FIRST DIVISION [G.R. No. 115925. August 15, 2003.

] SPOUSES RICARDO PASCUAL and CONSOLACION SIOSON, petitioners, vs. COURT OF APPEALS and REMEDIOS S. EUGENIO-GINO, respondents. Delos Santos Delos Santos & Delos Santos for petitioners. Virgilio C. Manguera & Associates for private respondent. SYNOPSIS Petitioner Consolacion Sioson and respondent Remedios S. Eugenio-Gino are the niece and granddaughter, respectively, of the late Canuto Sioson. Canuto and 11 other individuals, including his sister Catalina Sioson and his brother Victoriano Sioson, were co-owners of a parcel of land in Tanza, Navotas, Metro Manila known as Lot 2 of Plan Psu 13245, which 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. On September 26, 1956, Canuto and Consolacion allegedly executed a Kasulatan ng Bilihang Tuluyan wherein Canuto sold his 10/70 share in Lot 2 in favor of Consolacion. 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. On February 4, 1988, respondent Remedios S. Eugenio-Gino 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 her aunt Catalina Sioson devised the lots to her in her last will and testament. Consolation and her spouse 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 February 4, 1988. The trial court denied the motion to dismiss. Eventually, the trial court rendered judgment dismissing the case. On appeal, the appellate court reversed the decision of the trial court. Petitioners filed a petition before the Court questioning the Court of Appeals' ruling. aSHAIC The Supreme Court ruled in favor of petitioners and granted the petition. According to the Court, the prescriptive period to recover property obtained by fraud or mistake, giving rise to an implied trust under Article 1144. 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, she 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. The 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. Remedios filed her complaint on February 4, 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 complaint late warranting its dismissal. TAaHIE SYLLABUS 1. CIVIL LAW; PRESCRIPTION OF ACTIONS; PRESENT ACTION IS BARRED BY PRESCRIPTION; THE PRESCRIPTIVE PERIOD TO RECOVER PROPERTY OBTAINED BY FRAUD OR MISTAKE GIVING RISE TO AN IMPLIED TRUST UNDER ARTICLE 1456 OF THE CIVIL CODE IS TEN YEARS. 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 of the Civil Code, is ten years pursuant to Article 1144. 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. 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 complaint late thus warranting its dismissal. As the Court recently declared in Spouses Alfredo v. Spouses Borras, Following Caro, 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. DTEHIA 2. ID.; ID.; ID.; ID.; THE COURT'S RULING IN ADDILLE VS. COURT OF APPEALS WHICH IS ANCHORED ON FRAUD IS NOT APPLICABLE IN CASE AT BAR. In 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. 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 . . . 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. 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. 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. Moreover, REMEDIOS has not contested petitioners' claim that CANUTO doubled his share in Lot 2 by acquiring VICTORIANO's share. 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. Adille, which is anchored on fraud, cannot apply to the present case. IADaSE 3. ID.; ID.; ID.; ID.; ASSUMING THAT THE TEN-YEAR PRESCRIPTIVE PERIOD BEGINS TO RUN ONLY UPON ACTUAL NOTICE OF THE ADVERSE TITLE APPLYING THE RULING IN ADILLE VS. COURT OF APPEALS, STILL RESPONDENT'S RIGHT TO FILE THE SUIT IS BARRED BY PRESCRIPTION. 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. ScaATD

4. REMEDIAL LAW; CIVIL PROCEDURE; PARTIES TO CIVIL ACTION; RESPONDENT IS NOT A REAL PARTY-IN-INTEREST. Not 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. If one who is not a real party-in-interest brings the action, the suit is dismissible for lack of cause of action. 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. 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." 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. EicSTD SECOND DIVISION [G.R. No. 149926. February 23, 2005.] UNION BANK OF THE PHILIPPINES, petitioner, vs. EDMUND SANTIBAEZ and FLORENCE SANTIBAEZ ARIOLA, respondents. Macalino & Associates for petitioner. Roberto Cal Catolico for respondents. SYLLABUS 1. REMEDIAL LAW; CIVIL PROCEDURE; JURISDICTION; JURISDICTION OF A PROBATE COURT. [W]ell-settled is the rule that a probate court has the jurisdiction to determine all the properties of the deceased, to determine whether they should or should not be included in the inventory or list of properties to be administered. The said court is primarily concerned with the administration, liquidation and distribution of the estate. 2. CIVIL LAW; WILLS AND SUCCESSION; TESTATE SUCCESSION; IN TESTATE SUCCESSION, THERE CAN BE NO VALID PARTITION AMONG THE HEIRS UNTIL THE WILL HAS BEEN PROBATED. "In testate succession, there can be no valid partition among the heirs until after the will has been probated. The law enjoins the probate of a will and the public requires it, because unless a 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. The authentication of a will decides no other question than such as touch upon the capacity of the testator and the compliance with those requirements or solemnities which the law prescribes for the validity of a will." 3. REMEDIAL LAW; SPECIAL PROCEEDINGS; CLAIMS AGAINST ESTATE; FILING OF A MONEY CLAIM AGAINST THE DECEDENT'S ESTATE IN THE PROBATE COURT IS MANDATORY IN CASE AT BAR. Perusing the joint agreement, it provides that the heirs as parties thereto "have agreed to divide between themselves and take possession and use the above-described chattel and each of them to assume the indebtedness corresponding to the chattel taken as herein after stated which is in favor of First Countryside Credit Corp." The assumption of liability was conditioned upon the happening of an event, that is, that each heir shall take possession and use of their respective share under the agreement. It was made dependent on the validity of the partition, and that they were to assume the indebtedness corresponding to the chattel that they were each to receive. The partition being invalid as earlier discussed, the heirs in effect did not receive any such tractor. It follows then that the

assumption of liability cannot be given any force and effect. The Court notes that the loan was contracted by the decedent. The petitioner, purportedly a creditor of the late Efraim Santibaez, should have thus filed its money claim with the probate court in accordance with Section 5, Rule 86 of the Revised Rules of Court . . . . The filing of a money claim against the decedent's estate in the probate court is mandatory. CEITCA FIRST DIVISION [G.R. No. L-57848. June 19, 1982.] RAFAEL E. MANINANG and SOLEDAD L. MANINANG, petitioners, vs. COURT OF APPEALS, HON. RICARDO L. PRONOVE, JR., as Judge of the Court of First Instance of Rizal and BERNARDO S. ASENETA, respondents. Norberto J. Quisumbing for petitioners. Agrava, Lucero & Gineta for private respondents. SYNOPSIS Petitioner Soledad Maninang filed in the Court of First Instance Branch IV, Quezon City (Sp. Proc. Q23304 hereinafter referred to as the Testate Case) a Petition for the probate of the holographic will executed in her favor, by the decedent Clemencia Aseneta who died single at the age of 81, while private respondent Bernardo Aseneta, an adopted son claiming to be the sole heir of the decedent, instituted intestate proceedings with the Court of First Instance Branch Xl, Pasig. Rizal (Sp. Proc. No. 8569, tailed hereinafter the intestate Case). Later the Testate and Intestate Cases were ordered consolidated before Branch XI, presided by respondent Judge. Respondent Bernardo S. Aseneta filed a Motion to Dismiss the Testate Case on the ground that the holographic will was null and void, as the only compulsory heir was preterited. Despite petitioner's opposition, the lower Court dismissed the Testate Case. On certiorari, the Court of Appeals denied the petition, and ruled that the trial Judge's Order of dismissal being final, the proper remedy was appeal which the petitioners failed to avail of. On certiorari, the Supreme Court ruled that the Court a quo acted in excess of its jurisdiction when it dismissed the Testate Case as generally, the probate of a Will is mandatory and because by virtue of said dismissal the crucial issue of whether private respondent had been preterited or disinherited was not thoroughly considered. Assailed Decision and Orders, set aside. SYLLABUS 1. CIVIL LAW; SUCCESSION; WILLS; ALLOWANCE AND DISALLOWANCE OF WILLS; PROBATE OF A WILL MANDATORY AS A GENERAL RULE. Generally, the probate of a Will is mandatory under Art. 838 of the Civil Code. 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. (Guevarra vs. Guevarra, 74 Phil. 479 [1943]) 2. ID.; ID.; ID.; INSTITUTION OF HEIRS; PRETERITION DEFINED. ". . . Preterition "consists in the omission in the testator's will of the forced heirs or anyone of them, either because they are not mentioned therein, or, though mentioned, they are neither instituted as heirs nor are expressly disinherited." (Neri vs. Akutin, 72 Phil. 323)" (Nuguid vs. Nuguid, supra ). 3. ID.; ID.; ID.; ID.; DISINHERITANCE DEFINED. "Disinheritance, in turn, is a testamentary disposition depriving any compulsory heir of his share in the legitime for a cause authorized by law." (Justice J.B.L. Reyes and R.C. Puno, "An Outline of Philippine Civil Law", 1956 ed., Vol. III, p. 8, citing cases" (ibid). 4. ID.; ID.; ID.; ID.; DISINHERITANCE AND PRETERITION DISTINGUISHED. "Disinheritance is always 'voluntary'; preterition, upon the other hand, is presumed to be 'involuntary' (Sanchez Roman, Estudios de Derecho Civil 2nd. edition, Volumen 2, o.p. 1131)." ". . . The effects flowing from preterition are totally different from those of disinheritance. Preterition under Article 854

