assassin.The peculiarity of this case is that, upon the trial of this proceeding for the probate of the will of the decedent, two of the attesting witnesses, Jose Syyap and Vergel de Dios, repudiated their participation in the execution of the will at the time and place stated; and while admitting the genuineness of their signatures to the will, pretended that they had severally signed the instrument, at the request of the testator, at different places. Thus Syyap, testifying as a witness, claimed that the testator brought the will to Syyap’s house on the afternoon of October 21 ? a time, be it remembered, when the will had not yet left the hands of the draftsman ? and upon learning that Syyap could not be present at the time and place then being arranged for the execution of the will, he requested Syyap, as a mere matter of complaisance, to sign the will then, which Syyap did. Vergel de Dios has another story to tell of isolated action, claiming that he signed the will in the evening of October 22 at the Hospital of San Juan de Dios in Intramuros.We are unable to give any credence to the testimony of these two witnesses on this point, the same being an evident fabrication designed for the purpose of defeating the will. In the first place, the affirmative proof showing that the will was properly executed is adequate, consistent, and convincing, consisting of the testimony of the third attesting witness, Vicente Legarda, corroborated by Miguel Legarda and Urbana Rivera, two disinterested individuals, employees of La Previsora Filipina, who were present in Legarda’s office when the will was executed and who lent a discerning attention to what was being done. In the second place, each of the seven signatures affixed to his will by Syyap appear to the natural eye to have been made by using the same pen and ink that was used by Legarda in signing the will. The same is also probably true of the seven signatures made by Vergel de Dios. This could hardly have happened if the signatures of Syyap and Vergel de Dios had been affixed, as they now pretend, at different times and places. In the third place, Both Syyap and Vergel de Dios are impeached by proof of contradictory statements made by them on different occasions prior to their appearance as witnesses in this case. In this connection we note that, after the murder of Gregorio Tolentino, and while the police authorities were investigating his death, Nemesio Alferez, a detective, sent for Syyap and questioned him concerning his relations with the deceased. Upon this occasion Syyap stated that Gregorio Tolentino had lately made a will, that it had been executed at the office of La Previsora Filipina under the circumstances already stated, and that he himself had served as one of the attesting witnesses.With respect to Vergel de Dios we have the following fact: On the day that Gregorio Tolentino was buried, Ramon Llorente, a member of the city police force, was sent out to the cemetery in order that he might be present and observe the demeanor on that occasion of such Tolentino’s kin as might be present. Llorente arrived before the funeral cortege, having been taken out to the cemetery by Repide. While the two were waiting at the cemetery, Llorente noted the presence of Vergel de Dios, he requested the policeman to introduce him. In the conversation that ensued Vergel de Dios stated with considerable detail that Gregorio Tolentino had made a will just before his death, that it was executed at La Previsora Filipina, and that he was one of the witnesses who attested the instrument at that time and place.Again, on a certain occasion subsequent to the death of Gregorio Tolentino, Juan Concepcion the husband of Adelaida Tolentino, accompanied by Genoveva de Mendoza, called upon Vergel de Dios, and in the conversation that resulted Vergel de Dios told them that the will was properly executed, that he was one of the attesting witnesses, and that it had been signed by all of them in the office of La Previsora Filipina.These circumstances and other incidents revealed in the proof leave no room for doubt in our mind that Syyap and Vergel de Dios have entered into a conspiracy between themselves, and in concert with the opponents, to defeat the will of Gregorio Tolentino although they are well aware that said will was in all respects properly executed; and the trial court, in our opinion, committed no error in admitting the will to probate.When a will is contested it is the duty of the proponent to call all of the attesting witnesses, if available but the validity of the will in no wise depends upon the united support of the will by all of those witnesses. A will may be admitted to probate notwithstanding the fact that one or more of the subscribing witnesses do not unite with the other, or others, in proving all the facts upon which the validity of the will rests. (Fernandez vs. Tantoco, 49 Phil. 380.) It is sufficient if the court is satisfied from all the proof that the will was

13

executed and attested in the manner required by law. In this case we feel well assured that the contested will was properly executed and the order admitting to it probate was entirely proper.The order appealed from will therefore be affirmed, with costs against the appellants. So ordered.Malcolm, Villamor, Villa-Real, Abad Santos, Hull and Vickers, JJ., concur.____________________________________________________

G.R. No. 45629           September 22, 1938ANTILANO G. MERCADO, petitioner, vs. ALFONSO SANTOS, Judge of First Instance of Pampanga, respondents. ROSARIO BASA DE LEON, ET AL., intervenors.

On May 28, 1931, the petitioner herein filed in the Court of First Instance of Pampanga a petition for the probate of the will of his deceased wife, Ines Basa. Without any opposition, and upon the testimony of Benigno F. Gabino, one of the attesting witnesses, the probate court, on June 27,1931, admitted the will to probate. Almost three years later, on April 11, 1934, the five intervenors herein moved ex parte to reopen the proceedings, alleging lack of jurisdiction of the court to probate the will and to close the proceedings. Because filed ex parte, the motion was denied. The same motion was filed a second time, but with notice to the adverse party. The motion was nevertheless denied by the probate court on May 24, 1934. On appeal to this court, the order of denial was affirmed on July 26, 1935. (Basa vs. Mercado, 33 Off. Gaz., 2521.)It appears that on October 27, 1932, i. e., sixteen months after the probate of the will of Ines Basa, intervenor Rosario Basa de Leon filed with the justice of the peace court of San Fernando, Pampanga, a complaint against the petitioner herein, for falsification or forgery of the will probated as above indicated. The petitioner was arrested. He put up a bond in the sum of P4,000 and engaged the services of an attorney to undertake his defense. Preliminary investigation of the case was continued twice upon petition of the complainant. The complaint was finally dismissed, at the instance of the complainant herself, in an order dated December 8, 1932. Three months later, or on March 2, 1933, the same intervenor charged the petitioner for the second time with the same offense, presenting the complaint this time in the justice of the peace court of Mexico, Pampanga. The petitioner was again arrested, again put up a bond in the sum of P4,000, and engaged the services of counsel to defend him. This second complaint, after investigation, was also dismissed, again at the instance of the complainant herself who alleged that the petitioner was in poor health. That was on April 27, 1933. Some nine months later, on February 2, 1934, to be exact, the same intervenor accused the same petitioner for the third time of the same offense. The information was filed by the provincial fiscal of Pampanga in the justice of the peace court of Mexico. The petitioner was again arrested, again put up a bond of P4,000, and engaged the services of defense counsel. The case was dismissed on April 24, 1934, after due investigation, on the ground that the will alleged to have been falsified had already been probated and there was no evidence that the petitioner had forged the signature of the testatrix appearing thereon, but that, on the contrary, the evidence satisfactorily established the authenticity of the signature aforesaid. Dissatisfied with the result, the provincial fiscal, on May 9, 1934, moved in the Court of First Instance of Pampanga for reinvestigation of the case. The motion was granted on May 23, 1934, and, for the fourth time, the petitioner was arrested, filed a bond and engaged the services of counsel to handle his defense. The reinvestigation dragged on for almost a year until February 18, 1934, when the Court of First Instance ordered that the case be tried on the merits. The petitioner interposed a demurrer on November 25, 1935, on the ground that the will alleged to have been forged had already been probated. This demurrer was overruled on December 24, 1935, whereupon an exception was taken and a motion for reconsideration and notice of appeal were filed. The motion for reconsideration and the proposed appeal were denied on January 14, 1936. The case proceeded to trial, and forthwith petitioner moved to dismiss the case claiming again that the will alleged to have been forged had already been probated and, further, that the order probating the will is conclusive as to the authenticity and due execution thereof. The motion was overruled and the petitioner filed with the Court of Appeals a petition for certiorari with preliminary injunction to enjoin the trial court from further proceedings in the matter. The injunction was issued and thereafter, on June 19, 1937, the Court of Appeals denied the petition for certiorari, and dissolved the writ of preliminary injunction. Three justices dissented in a separate opinion. The case is now before this court for review on certiorari.Petitioner contends (1) that the probate of the will of his deceased wife is a bar to his criminal prosecution for the alleged forgery of the said will; and, (2) that he has been denied the constitutional right to a speedy trial.1. Section 306 of our Code of Civil Procedure provides as to the effect of judgments.

SEC. 306. Effect of judgment. — The effect of a judgment or final order in an action or special proceeding before a court or judge of the Philippine Islands or of the United States, or of any State or Territory of the United States,

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

xxx           xxx           xxx(Emphasis ours.)

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

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

(In Manahan vs. Manahan 58 Phil., 448, 451), we held:. . . The decree of probate is conclusive with respect to the due execution thereof and it cannot be impugned on any of the grounds authorized by law, except that of fraud, in any separate or independent action or proceeding. Sec. 625, Code of Civil Procedure; Castañeda vs. Alemany, 3 Phil., 426; Pimentel vs. Palanca, 5 Phil., 436; Sahagun vs. De Gorostiza, 7 Phil., 347; Limjuco vs. Ganara, 11 Phil., 393; Montañano vs. Suesa, 14 Phil., 676; in re Estate of Johnson, 39 Phil, 156; Riera vs. Palmaroli, 40 Phil., 105; Austria vs. Ventenilla, 21 Phil., 180; Ramirez vs. Gmur, 42 Phil., 855; and Chiong Jocsoy vs. Vano, 8 Phil., 119.

In 28 R. C. L., p. 377, section 378, it is said.The probate of a will by the probate court having jurisdiction thereof is usually considered as conclusive as to its due execution and validity, and is also conclusive that the testator was of sound and disposing mind at the time when he executed the will, and was not acting under duress, menace, fraud, or undue influence, and that the will is genuine and not a forgery. (Emphasis ours.)

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

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

Said the Supreme Court of Vermont in the case of Missionary Society vs. Eells (68 Vt., 497, 504): "The probate of a will by the probate court having jurisdiction thereof, upon the due notice, is conclusive as to its due execution against the whole world. (Vt. St., sec. 2336; Fosters Exrs. vs. Dickerson, 64 Vt., 233.)"The probate of a will in this jurisdiction is a proceeding in rem. The provision of notice by Publication as a prerequisite to the allowance of a will is constructive notice to the whole world, and when probate is granted, the judgment of the court is binding upon everybody, even against the State. This court held in the case of Manalo vs. Paredes and Philippine Food Co. (47 Phil., 938):

The proceeding for the probate of a will is one in rem (40 Cyc., 1265), and the court acquires jurisdiction over all the persons interested, through the publication of the notice prescribed by section 630 of the Code of Civil Procedure, and any order that may be entered therein is binding against all of them.Through the publication of the petition for the probate of the will, the court acquires jurisdiction over all such persons as are interested in said will; and any judgment that may be rendered after said proceeding is binding against the whole world.

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

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

14

proceedings, but all persons interested in determining the state or conditions of the instrument are constructively notified by the publication of notice as required by G. L. 3219. (Woodruff vs. Taylor, supra; In re Warners Estate 98 Vt., 254; 271; 127 Atl., 362.)

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

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

xxx           xxx           xxx4. The judgment or order of a court, when declared by this code to be conclusive.

Conclusive presumptions are inferences which the law makes so peremptory that it will not allow them to be overturned by any contrary proof however strong. (Brant vs. Morning Journal Assn., 80 N.Y.S., 1002, 1004; 81 App. Div., 183; see, also, Joslyn vs. Puloer, 59 Hun., 129, 140, 13 N.Y.S., 311.) The will in question having been probated by a competent court, the law will not admit any proof to overthrow the legal presumption that it is genuine and not a forgery.The majority decision of the Court of Appeals cites English decisions to bolster up its conclusion that "the judgment admitting the will to probate is binding upon the whole world as to the due execution and genuineness of the will insofar as civil rights and liabilities are concerned, but not for the purpose of punishment of a crime." The cases of Dominus Rex vs. Vincent, 93 English Reports, Full Reprint, 795, the first case being decided in 1721, were cited to illustrate the earlier English decisions to the effect that upon indictment for forging a will, the probating of the same is conclusive evidence in the defendants favor of its genuine character. Reference is made, however, to the cases of Rex vs. Gibson, 168 English Reports, Full Reprint, 836, footnote (a), decided in 1802, and Rex vs. Buttery and Macnamarra, 168 English Reports, Full Reprint, 836, decided in 1818, which establish a contrary rule. Citing these later cases, we find the following quotation from Black on Judgments, Vol. II, page 764.

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

It was the case of Rex vs. Buttery, supra, which induced the Supreme Court of Massachussetts in the case of Waters vs. Stickney (12 Allen 1; 90 Am. Dec., 122) also cited by the majority opinion, to hold that "according to later and sounder decisions, the probate, though conclusive until set aside of the disposition of the property, does not protect the forger from punishment." This was reproduced in 28 R.C.L., p. 376, and quoted in Barry vs. Walker (103 Fla., 533; 137 So., 711, 715), and Thompson vs. Freeman (149 So., 740, 742), also cited in support of the majority opinion of the Court of Appeals. The dissenting opinion of the Court of Appeals in the instant case under review makes a cursory study of the statutes obtaining in England, Massachussetts and Florida, and comes to the conclusion that the decisions cited in the majority opinion do not appear to "have been promulgated in the face of statutes similar to ours." The dissenting opinion cites Whartons Criminal Evidence (11th ed., sec. 831), to show that the probate of a will in England is only prima facie proof of the validity of the will (Op. Cit. quoting Marriot vs. Marriot, 93 English Reprint, 770); and 21 L.R.A. (pp. 686689 and note), to show that in Massachussetts there is no statute making the probate of a will conclusive, and that in Florida the statute(sec. 1810, Revised Statutes) makes the probate conclusive evidence as to the validity of the will with regard to personal, and prima facie as to real estate. The cases decided by the Supreme Court of Florida cited by the majority opinion, supra, refer to wills of both personal and real estate.The petitioner cites the case of State vs. McGlynn (20 Cal., 233, decided in 1862), in which Justice Norton of the Supreme Court of California, makes the following review of the nature of probate proceedings in England with respect to wills personal and real property.

In England, the probate of wills of personal estate belongs to the Ecclesiastical Courts. No probate of a will relating to real estate is there necessary. The real estate, upon the death of the party seized, passes immediately to the devisee under the will if there be one; or if there be no will, to the heir at law. The person who thus becomes entitled takes possession. If one person claims to be the owner under a will, and another denies the validity of the will and claims to be the owner as heir at law, an action of ejectment is brought against the party who may be in possession by the adverse claimant; and on the trial of such an action, the validity of the will is contested, and evidence may be given by the respective parties as to the capacity of the testator to make a will, or as to any fraud practiced upon him, or as to the actual execution of it, or as to any other circumstance affecting its character as a valid devise of the real estate in dispute. The decision

upon the validity of the will in such action becomes res adjudicata, and is binding and conclusive upon the parties to that action and upon any person who may subsequently acquire the title from either of those parties; but the decision has no effect upon other parties, and does not settle what may be called the status or character of the will, leaving it subject to be enforced as a valid will, or defeated as invalid, whenever other parties may have a contest depending upon it. A probate of a will of personal property, on the contrary, is a judicial determination of the character of the will itself. It does not necessarily or ordinarily arise from any controversy between adverse claimants, but is necessary in order to authorize a disposition of the personal estate in pursuance of its provisions. In case of any controversy between adverse claimants of the personal estate, the probate is given in evidence and is binding upon the parties, who are not at liberty to introduce any other evidence as to the validity of the will.

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

1. The Wills Act, 1837 (7 Will. 4 E 1 Vict. c. 26).2. The Court of Probate Act, 1857 (20 and 21 Vict. c. 77).3. The Judicature Act, 1873 (36 and 37 Vict. c. 66).

The Wills Act of 1837 provides that probate may be granted of "every instrumental purporting to be testamentary and executed in accordance with the statutory requirements . . . if it disposes of property, whether personal or real." The Ecclesiastical Courts which took charge of testamentary causes (Ewells Blackstone [1910], p. 460), were determined by the Court of Probate Act of 1857, and the Court of Probate in turn was, together with other courts, incorporated into the Supreme Court of Judicature, and transformed into the Probate Division thereof, by the Judicature Act of 1873. (Lord Halsbury, The Laws of England[1910], pp. 151156.) The intervenors overlook the fact, however, that the case of Rex vs. Buttery and Macnamarra, supra, upon which they rely in support of their theory that the probate of a forged will does not protect the forger from punishment, was decided long before the foregoing amendatory statutes to the English law on wills were enacted. The case of State vs. McGlynn may be considered, therefore, as more or less authoritative on the law of England at the time of the promulgation of the decision in the case of Rex vs. Buttery and Macnamarra.In the case of State vs. McGlynn, the Attorney General of California filed an information to set aside the probate of the will of one Broderick, after the lapse of one year provided by the law of California for the review of an order probating a will, in order that the estate may be escheated to the State of California for the review of an probated will was forged and that Broderick therefore died intestate, leaving no heirs, representatives or devisees capable of inheriting his estate. Upon these facts, the Supreme Court of California held.