of the New Civil Code "shall annul the institution of heir." This annulment is in toto, unless in the will there are, in addition, testamentary disposition in the form of devises or legacies. In ineffective disinheritance under Article 918 of the same Code, such disinheritance shall also 'annul the institution of heirs', but only 'insofar as it may prejudice the person disinherited', which last phrase was omitted in the case of preterition (III Tolentino, Civil Code of the Philippines, 1961 Edition, p. 172). Better stated yet, in disinheritance the nullity is limited to that portion of the estate of which the disinherited heirs have been illegally deprived.'' (ibid). 5. REMEDIAL LAW; SPECIAL CIVIL ACTION; CERTIORARI; PROPER REMEDY WHEN RESPONDENT JUDGE ACTED IN EXCESS OF JURISDICTION IN THE DISMISSAL OF THE TESTATE CASE; CASE AT BAR,- Where by virtue of the dismissal of the Testate Case, the determination of that controversial issue has not been thoroughly considered and it was gathered from the assailed Order of the trial Court that its conclusion was that respondent Bernardo has been preterited while from the face of the Will, that conclusion is not indubitable, respondent Judge had acted in excess of his jurisdiction in dismissing the Testate Case and certiorari is a proper remedy. An act done by a Probate Court in excess of its jurisdiction may be corrected by Certiorari (Llamas vs. Moscoso, 95 Phil. 599 [1954] and even assuming the existence of the remedy of appeal, we harken to the rule that in the broader interest of justice, a petition for Certiorari may be entertained, particularly where appeal would not afford speedy and adequate relief. 6. ID.; SPECIAL PROCEEDINGS; SETTLEMENT OF ESTATE OF DECEASED PERSONS; WILLS; PROBATE LIMITED TO DETERMINATION OF DUE EXECUTION. . . . The authentication of a will decides no other question than such as touch the capacity of the testator and the compliance with those requisites or solemnities which the law prescribes for the validity of wills. It does not determine nor even by implication prejudge the validity or efficiency (sic) of the provisions, these may be impugned as being vicious or null, notwithstanding its authentication. The questions relating to these points remain entirely unaffected, and may be raised even after the will has been authenticated (Montanano vs. Suesa, 14 Phil. 676 [1909]) "Opposition to the intrinsic validity or legality of the provisions of the Will cannot be entertained in probate proceeding because its only purpose is merely to determine if the will has been executed in accordance with the requirements of the law." (Palacios vs. Palacios, 58. O.G, 220) 7. ID.; ID.; ID.; ID.; ID.; NUGUID AND BALANAY CASES AS EXCEPTIONS; NOT APPLICABLE TO CASE AT BAR. The cases of Nuguid vs. Nuguid (17 SCRA 449 [1966]), and Balanay vs. Hon. Martinez (64 SCRA 452 [1975]), provide the exception rather than the rule. The intrinsic validity of the Wills in those cases was passed upon even before probate because "practical consideration" so demanded. Moreover, for the parties in the Nuguid case, the "meat of the controversy" was the intrinsic validity of the Will; in fact, the parties in that case "shunted aside the question of whether or not the Will should be allowed probate." Not so in the case before us now where the probate of the Will is insisted on by petitioners and a resolution on the extrinsic validity of the Will demanded. Moreover, in the Nuguid case, this Court ruled that the Will was intrinsically invalid as it completely preterited the parents of the testator. In the instant case, a crucial issue that calls for resolution is whether under the terms of the decedent's Will, private respondent had been preterited or disinherited, and if the latter, whether it was a valid disinheritance.

EN BANC [G.R. No. L-23445. June 23, 1966.] REMEDIOS NUGUID, petitioner-appellant, vs. FELIX NUGUID and PAZ SALONGA NUGUID, oppositors-appellees. Custodio O. Partade for petitioner-appellant. Beltran, Beltran & Beltran for oppositors-appellees. SYLLABUS 1. PROBATE OF WILL; COURT'S AREA OF INQUIRY LIMITED TO EXTRINSIC VALIDITY OF WILL; WHEN COURT MAY RULE ON INTRINSIC VALIDITY; CASE AT BAR. In a proceeding for the probate of a will, the court's area of inquiry is limited to an examination of, and resolution on, the extrinsic validity of the will; the due execution thereof; the testatrix's testamentary capacity; and the compliance with the requisites or solemnities prescribed the by law. In the case at bar, however, a peculiar situation exists. The parties shunted aside the question of whether or not the will should be allowed probate. They questioned the intrinsic validity of the will. Normally, this comes only after the court has declared that the will has been duly authenticated. But if the case were to be remanded for probate of the will, nothing will be gained. In the event of probate or if the court rejects the will, probability exists that the case will come up once again before this Court on the same issue of the intrinsic validity or nullity of the will. The result would be waste of time, effort, expense, plus added anxiety. These practical considerations induce this Court to meet head-on the issue of the nullity of the provisions of the will in question, there being a justiciable controversy awaiting solution. 2. SUCCESSION; PRETERITION; OMISSION OF NAMES OF FORCED HEIRS. The deceased left no descendants, legitimate or illegitimate. But she left forced heirs in the direct ascending time her parents. Her will does not explicitly disinherit them but simply omits their names altogether. Said will rather than he labelled ineffective disinheritance is clearly one in which the said forced heirs suffer from preterition. 3. ID.; ID.; PRETERITION DISTINGUISHED FROM DISINHERITANCE. Preterition "consists in the omission in the testator's will of the forced heirs or anyone of them, either because they are not mentioned therein, or, though mentioned, they are neither instituted as heirs nor are expressly disinherited." (Neri, et al. vs. Akutin, at al., 72 Phil., p. 325.) Disinheritance; in turn, "is a testamentary disposition depriving any compulsory heir of heir share in the legitime for a cause authorized by law." (Justice J.B.L. Reyes and R.C. Puno, "An Outline of Philippine Civil Law," 1956 ed., Vol. III, p. 8, citing cases.) Disinheritance is always "voluntary"; preterition upon the other hand, is presumed to be "involuntary." (Sanchez Roman, Estudios de Derecho Civil, 2nd edition, Volume 20, p. 1131.) 4. ID.; ID.; ID.; EFFECTS FLOWING FROM PRETERITION AND DISINHERITANCE. The effects flowing from preterition are totally different from those of disinheritance. Preterition under Article 854 of the Civil Code "shall annul the institution of heir. "This annulment is in toto, unless in the will there are, in addition, testamentary dispositions in the form of devises or legacies. In ineffective disinheritance under Article 918 of the same Code, such disinheritance shall also "annul the institution of heirs," but only "insofar as it may prejudice the person disinherited," which last phrase was omitted in the case of preterition. (III Tolentino, Civil Code of the Philippines, 1961. Edition, p. 172.) Better stated yet, in disinheritance the nullity is limited to that portion of the estate of which the disinherited heirs have been illegally deprived. 6. ID.; ID.; WHEN LEGACIES AND DEVISES MERIT CONSIDERATION. Legacies and devises merit consideration only when they are so expressly given as such in a will. Nothing in Article 854 of the Civil Code suggests that the mere institution of a universal heir in a will void because of preterition would give the heir so instituted a share in the inheritance. As to him, the will is inexistent. There must he, in addition to such institution, a testamentary disposition granting him bequests or legacies apart and separate from the nullified institution of heir. 7. ID.; ID.; ID.; INSTITUTION OF HEIRS CANNOT BE CONSIDERED LEGACY.

Petitioner insists that the compulsory heirs ineffectively disinherited are entitled to receive their legitimes, but that the institution of heir "is not invalidated," although the inheritance of the heir so instituted is reduced to the extent of said legitimes. This theory, if adopted, will result in a complete abrogation of Articles 814 and 851 of the Civil Code. If every case of institution of heirs may be made to fall into the concept of legacies and betterments reducing the bequest accordingly, then the provisions of Articles 814 and 851 regarding total or partial nullity of the institution, would be absolutely meaningless and will never have any application at all. And the remaining provisions contained in said articles concerning the reduction of inofficious legacies or betterments would be a surplusage because they would be absorbed by Article 817 of the same code. FIRST DIVISION [G.R. No. 108581. December 8, 1999.] LOURDES L. DOROTHEO, petitioner, vs. COURT OF APPEALS, NILDA D. QUINTANA, for Herself and as Attorney-in-Fact of VICENTE DOROTHEO and JOSE DOROTHEO, respondents. Midpantao L. Adil for petitioner. Carag, Esparagoza & Associates for private respondents. SYNOPSIS Private respondents were the legitimate children of Alejandro Dorotheo and Aniceta Reyes. Aniceta died in 1969 without her estate being settled. After Alejandro's death, petitioner, who claims to have taken care of Alejandro before he died, filed a special proceeding for the probate of the latter's will and testament. The probate court admitted the will to probate. Private respondents did not appeal from said order. In 1983, they filed a "Motion to Declare The Will Intrinsically Void." The trial court granted the motion. Petitioner moved for reconsideration. Upon denial of her motion for reconsideration, petitioner appealed to the Court of Appeals but the same was dismissed for failure to file appellant's brief within the extended period granted. The dismissal become final and executory and a corresponding entry of judgment was forthwith issued by the Court of Appeals. The lower court, to implement the final and executory order, issued a writ of execution. Judge Zain B. Angas set aside the Order directing the issuance of the writ of execution, on the ground that the order was merely "interlocutory", hence, not final in character. Private respondents filed a petition before the Court of Appeals which nullified the assailed Orders of Judge Zain. Hence, the present petition. Petitioner contended that in issuing the assailed orders, Judge Angas cannot be said to have no jurisdiction because he was particularly designated to hear the case. TcHEaI The Supreme Court dismissed the petition. The Court ruled that a final decision or order can no longer be disturbed or reopened no matter how erroneous it may be. In setting aside the Order that had attained finality, the trial court in effect nullified the entry of judgment made by the Court of Appeals. The Court stressed that a lower court cannot reverse or set aside decisions or orders of a superior court, for to do so would be to negate the hierarchy of the courts and nullify the essence of review. The Court also reiterated the rule that a judgment on a probated will, albeit erroneous, is binding on the whole world. With respect to the last will and testament, the Court upheld the trial court in holding that the rules of intestacy shall apply. According to the Court, although the will is extrinsically valid, its provisions however are not in accordance with the laws of succession rendering it intrinsically void, hence, the law mandates that the rules of intestacy shall apply. SYLLABUS 1. REMEDIAL LAW; CIVIL PROCEDURE; JUDGMENTS; A FINAL AND EXECUTORY DECISION OR ORDER CAN NO LONGER BE DISTURBED OR REOPENED NO MATTER HOW ERRONEOUS IT MAY BE. A final and executory decision or order can no longer be disturbed or reopened no matter how erroneous it may be. In setting aside the January 30, 1986 Order that has attained finality, the trial court in effect nullified the entry of judgment made by the Court of Appeals. It

is well settled that a lower court cannot reverse or set aside decisions or orders of a superior court, for to do so would be to negate the hierarchy of courts and nullify the essence of review. It has been ruled that a final judgment on probated will, albeit erroneous, is binding on the whole world. It has been consistently held that if no appeal is taken in due time from a judgment or order of the trial court, the same attains finality by mere lapse of time. Thus, the order allowing the will became final and the question determined by the court in such order can no longer be raised anew, either in the same proceedings or in a different motion. The matters of due execution of the will and the capacity of the testator acquired the character of res judicata and cannot again be brought into question, all juridical questions in connection therewith being for once and forever closed. Such final order makes the will conclusive against the whole world as to its extrinsic validity and due execution. DACcIH 2. ID.; ID.; ID.; RAISING ISSUES PREVIOUSLY LITIGATED BY OTHER COURTS WOULD AMOUNT TO FORUM SHOPPING; FORUM SHOPPING ALSO OCCURS WHEN THE SAME ISSUE HAD ALREADY BEEN RESOLVED ADVERSELY BY SOME OTHER COURT. The only instance where a party interested in a probate proceeding may have a final liquidation set aside is when he is left out by reason of circumstances beyond his control or through mistake or inadvertence not imputable to negligence, which circumstances do not concur herein. Petitioner was privy to the suit calling for the declaration of the intrinsic invalidity of the will, as she precisely appealed from an unfavorable order therefrom. Although the final and executory Order of January 30, 1986 wherein private respondents were declared as the only heirs do not bind those who are not parties thereto such as the alleged illegitimate son of the testator, the same constitutes res judicata with respect to those who were parties to the probate proceedings. Petitioner cannot again raise those matters anew for relitigation otherwise that would amount to forum-shopping. It should be remembered that forum shopping also occurs when the same issue had already been resolved adversely by some other court. It is clear from the executory order that the estates of Alejandro and his spouse should be distributed according to the laws of intestate succession. 3. CIVIL LAW; SUCCESSION; EVEN IF A WILL WAS VALIDLY EXECUTED, IF THE TESTATOR PROVIDES FOR DISPOSITIONS THAT DEPRIVES OR IMPAIRS THE LAWFUL HEIRS OF THEIR LEGITIME OR RIGHTFUL INHERITANCE ACCORDING TO THE LAWS ON SUCCESSION, THE UNLAWFUL PROVISION/DISPOSITIONS THEREOF CANNOT BE GIVEN EFFECT. Under the Civil Code, due execution includes a determination of whether the testator was of sound and disposing mind at the time of its execution, that he had freely executed the will and was not acting under duress, fraud, menace or undue influence and that the will is genuine and not a forgery, that he was of the proper testamentary age and that he is a person not expressly prohibited by law from making a will. The intrinsic validity is another matter and questions regarding the same may still be raised even after the will has been authenticated. Thus, it does not necessarily follow that an extrinsically valid last will and testament is always intrinsically valid. Even if the will was validly executed, if the testator provides for dispositions that deprives or impairs the lawful heirs of their legitime or rightful inheritance according to the laws on succession, the unlawful provisions/dispositions thereof cannot be given effect. This is specially so when the courts had already determined in a final and executory decision that the will is intrinsically void. Such determination having attained that character of finality is binding on this Court which will no longer be disturbed. Not that this Court finds the will to be intrinsically valid, but that a final and executory decision of which the party had the opportunity to challenge before the higher tribunals must stand and should no longer be reevaluated. Failure to avail of the remedies provided by law constitutes waiver. And if the party does not avail of other remedies despite its belief that it was aggrieved by a decision or court action, then it is deemed to have fully agreed and is satisfied with the decision or order. 4. CIVIL LAW; SUCCESSION; THE RULES OF INTESTACY SHALL APPLY IN CASES WHERE A WILL IS EXTRINSICALLY VALID BUT THE INTRINSIC PROVISIONS THEREOF ARE VOID; CASE AT BAR. It can be clearly inferred from Article 960 of the Civil Code, on the

law of successional rights that testacy is preferred to intestacy. But before there could be testate distribution, the will must pass the scrutinizing test and safeguards provided by law considering that the deceased testator is no longer available to prove the voluntariness of his actions, aside from the fact that the transfer of the estate is usually onerous in nature and that no one is presumed to give Nemo praesumitur donare. No intestate distribution of the estate can be done until and unless the will had failed to pass both its extrinsic and intrinsic validity. If the will is extrinsically void, the rules of intestacy apply regardless of the intrinsic validity thereof. If it is extrinsically valid, the next test is to determine its intrinsic validity that is whether the provisions of the will are valid according to the laws of succession. In this case, the court had ruled that the will of Alejandro was extrinsically valid but the intrinsic provisions thereof were void. Thus, the rules of intestacy apply as correctly held by the trial court. IcDCaS 5. ID.; ID.; TESTAMENTARY DISPOSITIONS OF PROPERTIES NOT BELONGING EXCLUSIVELY TO THE TESTATOR OR PROPERTIES WHICH ARE PART OF THE CONJUGAL REGIME CANNOT BE GIVEN EFFECT. Alejandro's disposition in his will of the alleged share in the conjugal properties of his late spouse, whom he described as his "only beloved wife," is not a valid reason to reverse a final and executory order. Testamentary dispositions of properties not belonging exclusively to the testator or properties which are part of the conjugal regime cannot be given effect. Matters with respect to who owns the properties that were disposed of by Alejandro in the void will may still be properly ventilated and determined in the intestate proceedings for the settlement of his and that of his late spouse's estate. EN BANC [G.R. No. L-23135. December 26, 1967.] TESTATE ESTATE OF HILARION RAMAGOSA. MARIANO SUMILANG, petitionerappellee, vs. SATURNINA RAMAGOSA, SANTIAGO RAMAGOSA, ENRIQUE PABELLA, LICERIA PABELLA and ANDREA RAVALO, oppositors-appellants. Gatchalian & Sison and J.A. Bordelosa, Jr. for petitioner-appellee. Jose L. Desvarro, Jr. for oppositors-appellants. SYLLABUS 1. REMEDIAL LAW; PROBATE OF WILLS. In petitions for probate the Court's area of inquiry is limited to the extrinsic validity of the will, as the testamentary capacity and the compliance with the formal requisites or solemnities prescribed by law are the only questions presented for the resolution of the court. Any inquiry into the intrinsic validity or efficacy of the provisions thereof or the legality of any devise or legacy is premature. (Nuguid vs. Nuguid, L-23445, June 23, 1996). 2. ID.; ID.; IMPLIED REVOCATION DOES NOT WARRANT DISMISSAL OF PETITION FOR PROBATE. An alleged disposal by testator to prior to his death of the properties involved in his will is no ground for the dismissal of the petition for probate. Probate is one thing; the validity of the testamentary provisions is another. The first decides the execution of the document and the testamentary capacity of the testator; the second relates to descent and distribution. 3. ID.; ID.; LACK OF INTEREST BARS OPPOSITION TO PROBATE. In order that a person may be allowed to intervene in a probate proceeding, he must have an interest in the estate, or in the will, or in the property to be affected by it either as executor or as a claimant of the estate (go The Hua vs. Chuang Kiat Hua, et al., L-17019, Sept 30, 1963) and an interested party is one who would be benefited by the estate such as an heir or one who has a claim against the estate like a creditor (Teotico vs. Del Val, L-18753, March 26, 1965). Where oppositors do not take issue with the probate court's finding that they are totally strangers to the deceased, or do not attempt to show that they have some interest in the estate which must be protected, the order striking out their opposition and all other pleadings pertinent thereto must be affirmed. 4. ID.; ID.; APPEALS; ORDER STRIKING OUT OPPOSITION TO PROBATE NOT