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

Although in the foregoing case the information filed by the State was to set aside the decree of probate on the ground that the will was forged, we see no difference in principle between that case and the case at bar. A subtle distinction could perhaps be drawn between setting aside a decree of probate, and declaring a probated will to be a forgery. It is clear, however, that a duly probated will cannot be declared to be a forgery without disturbing in a way the decree allowing said will to probate. It is at least anomalous that a will should be regarded as genuine for one purpose and spurious for another.The American and English cases show a conflict of authorities on the question as to whether or not the probate of a will bars criminal prosecution of the alleged forger of the probate will. We have examined some important cases and have come to the conclusion that no fixed standard maybe adopted or drawn therefrom, in view of the conflict no less than of diversity of statutory provisions obtaining in different jurisdictions. It behooves us, therefore, as the court of last resort, to choose that rule most consistent with our statutory law, having in view the needed stability of property rights and the public interest in general. To be sure, we have seriously reflected upon the dangers of evasion from punishment of culprits deserving of the severity of the law in cases where, as here, forgery is discovered after the probate of the will and the prosecution is

15

had before the prescription of the offense. By and large, however, the balance seems inclined in favor of the view that we have taken. Not only does the law surround the execution of the will with the necessary formalities and require probate to be made after an elaborate judicial proceeding, but section 113, not to speak of section 513, of our Code of Civil Procedure provides for an adequate remedy to any party who might have been adversely affected by the probate of a forged will, much in the same way as other parties against whom a judgment is rendered under the same or similar circumstances. (Pecson vs. Coronel, 43 Phil., 358.)The aggrieved party may file an application for relief with the proper court within a reasonable time, but in no case exceeding six months after said court has rendered the judgment of probate, on the ground of mistake, inadvertence, surprise or excusable neglect. An appeal lies to review the action of a court of first instance when that court refuses to grant relief. (Banco Español Filipino vs. Palanca, 37 Phil., 921; Philippine Manufacturing Co. vs. Imperial, 47 Phil., 810; Samia vs. Medina, 56 Phil., 613.) After a judgment allowing a will to be probated has become final and unappealable, and after the period fixed by section 113 of the Code of Civil Procedure has expired, the law as an expression of the legislative wisdom goes no further and the case ends there.

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

We hold, therefore, that in view of the provisions of sections 306, 333 and 625 of our Code of Civil Procedure, criminal action will not lie in this jurisdiction against the forger of a will which had been duly admitted to probate by a court of competent jurisdiction.The resolution of the foregoing legal question is sufficient to dispose of the case. However, the other legal question with reference to the denial to the accused of his right to a speedy trial having been squarely raised and submitted, we shall proceed to consider the same in the light of cases already adjudicated by this court.2. The Constitution of the Philippines provides that "In all criminal prosecutions the accused . . . shall enjoy the right . . . to have a speedy . . . trial. . . . (Art. III, sec. 1, par. 17. See, also, G.O. No. 58, sec. 15, No. 7.) Similar provisions are to be found in the Presidents Instructions to the Second Philippine Commission (par. 11), the Philippine Bill of July 1, 1902 (sec. 5, par. 2) and the Jones Act of August 29, 1916 (sec. 3, par. 2). The provisions in the foregoing organic acts appear to have been taken from similar provisions in the Constitution of the United States (6th Amendment) and those of the various states of the American Union. A similar injunction is contained in the Malolos Constitution (art. 8, Title IV), not to speak of other constitutions. More than once this court had occasion to set aside the proceedings in criminal cases to give effect to the constitutional injunction of speedy trial. (Conde vs. Judge of First Instance and Fiscal of Tayabas [1923], 45 Phil., 173; Conde vs. Rivera and Unson[1924], 45 Phil., 650; People vs. Castañeda and Fernandez[1936]), 35 Off. Gaz., 1269; Kalaw vs. Apostol, Oct. 15, 1937, G.R. No. 45591; Esguerra vs. De la Costa, Aug. 30,1938, G.R. No. 46039.).In Conde vs. Rivera and Unson, supra, decided before the adoption of our Constitution, we said.

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

upon the appropriate information, could have attended to the formal preliminary examination, and could have prepared the case for a trial free from vexatious, capricious, and oppressive delays.

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

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

In Kalaw vs. Apostol, supra, the petitioner invoked and this court applied and gave effect to the doctrines stated in the second Conde case, supra. In granting the writs prayed for, this court, after referring to the constitutional and statutory provisions guaranteeing to persons accused of crime the right to a speedy trial, said:Esguerra vs. De la Costa, supra, was a petition for mandamus to compel the respondent judge of the Court of First Instance of Rizal to dismiss the complaint filed in a criminal case against the petitioner, to cancel the bond put up by the said petitioner and to declare the costs de oficio. In accepting the contention that the petitioner had been denied speedy trial, this court said:We are again called upon to vindicate the fundamental right to a speedy trial. The facts of the present case may be at variance with those of the cases hereinabove referred to. Nevertheless, we are of the opinion that, under the circumstances, we should consider the substance of the right instead of indulging in more or less academic or undue factual differentiations. The petitioner herein has been arrested four times, has put up a bond in the sum of P4,000 and has engaged the services of counsel to undertake his defense an equal number of times. The first arrest was made upon a complaint filed by one of the intervenors herein for alleged falsification of a will which, sixteen months before, had been probated in court. This complaint, after investigation, was dismissed at the complainant's own request. The second arrest was made upon a complaint charging the same offense and this complaint, too, was dismissed at the behest of the complainant herself who alleged the quite startling ground that the petitioner was in poor health. The third arrest was made following the filing of an information by the provincial fiscal of Pampanga, which information was dismissed, after due investigation, because of insufficiency of the evidence. The fourth arrest was made when the provincial fiscal secured a reinvestigation of the case against the petitioner on the pretext that he had additional evidence to present, although such evidence does not appear to have ever been presented. It is true that the provincial fiscal did not intervene in the case until February 2, 1934, when he presented an information charging the petitioner, for the third time, of the offense of falsification. This, however, does not matter. The prosecution of offenses is a matter of public interest and it is the duty of the government or those acting in its behalf to prosecute all cases to their termination without oppressive, capricious and vexatious delay. The Constitution does not say that the right to a speedy trial may be availed of only where the prosecution for crime is commenced and undertaken by the fiscal. It does not exclude from its operation cases commenced by private individuals. Where once a person is prosecuted criminally, he is entitled to a speedy trial, irrespective of the nature of the offense or the manner in which it is authorized to be commenced. In any event, even the actuations of the fiscal himself in this case is not entirely free from criticism. From October 27, 1932, when the first complaint was filed in the justice of the peace court of San Fernando, to February 2, 1934, when the provincial fiscal filed his information with the justice of the peace of Mexico, one year, three months and six days transpired; and from April 27, 1933, when the second criminal complaint was dismissed by the justice of the peace of Mexico, to February 2, 1934, nine months and six days elapsed. The investigation following the fourth arrest, made after the fiscal had secured a reinvestigation of the case, appears also to have dragged on for about a year. There obviously has been a delay, and considering the antecedent facts and circumstances within the knowledge of the fiscal, the delay may not at all be regarded as permissible. In Kalaw vs. Apostol, supra, we observed that the prosecuting officer all prosecutions for public offenses (secs. 1681 and 2465 of the Rev. Adm. Code), and that it is his duty to see that criminal cases are heard without

16

vexatious, capricious and oppressive delays so that the courts of justice may dispose of them on the merits and determine whether the accused is guilty or not. This is as clear an admonition as could be made. An accused person is entitled to a trial at the earliest opportunity. (Sutherland on the Constitution, p. 664; United States vs. Fox, 3 Mont., 512.) He cannot be oppressed by delaying he commencement of trial for an unreasonable length of time. If the proceedings pending trial are deferred, the trial itself is necessarily delayed. It is not to be supposed, of course, that the Constitution intends to remove from the prosecution every reasonable opportunity to prepare for trial. Impossibilities cannot be expected or extraordinary efforts required on the part of the prosecutor or the court. As stated by the Supreme Court of the United States, "The right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances. It secures rights to a defendant. It does not preclude the rights of public justice." (Beavers vs. Haubert [1905], 198 U. S., 86; 25 S. Ct., 573; 49 Law. ed., 950, 954.).It may be true, as seems admitted by counsel for the intervenors, in paragraph 8, page 3 of his brief, that the delay was due to "the efforts towards reaching an amicable extrajudicial compromise," but this fact, we think, casts doubt instead upon the motive which led the intervenors to bring criminal action against the petitioner. The petitioner claims that the intention of the intervenors was to press upon settlement, with the continuous threat of criminal prosecution, notwithstanding the probate of the will alleged to have been falsified. Argument of counsel for the petitioner in this regard is not without justification. Thus after the filing of the second complaint with the justice of the peace court of Mexico, complainant herself, as we have seen, asked for dismissal of the complaint, on the ground that "el acusado tenia la salud bastante delicada," and, apparently because of failure to arrive at any settlement, she decided to renew her complaint.Counsel for the intervenors contend — and the contention is sustained by the Court of Appeals — that the petitioner did not complain heretofore of the denial of his constitutional right to a speedy trial. This is a mistake. When the petitioner, for the fourth time, was ordered arrested by the Court of First Instance of Pampanga, he moved for reconsideration of the order of arrest, alleging, among other things, The foregoing allegation was inserted on page 6 of the amended petition for certiorari presented to the Court of Appeals. The constitutional issue also appears to have been actually raised and considered in the Court of Appeals. In the majority opinion of that court, it is stated:

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

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

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

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

Coso vs. Fernandez Deza, 42 Phil 596G.R. No. L-16736 December 22, 1921EVARISTA ROBLES and her husband ENRIQUE MARTIN, plaintiffs-appellees, vs. LIZARRAGA HERMANOS, defendants-appellant.

Owing to the character of the facts in the three above entitled cases and the intimate connection existing between them, they were, by agreement of the parties, tried together in the court below, and on appeal this court was requested to try them at the same time, which was done, and these three cases are jointly adjudged in the present decision.The following facts are undisputed:Anastasia de la Rama died on the 17th of October, 1916, leaving six children, to wit, Magdalena, Jose, Evarista, Zacarias, Felix, and Purificacion, surnamed Robles, and some properties, among which is house No. 4 on Iznart Street in the city of Iloilo, concerning which a controversy arose which developed into the three cases now under consideration.The children and heirs of Anastasia de la Rama entered into partnership with Lizarraga Hermanos in liquidation and settlement of their accounts, by virtue of which the competent court awarded to said partnership the properties left by the deceased, including the aforesaid house No. 4 on Iznart Street.Evarista Robles, one of the aforesaid heirs, since before the death of her mother Anastasia de la Rama, has been with her husband

occupying the aforesaid house No. 4 on Iznart Street, at the beginning, by permission of her mother, later on by the consent of her coheirs, and lastly by agreement with the partnership, Lizarraga Hermanos, to whom it had been awarded, having made some improvements on the house, the value of which is fixed at four thousand five hundred pesos (P4,500), and paying to said partnership forty pesos (P40) monthly as rent of the upper story. On March 18, 1918, Lizarraga Hermanos notified Evarista Robles (Exhibit J) that beginning April next the rent of the upper story of the house would be raised to sixty pesos (P60) a month, and that, if she did not agree to the new rate of rent, she might vacate the house. Evarista Robles refused to pay such a new rate of rent and to vacate the house, and Lizarraga Hermanos brought suit against her for ejectment. Evarista Robles sued Lizarraga Hermanos afterwards to recover the value of the improvements, and demanded, in another action, that said value be noted on the certificate of title as an encumbrance.1awphil.netEvarista Robles contends that the understanding with Lizarraga Hermanos by virtue of which she continued to occupy the house and made the improvements, was a contract whereby it was agreed to sell her the said building on Iznart Street, the deed of sale to be executed as soon as the title deeds of the property were transferred to the name of said partnership; that by virtue of this contract she remained in the occupation of the building and made the improvements; that, as one of the stipulations in the contract of sale of the estate, Evarista Robles assumed the liability of an encumbrance of fourteen thousand pesos (P14,000)on the estate and another one in favor of the Agricultural Bank and its successor, the National Bank, paying the interest thereon as well as the land tax and the premiums of the five insurance, all of which payments were made through the same firm of Lizarraga Hermanos who, as a result of the liquidation of accounts, held funds in their possession belonging to Exhibit A, B, C, F, H, and I. It should here be noted that Evarista Robles does not seek the execution of the proper instrument of evidence this contract of sale, nor the performance thereof. She only claims the cost of the improvements made at her expense and that this be recorded in the corresponding certificate of title.While the firm of Lizarraga Hermanos does not question that fact that said improvements have been made and that their value amounts to four thousand five hundred pesos (P4,500), it denies, however, having entered into any agreement with Evarista Robles for the sale of the building in question. In deciding the case No. 16736 of this court, the court a quo found such a verbal contract of sale to have been proven not only by Exhibit A, which leads to such a conclusion, but by the oral evidence, which, in its opinion, had a preponderance in favor thereof, and by the corroborative evidence consisting in the fact of Lizarraga Hermanos having executed the deed of sale of the warehouse mentioned in the said Exhibit A. This firm questions the right of Evarista Robles to the improvements under consideration. The fundamental questions upon which hinges the controversy in these three cases are: First, whether Evarista Robles is the owner of the aforesaid improvements and has the right to demand payment of their value (case No. 16736); second, whether she has any right to retain the building until the said value is paid to her (case No. 16661); and third, whether a note for the four thousand five hundred pesos (P4,500), the value of the above-mentioned improvements, as an encumbrance on this estate (case No. 16662), should be made on the title deeds thereof. Regarding the controversy in the case No. 16736, attention is called to article 453 of the Civil Code which reads:

Necessary expenditures shall be refunded to every possessor, but only the possessor in good faith may retain the thing until they are repaid to him. Useful expenditures shall be paid the possessor in good faith with the same right to retention, the person who has defeated him in his possession having the opinion of refunding the amount of such expenditures or paying him the increase in value which the thing has acquired by reason thereof.

This provision of law is in force and applies to personal as well as real property. The expenditures incurred in these improvements were not necessary inasmuch as without them the house would have continued to stand just as before, but were useful, inasmuch as with them the house better serves the purpose for which it was intended, being used as a residence, and the improvements consisting of the addition of a dining room, kitchen, closet, and bathroom in the lower and upper stories of the house, and a stable, suitable as a coach house and dwelling, it is beyond doubt that such improvements are useful to the building. One of the chiefs of the firm of Lizarraga Hermanos, on the occasion of a luncheon in the house, on noting the improvements, could not refrain from expressing that such improvements added much to the value of the building (folio 25, stenographic notes).Now then, was Evarista Robles a possessor in good faith when she made those improvements? Article 434 provides that "good faith is always presumed and the burden of proving bad faith on the part of the possessor rests upon the person alleging it." Lizarraga Hermanos did not allege, nor prove in the first instance the bad faith characterizing Evarista Robles' possession, who, as shown in the records and heretofore stated, began to occupy the house by permission of the former owner, her mother Anastasia de la Rama,

17

and continued later in the occupation by the consent of her coheirs, and afterwards by considering herself the future owner of the building by virtue of the contract with the present owner, Lizarraga Hermanos. The evidence shows that said improvements were begun about the end of December, 1916, after the agreement with Lizarraga Hermanos for the sale thereof to Evarista Robles. (Folios 23, 24, 25, stenographic notes.)We find that in the court below the presumption of good faith in favor of Evarista Robles' possession at the time she made the improvements on the property was neither disputed nor discussed, but on the contrary, there is positive evidence sufficient to support the conclusion that when she made the improvements on the aforesaid building she was possessing it in good faith. If the improvements are useful and Evarista Robles' possession was in good faith, the conclusion set out in article 453 of the Civil Code, supra, is inevitable; Evarista Robles is the owner of such improvements, and entitled to reimbursement therefor, and to retain the building until the same is made. One of the proofs establishing the fact that Evarista Robles' possession was in good faith is found in Exhibit A, which textually is as follows:

Value of house For    }Evarista P16,500.00

Value of Warehouse

Evarista pays them in this way —

Balance in h/f owning from L. Hnos P1,424.35

Legacy to Evarista 500.00Legacy to J. Robles 500.00Legacy to Ambrosio 100.00

Credit Agricultural Bank 14,000.00

Paid by Zacarias 16,524.35

Cash balance carried forward 24.35

Liquidation 16,500.00Severiano Lizarraga acknowledged having drawn this document and admitted it to be in his own hand-writing (folios 6-8, transcript of stenographic notes taken in case No. 16661 at the trial held December 6, 1919). Taking into consideration the explanation he gives of the contents of this exhibit, there is the inevitable conclusion which is obviously inferred from the phrases "Value of house — of warehouse — For Evarista P16,500 — Evarista pays them in this way," that Evarista Robles was to become the owner of the house (which is the one question) and the warehouse for sixteen thousand five hundred pesos (P16,500), which sum she was to pay by assuming the liability of all the amounts enumerated in the said memorandum all the way through. But the admissibility of this document as evidence is disputed by reference to section 335, case No. 5, of the Code of Civil Procedure, which in the English text, which is clearer on this point, reads:

SEC. 335. Agreements invalid unless made in writing. — In the following cases an agreement hereafter made shall be unenforceable (Emphasis ours) by action unless the same, or some note or memorandum thereof, be in writing, and subscribed by the party charged, or by his agent; evidence, therefore, of the agreement cannot be received without the writing, or secondary evidence of its contents:No. 5. An agreement for . . . the sale of real property, etc.