INTERLOCUTORY. An order striking out an opposition to the probate of the will on the ground that the oppositors have no personality to intervene in the case is final, and therefore appealable insofar as they are concerned. SECOND DIVISION [G.R. No. 55509. April 27, 1984.] ETHEL GRIMM ROBERTS, petitioner, vs. JUDGE TOMAS R. LEONIDAS, Branch 38, Court of First Instance of Manila; MAXINE TATE-GRIMM, EDWARD MILLER GRIMM II and LINDA GRIMM, respondents. N . J . Quisumbing and Associates for petitioner. Angara, Abello, Concepcion, Regala, and Cruz for private respondents. SYLLABUS 1. CIVIL LAW; SUCCESSION; WILLS; PROBATE THEREOF, MANDATORY; INTESTATE PROCEEDINGS FILED PRIOR TO TESTATE PROCEEDINGS SHOULD BE CONSOLIDATED WITH LATTER. We hold that respondent Judge did not commit any grave abuse of discretion, amounting to lack of jurisdiction, in denying Ethel's motion to dismiss the petition for probate of Grimm's two wills. A testate proceeding is proper in this case because Grimm died with two wills and "no will shall pass either real or personal property unless it is proved add allowed" (Art. 838, Civil Code, Sec. 1, Rule 75, Rules of Court). The probate of the will is mandatory (Guevara vs. Guevara, 74 Phil. 479 and 98 Phil. 249; Baluyot vs. Pao, L-42088, May 7, 1976, 71 SCRA 86). It is anomalous that the estate of a person who died testate should be settled in an intestate proceeding. Therefore, the intestate case should be consolidated with the testate proceeding and the judge assigned to the testate proceeding should continue hearing the two cases. EN BANC [G.R. No. L-26808. May 23, 1969.] REV. FATHER LUCIO V. GARCIA, petitioner, vs. HONORABLE CONRADO M. VASQUEZ, respondent. SYLLABUS 1. REMEDIAL LAW; SPECIAL PROCEEDINGS; PROBATE OF WILL; NO PAYMENT OF DOCKET FEES WHERE PROBATE OF ANOTHER WILL IS SOUGHT IN THE SAME PROCEEDING FOR PROBATE PENDING BEFORE THE COURT. Where petitioner did not file a separate action but instead elected to file the probate of the decedent's 1956 Will in the same proceeding then pending before the respondent court, the doctrine that a court of justice is not called upon to act on a complaint or a petition in the absence of the payment of the corresponding docket fee every time a will is sought to be probated finds no application. SECOND DIVISION [G.R. No. 156021. September 23, 2005.] CYNTHIA C. ALABAN, FRANCIS COLLADO, JOSE P. COLLADO, JUDITH PROVIDO, CLARITA PROVIDO, ALFREDO PROVIDO, MANUEL PROVIDO, JR., LORNA DINA E. PROVIDO, SEVERO ARENGA, JR., SERGIO ARENGA, EDUARDO ARENGA, CAROL ARENGA, RUTH BABASA, NORMA HIJASTRO, DOLORES M. FLORES, ANTONIO MARIN, JR., JOSE MARIN, SR., and MATHILDE MARIN, petitioners, vs. COURT OF APPEALS and FRANCISCO H. PROVIDO, respondents. Melchor R. Flores for petitioners. Modesto Martin Y. Mamon III for private respondent. SYLLABUS 1. REMEDIAL LAW; CIVIL PROCEDURE; ANNULMENT OF JUDGMENTS; REMEDIES

AVAILABLE TO AN AGGRIEVED PARTY. Section 37 of the Rules of Court allows an aggrieved party to file a motion for new trial on the ground of fraud, accident, mistake, or excusable negligence. The same Rule permits the filing of a motion for reconsideration on the grounds of excessive award of damages, insufficiency of evidence to justify the decision or final order, or that the decision or final order is contrary to law. Both motions should be filed within the period for taking an appeal, or fifteen (15) days from notice of the judgment or final order. Meanwhile, a petition for relief from judgment under Section 3 of Rule 38 is resorted to when a judgment or final order is entered, or any other proceeding is thereafter taken, against a party in any court through fraud, accident, mistake, or excusable negligence. Said party may file a petition in the same court and in the same case to set aside the judgment, order or proceeding. It must be filed within sixty (60) days after the petitioner learns of the judgment and within six (6) months after entry thereof. A motion for new trial or reconsideration and a petition for relief from judgment are remedies available only to parties in the proceedings where the assailed judgment is rendered. In fact, it has been held that a person who was never a party to the case, or even summoned to appear therein, cannot avail of a petition for relief from judgment. aDcHIC 2. ID.; ID.; ID.; EVEN THOUGH PETITIONERS WERE NOT MENTIONED IN THEIR PETITION FOR PROBATE, THEY BECAME PARTIES THERETO AS A CONSEQUENCE OF THE PUBLICATION OF THE NOTICE OF HEARING. Under the Rules of Court, any executor, devisee, or legatee named in a will, or any other person interested in the estate may, at any time after the death of the testator, petition the court having jurisdiction to have the will allowed. Notice of the time and place for proving the will must be published for three (3) consecutive weeks, in a newspaper of general circulation in the province, as well as furnished to the designated or other known heirs, legatees, and devisees of the testator. Thus, it has been held that a proceeding for the probate of a will is one in rem, such that with the corresponding publication of the petition the court's jurisdiction extends to all persons interested in said will or in the settlement of the estate of the decedent. Publication is notice to the whole world that the proceeding has for its object to bar indefinitely all who might be minded to make an objection of any sort against the right sought to be established. It is the publication of such notice that brings in the whole world as a party in the case and vests the court with jurisdiction to hear and decide it. Thus, even though petitioners were not mentioned in the petition for probate, they eventually became parties thereto as a consequence of the publication of the notice of hearing. 3. ID.; ID.; ID.; PETITIONERS COULD NO LONGER RESORT TO A PETITION FOR ANNULMENT OF JUDGMENT DUE TO THEIR FAILURE TO MAKE USE WITHOUT SUFFICIENT JUSTIFICATION OF THE REMEDIES AVAILABLE UNDER THE RULES AND TO RULE OTHERWISE WOULD ALLOW PETITIONERS TO BENEFIT FROM THEIR OWN INACTION OR NEGLIGENCE. As parties to the probate proceedings, petitioners could have validly availed of the remedies of motion for new trial or reconsideration and petition for relief from judgment. In fact, petitioners filed a motion to reopen, which is essentially a motion for new trial, with petitioners praying for the reopening of the case and the setting of further proceedings. However, the motion was denied for having been filed out of time, long after the Decision became final and executory. Conceding that petitioners became aware of the Decision after it had become final, they could have still filed a petition for relief from judgment after the denial of their motion to reopen. Petitioners claim that they learned of the Decision only on 4 October 2001, or almost four (4) months from the time the Decision had attained finality. But they failed to avail of the remedy. For failure to make use without sufficient justification of the said remedies available to them, petitioners could no longer resort to a petition for annulment of judgment; otherwise, they would benefit from their own inaction or negligence. cDCEIA 4. ID.; ID.; ID.; AN ACTION FOR ANNULMENT OF JUDGMENT IS A REMEDY IN LAW INDEPENDENT OF THE CASE WHERE THE JUDGMENT SOUGHT TO BE ANNULLED WAS RENDERED AND A PERSON NEED NOT BE A PARTY TO THE CASE AND IT IS ONLY

ESSENTIAL THAT THE ASSAILED JUDGMENT WAS OBTAINED BY FRAUD AND COLLUSION AND THE PETITIONER WOULD BE ADVERSELY AFFECTED THEREBY. An action for annulment of judgment is a remedy in law independent of the case where the judgment sought to be annulled was rendered. The purpose of such action is to have the final and executory judgment set aside so that there will be a renewal of litigation. It is resorted to in cases where the ordinary remedies of new trial, appeal, petition for relief from judgment, or other appropriate remedies are no longer available through no fault of the petitioner, and is based on only two grounds: extrinsic fraud, and lack of jurisdiction or denial of due process. A person need not be a party to the judgment sought to be annulled, and it is only essential that he can prove his allegation that the judgment was obtained by the use of fraud and collusion and he would be adversely affected thereby. 5. ID.; ID.; ID.; THE OVERRIDING CONSIDERATION WHEN EXTRINSIC FRAUD IS ALLEGED IS THAT THE FRAUDULENT SCHEME OF THE PREVAILING LITIGANT PREVENTED A PARTY FROM HAVING HIS DAY IN COURT. An action to annul a final judgment on the ground of fraud lies only if the fraud is extrinsic or collateral in character. Fraud is regarded as extrinsic where it prevents a party from having a trial or from presenting his entire case to the court, or where it operates upon matters pertaining not to the judgment itself but to the manner in which it is procured. The overriding consideration when extrinsic fraud is alleged is that the fraudulent scheme of the prevailing litigant prevented a party from having his day in court. 6. ID.; ID.; ID.; THE NON-INCLUSION OF PETITIONER'S NAME IN THE PETITION AND THE ALLEGED FAILURE TO PERSONALLY NOTIFY THEM OF THE PROCEEDINGS DO NOT CONSTITUTE EXTRINSIC FRAUD; PETITIONERS WERE NOT DENIED THEIR DAY IN COURT, AS THEY WERE NOT PREVENTED FROM PARTICIPATING IN THE PROCEEDINGS AND PRESENTING THEIR CLAIM BEFORE THE PROBATE COURT. According to the Rules, notice is required to be personally given to known heirs, legatees, and devisees of the testator. A perusal of the will shows that respondent was instituted as the sole heir of the decedent. Petitioners, as nephews and nieces of the decedent, are neither compulsory nor testate heirs who are entitled to be notified of the probate proceedings under the Rules. Respondent had no legal obligation to mention petitioners in the petition for probate, or to personally notify them of the same. Besides, assuming arguendo that petitioners are entitled to be so notified, the purported infirmity is cured by the publication of the notice. After all, personal notice upon the heirs is a matter of procedural convenience and not a jurisdictional requisite. The non-inclusion of petitioners' names in the petition and the alleged failure to personally notify them of the proceedings do not constitute extrinsic fraud. Petitioners were not denied their day in court, as they were not prevented from participating in the proceedings and presenting their case before the probate court. ICDcEA 7. ID.; ID.; FORUM SHOPPING; COMMITTED IN CASE AT BAR. One other vital point is the issue of forum-shopping against petitioners. Forum-shopping consists of filing multiple suits in different courts, either simultaneously or successively, involving the same parties, to ask the courts to rule on the same or related causes and/or to grant the same or substantially same reliefs, on the supposition that one or the other court would make a favorable disposition. Obviously, the parties in the instant case, as well as in the appealed case before the CA, are the same. Both cases deal with the existence and validity of the alleged will of the decedent, with petitioners anchoring their cause on the state of intestacy. In the probate proceedings, petitioners' position has always been that the decedent left no will and if she did, the will does not comply with the requisites of a valid will. Indeed, that position is the bedrock of their present petition. Of course, respondent maintains the contrary stance. On the other hand, in the petition for letters of administration, petitioner Flores prayed for her appointment as administratrix of the estate on the theory that the decedent died intestate. The petition was dismissed on the ground of lack of jurisdiction, and it is this order of dismissal which is the subject of review in CAG.R. No. 74924. Clearly, therefore, there is forum-shopping. Moreover, petitioners failed to inform the Court of the said pending case in their certification against forum-shopping. Neither have they done so