It should be noted, first of all, that this rule of evidence does not go to the extent of rendering invalid any verbal contract for the sale of real property (Conlu vs. Araneta and Guanko, 15 Phil., 387), but declares inadmissible any evidence of such a contract other than the document itself of the sale or some memorandum signed by the party charged, in so far as the object of the action instituted is to enforce performance of said contract of sale. But we are not dealing with that phase in any of the cases now before us. This document was introduced only to reinforce the proofs relative to the good faith characterizing the possession of Evarista Robles when she made the improvements in question, to the effect that if she made then, it was because she entertained the well-founded, may certain belief that she was making them on a building that was to become her property by virtue of the verbal contract of sale. In the action wherein Evarista Robles and her husband ask that they be adjudged owners of these improvements and that their value be paid to them, Lizarraga Hermanos filed a general denied and a counterclaim and cross-complaint for nineteen thousand pesos (P19,000) as compensation for damages alleged to have been sustained by them on account of their inability to sell the house and the warehouse, due to the fact that the buyer imposed the condition that the house should be vacated, which the plaintiffs refused to do. It is a fact that the value of the improvements in question has not as yet been paid by Lizarraga Hermanos. Wherefore, if Evarista Robles and her husband are entitled to retain the building until the value of such improvements is paid them, Lizarraga Hermanos have not yet any right to oust them from the building, nor,

therefore, to be indemnified for any damages caused by the refusal of the plaintiffs found on their legitimate rights. In regard to the ejectment sought in the case No. 16661, the suit was brought by Lizarraga Hermanos in the justice of the peace court of Iloilo on May 6, 1918, based on the failure of Evarista Robles and her husband to pay the rent of the upper story of the house in question for the month of April of that year, amounting to sixty pesos (P60), and on the refusal of said spouses to quit the building. These spouses in their answer alleged as special defense that they had never been the tenants of Lizarraga Hermanos until November, 1917, when they became so "under the special circumstances" under which the plaintiff partnership sold the building, whereon they later made, with the latter's consent, improvements amounting to four thousand five hundred pesos (P4,500), setting out the other stipulations and conditions hereinabove stated, which were incorporated into the contract of sale, and prayed, under their counterclaim, that Lizarraga Hermanos be sentenced to pay the sum of four thousand five hundred pesos (P4,500), the value of the improvements referred to, and under their cross-complaint, that said partnership be ordered to pay then thousand pesos (P10,000) as compensation for damages alleged to have been sustained by the aforesaid spouses due to the aforesaid partnership's act, praying lastly, in view of the questions raised, that the case be regarded not as one of unlawful detainer, but for the recovery of title to real property, and that the court of the justice of the peace abstain from taking cognizance thereof for want of jurisdiction. The case having been appealed to the Court of First Instance, these allegations were reproduced. In the Court of First Instance Lizarraga Hermanos demurred to this counterclaim and cross-complaint, and the demurrer was sustained by the court in its decision on the merits of the case, whereby the defendants are sentenced to return to Lizarraga Hermanos the possession of the building, to pay the rents thereof due from April, 1918, until they vacate the house, at the rate of sixty pesos (P60) per month, and the costs. From this judgment Evarista Robles and her husband have appealed, assigning as errors of the court a quo in finding the Lizarraga Hermanos were entitled to bring action for unlawful detainer, and ordering them to return the possession of the building. If Evarista Robles and her husband were mere lessees of this building, the plaintiff's action for unlawful detainer is obvious and must prosper. But, were Evarista Robles and her husband mere lessees?As above stated, we hold that there existed a contract of sale of this building executed by Lizarraga Hermanos in favor of Evarista Robles about November, 1916, the performance of which is not, however, sought to be enforced, nor would it be enforceable if the evidence offered in the action instituted for the purpose be not the document itself of the sale, or a memorandum thereof, signed by the party bound by the contract and required in the action to fulfill it, and objection be made to said evidence, as was done here. The possession of these spouses was in no way begun by virtue of any lease whatever, since it is not disputed, and is a proven fact, that they came to occupy the building by permission of the mother of Evarista Robles. Upon said mother's death, the continued to occupy the property by the consent of the coheirs. After the assignment of the property of Lizarraga Hermanos was concluded, but before the title deeds were transferred to the name of this partnership, an agreement was made for the sale of the building to Evarista Robles and her husband, the latter agreeing in the meantime to pay to Lizarraga Hermanos a certain sum per month — forty pesos (P40) — by way of compensation for the occupation of the building until the execution of the deed of sale in favor of the occupants. Considering abstractly the naked fact that these spouses occupied the house by paying a certain sum for its occupation, it would seem that this is indeed a case of lease. But such was not the contract. It was simply the sense of justice of the parties that led them to make the stipulation that, while the conveyance of the building was being carried into effect in due form, the future owners should pay a certain sum for its possession. This peculiar situation continued for all the time in which the said spouses made and completed the improvements in question until Lizarraga Hermanos changed their resolution to sell the building to Evarista Robles and her husband. But then all the improvements in question had already been made, and when these spouses were requested to vacate the building, they answered and gave it to understand, that they would do so as soon as the value of the improvements was paid to them. Up to that time they were not lessees strictly speaking. Did they become so afterwards? Neither; for since that moment they have been as are at present, in possession of the building by virtue of the right that they had, and do have, to retain it until the value of the improvements is paid to them. And it was after these spouses had manifested their intention not to leave the building until they were reimbursed for the improvements made thereon that this action for unlawful detainer was instituted. Before these improvements were made, or before these spouses demanded payment of their value, that is, while the possession was partly based on the stipulation with color of lease, an action for unlawful detainer might have, in a sense, been justifiable, though not entirely maintainable, owing to the fact that such possession was based primarily on the well-founded belief of the occupants

18

that they were to become the owners of the house in their possession, that the monthly payment being a provisional arrangement, an incidental and peremptory stipulation, while the solemn formalities of the conveyance were being complied with.But after the improvements had been made and Lizarraga Hermanos had manifested their resolution to rescind the contract of sale and not to pay for them, then the possession of the aforesaid spouses lost all color of lease, and turns out to be possession based only upon the latter's right to retain the building. And these were all the attending circumstances of said possession when the action for unlawful detainer was commenced. We are, therefore, of opinion, and so hold, that Lizarraga Hermanos were not, and are not, entitled to maintain any action for unlawful detainer so long as they do not pay the value of the improvements in question. We will now take up the case No. 16662 wherein Evarista Robles and her husband ask that these improvements be noted on the proper certificate of title as an encumbrance. These spouses pray in their complaint for the cancellation of the said certificate of title, which is the transfer certificate No. 526, a substitute of the original No. 32 of the office of the register of deeds of Iloilo.If the object of these spouses is, as it cannot be otherwise, to have such an encumbrance noted, the cancellation is not necessary, and, of course, not justifiable. At any rate, the fraud alleged in this last action to have been committed precisely to secure such a transfer certificate cannot be held proven. But it having been decided that these spouses are entitled to demand payment of the value of the improvements and to retain the building until such value is paid them, it only remains for us to determine whether this right of retention has the character of a real right to be regarded as one of the encumbrances referred to in section 70 and the following sections of the Land Registration Act. It being a burden on the building to the extent of being inseparably attached to the possession thereof, this right of retention must necessarily be a real one. If so, as we regard, and find, it to be, it is but just that such an encumbrance should be noted on the transfer certificate No. 526 issued by the register of deeds of Iloilo in favor of Lizarraga Hermanos, or on any substitute thereof. As a consequence of all the foregoing, we affirm the judgments appealed from in the three cases in so far as they are in harmony with the conclusions herein set out, and reverse them in so far as they are in conflict therewith, and it is hereby adjudged and decreed:First. That Lizarraga Hermanos pay to the spouses Evarista Robles and Enrique Martin the sum of four thousand five hundred pesos (P4,500), the value of the improvements referred to in these cases, with right on the part of said spouses to retain the building in question until the payment hereby ordered is made. Second. That said spouses Evarista Robles and Enrique Martin vacate the aforesaid building immediately after the receipt, or the legal tender, of the payment hereby decreed. Third. That the said spouses Evarista Robles and Enrique Martin pay to Lizarraga Hermanos a compensation for the occupation of the building at the rate of forty pesos (P40) a month, beginning with the month of April, 1918, until they vacate the aforesaid building as it is ordered herein.Fourth. That upon payment of his lawful fees, the register of deeds note said right of retention on the back of the transfer certificate No. 526 issued in favor of Lizarraga Hermanos, or of any other certificate standing in lieu thereof, concerning the said building, which note will remain in force until the payment of the aforesaid improvements is made as above ordered. Without pronouncement as to the costs in this instance, so ordered. __________________________________________________________

[G.R. No. L-5405.  January 31, 1956.]ERNESTO M. GUEVARA, Petitioner, vs. ROSARIO GUEVARA and PEDRO C. QUINTO, Respondents.  “This case being the sequel to, and aftermath of, a previous litigation between the parties that reached the Supreme Court, through the former Court of Appeals, it becomes necessary to restate the essential antecedent facts to view the issues in proper perspective. For this purpose, it is important to recall that on August 26, 1931, Victorino L. Guevara, a resident of Bayambang, Pangasinan, executed a will (Exhibit A), distributing assorted movables and a residential lot among his children, Rosario and Ernesto Guevara, and his stepchildren, Vivencio, Eduvigis, Dionista, Candida, and Pio Guevara. To his second wife Augustia Posadas, the testator bequeathed, in addition to various movables, a portion of 25 hectares to be taken out of a 259 odd hectare parcel outlined in Plan Psu-68618, plus another five (5) hectares in settlement of her widow’s usufruct. The balance of the 259 odd hectares he distributed as follows: 100 hectares reserved for disposal during the testator’s lifetime and for payment of his debts and family expenses;108.0854 hectares to his legitimate son Ernesto Guevara, including therein 43.2342 hectares by way of mejora; 21.6171 hectares to ‘mi hija natural reconocida Rosario Guevara.’Ernesto Guevara was appointed executor without bond.On July 12, 1933, the same testator executed a deed of sale in favor of Ernesto Guevara, conveying to the latter the southern half

of the 259-hectare lot heretofore mentioned, and expressly recognized Ernesto Guevara as owner of the northern half.Prior to this sale, on November 1, 1932, Victorino and his son Ernesto had jointly applied for registration of the big parcel (case No. 15174), but in view of the sale from the former to the latter, the decree was issued in the name of Ernesto Guevara exclusively and for the whole tract, a certificate of title (No. 51691 of Pangasinan) being issued in his sole name on October 12, 1933.Fifteen days previously, i.e., on September 27, 1933, Victorino Guevara died, but his will was not filed for probate. About four years later, Rosario Guevara, claiming to be a recognized natural child of the deceased Victorino, and on the assumption that he had died intestate, brought suit against Ernesto Guevara to recover 423,492 square meters of the tract covered by certificate of title No. 51691 as the portion that should correspond to her (Rosario) by way of legitime.The case reached the former Court of Appeals in due course and was decided in Rosario Guevara’s favor (Exhibit E); but upon certiorari, the Supreme Court modified the judgment in December, 1943, as follows (Exhibit F);‘Wherefore, that part of the decision of the Court of Appeals which declares in effect that notwithstanding exhibit 2 and the issuance of original certificate of title No. 51691 in the name of Ernesto M. Guevara, one-half of the land described in said certificate of title belongs to the estate of Victorino L. Guevara and the other half to Ernesto M. Guevara in consideration of the latter’s assumption of the obligation to pay all the debts of the deceased, is hereby affirmed; but the judgment of said court insofar as it awarded any relief to the Respondent Rosario Guevara in this action is hereby reversed and set aside, and the parties are hereby ordered to present the document Exhibit A to the proper court for probate in accordance with law, without prejudice to such action as the provincial fiscal of Pangasinan may take against the responsible party or parties under section 4 of Rule 76. After the said document is approved and allowed by the court as the last will and testament of the deceased Victorino L. Guevara, the heirs and legatees herein named may take such action, judicial or extrajudicial, as may be necessary to partition the estate of the testator, taking into consideration the pronouncements made in part II of this opinion. No finding as to costs in any of the three instances.’ Claiming to act pursuant to the foregoing decision, Rosario Guevara commenced on October 5, 1945, special proceedings No. 2646 in the Court of First Instance of Pangasinan for the probate of the will of Victorino Guevara. In paragraph 10 of the petition, it was alleged: Notice of the petition having been duly published pursuant to Rule of Court 77, section 4, Ernesto Guevara appeared and opposed the probate. Pedro L. Quinto, counsel for Rosario in the former litigation, was allowed to intervene in view of his duly recorded attorney’s lien.On January 31, 1946, Ernesto Guevara, through counsel, filed a motion to dismiss the petition on the grounds that (a) the petition itself alleged that the will was revoked; (b) that ‘whatever right to probate the parties may have has already prescribed’ (Record on Appeal, p. 14); and (c) that the purpose of the probate was solely to have Petitioner Rosario declared an acknowledged natural child of the deceased.By order of December 9, 1946, Judge Sotero Rodas denied the motion to dismiss; but upon motion of reconsideration, Judge Mañalac of the same court, on June 23, 1937, reconsidered and set aside the previous resolution and ordered the petition dismissed on the ground that Rosario Guevara’s petition did not ask for the probate in toto of the will, contrary to the order of the Supreme Court; that her right to petition for the probate of the testament of Victorino L. Guevara had prescribed; and that her action for judicial declaration of acknowledgment had likewise prescribed.An amended petition for the probate of the will in toto and another petition to reconsider the previous order were subsequently denied; the former on the ground that there was a radical change of theory from that embodied in the original petition, and the second for the same reasons stated in the order of June 23, 1947. Rosario L. Guevara and Pedro L. Quinto thereupon brought the case on appeal to this Court, assigning no less than twenty (20) alleged errors committed by the court below.” (Guevara vs. Guevara, C.A. — G. R. No. 5416-R, promulgated December 26, 1951; chan roblesvirtualawlibrarysee Appendix to brief for the Petitioner-Appellant, pp. 1-6.)The dispositive part of the decision of the Court of Appeals reads as follows:chanroblesvirtuallawlibrary“The order of dismissal of the petition for probate is reversed and the court of origin ordered to reinstate the petition, and to hear and decide whether the will of Victorino Guevara, deceased, should be allowed to probate. Costs against Appellees in both instances.” (Ibid.)In his appeal therefrom, Petitioner Ernesto M. Guevara raises the following questions, to wit:(a) Did Respondents herein duly perfect their appeal from the decision of t he Court of First Instance of Pangasinan? (b) Did the Court of Appeals have jurisdiction to entertain said appeal? (c) Is the petition for probate of the alleged will of the deceased Victorino L. Guevara barred by the statute of limitations?(1)  With reference to the first question, Petitioner has submitted the following statement 1 of the steps taken since June 23, 1947, date of the resolution of Judge Mañalac, dismissing the petition for

19

probate of the last will and testament of Victoriano L. Guevara:chanroblesvirtuallawlibrary“June 23, 1947 —>>>>>>>>>>> Based upon the foregoing, Oppositor and Appellee Ernesto M. Guevara filed, with the Court of Appeals, a motion praying that the appeal be dismissed:chanroblesvirtuallawlibrary“(a)  Because due to the Appellant’s many and repeated dilatory tactics, the prosecution of their appeal has been unduly and unreasonably delayed for a period which should strike anyone as totally without justification. The resolution appealed from was dictated by the lower court on June 23, 1947, so that a period of over two (2) years and nine (9) months until the date of this writing has elapsed, thus establishing a record-holding delay which should not be sanctioned by the Courts as prejudicial to the administration of justice.“(b)  Because Appellants, in violation of Rule 48, section 3, did not diligently prosecute their appeal by failing to have the record sent up to this Honorable Court within thirty (30) days from the time their Second Re-amended Record on Appeal was approved on September 28, 1949; and it was only so transmitted on December 8, 1949, that is after the lapse of two (2) months and ten (10) days.“(c)  Because, at any rate, the first Amended Joint Record on Appeal was filed beyond the extension granted by the Court and, consequently, the Appellants’ right to appeal has lapsed.” (Exhibit A, pp. 1-2).The Court of Appeals denied said motion to dismiss for the following reasons:chanroblesvirtuallawlibrary“A preliminary question was posed by the Appellee who prayed for the dismissal of the appeal on the ground that Petitioners-Appellants had unreasonably delayed the perfection of the appeal, as the Second Re-amended Joint Record on Appeal was not certified to this Court until December, 1949. After considering the voluminous record, and the arguments of both parties, we are of the opinion that both parties have contributed to the delay with lengthy memoranda, and repeated motions and objections. Moreover, the points in question are important enough to deserve adequate consideration upon the merits. Wherefore, the motion to dismiss the appeal should be and is hereby, overruled and denied.” It is urged by Petitioner herein that Respondents’ appeal from the decision of the Court of First Instance of Pangasinan had not been duly perfected because:c (a) the original of the record on appeal did not comply with the Rules of Court; y(b) the record on appeal was filed after the lapse of the reglementary period; (c) there has been an unprecedented delay in the filing of a satisfactory record on appeal; and (d) the appeal should be deemed abandoned for violation of Rule 48, section 3, of the Rules of Court.The first ground is predicated upon the fact that, instead of transcribing the motions, petitions, orders and resolutions incorporated in the original record on appeal, Respondents herein merely attached to the original copy of said record on appeal, filed with the Court of First Instance of Pangasinan, their own copies of said motions, petitions, orders and resolutions. Accordingly, the copy of said record on appeal furnished to Petitioner herein did not contain or enclose the aforementioned parts of the record. It appears, however, that the Respondents were given several extensions of time within which to comply with the pertinent provisions of the Rules of Court and that Respondents eventually did so. There being no question about the authority of the court of first instance to grant said extensions of time, it is clear that the first ground, relied upon by Petitioner herein, is untenable.In support of the second ground, it is alleged: (a) that the original record on appeal was filed by Pedro C. Quinto only, and does not inure to the benefit of Rosario Guevara; and (b) that Respondents had lost their right to appeal by the lapse of the reglementary period. As regards the first proposition, Petitioner asserts that Respondent Pedro C. Quinto had withdrawn his appearance as counsel for Respondent Rosario Guevara; that Quinto had, thereafter, intervened in the case in his own behalf, in order to enforce his attorney’s lien, as former counsel for Rosario Guevara; that, consequently, the original record on appeal and the petitions for extension of time to file an amended record on appeal, filed by Pedro C. Quinto, were good only insofar as he is concerned, and cannot profit Rosario Guevara, she having ceased to be his client long before the filing of said original record on appeal and petitions for extension of time; that this interest in the case arises from his rights as former attorney for Respondent Rosario Guevara, and, as such, is subordinate to, and dependent upon, the interest therein of said Rosario Guevara and the success of her claim therein; and that, her appeal not having been duly perfected, his appeal must be deemed to have no legal effect. There is no merit in this pretense, for it appears, at the foot of said record on appeal, that Pedro C. Quinto had filed the same, “for himself as Appellant and in behalf of Rosario Guevara, who authorized him to perfect the appeal for both Appellants,” and that similar statements were made in the body and at the foot of said petitions for extension of time. It is clear, therefore, that the aforementioned record on appeal and motions should be deemed submitted, also, by Respondent Rosario Guevara. The position then held by Pedro C. Quinto, as special prosecutor in the office of the Solicitor General, did not nullify his aforesaid acts on behalf of Rosario Guevara. Besides, said acts would seem to have been performed by him, more as attorney-in- fact than as counsel for Rosario Guevara, and this merely in connection with the perfection of her appeal. We do

not find therein anything objectionable, either legally or morally, in the light of the circumstances surrounding the case.The second proposition is based upon the following reasons:chanroblesvirtuallawlibrary(a)  The aforementioned record on appeal and motions for extension of time filed by Quinto on behalf of Rosario Guevara did not inure to her benefit, for which reason the reglementary period to appeal had expired before the perfection of her appeal. For the reasons already adverted to, this argument is clearly untenable.(b)  The petition for reconsideration filed by Respondents on July 14, 1947, did not suspend the running of the period to perfect the record on appeal, because said petition did not comply with the provisions of Rule 37, section 1, of the Rules of Court, reading as follows:chanroblesvirtuallawlibrary“Within thirty days after notice of the judgment in an action, the aggrieved party may move the trial court to set aside the judgment end grant a new trial for one or more of the following causes materially affecting the substantial rights of said party:chanroblesvirtuallawlibrary(a)  Fraud, accident, mistake or excusable negligence which ordinary prudence could not have guarded against and by reason of which such aggrieved party has probably been impaired in his rights;(b)  Newly discovered evidence, which he could not, with reasonable diligence, have discovered, and produced at the trial, and which if presented would probably alter the result;(c)  Because excessive damages have been awarded, or the evidence was insufficient to justify the decision, or it is against the law.”Said petition for reconsideration appears, however, to be predicated, in effect, upon the ground that the evidence is insufficient to justify the decision of the court of first instance, and that said decision is contrary to law. It partakes, therefore, of the nature of a motion for new trial, stating specifically the reasons in support thereof, and, hence, it suspended the period to appeal until the determination of said motion.Relative to the alleged unprecedented delay in the filing of a satisfactory record on appeal, we agree with the finding of the Court of Appeals to the effect that the delay was due to the acts of the Respondents, as well as of the Petitioner herein, for both had asked several postponements and extensions of time, filed memoranda and reply memoranda, and raised or provoked a number of other issues or incidents which necessarily delayed the perfection of the appeal. Obviously, Petitioner should not be allowed to profit by said delay, to which he had actively contributed. 1 Lastly, Petitioner maintains that, although the record on appeal had been approved on September 28, 1949, it was not forwarded to the Court of Appeals until December 8, 1949. Section 3 of Rule 48 of the Rules of Court provides:chanroblesvirtuallawlibrary“If the record on appeal is not received by the Court of Appeals within thirty days after the approval thereof, the Appellee may, upon notice to the Appellant, move the court to grant an order directing the clerk of the lower court forthwith to transmit such record on appeal or to declare the same abandoned for failure to prosecute.”Considering that Respondents herein were not notified of the approval of the record on appeal until December 8, 1949, on which date the record on appeal was forwarded to the Court of Appeals, and that the aforementioned provision of the Rules of Court does impose upon said court the mandatory duty to declare the appeal abandoned for failure to prosecute, we believe that no error was committed in giving due course to the appeal and that the same has been duly perfected.(2)  Did the Court of Appeals have jurisdiction to try the case, on appeal from the decision of the court of first instance? Petitioner maintains the negative, upon the ground that the appeal involved only questions of law. This is not correct, for the very motion for reconsideration adverted to above, indicated that the appeal raised some issues of fact, such as, for instance, whether or not the will in question was in the possession of Respondent Rosario Guevara and whether Respondent Quinto had been authorized by her to perfect the appeal on her behalf. At any rate, the case is now before us and, upon examination of the record and consideration of all the issues therein raised, we are of the opinion that, had the appeal been forwarded directly to this Court, we would have disposed of it in the manner set forth in the decision of the Court of Appeals, the review of which is sought by herein Appellant.(3)  The last question for determination in this case is whether or not the petition for probate of the will of Victorino L. Guevara is barred by the statute of limitations, considering that the testator died on September 27, 1933, and that the petition for probate of said will was filed twelve (12) years later, or, to be exact, on October 5, 1945. The Court of Appeals resolved the question in the negative, upon the following grounds:chanroblesvirtuallawlibrary“We are of the opinion that the Court below was in error when it declared that the petition for probate of the will of Victorino Guevara was barred by prescription. The provision of Article 756 of the old Civil Code (1042 of the New) and of Rule 76 of the Rules of Court, reiterating those of the old Code of Civil Procedure (Act 190), point out that the presentation of a decedent’s will to the competent court has always been deemed by our law as more of a duty than a right, and the neglect of such obligation carries with it the corresponding penalty and it is inconsistent with that policy

20

that the court should refuse to admit wills to probate, without inquiry into their validity. The authority given to testators to dispose freely of a portion of their estate would be imperfectly safeguarded, unless adequate measures were provided by the state to assure that the wishes of the deceased would be carried out. Because the decedent may no longer act to have his testamentary dispositions duly executed, the state authority must take over the opposite vigilance and supervision, so that free testamentary disposition does not remain a delusion and a dream. This was expressly recognized by the Supreme Court in its previous decision, G. R. No. 48840 (Exhibit E) when it said:chanroblesvirtuallawlibrary We hold that under section 1 of Rule 74, in relation to Rule 76, if the decedent left a will and no debts and the heirs and legatees desire to make an extrajudicial partition of the estate, they must first present that will to the court for probate and divide the estate in accordance with the will. They may not disregard the provisions of the will unless those provisions are contrary to law. Neither may they do away with the presentation of the will to the court for probate, because such suppression of the will is contrary to law and public policy. The law enjoins the probate of the will and public policy requires it, because unless the will is probated and notice thereof given to the whole world, the right of a person to dispose of his property by will may be rendered nugatory, as is attempted to be done in the instant case. Absent legatees and devisees, or such of them as may have no knowledge of the will, could be cheated of their inheritance thru the collusion of some of the heirs who might agree to the partition of the estate among themselves to the exclusion of others.’ (Italics supplied)“In holding the statute of limitations applicable to the probate of wills, the court below failed to notice that its doctrine was destructive of the right of testamentary disposition and violative of the owner’s right to control his property within the legal limits. The appealed order in fact leaves wills at the mercy and whim of custodians and heirs interested in their suppression. The lower court would in effect abdicate the tutelary power that passed to the Republic from the former sovereigns, that ‘potestad suprema que en mi reside para velar por el puntual cumplimiento de las ultimas voluntades’, asserted as one of the royal prerogatives in the ‘Real Cedula’ of March 18, 1776.“It is not without purpose that Rule of Court 77 prescribes that any ‘person interested in the estate may, at any time after the death of the testator, petition the court having jurisdiction to have the will allowed’. Taken from the Code of Procedure of California, this provision has been interpreted as meaning that the statute of limitations has no application to probate of wills. In the case of In re Hume’s Estate, 179 Calif. 338, 176 Pac. 681, the California Supreme Court ruled that:chanroblesvirtuallawlibrary‘The chapter of the Code relating to the probate of wills does not provide for opposition to such probate on the ground of the bar of the statute of limitations, but, in effect, excludes it from the category of grounds allowed as a basis for such opposition. Section 1299 declares that any person interested in the estate ‘may at any time after the death of the testator, petition the court having jurisdiction to have the will proved.’ This implies that there is no arbitrary time limit.’As additional reasons, the same Court stated: Section 1317 declares:cIf the court is satisfied, upon the proof taken or from the facts found by the jury that the will was duly executed and that the will testator at the time of its execution was of sound and disposing mind and not acting under duress menace fraud, or undue influence, a certificate of the proof and the facts found, signed by the judge and attested by the seal of the court, must be attached to the will.’‘This excludes the bar of the statute of limitation from consideration as one of the matters which may be shown in opposition to the probate. This is further emphasized by section 1341, which, in substance, declares that, if upon the verdict of the jury the facts mentioned in section 1317 as aforesaid appear to be established, the court ‘must’ admit the will to probate. Section 1314 thus makes it imperative that the court shall admit the will to probate if the execution is proven and the grounds of opposition authorized by section 1312 are not established. This clearly implies that no grounds of opposition other than those enumerated in section 1312 may be set up, and it leaves no place for the application of the statute of limitations.‘It is further to be observed that, notwithstanding the positive and comprehensive language of sections 343 and 369, if taken literally, there can be no doubt that they cannot apply to all special proceedings of a civil nature. Proceedings for a change of name, or in arbitration, or for voluntary dissolution of a corporation, or for guardianship, or for a married woman to become a sole trader, are all within the definition of the phrase, and each is enumerated, classed, and defined as such proceeding by the Code. If the statute of limitations applied, it would begin to run against such proceedings as soon as the right to institute them accrued. Yet from the very nature of these proceedings it is obvious that neither of them could be subject to such limitation.‘This construction of these Code provisions is confirmed by the long-continued and uniform practice and the universal understanding of the bench and bar of the state on the subject.’x x x                    x x x                    x x x‘Action to quiet title frequently involve wills of persons who have died many years before the action was begun. The section

contemplates that such a will, although not yet probated, may be construed in the action and may be afterwards probated, and it clearly shows that the Legislature did not understand that the right to probate such will would be barred if the testator had died more than four years before the petition for probate was filed.‘This uniform practice and understanding of the bench and bar, and of the legislative department of the state also, is a strong argument to the effect that the statute of limitations does not apply to such proceedings. The authorities on the effect of such long acquiescence are numerous.’“The Statute of Limitations upon which the court below has relied, sections 38 to 50 of the old Code of Civil Procedure, Act 190, undertakes to fix limits for the filing of ‘civil actions’, but none for ‘special proceedings’ of which probate is admittedly one. The distinction is not purely verbal, but based on differences that make the limitation to ‘actions’ inapplicable to ‘special proceedings’. In this regard, the Supreme Court of New York has adequately remarked (In re Canfield’s Will, 300 NYS 502):chanroblesvirtuallawlibrary‘A Respondent in a private proceeding owes no legal duty or obligation to the proponent as such, wherefore it is impossible for him to violate such non-existent obligation. Furthermore such a proceeding is not instituted for the vindication of any personal right to the proponent. The subject-matter is therefore wholly absent which could give rise to any ‘cause of action’ against any Respondent therein.‘The primary purpose of the proceeding is not to establish the existence of the right of any living person, but to determine whether or not the decedent has performed the acts specified by the pertinent statutes which are the essential prerequisites to personal direction of the mode of devolution of his property on death. There is no legal but merely a moral duty resting upon a proponent to attempt to validate the wishes of the departed, and he may and frequently does receive no personal benefit from the performance of the act.‘One of the most fundamental conceptions of probate law, is that it is the duty of the court to effectuate, in so far as may be compatible with the public interest, the devolutionary wishes of a deceased person (Matter of Watson’s Will, 262 N.Y. 284, 294, 186 N.E. 787; chan roblesvirtualawlibraryMatter of Marriman’s Estate, 124 Misc. 320, 325, 208 N.Y.S. 672; chan roblesvirtualawlibraryFoley, S. affirmed 217 App. Div. 733, 216 N.Y.S. 842; chan roblesvirtualawlibraryMatter of Lensman’s Estate, 137 Misc. 77, 78, 243 N.Y.S. 126, Henderson, S., Matter of Drake’s Estate, 160 Misc. 587, 598, 290 N.Y.S. 581). To that end, the court is, in effect, an additional party to every litigation affecting the disposal of the assets of the deceased. Matter of Van Valkenburgh’s Estate, 164 Misc. 295, 296, 298 N.Y.S. 219. A determination, therefore, that the mere non-action of a person upon whom no legal duty rested in this regard, could have the effect of subverting the wishes of one who was no longer able to protect his own unquestionable rights, would strike at the very foundation of all conceptions of justice as administered in probate courts.’“These decisions are of high persuasive value (Cu vs. Republic, G. R. L-3018, July 18, 1951); they represent the trend of authority (57 Am. Jur. 585), and enable us to conclude that reason and precedent reject the applicability of the Statute of Limitations to probate proceedings, because these are not exclusively established in the interest of the surviving heirs, but primarily for the protection of the testator’s expressed wishes, that are entitled to respect as an effect of his ownership and right of disposition. If the probate of validly executed wills is required by public policy, as declared by the Supreme Court in the previous case, G.R. 48840 (Exhibit E), the state could not have intended the statute of limitations to defeat that policy.“It is true, as ruled by the trial court, that the rights of parties ‘should not be left hanging in uncertainty for periods of time far in excess of the maximum period of ten years allowed by law’; but the obvious remedy is for the other interested persons to petition for the production of the will and for its probate, or to inflict upon the guilty party the penalties prescribed by Rule 76 or declare the unworthiness of the heir under the Civil Code for concealing or suppressing the testament; but not to dismiss the petition for probate, however belatedly submitted, and thereby refuse sanction to testamentary dispositions executed with all the formalities prescribed by law, incidentally prejudicing also those testamentary heirs who do not happen to be successors ab intestato. That in this particular case the appealed rule may not work injustice would not excuse its adoption as a general norm applicable to all cases.“It is likewise reasonable to assume that if the Supreme Court had considered the ten-year limitation applicable to probate proceedings, it would not have ordered the parties on December 29, 1943 ‘to present the document Exhibit A to the proper court for probate in accordance with law’, because the ten years from the death of the testator expired in September of that same year, two months before the decision. It is safe to assume that the high Court would not order a useless step. The reasoning that the phrase ‘in accordance with law’ was a qualification signifying ‘if still legally possible’, appears to be far-fetched and unjustified. The plain import of the words employed by the high Court is that the probate should follow the procedure provided for the purpose.”x x x                    x x x                    x x x“The other reasons advanced by the court a quo in support of its order dismissing the petition are also untenable. The allegation

21

contained in paragraph 10 of the original petition, that ‘the will, or its testamentary dispositions, had been de jure revoked in so far as the parcel of 259 hectares described in said will’ is concerned, does not justify the finding that the probate would be pointless. What is alleged is a partial revocation, only as to the parcel of land affected; but as previously shown, the will disposed of other property besides that one. And even granting that the next allegation to the effect that Plaintiff sought to probate ‘only for the purposes of her acknowledgment as natural child in said will’, constitutes an averment that the will had been fully revoked, the same would at the most constitute a conclusion or inference that the lower court was not bound to admit. Because the Appellant claimed or believed that the revocation of the will as to the large parcel of land, constituted a total revocation of the testament is no reason why the court should concur in the same belief or conclusion, especially when the will itself, appended to the petition, showed that there were other properties and other heirs or legatees, and the trial court had before it the decision of the Supreme Court ordering the filing of the will for its probate because, as stated in its decision, such a step was enjoined by law and public policy. Moreover, the defect, if any, incurred in failing to ask for the probate in toto of the will, was subsequently cured and corrected in the amended petition, where not only the objectionable statements were eliminated, but others added indicating the existence of a partible estate.“Assuming that the original petition violated the order of the Supreme Court in so far as it did not ask for the allowance of the entire will, the court below erred in dismissing the petition, for it thereby sanctioned further disobedience to the order of the superior court. Once again, it must be repeated that the order of dismissal failed to take into account that the case involved not only the interests of Rosario Guevara, and those of the Appellee Ernesto Guevara and the other legatees, but specially the express desires of the testator; and that the protection and defense of the latter developed upon the court itself, since no one else made any move to enforce them.“Even if the other heirs had failed to show interest in the case (a fact not properly inferable from their non-intervention in the case, because the order of publication of the petition only called for those interested to ‘appear to contest the allowance’ and not to support it) (Rec. on App., p. 7), and even if the other heirs had already received their shares, the order refusing the probate remains indefensible. If the other heirs were not interested, there remained the wishes of the testator to be supported and protected, if validly expressed. If the heirs had distributed the estate, the distribution was illegal and improper unless the will be first probated. The Supreme Court so ruled in its previous decision (G. R. 48840) heretofore quoted.‘Even if the decedent left no debts and nobody raises any question as to the authenticity and due execution of the will, none of the heirs may sue for the partition of the estate in accordance with that will without first securing its allowance or probate by the court:cfirst, because the law expressly provides that ‘no will shall pass either real or personal estate unless it is proved and allowed in the proper court; and, second, because the probate of a will, which is a proceeding in rem, cannot be dispensed with and substituted by any other proceeding, judicial or extrajudicial, without offending against public policy designed to effectuate the testator’s right to dispose of his property by will in accordance with law and to protect the rights of the heirs and legatees under the will thru the means provided by law, among which are the publication and the personal notices to each and all of said heirs and legatees. Nor may the court approve and allow the will presented in evidence in such an action for partition, which is one in personam, any more than it could decree the registration under the Torrens system of the land involved in an ordinary action for revindicacion or partition.’“From whatever angle the case is viewed, a hearing on the allowance of the will is unavoidable. The persistent, albeit obnoxious, attempts of Rosario Guevara to sidetrack the will are not remedied by dismissing the petition for probate of will, and allowing Ernesto to retain a greater interest than that intended by the testator.” (Appendix to brief for the Petitioner-Appellant, pp. 7-15, 17-20.)We are fully in accord with these findings which we adopt as ours.In view of the foregoing, the decision appealed from is hereby affirmed, with the costs of this instance against the Petitioner.________________________________________

LEONIDA CORONADO, FELIX BUENO, MELANIA RETIZOS, BERNARDINO BUENASEDA and JOVITA MONTEFALCON, Petitioners, vs.  THE COURT OF APPEALS and JUANA BUENO ALBOVIAS, Respondents.  This is a petition for review on certiorari seeking to reverse the decision* of the respondent appellate court dated March 3, 1987 CA-G.R. CV No. 06911 entitled "Juana (Bueno) Albovias et al., v. Leonida Coronado, et al.," affirming the decision of the lower court, the decretal portion of which reads:: nad

"WHEREFORE, premises considered, judgment is hereby rendered:

1. Declaring Leonida Coronado to have no title or interest over the property in question, hence, has no authority to dispose of the same in favor of her co-defendants;2. Declaring the sales executed by Coronado and subsequent transactions involving the same property null and void ab initio;3. Declaring the plaintiff to be the true and legal owner of the subject parcel of land;4. Ordering the defendants to vacate the subject premises and to surrender possession thereof unto the plaintiff;5. Ordering the defendants to jointly and severally pay unto the plaintiff the sum of P2,000.00 as attorney's fees and P10,000.00 as moral and exemplary damages.Costs against the defendants." (Rollo, p. 17)