at any time thereafter. The Court notes that even in the petition for annulment of judgment, petitioners failed to inform the CA of the pendency of their appeal in CA-G.R. No. 74924, even though the notice of appeal was filed way before the petition for annulment of judgment was instituted. THIRD DIVISION [G.R. No. 53546. June 25, 1992.] THE HEIRS OF THE LATE JESUS FRAN and CARMEN MEJIA RODRIGUEZ, petitioner, vs. HON. BERNARDO LL. SALAS, CONCEPCION MEJIA ESPINA and MARIA MEJIA GANDIONGCO, respondents. SYLLABUS 1. REMEDIAL LAW; SPECIAL PROCEEDINGS; RESPONDENT JUDGE COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION WHEN HE GRANTED THE OMNIBUS MOTION FOR RECONSIDERATION. We do not hesitate to rule that the respondent Judge committed grave abuse of discretion amounting to lack of jurisdiction when he granted the Omnibus Motion for Reconsideration and thereafter set aside the probate judgment of 13 November 1972 in Sp. Proc. No. 3309-R, declared the subject will of the testatrix a forgery, nullified the testamentary dispositions therein and ordered the conversion of the testate proceedings into one of intestacy. It is not disputed that private respondents filed on the date of the initial hearing of the petition their "Withdrawal of Opposition To Allowance of Probate (sic) Will" wherein they unequivocally state that they have no objection to the allowance of the will. For all legal intents and purposes, they became proponents of the same. After the probate court rendered its decision on 13 November 1972, and there having been no claim presented despite publication of notice to creditors, petitioner Fran submitted a Project of Partition which private respondent Maria M. Vda. de Gandiongco voluntarily signed and to which private respondent Espina expressed her conformity through a certification filed with the probate court. Assuming for the sake of argument that private respondents did not receive a formal notice of the decision as they claim in their Omnibus Motion for Reconsideration, these acts nevertheless constitute indubitable proof of their prior actual knowledge of the same. 2. RECEPTION OF EVIDENCE BY THE CLERK OF COURT UPHELD; DOCTRINE LAID DOWN IN LIM TANHU V. RAMOLETE NOT APPLICABLE; NEW DOCTRINE SHOULD BE APPLIED PROSPECTIVELY. Neither do We give any weight to the contention that the reception of evidence by the Clerk of Court is null and void per the doctrine laid down in Lim Tanhu v. Ramolete. In the first place, Lim Tanhu was decided on 29 August 1975, nearly four (4) years after the probate court authorized the Clerk of Court to receive the evidence for the petitioner in this case. A month prior to Lim Tanhu, or on 30 July 1975, this Court, in Laluan vs. Malpaya, recognized and upheld the practice of delegating the reception of evidence to Clerks of Court. Thus: "No provision of law or principle of public policy prohibits a court from authorizing its clerk of court to receive the evidence of a party litigant. After all, the reception of evidence by the clerk of court constitutes but a ministerial task the taking down of the testimony of the witnesses and the marking of the pieces of documentary evidence, if any, adduced by the party present. This task of receiving evidence precludes, on the part of the clerk of court, the exercise of judicial discretion usually called for when the other party who is present objects to questions propounded and to the admission of the documentary evidence proffered. More importantly, the duty to render judgment on the merits of the case still rests with the judge who is obliged to personally and directly prepare the decision based upon the evidence reported. But where the proceedings before the clerk of court and the concomitant result thereof, i.e., the judgment rendered by the court based on the evidence presented in such limited proceedings, prejudice the substantial rights of the aggrieved party, then there exists sufficient justification to grant the latter complete opportunity to thresh out his case in court." Monserrate vs. Court of Appeals, decided on 29 September 1989, reiterated this rule. Lim Tanhu then cannot be used as authority to nullify the order of the probate court authorizing the Clerk of Court to receive the evidence for the rule is settled that "when a doctrine of

this Court is overruled and a different view is adopted, the new doctrine should be applied prospectively, and should not apply to parties who had relied on the old doctrine and acted on the faith thereof." 3. CLERK OF COURT NEED NOT TAKE ANOTHER OATH OF OFFICE TO RECEIVE EVIDENCE. The alternative claim that the proceedings before the Clerk of Court were likewise void because said official did not take an oath is likewise untenable. The Clerk of Court acted as such when he performed the delegated task of receiving evidence. It was not necessary for him to take an oath for that purpose; he was bound by his oath of office as a Clerk of Court. Private respondents are obviously of the impression that by the delegation of the reception of evidence to the Clerk of Court, the latter became a commissioner as defined under Rule 33 of the Rules of Court entitled Trial by Commissioner. This is not correct; as this Court said in Laluan: "The provisions of Rule 33 of the Rules of Court invoked by both parties properly relate to the reference by a court of any or all of the issues in a case to a person so commissioned to act or report thereon. These provisions explicitly spell out the rules governing the conduct of the court, the commissioner, and the parties before, during, and after the reference proceedings. Compliance with these rules of conduct becomes imperative only when the court formally orders a reference of the case to a commissioner. Strictly speaking then, the provisions of Rule 33 find no application to the case at bar where the court a quo merely directed the clerk of court to take down the testimony of the witnesses presented and the mark the documentary evidence proffered on a date previously set for hearing." 4. ANNEXING OF THE ORIGINAL WILL TO THE PETITION NOT A JURISDICTIONAL REQUIREMENT. In Santos vs. Castillo and Salazar vs. Court of First Instance of Laguna, decided six (6) months apart in 1937, this Court already ruled that it is not necessary that the original of the will be attached to the petition. In the first, it ruled: "The original of said document [the will] must be presented or sufficient reasons given to justify the nonpresentation of said original and the acceptance of the copy or duplicate thereof." In the second case, this Court was more emphatic in holding that: "The law is silent as to the specific manner of bringing the jurisdictional allegations before the court, by practice the jurisprudence have established that they should be made in the form of an application and filed with the original of the will attached thereto. It has been the practice in some courts to permit attachment of a mere copy of the will to the application, without prejudice to producing the original thereof at the hearing or when the court so requires. This precaution has been adopted by some attorneys to forestall its disappearance, which has taken place in certain cases." That the annexing of the original will to the petition is not a jurisdictional requirement is clearly evident in Section 1, Rule 76 of the Rules of Court which allows the filing of a petition for probate by the person named therein regardless of whether or not he is in possession of the will, or the same is lost or destroyed. 5. COURSES OF ACTION OPENED TO AN AGGRIEVED PARTY TO ATTACK A FINAL JUDGMENT; PRIVATE RESPONDENTS HAD LOST THE RIGHT TO FILE A PETITION FOR RELIEF FROM JUDGMENT; REASON. In Our jurisdiction, the following courses of action are open to an aggrieved party to set aside or attack the validity of a final judgment: (1) Petition for relief under Rule 38 of the Rules of Court which must be filed within sixty (60) days after learning of the decision, but not more than six (6) months after such decision is entered; (2) By direct action, via a special civil action for certiorari, or by collateral attack, assuming that the decision is void for want of jurisdiction; (3) By an independent civil action under Article 1114 of the Civil Code, assuming that the decision was obtained through fraud and Rule 38 can not be applied. It is not difficult to see that private respondents had lost their right to file a petition for relief from judgment, it appearing that their omnibus motion for reconsideration was filed exactly six (6) years, ten (10) months and twenty-two (22) days after the rendition of the decision, and six (6) years, one (1) month and thirteen (13) days after the court issued the order approving the Project of Partition, to which they voluntarily expressed their conformity through their respective certifications, and closing the testate proceedings. 6. DECREE OF PROBATE IS CONCLUSIVE AS TO DUE EXECUTION OF THE WILL; CAN