As found by the respondent appellate court, the property subject of this case is a parcel of land situated in Nagcarlan, Laguna, containing 277 square meters, more particularly described as follows:: nad

"A parcel of land situated in the Poblacion, Municipality of Nagcarlan, province of Laguna. Bounded on the North, by property of Epifania Irlandez (formerly Bonifacio Formentera); on the East, by that of Julio Lopez; on the South, by that of Dalmacio Monterola (formerly Domingo Bueno); and on the West, by C. Lirio Street. Containing an area of two hundred seventy seven (277) square meters, more or less. Assessed at P3,320.00 under tax declaration No. 241." (Ibid., p. 15)

Said parcel of land is being contested by Juana Albovias, herein private respondent, on the one hand, and Leonida-Coronado, Felix Bueno, Melania Retizos, Bernardino Buenseda and Jovita Montefalcon, herein petitioners, on the other hand.Juana Albovias (JUANA, for brevity) claims that the property in question is a portion of a bigger lot referred to as Parcel G in the last will and testament executed in 1918 by Melecio Artiaga, grandfather of JUANA. This bigger lot was inherited under that will by JUANA, her brother Domingo Bueno, and two other grandchildren, namely Bonifacio and Herminigildo, both surnamed Formentera. Parcel G is described as follows:"Isang lagay na lupa na ang bahagi ay walang tanim na halaman at ang bahagi naman ay may tanim na saguing, tumatayo sa gawin Canloran ng Calle Avenida Rizal nitong Nagcarlan, at humahangan sa Ibaba; sa ari cong Testador; sa Silangan, sa cay Enrique Jovellano; sa Ilaya, sa namatay na Perfecto Nanagas, at sa Canloran, tubig na pinamamagatang San Cido." (Ibid., p. 16)JUANA further claims that sometime in 1925 or 1926, C. Lirio Street was created by the Municipality of Nagcarla traversing said Parcel G and thus dividing it into two portions, one on the west of C. Lirio St. and the other to the east of said street. Parcel G was divided by the heirs in the following manner; the land was divided into two portions, the northern portion of which was adjudicated in favor of the Formenteras and the southern portion was given to JUANA and Doming Bueno. The southern portion in turn was partitioned between JUANA and Domingo Bueno, the former getting the northern part adjoining the lot of the Formenteras, and the latter the southern part which adjoins the lot of Perfecto Nanagas (not owned by Dalmacio Monterola). The part allocated to Domingo was later sold by him to Dalmacio Monterola, owner of the adjoining property (Ibid.).: nadMoreover, JUANA claims that her property was included together with the two parcels of land owned by Dalmacio Monterola, which were sold by Monterola's successor-in-interest Leonida Coronado (now married to Felix Bueno) to Melania Retizos on April 18, 1970. Melania Retizos in turn sold the lots, including that one being claimed by JUANA, to the spouse Bernardino Buenaseda and Jovita Montefalcon, now the present possessors thereof, sometime in 1974 (Ibid., pp. 16-17).On the other hand, Leonida Coronado and her co-petitioners (CORONADO, for brevity) claim that the property in question was bequeathed to Leonida Coronado under a Will executed by Dr. Dalmacio Monterola, who was allegedly in possession thereof even before the outbreak of World War II (Ibid., p. 107).Parenthetically, said will was probated under Sp. Proc. No. SC-283, entitled "Testate Estate of the Deceased Monterola Leonida F. Coronado, petitioner (Ibid., p. 105). JUANA, together with her husband, opposed the said probate. Despite their opposition, however, the Will was allowed by the then Court of First Instance of Laguna, Sta. Cruz Branch (Ibid., p. 106). On appeal, said decision was affirmed by the Court of Appeals in CA-G.R. No. 40353, entitled "Leonida F. Coronado, petitioner-appellee v. Heirs of Dr. Dalmacio Monterola, oppositors-appellants" (Ibid.). It is not apparent, however, from the record whether or not said decision has already become final and executory.As a result of the conflicting claims over the property in question, JUANA filed an action for quieting of title, declaratory relief and damages against CORONADO in the Regional Trial Court of the Fourth Judicial Region, Branch XXVI, Sta. Cruz, Laguna, docketed as Civil Case No. 7345 (Ibid., p. 4).As adverted to above (first par.), the lower court rendered judgment in favor of JUANA.Not satisfied with the decision of the lower court, CORONADO elevated the case to the Court of Appeals, which affirmed the decision appealed from (Ibid., p. 20). Hence, this petition.:-cralawCORONADO raised the following assigned errors:

I

22

THE RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN ARRIVING AT A CONCLUSION WHICH IS CONTRARY TO THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN NOT APPLYING THE APPLICABLE PROVISION OF LAW AND JURISPRUDENCE LAID DOWN BY THIS HONORABLE COURT. (Ibid., p. 108)

IITHERE IS NO EVIDENCE PRESENTED TO SHOW THAT THE LAND IN QUESTION CLAIMED BY PRIVATE RESPONDENT IS THE SAME PROPERTY ADJUDICATED TO JUANA BUENO UNDER THE WILL OF THE DECEASED MELECIO ARTIAGA; NEITHER IS THERE EVIDENCE TO SHOW THAT SAID WILL HAD BEEN PROBATED. (Ibid., p. 114)

IIIPRIVATE RESPONDENT IS IN ESTOPPEL FROM QUESTIONING THE OWNERSHIP OF THE PETITIONER OVER THE LAND IN QUESTION HAVING FAILED TO RAISE THE SAME IN THE ESTATE PROCEEDING IN THE TRIAL COURT AND EVEN ON APPEAL. (Ibid., p. 119)

IVTHE RESPONDENT COURT OF APPEALS MISAPPRECIATED THE EVIDENCE SUBMITTED AND FACTS ADMITTED ON RECORD. IT THEREFORE COMMITTED GRAVE AND SERIOUS ERROR. (Ibid., p. 121)As required by this Court, CORONADO filed their memorandum on May 8, 1989 (Ibid., p. 105); while that of JUANA was filed on October 13, 1989.The petition is devoid of merit.Under the first assigned error, CORONADO assails the respondent appellate court's finding that Dr. Dalmacio Monterola could not have acquired the subject land by acquisitive prescription. Citing Art. 1116 of the New Civil Code in relation to Section 41 of the Code of Civil Procedure, CORONADO claims that JUANA had already foreclosed whatever right or legal title she had over the property in question, the reason being that Monterola's continued possession of the said property for over ten years since 1934 ripened into full and absolute ownership (Ibid., p. 112).The argument has no factual basis.Time and again, it has been ruled that the jurisdiction of the Supreme Court in cases brought to it from the Court of Appeals is limited to reviewing and revising the errors of law imputed to it, its findings of fact being conclusive. It is not the function of the Supreme Court to analyze or weigh such evidence all over again, its jurisdiction being limited to reviewing errors of law that might have been committed. Absent, therefore, a showing that the findings complained of are totally devoid of support in the record, so that they are so glaringly erroneous as to constitute serious abuse of discretion, such findings must stand, for the Supreme Court is not expected or required to examine or contrast the oral and documentary evidence submitted by the parties (Andres v. Manufacturers Hanover & Trust Corporation, G.R. 82670, September 15, 1989). There are no convincing reasons in the instant case to depart from this rule.As found by the respondent appellate court, Monterola never claimed ownership over the property in question. As a matter of fact, one of the deeds of donation executed by Monterola in favor of Leonida Coronado acknowledged that the boundary owner on the property conveyed to her is JUANA. This is precisely the reason why during the lifetime of the late Dalmacio Monterola, JUANA had always been allowed to enter and reap the benefits or produce of the said property. It was only after the death of said Monterola in 1970 that Leonida Coronado prohibited JUANA from entering it.Even assuming arguendo that Monterola was indeed in continued possession of the said property for over ten years since 1934, said possession is insufficient to constitute the fundamental basis of the prescription. Possession, under the Civil Code, to constitute the foundation of a prescriptive right, must be possession under claim of title (en concepto de dueno), or to use the common law equivalent of the term, it must be adverse. Acts of possessory character performed by one who holds by mere tolerance of the owner are clearly not en concepto de dueno, and such possessory acts, no matter how long so continued, do not start the running of the period of prescription (Manila Electric Company v. Intermediate Appellate Court, G.R. 71393, June 28, 1989).In this case, Monterola, as found by the respondent appellate court and the lower court, never categorically claimed ownership over the property in question, much less his possession thereof en concepto de dueno. Accordingly, he could not have acquired said property by acquisitive prescription.Anent the contention of CORONADO that Leonida Coronado could tack her possession to that of Monterola, so that claim of legal title or ownership over the subject property, even against the petitioners, the Buenasesas, who are purchasers for value and in good faith, is a foregone or settled issue, the respondent appellate court aptly answered the same in this wise:"It follows that Leonida Coronado could not have derived ownership of the land in question from her predecessor-in-interest Dalmacio Monterola, whether by prescription or by some other title. Neither can she claim acquisitive prescription in her own name. It was only in 1970 after the death of Dalmacio Monterola that she asserted her claim of ownership adverse to that of plaintiff-appellee. Having knowledge that she had no title over the land in question, she must be deemed to have claimed it in bad faith. Under Article 1137 of the Civil Code, ownership and other real rights over immovables prescribe through uninterrupted adverse possession thereof for thirty years, without need of title or good faith. And even granting that she had no notice or defect in her title and was, therefore, in

good faith, a period of ten years of possession is necessary for her to acquire the land by ordinary prescription. (Article 1134, Civil Code). But she can claim to have possessed the land only in 1968, the year the Monterola lots were donated to her. The period, however, was interrupted in 1975, or 7 years after, when the complaint below was filed." (Rollo, pp. 18-19)Under the second assigned error, CORONADO claims that the will under which JUANA inherited the property in question from her grandfather, Melecio Artiaga, was never probated; hence, said transfer for ownership was ineffectual considering that under Rule 75, Sec. 1 of the Rules of Court (formerly Sec. 125 of Act No. 190, no will shall pass either real or personal property unless it is proved and allowed in the proper court (Ibid., p. 115).The contention is without merit.chanrobles virtual law libraryWhile it is true that no will shall pass either real or personal property unless it is proved and allowed in the proper court (Art. 838, Civil Code), the questioned will, however, may be sustained on the basis of Article 1056 of the Civil Code of 1899, which was in force at the time said document was executed by Melecio Artiaga in 1918. The said article read as follows:"Article 1056. If the testator should make a partition of his properties by an act inter vivos, or by will, such partition shall stand in so far as it does not prejudice the legitime of the forced heir." (Mang-Oy v. Court of Appeals, 144 SCRA 33 [1986])In this case, nowhere was it alleged nor shown that Leonida Coronado is entitled to legitime from Melecio Artiaga. The truth of the matter is that the record is bereft of any showing that Leonida Coronado and the late Melecio Artiaga were related to each other.Under the third assigned error, CORONADO claims that JUANA is estopped from questioning the ownership of Leonida Coronado over the land in question having failed to raise the same in the estate proceedings in the trial court and even on appeal (Rollo, p. 119).The contention is likewise without merit.Normally, the probate of a will does not look into its intrinsic validity. The authentication of a will decides no other questions than such as touch upon the capacity of the testator and the compliance with those requisites or solemnities which the law prescribes for the validity of the wills. It does not determine nor even by implication prejudge the validity or efficiency of the provisions of the will, thus may be impugned as being vicious or null, notwithstanding its authentication. The question relating to these points remain entirely unaffected, and may be raised even after the will has been authenticated (Maninang, et al., v. Court of Appeals, 114 SCRA 473 [1982]). Consequently, JUANA is not estopped from questioning the ownership of the property in question, notwithstanding her having objected to the probate of the will executed by Monterola under which Leonida Coronado is claiming title to the said property.:-cralawUnder the fourth assigned error, it is alleged by CORONADO that JUANA's petition is weak for want of factual and legal support; the weakness of JUANA's position lies in the fact that she did not only fail to identify the subject land, but also failed to explain the discrepancy in the boundary of the property she is claiming to be hers. The contention is unavailing.The fact that JUANA failed to identify the property in question and to explain the discrepancy in the boundary of said property, assuming they are true, is immaterial, in view of the findings of the lower court as to the identity of the property in question. Moreover, the lower court found sufficient evidence to support the conclusion that the property in question is the same property adjudicated to JUANA under the will of Melecio Artiaga, and that CORONADO has no right whatsoever to said property (Ibid., p. 20). Such findings are conclusive upon this Court (Reynolds Philippine Corporation v. Court of Appeals, 169 SCRA 220 [1989]).PREMISES CONSIDERED, the decision appealed from is hereby AFFIRMED. SO ORDERED.__________________________________________________

OCTAVIO S. MALOLES II, petitioner, vs. COURT OF APPEALS, HON. FERNANDO V. GOROSPE, JR., in his Official Capacity as Presiding Judge of RTC-Makati, Branch 61, and PACITA PHILLIPS as the alleged executrix of the alleged will of the late Dr. Arturo de Santos, respondents.

The facts which gave rise to these two petitions are as follows:On July 20, 1995, Dr. Arturo de Santos, Filipino and a resident of Makati City, filed a petition for probate of his will[1] in the Regional Trial Court, Branch 61, Makati, docketed as Sp. Proc. No. M-4223. In his petition, Dr. De Santos alleged that he had no compulsory heirs; that he had named in his will as sole legatee and devisee the Arturo de Santos Foundation, Inc.; that he disposed by his will his properties with an approximate value of not less than P2,000,000.00; and that copies of said will were in the custody of the named executrix, private respondent Pacita de los Reyes Phillips. A copy of the will[2] was annexed to the petition for probate.On February 16, 1996, Judge Fernando V. Gorospe, Jr. of RTC-Makati, Branch 61 issued an order granting the petition and allowing the will. The order reads:

On 03 August 1995, the Court issued an Order setting the hearing of the petition on 12 September 1995, at 8:30 o’clock in the morning, copies of which were served to Arturo de Santos Foundation, Inc. and Ms. Pacita de los Reyes Phillips (Officer’s Return, dated 04 September 1995 attached

23

to the records). When the case was called for hearing on the date set, no oppositor appeared nor any written opposition was ever filed and on motion of petitioner, he was allowed to adduce his evidence in support of the petition.Petitioner personally appeared before this Court and was placed on the witness stand and was directly examined by the Court through "free wheeling" questions and answers to give this Court a basis to determine the state of mind of the petitioner when he executed the subject will. After the examination, the Court is convinced that petitioner is of sound and disposing mind and not acting on duress, menace and undue influence or fraud, and that petitioner signed his Last Will and Testament on his own free and voluntary will and that he was neither forced nor influenced by any other person in signing it. MisÓ scFurthermore, it appears from the petition and the evidence adduced that petitioner in his lifetime, executed his Last Will and Testament (Exhs. "A", "A-1", "A-2", "A-4", "A-5") at his residence situated at 9 Bauhinia corner Intsia Streets, Forbes Park, Makati City; said Last Will and Testament was signed in the presence of his three (3) witnesses, namely, to wit: Dr. Elpidio Valencia (Exhs. "A-6", "A-7", "A-8", "A-16", "A-16-A"), Atty. Edward J. Berenguer (Exhs. "A-3", "A-3-A", "A-9", "A-10", & "A-11"), and Atty. Victoria C. delos Reyes (Exhs. "A-12", "A-13", "A-14", "A-17", & "A-18"), who in turn, in the presence of the testator and in the presence of each and all of the witnesses signed the said Last Will and Testament and duly notarized before Notary Public Anna Melissa L. Rosario (Exh. "A-15"); on the actual execution of the Last Will and Testament, pictures were taken (Exhs. "B" to "B-3").Petitioner has no compulsory heirs and Arturo de Santos Foundation, Inc., with address at No. 9 Bauhinia corner Intsia Streets, Forbes Park, Makati City has been named as sole legatee and devisee of petitioner’s properties, real and personal, approximately valued at not less than P2 million, Ms. Pacita de los Reyes Phillips was designated as executor and to serve as such without a bond.From the foregoing facts, the Court finds that the petitioner has substantially established the material allegations contained in his petition. The Last Will and Testament having been executed and attested as required by law; that testator at the time of the execution of the will was of sane mind and/or not mentally incapable to make a Will; nor was it executed under duress or under the influence of fear or threats; that it was in writing and executed in the language known and understood by the testator duly subscribed thereof and attested and subscribed by three (3) credible witnesses in the presence of the testator and of another; that the testator and all the attesting witnesses signed the Last Will and Testament freely and voluntarily and that the testator has intended that the instrument should be his Will at the time of affixing his signature thereto.WHEREFORE, as prayed for by the petitioner (testator himself) the petition for the allowance of the Last Will and Testament of Arturo de Santos is hereby APPROVED and ALLOWED.

Shortly after the probate of his will, Dr. De Santos died on February 26, 1996.On April 3, 1996, petitioner Octavio S. Maloles II filed a motion for intervention claiming that, as the only child of Alicia de Santos (testator’s sister) and Octavio L. Maloles, Sr., he was the sole full-blooded nephew and nearest of kin of Dr. De Santos. He likewise alleged that he was a creditor of the testator. Petitioner thus prayed for the reconsideration of the order allowing the will and the issuance of letters of administration in his name. MisÓ sppedOn the other hand, private respondent Pacita de los Reyes Phillips, the designated executrix of the will, filed a motion for the issuance of letters testamentary with Branch 61. Later, however, private respondent moved to withdraw her motion. This was granted, while petitioner was required to file a memorandum of authorities in support of his claim that said court (Branch 61) still had jurisdiction to allow his intervention.[3]Petitioner filed his memorandum of authorities on May 13, 1996. On the other hand, private respondent, who earlier withdrew her motion for the issuance of letters testamentary in Branch 61, refiled a petition for the same purpose with the Regional Trial Court, Makati, which was docketed as Sp. Proc. No. M-4343 and assigned to Branch 65.Upon private respondent’s motion, Judge Salvador Abad Santos of Branch 65 issued an order, dated June 28, 1996, appointing her as special administrator of Dr. De Santos’s estate.On July 29, 1996, petitioner sought to intervene in Sp. Proc. No. M-4343 and to set aside the appointment of private respondent as special administrator. He reiterated that he was the sole and full blooded nephew and nearest of kin of the testator; that he came to know of the existence of Sp. Proc. No. M-4343 only by accident; that the probate proceedings in Sp. Proc. No. M-4223 before Branch 61 of the same court was still pending; that private respondent misdeclared the true worth of the testator’s estate; that private respondent was not fit to be the special administrator of the estate; and that petitioner should be given letters of administration for the estate of Dr. De Santos.