BE IMPUGNED ONLY ON GROUNDS OF FRAUD. The probate judgment of 13 November 1972, long final and undistributed by any attempt to unsettle it, had inevitably passed beyond the reach of the court below to annul or set the same aside, by mere motion, on the ground that the will is a forgery. Settled in the rule that the decree of probate is conclusive with respect to the due execution of the will 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. We wish also to advert to the related doctrine which holds that final judgments are entitled to respect and should not be disturbed; otherwise, there would be a wavering of trust in the courts. In Lee Bun Ting vs. Aligaen, this Court had the occasion to state the rationale of this doctrine, thus: "Reasons of public policy, judicial orderliness, economy and judicial time and the interests of litigants, as well as the peace and order of society, all require that stability be accorded the solemn and final judgments of the courts or tribunals of competent jurisdiction." 7. NON-DISTRIBUTION OF THE ESTATE NOT A GROUND FOR THE RE-OPENING OF THE TESTATE PROCEEDINGS. The non-distribution of the estate, which is vigorously denied by the petitioners, is not a ground for the re-opening of the testate proceedings. A seasonable motion for execution should have been filed. In De Jesus vs. Daza, this Court ruled that if the executor or administrator has possession of the share to be delivered, the probate court would have jurisdiction within the same estate proceeding to order him to transfer that possession to the person entitled thereto. This is authorized under Section 1, Rule 90 of the Rules of Court. However, under Section 1, Rule 90 of the Rules of Court. However, if no motion for execution is filed within the reglementary period, a separate action for the recovery of the shares would be in order. As We see it, the attack of 10 September 1973 on the Order was just a clever ploy to give a semblance of strength and substance to the Omnibus Motion for Reconsideration by depicting therein a probate court committing a series of fatal, substantive and procedural blunders, which We find to be imaginary, if not deliberately fabricated. EN BANC [G.R. Nos. L-3087 & L-3088. July 31, 1954.] In re: Testate Estate of the deceased JOSE B. SUNTAY. SILVINO SUNTAY, petitioner-appellant, vs. FEDERICO C. SUNTAY, administrator-appellee. Claro M. Recto for appellant. Sison & Aruego for appellee. SYLLABUS 1. WILLS PROBATIVE OF WILLS; ASSIGNMENT OF INTEREST IN THE WILL ESTATE, NOT A BAR TO PROBATE OF A LOST OF FOREIGN WILL. In an intestate proceeding that had already been instituted in the Philippines, the widow and child of the testator are not estopped from asking for the probate of a lost will or of a foreign will just because of a lost will or of a foreign will just because of the transfer of assignment of their share, right, title and interest in the estate of the deceased, The validity and legality of such assignments can not be threshed out in the probate proceeding which is concerned only with the probate of the will. 2. ID.; ID.; PROOF OF LOST WILL; PROVISION OF WILL MUST BE PROVED BY AT LEAST TWO CREDIBLE WITNESSES; WHO ARE CREDIBLE WITNESSES. Granting that a will was duly executed and that it was in existence at the time of, and not revoked before, the death of the testator, still the provisions of the lost will must be clearly and distinctly p[roved by at least two credible witnesses. "Credible witnesses" mean competent witnesses and not those who testify to facts from or upon hearsay. 3. ID.; PROBATE OF WILL IS A PROCEEDING IN REM; NOTICE TO ALL PARTIES ESSENTIAL FOR ITS VALIDITY. In the absence of proof that the municipal district court of Amoy is a probate court and on the Chinese law of procedure in probate matters, it may be presumed that the proceedings in the matter of probating or allowing a will in the Chinese courts are the same as those

provided for in our laws on the subject. It is a proceeding in re, and for the validity of such proceedings personal notice or by publication or both to all interested parties must be made. 4. ID.; ID.; PROCEEDINGS LIKENED TO A DEPOSITION OR TO A PERPETUATION OF TESTIMONY. The proceedings had in the municipal district court of Amoy, China, may be likened to a deposition or to as perpetuation of testimony, and even if it were so, notice all interested parties was necessary for the validity of such proceedings. 5. ID.; WILLS PROVED IN A FOREIGN COUNTRY; PROBATE SHOULD BE IN ACCORDANCE WITH ACCEPTED BASIC AND FUNDAMENTAL CONCEPTS AND PRINCIPLES. Where it appears that the proceedings in the court of a foreign country were held for the purpose of taking the testimony of two attesting witnesses to the will and the order of the probate court did not purport to allow the will, the proceedings cannot be deemed to be for the probate of a will, as it was not done in accordance with the basic fundamental concepts and principles followed in the probate and allowance of wills. Consequently, the will referred to therein cannot be allowed , filed and recorded by a competent court of this country. 6. WILL PROBATE OF; LACK OF OBJECTION TO PROBATE OF LOST OF WILL DOES EXECUTION. The lack of objection to the probate of a lost will does not relieve the proponent thereof or the party interested in its probate from establishing its due execution and proving clearly and distinctly the provisions thereof by at least two credible witnesses, as provided for in section 6, Rule 77 of the Rules of Court. 7. ID., APPEALS; JURISDICTION OF SUPREME COURT TO REVIEW FINDINGS OF FACT AND LEGAL PRONOUNCEMENTS IN CASES INVOLVING MORE THAN P50,000. In appeal from a judgment of the probate court, the Supreme Court, in the exercise of its appellate jurisdiction, has the power to review and correct erroneous findings of fact and legal pronouncements of the probate court, where the amount involved is more than P50,000. EN BANC [G.R. No. L-12190. August 30, 1958.] TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP deceased. FAUSTO E. GAN, petitioner-appellant, vs. ILDEFONSO YAP, oppositor-appellee. Benedicto C. Balderrama, Crispn D. Baizas and Roberto H. Benitez for appellant. Arturo M. Tolentino for appellee. SYLLABUS 1. HOLOGRAPHIC WILLS; PROBATE OF; EXECUTION AND CONTENTS OF WILL, HOW PROVED. The execution and the contents of a lost or destroyed holographic will may not be proved by the bare testimony of witnesses who have seen and/or read such will. The will itself must be presented; otherwise, it shall produce no effect. The law regards the document itself as material proof of authenticity. FIRST DIVISION [G.R. No. L-58509. December 7, 1982.] IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF RICARDO B. BONILLA, deceased, MARCELA RODELAS, petitioner-appellant, vs. AMPARO ARANZA, ET AL., oppositors-appellees, ATTY. LORENZO SUMULONG, intervenor. Luciano A. Joson for petitioner-appellant. Cesar C. Paralejo for oppositor-appellee. SYNOPSIS The probate court ordered the dismissal of appellant's petition for the allowance of the holographic will of deceased Ricardo B. Bonilla on the ground that the alleged photostatic copy of the will which was presented for probate, cannot stand in lieu of the lost original, for the law regards the document itself as

the material proof of the authenticity of the said will, citing the case of Gan vs. Yap, 104 Phil. 509, 522. On appeal, the only question is whether a holographic will which was lost or cannot be found can be proved by means of a photostatic copy. The Supreme Court, in setting aside the lower court's order of dismissal, held that a photostatic or xerox copy of a lost or destroyed holographic will may be admitted because the authenticity of the handwriting of the deceased can he determined by the probate court, as comparison can be made with the standard writings of the testator. Assailed order of dismissal, set aside. SYLLABUS 1. CIVIL LAW; SUCCESSION; HOLOGRAPHIC WILLS; PROBATE THEREOF; DEFINITION. Pursuant to Article 811 of the Civil Code, probate of holographic wills is the allowance of the will by the Court after its due execution has been proved. 2. ID.; ID.; ID.; ID.; NUMBER OF WITNESSES REQUIRED. The probate of holographic wills may be uncontested or not. If uncontested, at least one identifying witness is required and, if no witness is available, experts may be resorted to. If contested, at least three identifying witnesses are required. 3. ID.; ID.; ID.; ID.; NOT POSSIBLE WHERE ORIGINAL WILL HAS BEEN LOST OR DESTROYED AND NO OTHER COPY IS AVAILABLE; REASON. If the holographic will has been lost or destroyed and no other copy is available, the will cannot be probated because the best and only evidence is the handwriting of the testator in said will. It is necessary that there be a comparison between sample handwritten statements of the testator and the handwritten will. 4. ID.; ID.; ID.; ID.; ID.; PHOTOSTATIC COPY OR XEROX COPY MAY BE ALLOWED; CASE AT BAR. A photostatic copy or xerox copy of the holographic will may be allowed because comparison can be made with the standard writings of the testator. In the case of Gan vs. Yap, 104 Phil. 509, the Court ruled that "the execution and the contents of a lost or destroyed holographic will may not be proved by the bare testimony of witnesses who have seen and/or read such will. The will itself must be presented; otherwise, it shall produce no effect. The law regards the document itself as material proof of authenticity." But, in Footnote 8 of said decision, it says that "Perhaps it may be proved by a photographic or photostatic copy. Even a mimeographed or carbon copy; or by other similar means, if any, whereby the authenticity of the handwriting of the deceased may be exhibited and tested before the probate court." Evidently, the photostatic or xerox copy of the lost or destroyed holographic will may be admitted because then the authenticity of the handwriting of the deceased can be determined by the probate court. EN BANC [G.R. No. L-6303. June 30, 1954.] In the matter of the last will and testament of JOSE VAO, deceased. TEODORO VAO, petitioner-appellant, vs. PAZ VAO VDA. DE GARCES, ET AL., oppositors-appellees. Pedro Re. Luspo, Vicente L. Faelnar and Roque R. Luspo for appellant. Pelaez, Pelaez & Pelaez and Ramon Duterte for appellees. SYLLABUS 1. WILLS, PROBATE OF; ISSUE IN CONTESTED WILLS; RULE IN THIS JURISDICTION ISSUE IS FIXED BY RULES OF COURT; ISSUE MAY NOT BE VARIED BY PLEADINGS. The rule in this jurisdiction is that the issue in contested wills is fixed by the Rules of Court, that is, before the probate court can allow the will it must be satisfied upon the proof taken and filed, that the will was duly executed and that the testator at the time of its execution was of sound and disposing mind and not acting under duress, menace, and undue influence, or fraud. This issue may not be varied by the pleadings. 2. ID.; ID.; EVIDENCE; OPPOSITOR MAY ADD OTHER GROUNDS AND SUBMIT