On August 28, 1996, Judge Abad Santos ordered the transfer of Sp. Proc. No. M-4343 to Branch 61, on the ground that "[it] is related to the case before Judge Gorospe of RTC Branch 61 . . ."It appears, however, that in Sp. Proc. No. M-4223, Judge Gorospe had denied on August 26, 1996 petitioner’s motion for intervention. Petitioner brought this matter to the Court of Appeals which, in a decision[4] promulgated on February 13, 1998, upheld the denial of petitioner’s motion for intervention.Meanwhile, Judge Gorospe issued an order, dated September 4, 1996, returning the records of Sp. Proc. No. M-4343 to Branch 65 on the ground that there was a pending case involving the Estate of Decedent Arturo de Santos pending before said court. The order reads:

Acting on the ORDER dated 28 August 1996 of Branch 65, this Court, transferring this case to this Branch 61 on the ground that this case is related with a case before this Court, let this case be returned to Branch 65 with the information that there is no related case involving the ESTATE OF DECEDENT ARTURO DE SANTOS pending before this Branch.There is, however, a case filed by ARTURO DE SANTOS, as petitioner under Rule 76 of the Rules of Court for the Allowance of his will during his lifetime docketed as SP. PROC. NO. M-4223 which was already decided on 16 February 1996 and has become final.It is noted on records of Case No. M-4223 that after it became final, herein Petitioner Pacita de los Reyes Phillips filed a MOTION FOR THE ISSUANCE OF LETTERS TESTAMENTARY, which was subsequently withdrawn after this Court, during the hearing, already ruled that the motion could not be admitted as the subject matter involves a separate case under Rule 78 of the Rules of Court, and movant withdrew her motion and filed this case (No. 4343).Octavio de Santos Maloles [II] filed a MOTION FOR INTERVENTION before Case No. M-4223 and this motion was already DENIED in the order (Branch 61) of 26 August 1996 likewise for the same grounds that the matter is for a separate case to be filed under Rule 78 of the Rules of Court and cannot be included in this case filed under Rule 76 of the Rules of Court.It is further noted that it is a matter of policy that consolidation of cases must be approved by the Presiding Judges of the affected Branches.

Initially, in his decision dated September 23, 1996,[5] Judge Abad Santos appeared firm in his position that " . . . it would be improper for (Branch 65) to hear and resolve the petition (Sp. Proc. No. M-4343)," considering that the probate proceedings were commenced with Branch 61. He thus ordered the transfer of the records back to the latter branch. However, he later recalled his decision and took cognizance of the case "to expedite the proceedings." Thus, in his Order, dated October 21, 1996, he stated:

Considering the refusal of the Hon. Fernando V. Gorospe, Jr. of Branch 61 to continue hearing this case notwithstanding the fact that said branch began the probate proceedings of the estate of the deceased and must therefore continue to exercise its jurisdiction to the exclusion of all others, until the entire estate of the testator had been partitioned and distributed as per Order dated 23 September 1996, this branch (Regional Trial Court Branch 65) shall take cognizance of the petition if only to expedite the proceedings, and under the concept that the Regional Trial Court of Makati City is but one court. Joä sppedFurnish a copy of this order to the Office of the Chief justice and the Office of the Court Administrator, of the Supreme Court; the Hon. Fernando V. Gorospe, Jr.; Pacita De Los Reyes Phillips, Petitioner; and Octavio de Santos Maloles, Intervenor.

On November 4, 1996, Judge Abad Santos granted petitioner’s motion for intervention. Private respondent moved for a reconsideration but her motion was denied by the trial court. She then filed a petition for certiorari in the Court of Appeals which, on February 26, 1997, rendered a decision[6] setting aside the trial court’s order on the ground that petitioner had not shown any right or interest to intervene in Sp. Proc. No. M-4343.Hence, these petitions which raise the following issues:

1. Whether or not the Honorable Regional Trial Court - Makati, Branch 61 has lost jurisdiction to proceed with the probate proceedings upon its issuance of an order allowing the will of Dr. Arturo de Santos2. Whether or not the Honorable (Regional Trial Court - Makati, Branch 65) acquired jurisdiction over the petition for issuance of letters testamentary filed by (private) respondent.3. Whether or not the petitioner, being a creditor of the late Dr. Arturo de Santos, has a right to intervene and oppose the petition for issuance of letters testamentary filed by the respondent.4. Whether or not (private) respondent is guilty of forum shopping in filing her petition for issuance of letters testamentary with the Regional Trial Court - Makati, Branch 65 knowing fully well that the probate proceedings involving the same testate estate of the decedent is still pending with the Regional Trial Court - Makati, Branch 61.

First. Petitioner contends that the probate proceedings in Branch 61 of RTC-Makati did not terminate upon the issuance of the order

24

allowing the will of Dr. De Santos. Citing the cases of Santiesteban v. Santiesteban[7] and Tagle v. Manalo,[8] he argues that the proceedings must continue until the estate is fully distributed to the lawful heirs, devisees, and legatees of the testator, pursuant to Rule 73, §1 of the Rules of Court. Consequently, petitioner contends that Branch 65 could not lawfully act upon private respondent’s petition for issuance of letters testamentary.The contention has no merit.In cases for the probate of wills, it is well-settled that the authority of the court is limited to ascertaining 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.[9]Ordinarily, probate proceedings are instituted only after the death of the testator, so much so that, after approving and allowing the will, the court proceeds to issue letters testamentary and settle the estate of the testator. The cases cited by petitioner are of such nature. In fact, in most jurisdictions, courts cannot entertain a petition for probate of the will of a living testator under the principle of ambulatory nature of wills.[10]However, Art. 838 of the Civil Code authorizes the filing of a petition for probate of the will filed by the testator himself. It provides:

Civil Code, Art. 838. No will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court.The testator himself may, during his lifetime, petition the court having jurisdiction for the allowance of his will. In such case, the pertinent provisions of the Rules of Court for the allowance of wills after the testator’s death shall govern. MisoThe Supreme Court shall formulate such additional Rules of Court as may be necessary for the allowance of wills on petition of the testator.Subject to the right of appeal, the allowance of the will, either during the lifetime of the testator or after his death, shall be conclusive as to its due execution.

Rule 76, §1 likewise provides:Sec. 1 Who may petition for the allowance of will. - Any executor, devisee, or legatee named in a will, or any other person interested in the estate, may, at any time after the death of the testator, petition the court having jurisdiction to have the will allowed, whether the same be in his possession or not, or is lost or destroyed.The testator himself may, during his lifetime, petition in the court for the allowance of his will.

The rationale for allowing the probate of wills during the lifetime of testator has been explained by the Code Commission thus:

Most of the cases that reach the courts involve either the testamentary capacity of the testator or the formalities adopted in the execution of wills. There are relatively few cases concerning the intrinsic validity of testamentary dispositions. It is far easier for the courts to determine the mental condition of a testator during his lifetime than after his death. Fraud, intimidation and undue influence are minimized. Furthermore, if a will does not comply with the requirements prescribed by law, the same may be corrected at once. The probate during the testator’s life, therefore, will lessen the number of contest upon wills. Once a will is probated during the lifetime of the testator, the only questions that may remain for the courts to decide after the testator’s death will refer to the intrinsic validity of the testamentary dispositions. It is possible, of course, that even when the testator himself asks for the allowance of the will, he may be acting under duress or undue influence, but these are rare cases.After a will has been probated during the lifetime of the testator, it does not necessarily mean that he cannot alter or revoke the same before his death. Should he make a new will, it would also be allowable on his petition, and if he should die before he has had a chance to present such petition, the ordinary probate proceeding after the testator’s death would be in order.[11]

Thus, after the allowance of the will of Dr. De Santos on February 16, 1996, there was nothing else for Branch 61 to do except to issue a certificate of allowance of the will pursuant to Rule 73, §12 of the Rules of Court. There is, therefore, no basis for the ruling of Judge Abad Santos of Branch 65 of RTC-Makati that -Nexâ old

Branch 61 of the Regional Trial Court of Makati having begun the probate proceedings of the estate of the deceased, it continues and shall continue to exercise said jurisdiction to the exclusion of all others. It should be noted that probate proceedings do not cease upon the allowance or disallowance of a will but continues up to such time that the entire estate of the testator had been partitioned and distributed.The fact that the will was allowed during the lifetime of the testator meant merely that the partition and distribution of the estate was to be suspended until the latter’s death. In other words, the petitioner, instead of filing a new petition for the issuance of letters testamentary, should have simply filed a manifestation for the same purpose in the probate court.[12]

Petitioner, who defends the order of Branch 65 allowing him to intervene, cites Rule 73, §1 which states:

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 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.

The above rule, however, actually provides for the venue of actions for the settlement of the estate of deceased persons. In Garcia Fule v. Court of Appeals, it was held:[13]

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 state," is in reality a matter of venue, as the caption of the Rule indicates: "Settlement of Estate of Deceased Persons. Venue and Processes." 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 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.

Indeed, the jurisdiction over probate proceedings and settlement of estates with approximate value of over P100,000.00 (outside Metro Manila) or P200,000.00 (in Metro Manila) belongs to the regional trial courts under B.P. Blg. 129, as amended. The different branches comprising each court in one judicial region do not possess jurisdictions independent of and incompatible with each other.[14]It is noteworthy that, although Rule 73, §1 applies insofar as the venue of the petition for probate of the will of Dr. De Santos is concerned, it does not bar other branches of the same court from taking cognizance of the settlement of the estate of the testator after his death. As held in the leading case of Bacalso v. Ramolote:[15]

The various branches of the Court of First Instance of Cebu under the Fourteenth Judicial District, are a coordinate and co-equal courts, and the totality of which is only one Court of First Instance. The jurisdiction is vested in the court, not in the judges. And when a case is filed in one branch, jurisdiction over the case does not attach to the branch or judge alone, to the exclusion of the other branches. Trial may be held or proceedings continue by and before another branch or judge. It is for this reason that Section 57 of the Judiciary Act expressly grants to the Secretary of Justice, the administrative right or power to apportion the cases among the different branches, both for the convenience of the parties and for the coordination of the work by the different branches of the same court. The apportionment and distribution of cases does not involve a grant or limitation of jurisdiction, the jurisdiction attaches and continues to be vested in the Court of First Instance of the province, and the trials may be held by any branch or judge of the court.

Necessarily, therefore, Branch 65 of the RTC of Makati City has jurisdiction over Sp. Proc. No. M-4343.Second. Petitioner claims the right to intervene in and oppose the petition for issuance of letters testamentary filed by private respondent. He argues that, as the nearest next of kin and creditor of the testator, his interest in the matter is material and direct. In ruling that petitioner has no right to intervene in the proceedings before Branch 65 of RTC-Makati City, the Court of Appeals held:

The private respondent herein is not an heir or legatee under the will of the decedent Arturo de Santos. Neither is he a compulsory heir of the latter. As the only and nearest collateral relative of the decedent, he can inherit from the latter only in case of intestacy. Since the decedent has left a will which has already been probated and disposes of all his properties the private respondent can inherit only if the said will is annulled.

25

His interest in the decedent’s estate is, therefore, not direct or immediate. Maniksâ His claim to being a creditor of the estate is a belated one, having been raised for the first time only in his reply to the opposition to his motion to intervene, and, as far as the records show, not supported by evidence.. . . . [T]he opposition must come from one with a direct interest in the estate or the will, and the private respondent has none. Moreover, the ground cited in the private respondent’s opposition, that the petitioner has deliberately misdeclared the truth worth and value of the estate, is not relevant to the question of her competency to act as executor. Section 2, Rule 76 of the Rules of Court requires only an allegation of the probable value and character of the property of the estate. The true value can be determined later on in the course of the settlement of the estate.[16]

Rule 79, §1 provides:Opposition to issuance of letters testamentary. Simultaneous petition for administration. - Any person interested in a will may state in writing the grounds why letters testamentary should not issue to the persons named therein as executors, or any of them, and the court, after hearing upon notice, shall pass upon the sufficiency of such grounds. A petition may, at the same time, be filed for letters of administration with the will annexed.

Under this provision, it has been held that an "interested person" is 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, and whose interest is material and direct, not merely incidental or contingent.[17]Even if petitioner is the nearest next of kin of Dr. De Santos, he cannot be considered an "heir" of the testator. It is a fundamental rule of testamentary succession that one who has no compulsory or forced heirs may dispose of his entire estate by will. Thus, Art. 842 of the Civil Code provides:

One who has no compulsory heirs may dispose by will of all his estate or any part of it in favor of any person having capacity to succeed. Manikanä One who has compulsory heirs may dispose of his estate provided he does not contravene the provisions of this Code with regard to the legitimate of said heirs.

Compulsory heirs are limited to the testator’s -(1) Legitimate children and descendants, with respect to their legitimate parents and ascendants;(2) In default of the foregoing, legitimate parents and ascendants, with respect to their legitimate children and descendants;(3) The widow or widower;(4) Acknowledged natural children, and natural children by legal fiction;(5) Other illegitimate children referred to in Article 287 of the Civil Code.[18]

Petitioner, as nephew of the testator, is not a compulsory heir who may have been preterited in the testator’s will.Nor does he have any right to intervene in the settlement proceedings based on his allegation that he is a creditor of the deceased. Since the testator instituted or named an executor in his will, it is incumbent upon the Court to respect the desires of the testator. As we stated in Ozaeta v. Pecson:[19]

The choice of his executor is a precious prerogative of a testator, a necessary concomitant of his right to dispose of his property in the manner he wishes. It is natural that the testator should desire to appoint one of his confidence, one who can be trusted to carry out his wishes in the disposal of his estate. The curtailment of this right may be considered a curtailment of the right to dispose.

Only if the appointed executor is incompetent, refuses the trust, or fails to give bond may the court appoint other persons to administer the estate.[20] None of these circumstances is present in this case.Third. Petitioner contends that private respondent is guilty of forum shopping when she filed the petition for issuance of letters testamentary (Sp. Proc. No. M-4343) while the probate proceedings (Sp. Proc. No. M-4223) were still pending. According to petitioner, there is identity of parties, rights asserted, and reliefs prayed for in the two actions which are founded on the same facts, and a judgment in either will result in res judicata in the other.This contention has no merit. As stated earlier, the petition for probate was filed by Dr. De Santos, the testator, solely for the purpose of authenticating his will. Upon the allowance of his will, the proceedings were terminated. Oldmisâ oOn the other hand, the petition for issuance of letters testamentary was filed by private respondent, as executor of the estate of Dr. De Santos, for the purpose of securing authority from the Court to administer the estate and put into effect the will of the testator. The estate settlement proceedings commenced by the filing of the petition terminates upon the distribution and delivery of the legacies and devises to the persons named in the will. Clearly, there is no identity between the two petitions, nor was the latter filed during the pendency of the former. There was, consequently, no forum shopping.WHEREFORE, the petition is DENIED and the decisions of the Court of Appeals are hereby AFFIRMED. SO ORDERED.__________________________________________________

SPOUSES RICARDO PASCUAL and CONSOLACION SIOSON, petitioners, vs. COURT OF APPEALS and REMEDIOS S. EUGENIO-GINO, respondents.

The CaseThis is a petition for review of the Decision[1] dated 31 January 1994 of the Court of Appeals ordering the Register of Deeds of Metro Manila, District III, to place TCT No. (232252) 1321 in the name of respondent Remedios S. Eugenio-Gino. The Decision ordered the Register of Deeds to cancel the names of petitioners Ricardo Pascual and Consolacion Sioson (“petitioners”) in TCT No. (232252) 1321. The Decision also directed petitioners to pay respondent moral and exemplary damages and attorney’s fees.The FactsPetitioner Consolacion Sioson (“CONSOLACION”) and respondent Remedios S. Eugenio-Gino (“REMEDIOS”) are the niece and granddaughter, respectively, of the late Canuto Sioson (“CANUTO”). CANUTO and 11 other individuals, including his sister Catalina Sioson (“CATALINA”) and his brother Victoriano Sioson (“VICTORIANO”), were co-owners of a parcel of land in Tanza, Navotas, Metro Manila. The property, known as Lot 2 of Plan Psu 13245, had an area of 9,347 square meters and was covered by Original Certificate of Title No. 4207 issued by the Register of Deeds of Rizal. CATALINA, CANUTO, and VICTORIANO each owned an aliquot 10/70 share or 1,335 square meters of Lot 2. [2]On 20 November 1951, CANUTO had Lot 2 surveyed and subdivided into eight lots (Lot Nos. 2-A to 2-H) through Subdivision Plan Psd 34713 which the Director of Lands approved on 30 May 1952. Lot No. 2-A, with an area of 670 square meters, and Lot No. 2-E, with an area of 2,000 square meters, were placed under CANUTO’s name. Three other individuals took the remaining lots.[3]On 26 September 1956, CANUTO and CONSOLACION executed a Kasulatan ng Bilihang Tuluyan[4] (“KASULATAN”). Under the KASULATAN, CANUTO sold his 10/70 share in Lot 2 in favor of CONSOLACION for P2,250.00. The KASULATAN, notarized by Notary Public Jose T. de los Santos of Navotas, provides:Na ako, CANUTO SIOSON, mamamayang Pilipino, may katampatang gulang, kasal kay Raymunda San Diego, at naninirahan sa Tanza, Navotas, Rizal, sa bisa at pamamagitan ng kasulatang ito ay nagpapatunay at nagpapatibay:1. Na ako ang lubos at tunay na may-ari ng 10/70 bahaging hindi

hati (10/70 porcion pro-indiviso) ng isang lagay na lupa (Lote No. 2, Plano Psu-13245), na nasa sa nayon ng Tanza, Municipio ng Navotas, Provincia ng Rizal, at ang descripcion o pagkakakilanlan ng nasabing lote ay nakasaad sa Certificado Original, de Titulo No. 4207 ng Oficina ng Registrador de Titulos ng Rizal, gaya ng sumusunod:

x x x x2. Na dahil at alang-alang sa halagang Dalawang Libo Dalawang

Daan at Limampung Piso (P2,250.00), salaping Pilipino, na sa akin ay ibinayad ni CONSOLACION SIOSON, kasal kay Ricardo S. Pascual, may sapat na gulang, mamamayang Pilipino, at naninirahan sa Dampalit, Malabon, Rizal at ang pagkakatanggap ng nasabing halaga ay aking inaamin at pinatutunayan, ay aking ipinagbili, inilipat at isinalin, sa pamamagitan ng bilihang tuluyan at walang pasubali a favor [sic] sa nasabing si CONSOLACION SIOSON, sa kanyang tagapagmana at mapaglilipatan ang lahat ng aking titulo, karapatan at kaparti na binubuo ng 10/70 bahaging hindi hati (10/70 porcion pro-indiviso) ng loteng descrito or tinutukoy sa itaas nito.