EVIDENCE IN SUPPORT THEREOF. An oppositor objecting to the probate of a will on one or two specific grounds may, during the hearing, add other grounds and submit evidence in support of the same. 3. ID.; ID.; ID.; SERVICE OF OPPOSITION TO ALL PERSONS INTERESTED PURPOSE OF. The purpose of the law (section 10, Rule 77 of the Rules of Court requiring a person contesting probate to state his ground of opposition and serve copy thereof to the petitioner and other residents of the province interested in the estate, is to appraise said persons of the reasons in opposing probate so that they may prepare the necessary evidence to counteract and disprove said grounds of opposition, this, in addition to apprising the court itself of the issued involved in the proceeding so that it may intelligently direct the presentation of evidence during the hearing. 4. ID.; ID.; ID.; FACTORS TO BE CONSIDERED IN DETERMINING GENUINENESS OF SIGNATURE OF TESTATOR. When the genuineness of the testator's signature is put in issue, his age, infirmity and state of health should be given due consideration. Where the testator, at the time the contested will was made, was 78 years old and suffering from apparently advanced pulmonary tuberculosis and rheumatism, it is natural that his signature should lack the firmness, rhythm, effort and continuity of motion that it had before he became quite ill and infirm. 5. ID.; ID.; ID.; CREDIBILITY OF WITNESSES. Where the three subscribing witnesses to the will who were in no way related to the testator, had no interest in the execution of the will and stood to gain nothing by its probate, under oath assured the court that the testator voluntary signed the will, their disinterested testimony can no be taken lightly. EN BANC [G.R. No. L-18753. March 26, 1965.] VICENTE B. TEOTICO, petitioner-appellant, vs. ANA DEL VAL CHAN, ETC., oppositorappellant. Antonio Gonzales for petitioner-appellants. J. C. Zulueta, G.D. David & N.J. Quisumbing for oppositor-appellee. SYLLABUS 1. CITIZENSHIP; NATURALIZATION; ALIEN WIFE OF CITIZEN NOT AUTOMATICALLY CITIZEN BUT MUST PROVE COMPLIANCE WITH REQUIREMENTS. The alien wife of a Filipino citizen does not automatically become a Philippine citizen upon her husband's naturalization. She must first prove that she has all the qualifications required by Section 2 and none of the disqualifications enumerated in Section 4 of the Naturalization Law before she may be deemed a Philippine citizen. 2. ID.; ID.; ID.; REASON FOR RULE; POLICY OF SELECTIVE ADMISSION TO PHILIPPINE CITIZENSHIP. The rule laid down by this Court in this and in other cases heretofore decided is believed to be in line with the national policy of selective admission to Philippine citizenship which after all is a privilege granted only to those who are found worthy thereof, and not indiscriminately to anybody at all on the basis alone of marriage to a man who is a citizen of the Philippines, irrespective of moral character, ideological belief, and identification with Filipino ideals, customs and traditions.

SECOND DIVISION [G.R. No. 10959. November 2, 1916.] PRIMITIVA PARAS, petitioner-appellant, vs. LUDOVICO NARCISO, objector-appellee. Francisco Siopongco for appellant. Crossfield & O'Brien for appellee. SYLLABUS 1. WILLS; PROBATE; PARTIES TO PROCEEDINGS. Before any person may intervene in proceedings had in a Court of First Instance for the probate of a will, he should be required to show an interest in the will or the property affected thereby either as executor or otherwise, and strangers should not be permitted over the objection of the real parties in interest to embarrass the proceedings by meddling or intruding themselves in matters with which they have no concern. 2. ID.; ID.; ID.; INTERVENTION BY STRANGER. But the mere fact that a stranger has been permitted to oppose or contest the probate of a will is not reversible error and does not invalidate the proceedings where no objection is interposed by any of the parties in interest. The judgment of the court in probate proceedings is not based on the fact that there is or is not opposition to the probate of the will, but upon the production of evidence which discloses that there are or are not sufficient grounds for the admission of the will to probate. 3. ID.; ID.; EVIDENCE BY STRANGER. Where competent, relevant, and material evidence admitted into the record in the course of probate proceedings sustains a judgment denying probate of the will, such judgment will not be reversed merely on the ground that all or any part of the evidence was submitted by a stranger to the proceedings unless it appears that timely objection was interposed to the introduction of such evidence at the hearing. EN BANC [G.R. No. L-18498. March 30, 1967.] TESTATE ESTATE OF VITO BORROMEO; JOSE H. JUNQUERA, petitioner-appellee, vs. CRISPIN BORROMEO, ET AL., oppositors-appellants, REPUBLIC OF THE PHILIPPINES, intervenor-appellant. Benjamin A. Rallon for oppositor-appellant Fortunato Borromeo. Crispin Baizas & Associates for heirs oppositors-appellants Tomas and Amelia Borromeo. Solicitor General for intervenor oppositor-appellant Republic. Miguel Cuenco and Fernando S. Ruiz for heirs oppositors-appellants Crispin Borromeo, Teofilo Borromeo, et al. Filiberto Leonardo for petitioner-appellee. SYLLABUS 1. WILLS; ITS DUE EXECUTION; TESTIMONY OF SUBSCRIBING WITNESSES; ITS WEIGHT. While it is true that the subscribing witnesses to contested will are regarded as the best witnesses in connection with its due execution, their testimony, in order to deserve full credit, must be reasonable and unbiased, and the same may be overcome by any other competent evidence. 2. ID.; ID.; ID.; PHYSICAL APPEARANCE OF QUESTIONED DOCUMENT. The condition and physical appearance of a questioned document is a factor which, if correctly evaluated in the light of surrounding circumstances, may help in determining whether it is genuine or forged. Subscribing witnesses may forget or exaggerate what they really know, saw, heard or did; they may be biased and, therefore, tell only half truths to mislead the court or favor one party to the prejudice of the other. This cannot be said of the condition and physical appearance of the questioned document itself. Both, albeit silently, will reveal the naked truth hiding nothing, forgetting nothing, and exaggerating nothing.

EN BANC [G.R. No. L-24819. May 30, 1969.] TESTATE ESTATE OF CATALINA DE LA CRUZ, deceased, ANDRES PASCUAL, petitionerappellee, vs. PEDRO DE LA CRUZ, ET AL., oppositors-appellants. Avelino Pascual for petitioner-appellee. Raul Manglapus and Feria, Feria, Lugtu & La'O for oppositors-appellants. SYLLABUS 1. REMEDIAL LAW; SPECIAL PROCEEDINGS; PROBATE OF WILL; SUBSCRIBING WITNESSES BEST QUALIFIED TO TESTIFY ON DUE EXECUTION OF WILL. Where a will is contested, the subscribing witnesses are generally regarded as the best qualified to testify on its due execution. However, it is similarly recognized that for the testimony of such witnesses to be entitled to full credit, it must be reasonable and unbiased, and not overcome by competent evidence, direct or circumstantial. For it must be remembered that the law does not simply require the presence of three instrumental witnesses; it demands that the witnesses be credible. 2. ID.; ID.; ID.; ID.; CONTRADICTIONS AND INCONSISTENCIES IN WITNESSES' TESTIMONIES DO NOT ALTER PROBATIVE VALUE OF TESTIMONIES ON DUE EXECUTION IN INSTANT CASE. The contradictions and inconsistencies appearing in the testimonies of the witnesses and the notary, pointed out by the oppositors-appellants (such as the weather condition at the time the will was executed; the sequence of the signing by the witnesses; and the length of time it took to complete the act), relate to unimportant details or to impressions of the witnesses about certain details which could have been affected by the lapse of time and the treachery of human memory, and which inconsistencies, by themselves would not alter the probative value of their testimonies on the due execution of the will. 3. ID.; ID.; ID.; ID.; FRIENDLY RELATIONS BETWEEN WITNESSES AND TESTATOR DO NOT AFFECT WITNESSES' CREDIBILITY. The authorities are to the effect that friendly relations of the witnesses with the testator or the beneficiaries do not affect the credibility of the former, so that the proven friendship between the proponent and the instrumental witnesses would have no bearing on the latter's qualification to testify on the circumstances surrounding the signing of the will. 4. ID.; ID.; ID.; ID.; APPELLANTS' EVIDENCE WEAK. Two circumstances that militate against giving credence to appellants' evidence of a tape recording of a conversation between instrumental witness Manuel Joingco and oppositor Pedro B. Cruz at the latter's house in 1960 (which recording was admittedly taken without Joingco's knowledge) wherein said witness is supposed to have stated that when he signed the will the other witnesses' signatures were already affixed, and were not then present, and that he signed the document in 1958 or 1959, are: 1) absence of adequate proof that the declarations tape recorded were in fact made by Joingco, the latter even denying the voice was his; and 2) the ratification of the testament appears among the entries for 1954 in the notarial register involved. 5. ID.; ID.; ID.; ID.; BASIC PRINCIPLES ON UNDUE INFLUENCE UPON TESTATRIX. The following are the basic principles on undue influence as laid down by the jurisprudence of the Court: To be sufficient to avoid a will, the influence exerted must be of a kind that so overpowers and subjugates the mind of the testator as to destroy his free agency and make him express the will of another rather than his own; that the contention that a will was obtained by undue influence or improper pressure cannot be sustained on mere conjectures or suspicion, as it is not enough that there was opportunity to exercise undue influence or a possibility that it may have been exercised; that the exercise of improper pressure and undue influence must be supported by substantial evidence that it was actually exercised; that the burden is on the person challenging the will to show that such influence was exerted at the time of its execution; that mere general or reasonable influence is not sufficient to invalidate a will; nor is moderate and reasonable solicitation and entreaty addressed in the testator or omission of relatives, not forced heirs, evidence of undue influence.