CONSOLACION immediately took possession of Lot Nos. 2-A and 2-E. She later declared the land for taxation purposes and paid the corresponding real estate taxes.[5]On 23 October 1968, the surviving children of CANUTO, namely, Felicidad and Beatriz, executed a joint affidavit[6] (“JOINT AFFIDAVIT”) affirming the KASULATAN in favor of CONSOLACION. They also attested that the lots their father had sold to CONSOLACION were Lot Nos. 2-A and 2-E of Subdivision Plan Psd 34713. The JOINT AFFIDAVIT reads:KAMING sina FELICIDAD SIOSON at BEATRIZ SIOSON, pawang mga Pilipino, kapuwa may sapat na gulang at naninirahan, ang una sa Tanza, Navotas at ang ikalawa sa Concepcion, Malabon, lalawigan ng Rizal, sa ilalim ng isang ganap na panunumpa alinsunod sa batas, ay malayang nagsasalaysay ng mga sumusunod:Na kami ang mga buhay na anak na naiwan ni CANUTO SIOSON na nagmamay-ari ng 10/70 bahaging hindi hati (10/70 porcion pro-indiviso) ng isang lagay na lupa (Lote No. 2, plano Psu-13245), na nasa Nayon ng Tanza, Navotas, Rizal, at ang mga palatandaan nito ay nasasaad sa Certificado Original de Titulo No. 4207 ng Tanggapan ng Registrador de Titulos ng Rizal;Na sa lubos naming kaalaman, ay ipinagbili ng aming Ama na si Canuto Sioson ang kaniyang buong bahagi na 10/70 sa nasabing Lote No. 2, kay CONSOLACION SIOSON, may-bahay ni Ricardo S. Pascual, na taga Dampalit, Malabon, Rizal, sa halagang P2,250.00, salaping pilipino, noong ika 16 [sic] ng Septiembre, 1956, sa pamamagitan ng isang KASULATAN NG BILIHANG TULUYAN na pinagtibay sa harap ng Notario Publico Jose T. de los Santos nang pechang nabanggit, sa Navotas, Rizal, (Doc. No. 194, Page No. 84; Book No. IV; Series of 1956);Na ang nasabing lupa na ipinagbili ng aming Ama kay Consolacion Sioson ni Pascual, ay nakikilala ngayong mga Lote No. 2-A at Lote

26

2-E ng Plano de Subdivision Psd-34713; na pinagtibay ng Assistant Director of Lands noong Mayo 30, 1952;Na aming ngayong pinatitibayan ang pagka-pagbili ng bahagi ng aming Ama kay Consolacion Sioson ni Pascual ng ngayo’y nakikilalang Lote No. 2-A at Lote No. 2-E ng Plano de Subdivision Psd-34713. (Emphasis supplied)On 28 October 1968, CONSOLACION registered the KASULATAN and the JOINT AFFIDAVIT with the Office of the Register of Deeds of Rizal (“Register of Deeds”). Based on these documents, the Register of Deeds issued to CONSOLACION Transfer Certificate of Title No. (232252) 1321 covering Lot Nos. 2-A and 2-E of Subdivision Plan Psd 34713 with a total area of 2,670 square meters.On 4 February 1988, REMEDIOS filed a complaint against CONSOLACION and her spouse Ricardo Pascual in the Regional Trial Court of Malabon, Branch 165, for “Annulment or Cancellation of Transfer Certificate [of Title] and Damages.” REMEDIOS claimed that she is the owner of Lot Nos. 2-A and 2-E because CATALINA devised these lots to her in CATALINA’s last will and testament[7] (“LAST WILL”) dated 29 May 1964. REMEDIOS added that CONSOLACION obtained title to these lots through fraudulent means since the area covered by TCT (232252) 1321 is twice the size of CANUTO’s share in Lot 2. REMEDIOS prayed for the cancellation of CONSOLACION’s title, the issuance of another title in her name, and the payment to her of damages.Petitioners sought to dismiss the complaint on the ground of prescription. Petitioners claimed that the basis of the action is fraud, and REMEDIOS should have filed the action within four years from the registration of CONSOLACION’s title on 28 October 1968 and not some 19 years later on 4 February 1988. REMEDIOS opposed the motion, claiming that she became aware of CONSOLACION’s adverse title only in February 1987. CONSOLACION maintained that she had timely filed her complaint within the four-year prescriptive on 4 February 1988. In its order of 28 April 1988, the trial court denied petitioners’ motion to dismiss. The trial court held that the reckoning of the prescriptive period for filing REMEDIOS’ complaint is evidentiary in nature and must await the presentation of the parties’ evidence during the trial. During the pre-trial stage, REMEDIOS clarified that she was claiming only CATALINA’s 10/70 share in Lot 2, or 1,335 square meters, which constitute ½ of the area of Lot Nos. 2-A and 2-E.[8] The trial of the case then ensued.The Ruling of the Trial CourtOn 26 November 1990, the trial court rendered judgment dismissing the case and ordering REMEDIOS to pay petitioners P10,000 as attorney’s fees and the cost of suit. The trial court held that the action filed by REMEDIOS is based on fraud, covered by the four-year prescriptive period. The trial court also held that REMEDIOS knew of petitioners’ adverse title on 19 November 1982 when REMEDIOS testified against petitioners in an ejectment suit petitioners had filed against their tenants in Lot Nos. 2-A and 2-E. Thus, the complaint of REMEDIOS had already prescribed when she filed it on 4 February 1988. The trial court further ruled that REMEDIOS has no right of action against petitioners because CATALINA’s LAST WILL from which REMEDIOS claims to derive her title has not been admitted to probate. Under Article 838 of the Civil Code, no will passes real or personal property unless it is allowed in probate in accordance with the Rules of Court. The dispositive portion of the trial court’s decision provides:WHEREFORE, judgment is hereby rendered in favor of the defendants and against plaintiff, ordering:1. The dismissal of this case;2. The plaintiff to pay the defendants the sum of Ten

Thousand (P10,000.00) Pesos as and for attorney’s fees; and

3. The plaintiff to pay the costs of suit.[9]REMEDIOS appealed to the Court of Appeals.The Ruling of the Court of AppealsOn 31 January 1994, the Court of Appeals rendered judgment reversing the decision of the trial court. The appellate court held that what REMEDIOS filed was a suit to enforce an implied trust allegedly created in her favor when CONSOLACION fraudulently registered her title over Lot Nos. 2-A and 2-E. Consequently, the prescriptive period for filing the complaint is ten years, not four. The Court of Appeals counted this ten-year period from 19 November 1982. Thus, when REMEDIOS filed her complaint on 4 February 1988, the ten-year prescriptive period had not yet expired. The appellate court held that CATALINA’s unprobated LAST WILL does not preclude REMEDIOS from seeking reconveyance of Lot Nos. 2-A and 2-E as the LAST WILL may subsequently be admitted to probate. The dispositive portion of the appellate court’s ruling provides:WHEREFORE, the decision appealed from is REVERSED and SET ASIDE. The Registry of Deeds of Rizal or Metro Manila, District III, is ordered to place Transfer Certificate of Title No. (232252) 1321 under the name of Remedios S. Eugenio-Gino as executor of the will of Catalina Sioson and cancel the names of the Spouses Ricardo Pascual and Consolacion Sioson inscribed over said title as owners of the covered lot. Defendants-appellees spouses Ricardo Pascual and Consolacion Sioson are ordered to pay plaintiff-appellant Remedios S. Eugenio-Gino moral damages in the amount

of P50,000.00, exemplary damages of P20,000[.00] and attorney’s fees of P20,000.00 and P500.00 per appearance.[10]Petitioners sought reconsideration of the ruling. However, the Court of Appeals denied their motion in its order dated 15 June 1994.Hence, this petition.The IssuesPetitioners allege the following assignment of errors:

I. THE COURT OF APPEALS ERRED IN HOLDING THAT PRIVATE RESPONDENT’S CAUSE OF ACTION IS NOT BARRED BY PRESCRIPTION WHICH FINDING IS MANIFESTLY CONTRARY TO LAW AND THE APPLICABLE DECISIONS OF THIS HONORABLE COURT.

II. THE COURT OF APPEALS ERRED IN NOT HOLDING THAT PRIVATE RESPONDENT DOES NOT HAVE ANY TITLE AND HAS UTTERLY FAILED TO PROVE ANY TITLE TO THE LOTS INVOLVED IN THIS CASE, AND IN ORDERING THE CANCELLATION OF THE CERTIFICATE OF TITLE OF PETITIONERS.

III. THE COURT OF APPEALS ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION AND IN GROSS VIOLATION OF THE RULES OF COURT IN ORDERING THE ENTIRE PROPERTY COVERED BY TRANSFER CERTIFICATE OF TITLE NO. (232252) 1321 TO BE PLACED IN THE NAME OF PRIVATE RESPONDENT, BECAUSE THE CLAIM OF PRIVATE RESPONDENT IS LIMITED ONLY TO ONE-HALF (1/2) PORTION OF THE PROPERTY, AND THE OTHER HALF THEREOF UNQUESTIONABLY BELONGS TO PETITIONERS.

IV. THE COURT OF APPEALS ERRED IN HOLDING THAT PETITIONERS ACTED FRAUDULENTLY AND IN BAD FAITH IN SECURING THEIR CERTIFICATE OF TITLE TO THE PROPERTY INVOLVED IN THIS CASE, AND IN ORDERING PETITIONERS TO PAY PRIVATE RESPONDENTS MORAL DAMAGES, EXEMPLARY DAMAGES AND ATTORNEY’S FEES.

The pivotal questions are: (1) whether prescription bars the action filed by REMEDIOS, and (2) whether REMEDIOS is a real party-in-interest. The Ruling of the Court The petition has merit.The Action is Barred by PrescriptionThe trial court held that the action filed by REMEDIOS is one based on fraud. REMEDIOS’ action seeks to recover real property that petitioners allegedly acquired through fraud. Consequently, the trial court held that the action prescribes in four years counted from REMEDIOS’ actual discovery of petitioners’ adverse title. The trial court concluded that REMEDIOS belatedly filed her suit on 4 February 1988 because she actually knew of petitioners’ adverse title since 19 November 1982. On the other hand, the Court of Appeals held that what REMEDIOS filed was a suit to enforce an implied trust. REMEDIOS had ten years counted from actual notice of the breach of trust, that is, the assertion of adverse title, within which to bring her action. The appellate court held that REMEDIOS seasonably filed her complaint on 4 February 1988 because she allegedly discovered petitioners’ adverse title only on 19 November 1982.What REMEDIOS filed was an action to enforce an implied trust but the same is already barred by prescription.Prescriptive Period is 10 Years Counted From Registration of Adverse TitleThe four-year prescriptive period relied upon by the trial court applies only if the fraud does not give rise to an implied trust, and the action is to annul a voidable contract under Article 1390[12] of the Civil Code. In such a case, the four-year prescriptive period under Article 1391[13] begins to run from the time of discovery of the mistake, violence, intimidation, undue influence or fraud. In the present case, REMEDIOS does not seek to annul the KASULATAN. REMEDIOS does not assail the KASULATAN as a voidable contract. In fact, REMEDIOS admits the validity of the sale of 1,335 square meters of land under the KASULATAN. However, REMEDIOS alleges that the excess area of 1,335 meters is not part of the sale under the KASULATAN. REMEDIOS seeks the removal of this excess area from TCT No. (232252) 1321 that was issued to CONSOLACION. Consequently, REMEDIOS’ action is for “Annulment or Cancellation of Transfer Certificate [of Title] and Damages.”[14] REMEDIOS’ action is based on an implied trust under Article 1456 since she claims that the inclusion of the additional 1,335 square meters in TCT No. (232252) 1321 was without basis. In effect, REMEDIOS asserts that CONSOLACION acquired the additional 1,335 square meters through mistake or fraud and thus CONSOLACION should be considered a trustee of an implied trust for the benefit of the rightful owner of the property. Clearly, the applicable prescriptive period is ten years under Article 1144 and not four years under Articles 1389 and 1391. It is now well-settled that the prescriptive period to recover property obtained by fraud or mistake, giving rise to an implied trust under Article 1456[15] of the Civil Code, is ten years pursuant to Article 1144.[16] This ten-year prescriptive period begins to run from the date the adverse party repudiates the implied trust, which repudiation takes place when the adverse party registers the land.[17]REMEDIOS filed her complaint on 4 February 1988 or more than 19 years after CONSOLACION registered her title over Lot Nos. 2-A and 2-E on 28 October 1968. Unquestionably, REMEDIOS filed the

27

complaint late thus warranting its dismissal. As the Court recently declared in Spouses Alfredo v. Spouses Borras,[18] —Following Caro,[19] we have consistently held that an action for reconveyance based on an implied trust prescribes in ten years. We went further by specifying the reference point of the ten-year prescriptive period as the date of the registration of the deed or the issuance of the title.The Court of Appeals’ Reckoning of Prescriptive Period from Actual Noticeof Adverse Title Not JustifiedIn holding that the action filed by REMEDIOS has not prescribed, the Court of Appeals invoked this Court’s ruling in Adille v. Court of Appeals.[20] In Adille, the Court reckoned the ten-year prescriptive period for enforcing implied trusts not from registration of the adverse title but from actual notice of the adverse title by the cestui que trust. However, the Court, in justifying its deviation from the general rule, explained:[W]hile actions to enforce a constructive trust prescribes (sic) in ten years, reckoned from the date of the registration of the property, we x x x are not prepared to count the period from such date in this case. We note the petitioner’s sub rosa efforts to get hold of the property exclusively for himself beginning with his fraudulent misrepresentation in his unilateral affidavit of extrajudicial settlement that he is “the only heir and child of his mother Feliza[”] with the consequence that he was able to secure title in his name also. (Emphasis supplied)Such commission of specific fraudulent conduct is absent in the present case. Other than asserting that petitioners are guilty of fraud because they secured title to Lot Nos. 2-A and 2-E with an area twice bigger than what CANUTO allegedly sold to CONSOLACION, REMEDIOS did not present any other proof of petitioners’ fraudulent conduct akin to Adille. CONSOLACION obtained title to Lot Nos. 2-A and 2-E through the KASULATAN executed by CANUTO and the JOINT AFFIDAVIT executed by his surviving children, one of whom, Felicidad, is the mother of REMEDIOS. The KASULATAN referred to the sale of CANUTO’s 10/70 share in Lot 2 without specifying the area of the lot sold. The JOINT AFFIDAVIT referred to the “Plano de Subdivision Psd-34713” without also specifying the area of the lot sold. However, Subdivision Plan Psd 34713, as certified by the Assistant Director of Lands on 30 May 1952, showed an area of 2,670 square meters in the name of CANUTO. Based on these documents, the Register of Deeds issued TCT No. (232252) 1321 to CONSOLACION covering an area of 2,670 square meters. REMEDIOS does not assail the KASULATAN or the JOINT AFFIDAVIT as fictitious or forged. REMEDIOS even admits the authenticity of Subdivision Plan Psd 34713 as certified by the Assistant Director of Lands.[21] Moreover, REMEDIOS has not contested petitioners’ claim that CANUTO doubled his share in Lot 2 by acquiring VICTORIANO’s share.[22] Plainly, the increase in the area sold from 1,335 square meters to 2,670 square meters is a glaring mistake. There is, however, no proof whatsoever that this increase in area was the result of fraud. Allegations of fraud in actions to enforce implied trusts must be proved by clear and convincing evidence.[23] Adille, which is anchored on fraud,[24] cannot apply to the present case.At any rate, even if we apply Adille to this case, prescription still bars REMEDIOS’ complaint. As executrix of CATALINA’s LAST WILL, REMEDIOS submitted to the then Court of First Instance of Caloocan in Special Proceedings Case No. C-208 the inventory of all the property comprising CATALINA’s estate, which included Lot Nos. 2-A and 2-E. In a motion dated 7 November 1977, CONSOLACION sought the exclusion of these lots from the inventory, invoking her title over them. REMEDIOS was served a copy of the motion on 8 November 1977 against which she filed an opposition. Nevertheless, the trial court overruled REMEDIOS’ objection. In its order of 3 January 1978, the trial court granted CONSOLACION’s motion and ordered the exclusion of Lot Nos. 2-A and 2-E from the estate of CATALINA. REMEDIOS did not appeal from this ruling. REMEDIOS thus had actual notice of petitioners’ adverse title on 8 November 1977. Even if, for the sake of argument, the ten-year prescriptive period begins to run upon actual notice of the adverse title, still REMEDIOS’ right to file this suit has prescribed. REMEDIOS had until 11 November 1987 within which to file her complaint. When she did so on 4 February 1988, the prescriptive period had already lapsed.Respondent is Not a Real Party-in-InterestNot only does prescription bar REMEDIOS’ complaint. REMEDIOS is also not a real party-in-interest who can file the complaint, as the trial court correctly ruled.The 1997 Rules of Civil Procedure require that every action must be prosecuted or defended in the name of the real party-in-interest who is the party who stands to benefit or suffer from the judgment in the suit.[25] If one who is not a real party-in-interest brings the action, the suit is dismissible for lack of cause of action.[26]REMEDIOS anchored her claim over Lot Nos. 2-A and 2-E (or over its one-half portion) on the devise of these lots to her under CATALINA’s LAST WILL. However, the trial court found that the probate court did not issue any order admitting the LAST WILL to probate. REMEDIOS does not contest this finding. Indeed, during the trial, REMEDIOS admitted that Special Proceedings Case No. C-208 is still pending.[27] Article 838 of the Civil Code states that “[N]o will shall pass either real or personal property unless it is proved and allowed in

accordance with the Rules of Court.” This Court has interpreted this provision to mean, “until admitted to probate, [a will] has no effect whatever and no right can be claimed thereunder.”[28] REMEDIOS anchors her right in filing this suit on her being a devisee of CATALINA’s LAST WILL. However, since the probate court has not admitted CATALINA’s LAST WILL, REMEDIOS has not acquired any right under the LAST WILL. REMEDIOS is thus without any cause of action either to seek reconveyance of Lot Nos. 2-A and 2-E or to enforce an implied trust over these lots. The appellate court tried to go around this deficiency by ordering the reconveyance of Lot Nos. 2-A and 2-E to REMEDIOS in her capacity as executrix of CATALINA’s LAST WILL. This is inappropriate because REMEDIOS sued petitioners not in such capacity but as the alleged owner of the disputed lots. Thus, REMEDIOS alleged in her complaint:3. The plaintiff is a niece and compulsory heir of the late CATALINA SIOSON who died single and without any child of her own and who, during her lifetime, was the owner of those two (2) parcels of land located at Tanza, Navotas, Rizal (now Metro Manila), formerly covered by Original Certificate of Title No. 4207 of the Registry of Deeds for the Province of Rizal, x x x.4. The plaintiff, aside from being the compulsory heir of the deceased CATALINA SIOSON, has sole and exclusive claim of ownership over the above-mentioned two (2) parcels of land by virtue of a will or “Huling Habilin at Pagpapasiya” executed by Catalina Sioson on May 19, 1964 before Notary Public Efren Y. Angeles at Navotas, Rizal, in which document the deceased Catalina Sioson specifically and exclusively bequeathed to the plaintiff the above-mentioned Lots 2-A and 2-E of Psd-34713 approved by the Bureau of Lands on May 30, 1952. Copy of the “Huling Habilin at Pagpapasiya” consisting of four (4) pages is hereto attached and forms an integral part hereof as Annex “A;”5. Sometime on or about February, 1987, plaintiff discovered that the above-mentioned Lots 2-A and 2-E of subdivision plan Psd-34713 are now registered or titled in the name of the defendants under Transfer Certificate of Title No. (232252) 1321 of the Registry of Deeds of Rizal, now Metro-Manila District III. Copy of the title is hereto attached and forms an integral part hereof as Annex “B;”6. Upon further inquiry and investigation, plaintiff discovered that the defendants were able to obtain title in their name of the said parcels of land by virtue of a “Kasulatan ng Bilihang Tuluyan” allegedly executed by Canuto Sioson on September 26, 1956 before Notary Public Jose [T.] de los Santos of Navotas, Metro-Manila. Copy of the said document is hereto attached and forms an integral part hereof as Annex “C;”7. The plaintiff also discovered that although x x x the original sale did not specify the parcels of land sold by Canuto Sioson, the defendants submitted an alleged Affidavit executed by Felicidad Sioson and Beatriz Sioson identifying the lots sold by Canuto Sioson to the defendants as Lots 2-A and 2-E of subdivision plan Psd-34713. Copy of the Affidavit dated October 3, 1968 on the basis of which the present Transfer Certificate of Title No. (232252) 1321 was issued to the defendants is hereto attached and forms an integral part hereof as Annex “D;”8. The defendants are clearly guilty of fraud in presenting the aforementioned Affidavit (Annex “D”) to the Register of Deeds as the basis of their claim to Lots 2-A and 2-E in view of the fact that the parcels sold to them by Canuto Sioson, assuming there was such a sale, were different parcels of land, Lots 2-A and 2-E being the properties of the late Catalina Sioson who bequeathed the same to the plaintiff.

x x x x12. Because of the defendants’ fraudulent actuations on this matter, plaintiff suffered and continious [sic] to suffer moral damages arising from anxiety, shock and wounded feelings. Defendants should also be assessed exemplary damages by way of a lesson to deter them from again committing the fraudulent acts, or acts of similar nature, by virtue of which they were able to obtain title to the parcels of land involved in this case x x x.[29] (Emphasis supplied)Indeed, all throughout the proceedings below and even in her Comment to this petition, REMEDIOS continued to pursue her claim as the alleged owner of one-half of the disputed lots. Other Matters Raised in the PetitionThe Court deems it unnecessary to pass upon the other errors petitioners assigned concerning the award of damages and attorneys fees to REMEDIOS. Such award assumes that REMEDIOS is a real party-in-interest and that she timely filed her complaint. As earlier shown, this is not the case.WHEREFORE, we GRANT the petition. The Decision of the Court of Appeals dated 31 January 1994 and its Resolution dated 15 June 1994 are SET ASIDE. The complaint filed by respondent Remedios Eugenio-Gino, dated 2 February 1988 is DISMISSED. SO ORDERED.____________________________________________________________

CAROLINA CAMAYA, FERDINAND CAMAYA, EDGARDO CAMAYA and ANSELMO MANGULABNAN, petitioners vs. BERNARDO PATULANDONG, respondent.

Before this Court is a petition for review on certiorari under Rule 45 of the 1997 Revised Rules of Court seeking the reversal of the Court of Appeals Decision dated June 19, 2000 in CA-G.R. CV No. 53757, "In re: Petition for the Probate of the Codicil (Will) of Rufina

28

Reyes; Bernardo Patulandong v. Anselmo Mangulabnan v. Carolina G. Camaya, Ferdinand Camaya and Edgardo Camaya."On November 17, 1972, Rufina Reyes (testatrix) executed a notarized will wherein she devised, among others, Lot No. 288-A to her grandson Anselmo Mangulabnan (Mangulabnan). The pertinent portion of her will reads:IKALIMA. - Aking inihahayag at ginagawa na tagapagmana, sa aking kusang loob, ang pinalaki kong APO na si ANSELMO P. MANGULABNAN, may sapat na gulang, kasal kay Flora Umagap, at naninirahan sa San Lorenzo, Gapan, Nueva Ecija, at anak ng aking anak na si SIMPLICIA, at sa aking APO na si ANSELMO ay aking ipinagkakaloob at ipinamamana, sa aking pagkamatay, ang mga sumusunod kong pagaari:

LOT NO. TITLE NO. KINALALAGYAN NABANGGIT SA

288-A NT-47089 Sta. Cruz (1) p. 2

3348-A 100629 Poblacion (2) p. 2

3349-B 100630 Poblacion (3) p. 2

xxx1 (Underscoring in the original; emphasis supplied)The testatrix’s son Bernardo Patulandong (Patulandong), respondent herein, was in the will appointed as the executor.During her lifetime, the testatrix herself filed a petition for the probate of her will before the then Court of First Instance (CFI) of Nueva Ecija where it was docketed as Sp. Pro. No. 128.By Order2 of January 11, 1973, the CFI admitted the will to probate.On June 27, 1973, the testatrix executed a codicil modifying above-quoted paragraph five of her will in this wise:UNA. - Ang Lote No. 288-A na nakalagay sa barrio ng Sta. Cruz, Gapan, Nueva Ecija, magsukat 36,384 metro cuadrados, at nagtataglay ng TCT No. NT-47089, na aking ipinamana sa aking apong si ANSELMO P. MANGULABNAN, sangayon sa Pangkat IKA-LIMA, pp. 5-6, ng aking HULING HABILIN (Testamento), ay ipinasiya kong ipagkaloob at ipamana sa aking mga anak na sina BERNARDO, SIMPLICIA, GUILLERMA at JUAN nagaapellidong PATULANDONG, at sa aking apong si ANSELMO P. MANGULABNAN, sa magkakaparehong bahagi na tig-ikalimang bahagi bawat isa sa kanila.IKALAWA. - Na maliban sa pagbabagong ito, ang lahat ng mga tadhana ng aking HULING HABILIN ay aking pinagtitibay na muli.x x x3 (Underscoring in the original; emphasis supplied) On May 14, 1988, the testatrix died.Mangulabnan later sought the delivery to him by executor Patulandong of the title to Lot 288-A. Patulandong refused to heed the request, however, in view of the codicil which modified the testator’s will.Mangulabnan thus filed an "action for partition" against Patulandong with the Regional Trial Court of Gapan, Nueva Ecija, docketed as Civil Case No. 552 (the partition case).On June 8, 1989, the trial court rendered a decision in the partition case,4 the dispositive portion of which reads:WHEREFORE, the court orders the partitioning of the properties and the defendant to deliver the copy of the Transfer Certificate of Title No. NT-47089.However, in view of the case cited by the plaintiff himself, the court holds that the partition is without prejudice [to]... the probate of the codicil in accordance with the Rules of Court, [P]alacios vs. Catimbang Palacios cited by the plaintiff:"After a will has been probated during the lifetime of the testator, it does not necessarily mean that he cannot alter or revoke the same before his death. Should he make a new will, it would also be allowable of his petition and if he should die before he had a chance to present such petition, the ordinary probate proceedings after the testator’s death would be in order."The Court also orders that the right of the tenants of the agricultural land in question should be protected meaning to say that the tenants should not be ejected. (Emphasis and underscoring supplied)On July 17, 1989 Patulandong filed before the Regional Trial Court of Nueva Ecija a petition5 for probate of the codicil of the testatrix, docketed as Sp. Proc. No. 218.On December 28, 1989, the probate court issued an Order6 setting the petition for hearing and ordering the publication of said order.On February 7, 1991, by virtue of the decision in the partition case, Mangulabnan caused the cancellation of the title of the testatrix over Lot No. 288-A and TCT No. NT-2157507 was issued in his name.Mangulabnan later sold to herein petitioners Camayas Lot No. 288-A by a Deed of Sale dated February 19, 1991.8 TCT No. NT-215750 was thus cancelled and TCT No. NT-2164469 was issued in the name of the Camayas.On January 16, 1996, the trial rendered a decision10 in Sp. Proc. No. 218 admitting the codicil to probate and disposing as follows:WHEREFORE, in view of all the foregoing, judgment is hereby rendered in the following manner:

1. Declaring Transfer Certificate of Title No. NT-215750 issued by the Register of Deeds of Nueva Ecija in the name of Anselmo Mangulabnan dated February 7, 1991 and the Deed of Absolute Sale executed by him in favor of the intervenors Carolina, Ferdinand and Edgardo, all surnamed Camaya on February 19, 1991 and Transfer

Certificate of Title No. NT-216446 under date March 18, 1991 issued in the names of the above-named intervenors as NULL and VOID and of no force and effect; and,2. Ordering the Register of Deeds of Nueva Ecija to cancel Transfer of Certificate of Title Nos. NT-215750 and NT-216446 and reissue the corresponding Certificate of Titles to Bernardo R. Patulandong, Filipino, married to Gorgonia Mariano residing at San Vicente, Gapan, Nueva Ecija, Juan R. Patulandong, Filipino, widower and residing at San Lorenzo, Gapan, Nueva Ecija; Guillerma R. Patulandong Linsangan of legal age, Filipino, widow and residing at San Vicente, Gapan, Nueva Ecija, Simplicia R. Patulandong Mangulabnan, of legal age, widow, and residing at San Lorenzo, Gapan, Nueva Ecija and her grandson, Anselmo Mangulabnan with full personal circumstances stated herein to the extent of one fifth (1/5) each pursuant to the approved codicil (will) of Rufina Reyes dated June 27, 1973.11

The Camayas who had been allowed to intervene in Sp. Proc. No. 218, and Mangulabnan, filed a Motion for Reconsideration of the above-said decision but it was denied by Order12 of February 28,1996.On appeal to the Court of Appeals, the Camayas and Mangulabnan (hereinafter referred to as petitioners) raised the following errors:

1. THERE WERE SERIOUS SUBSTANTIAL DEPARTURES FROM THE FORMALITIES REQUIRED BY THE RULES, THE LAW, AND THE AUTHORITY OF THE REGIONAL TRIAL COURT SETTING AS A PROBATE COURT.2. THE OPPOSITOR DID NOT ONLY ACQUIRE LOT NO. 288-A BY WILL BUT HE ALSO ACQUIRED THE SAME BY PARTITION IN A CIVIL CASE WHERE THE DECISION HAS ALREADY REACHED ITS FINALITY AND THEREFORE CAN NO LONGER BE NEGATED BY A QUESTIONABLE CODICIL.3. THAT THE SUBJECT LOT 288-A IS NO LONGER WITHIN THE REACHED (sic) OF THE PETITIONER CONSIDERING THAT THE OPPOSITOR VENDOR HAD A CLEAN TITLE AND THAT THE INTERVENORS-VENDEED HAD ACQUIRED THE SAME BY WAY OF SALE AS INNOCENT PURCHASER IN GOOD FAITH AND FOR VALUE.

By Decision14 of June 19, 2000, the Court of Appeals affirmed that of the trial court.Hence, the present petition for Review on Certiorari proffering the following issues:

1. Whether the probate court exceeded its jurisdiction when it declared null and void and ordered the cancellation of the TCTs of petitioners and the deed of sale; and2. Whether the final judgment in Civil Case No. 552 bars the allowance of the codicil.

As to the first issue, petitioners contend that the under the law, the probate court has no power, authority, and jurisdiction to declare null and void the sale and titles of petitioners;15 and that the probate court can only resolve the following issues:

1. Whether or not the instrument which is offered for probate is the last will and testament of the decedent; in other words, the question is one of identity[;]2. Whether or not the will has been executed in accordance with the formalities prescribed by law; in other words, the question is one of due execution[; and]3. Whether the testator had testamentary capacity at the time of the execution of the will; in other words, the question is one of capacity.16

In Cuizon v. Ramolete, 17 this Court elucidated on the limited jurisdiction of a probate court, to wit:It is well-settled rule that a probate court or one in charge of proceedings whether testate or intestate cannot adjudicate or determine title to properties claimed to be a part of the estate and which are equally claimed to belong to outside parties. All that said court could do as regards said properties is to 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 no dispute, well and good; but if there is, then the parties, the administrator, and the opposing parties have to resort to an ordinary action for a final determination of the conflicting claims of title because the probate court cannot do so.

x x xHaving been apprised of the fact that the property in question was in the possession of third parties and more important, covered by a transfer certificate of title issued in the name of such third parties, the respondent court should have denied the motion of the respondent administrator and excluded the property in question from the inventory of the property of the estate. It had no authority to deprive such third persons of their possession and ownership of the property. Following Cuizon, the probate court exceeded its jurisdiction when it further declared the deed of sale and the titles of petitioners null and void, it having had the effect of depriving them possession and ownership of the property.Moreover, following Section 48 of the Property Registry Decree which reads:SECTION 48. Certificate not subject to collateral attack. - A certificate of title shall not be subject to collateral attack. It cannot be altered, modified, or cancelled except in a direct proceeding in accordance with law,

29

petitioners’ titles cannot, under probate proceedings, be declared null and void.As to the second issue, petitioners argue that by allowing the codicil to probate, it in effect amended the final judgment in the partition case which is not allowed by law;18 and that petitioner Camayas are innocent purchasers for value and enjoy the legal presumption that the transfer was lawful.19

Petitioners’ first argument does not persuade.Though the judgment in the partition case had become final and executory as it was not appealed, it specifically provided in its dispositive portion that the decision was "without prejudice [to] ... the probate of the codicil." The rights of the prevailing parties in said case were thus subject to the outcome of the probate of the codicil.The probate court being bereft of authority to rule upon the validity of petitioners’ titles, there is no longer any necessity to dwell on the merits of petitioners Camayas’ claim that they are innocent purchasers for value and enjoy the legal presumption that the transfer was lawful.WHEREFORE, the petition is GRANTED IN PART.The Decision of the Court of Appeals dated June 19, 2000 in CA-G.R. CV No. 53757 affirming the January 16, 1996 Decision of Regional Trial Court, Branch 35, of Gapan, Nueva Ecija, is hereby AFFIRMED with MODIFICATION.The decision allowing the codicil is AFFIRMED, but the 1) declaration as null and void of Transfer Certificate of Title No. NT-215750 issued on February 7, 1991 by the Register of Deeds of Nueva Ecija in the name of Anselmo Mangulabnan, the February 19, 1991 Deed of Absolute Sale executed by him in favor of the intervenors - herein petitioners Carolina, Ferdinand and Edgardo Camaya, and Transfer Certificate of Title No. NT-216446 issued on March 18, 1991 in favor of the petitioners Camayas, and 2) the order for the Register of Deeds of Nueva Ecija to cancel Transfer of Certificate of Title Nos. NT-215750 and NT-216446 and reissue the corresponding Certificate of Titles to Bernardo R. Patulandong, Juan R. Patulandong, Guillerma R. Patulandong Linsangan, Simplicia R. Patulandong Mangulabnan, and Anselmo Mangulabnan to the extent of one-fifth (1/5) each pursuant to the approved codicil are SET ASIDE, without prejudice to respondent and his co-heirs’ ventilation of their right in an appropriate action.SO ORDERED.