6. ID.; ID.; ID.; ID.; UNDUE INFLUENCE UPON TESTATRIX HAS NOT BEEN ESTABLISHED IN INSTANT CASE. The trial court committed no error in finding that appellants' evidence established at most grounds for suspicion but fell far short of establishing actual exercise of improper pressure or influence. Considering that the testatrix considered proponent as her own son, to the extent that she expressed no objection to his being made the sole heir of her sister, Florentina Cruz, in derogation of her own lights, we find nothing abnormal in her instituting proponent also as her own beneficiary. 7. ID.; ID.; ID.; ID.; PRESUMPTION OF UNDUE INFLUENCE WHERE BENEFICIARY PARTICIPATES IN DRAFTING OF THE WILL DOES NOT APPLY IN INSTANT CASE. Appellants invoke a presumption of undue influence held to exist by American authorities where the beneficiary participates in the drafting or execution of the will favoring him; but since the will was prepared by Atty. Pascual, although a nephew of the proponent, we do not think the presumption applies; for in the normal course of events, said attorney would follow the instructions of the testatrix; and a member of the bar in good standing may not be convicted of unprofessional conduct, or of having conspired to falsify a testament, except upon clear proof.

SECOND DIVISION [G.R. No. L-14003. August 5, 1960.] FEDERICO AZAOLA, petitioner-appellant, vs. CESARIO SINGSON, oppositor-appellee. F. Lavides and L. B. Alcuaz for appellant. Vicente J. Cuna and P. S. Singson for appellee. SYLLABUS 1. WILLS AND LAST TESTAMENT; HOLOGRAPHIC WILL; PROBATE OF; REQUISITE AS TO NUMBER OF WITNESSES. Since the authenticity of the holographic will was not contested, proponent was not required to produce more than one witness; but even if the genuineness of the holographic will were contested, Article 811 of our present Civil Code cannot be interpreted as to require the compulsory presentation of three witnesses to identify the handwriting of the testator, under penalty of having the probate denied. Since no witness may have been present at the execution of a holographic will, none being required by law, it becomes obvious that the existence of witnesses possessing the requisite qualifications is a matter beyond the control of the proponent. 2. ID.; ID.; ID.; PRODUCTION OF WITNESSES MERELY PREREQUISITE. Where the will is holographic, no witness need be present and the rule requiring production of three witnesses must be deemed merely permissive if absurd results are to be avoided. 3. ID.; RESORT TO EXPERT EVIDENCE. Under Article 811, the resort to expert evidence is conditioned by the words "if the Court deem it necessary", which reveals that what the law deems essential is that the Court should be convinced of the will's authenticity.

SECOND DIVISION [G.R. No. 76464. February 29, 1988.] TESTATE ESTATE OF THE LATE ADRIANA MALOTO, ALDINA MALOTO CASIANO, CONSTANCIO MALOTO, PURIFICACION MIRAFLOR, ROMAN CATHOLIC CHURCH OF MOLO, AND ASILO DE MOLO, petitioners, vs. COURT OF APPEALS, PANFILO MALOTO AND FELINO MALOTO, respondents. SYLLABUS 1. CIVIL LAW; SUCCESSION; WILLS; REVOCATION THEREOF; PHYSICAL ACT OF DESTRUCTION; ANIMUS REVOCANDI, A NECESSARY ELEMENT. The physical act of destruction of a will, like burning in this case, does not per se constitute an effective revocation, unless the destruction is coupled with animus revocandi on the part of the testator. It is not imperative that the physical destruction be done by the testator himself. It may be performed by another person but under the express direction and in the presence of the testator. Of course, it goes without saying that the document destroyed must be the will itself. In this case, while animus revocandi, or the intention to revoke, may be conceded, for that is a state of mind, yet that requisite alone would not suffice. "Animus revocandi is only one of the necessary elements for the effective revocation of a last will and testament. The intention to revoke must be accompanied by the overt physical act of burning, tearing, obliterating, or cancelling the will carried out by the testator or by another person in his presence and under his express direction. 2. REMEDIAL LAW; CIVIL ACTIONS; RES JUDICATA; ELEMENTS. For a judgment to be a bar to a subsequent case, the following requisites must concur: (1) the presence of a final former judgment; (2) the former judgment was rendered by a court having jurisdiction over the subject matter and the parties; (3) the former judgment is a judgment on the merits; and (4) there is, between the first and the second action, identity of parties, of subject matter, and of cause of action. We do not find here the presence of all the enumerated requisites. 3. ID.; ID.; ID.; DOCTRINE NOT APPLICABLE IN CASE AT BAR. There is yet, strictly speaking, no final judgment rendered insofar as the probate of Adriana Maloto's will is concerned. The decision of the trial court in Special Proceeding No. 1736, although final, involved only the intestate settlement of the estate of Adriana. As such, that judgment could not in any manner be construed to be final with respect to the probate of the subsequently discovered will of the decedent. Neither is it a judgment on the merits of the action for probate. This is understandably so because the trial court, in the intestate proceeding, was without jurisdiction to rule on the probate of the contested will. After all, an action for probate, as it implies, is founded on the presence of a will and with the objective of proving its due execution and validity, something which can not be properly done in an intestate settlement of estate proceeding which is predicated on the assumption that the decedent left no will. Thus, there is likewise no identity between the cause of action in intestate proceeding and that in an action for probate. Be that as it may, it would be remembered that it was precisely because of our ruling in G.R. No. L-30479 that the petitioners instituted this separate action for the probate of the late Adriana Maloto's will. Hence, on these grounds alone, the position of the private respondents on this score can not be sustained. SECOND DIVISION [G.R. No. 129505. January 31, 2000.] OCTAVIO S. MALOLES II, petitioner, vs. PACITA DE LOS REYES PHILLIPS, respondent. [G.R. No. 133359. January 31, 2000.] 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.

Dollete Blanco Ejercito and Associates for petitioner. Rodrigo Berenguer & Guno for private respondent. SYNOPSIS Dr. Arturo de Santos, Filipino, and a resident of Makati City, filed a petition for probate of his will in the Regional Trial Court, Branch 61, Makati, docketed as Sp. Proc. No. M-4223. 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 had 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 delos Reyes Phillips of RTC-Makati, issued an order granting the petition and allowing the will. 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 bloodied nephew and nearest of kin of Dr. De Santos. He also prayed for reconsideration of the order allowing the will and for the issuance of letters of administration in his name. Private respondent refiled a petition for the issuance of letters testamentary with the Regional Trial Court, Makati, Branch 65, docketed as Sp. Proc. No. M-4343. Upon private respondent's motion, Branch 65 issued an order appointing her as special administrator of Dr. De Santos' estate. Petitioner sought to intervene in Sp. Proc. No. M-4343 and to set aside the appointment of private respondent as special administrator. Branch 65 ordered the transfer of Sp. Proc. No. M-4343 to Branch 61 on the ground that it is related to the case before said Branch 61 and later issued another order returning the records of the case of Sp. Proc. No. M-4343 on the ground that there was a pending case involving the Estate of decedent Arturo de Santos before said court. Branch 65 eventually granted petitioner's motion for intervention. On petition for certiorari by private respondent, the Court of Appeals rendered a decision setting aside the order of Branch 65 on the ground that petitioner had not shown any right or interest to intervene in Sp. Proc. No. M-4343. Hence, the present petition. Petitioner contended that the probate proceedings in Branch 61 did not terminate upon the issuance of the order allowing the will of Dr. De Santos. He argued that the proceedings must continue until the estate is fully distributed pursuant to Section 1, Rule 73, Rules of Court, and for such reason Branch 65 could not lawfully act upon private respondent's petition for issuance of letters testamentary; that as the next of kin and creditor of the testator, he has the right to intervene in the probate proceedings. Petitioner also contended that private respondent committed forum shopping when she filed the petition for issuance of letters testamentary, while the probate proceedings were still pending. TAESDH The Supreme Court ruled that Branch 65 had jurisdiction over Sp. Proc. No. M-4343 and there was no basis for the ruling of Branch 65 that the probate proceedings did 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 Court also ruled that even if petitioner is the next of kin of Dr. De Santos, he cannot be considered as an "heir" because Dr. De Santos has no compulsory or forced heirs so he may legally dispose his entire estate by will. Petitioner's contention that private respondent committed forum shopping was also found by the Court unmeritorious. There was no identity between the two petitions nor was the petition for probate filed during the pendency of the petition for issuance of letters testamentary. The petition for probate filed by Dr. De Santos, the testator, was solely for the purpose of authenticating his will and upon allowance thereof, the proceeding was considered terminated. However, the petition for issuance of letters testamentary was filed by private respondent for the purpose of securing authority from the court to administer the estate and put into effect the will of the testator. Said proceeding, on the other hand, terminated upon the distribution and delivery of the legacies and devises named in the will. SYLLABUS 1. REMEDIAL LAW; SPECIAL PROCEEDINGS; SETTLEMENT OF ESTATES OF DECEASED PERSONS; VENUE; INSOFAR AS THE VENUE OF PETITIONS FOR PROBATE OF WILLS 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. 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. 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: 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. 2. ID.; ID.; PETITIONER HAS NO RIGHT TO INTERVENE AND OPPOSE PETITION FOR ISSUANCE OF LETTERS TESTAMENTARY BASED ON HIS ALLEGATION THAT HE IS A CREDITOR OF DECEASED, SINCE TESTATOR INSTITUTED OR NAMED AN EXECUTOR IN HIS WILL AND IT IS INCUMBENT UPON COURT TO RESPECT DESIRES OF TESTATOR. Under Rule 79, Section 1, 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. 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. 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. 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: 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. None of these circumstances is present in this case. HaSEcA 3. ID.; CIVIL PROCEDURE; FORUM SHOPPING; NOT COMMITTED BY PRIVATE RESPONDENT'S ACT OF FILING THE PETITION FOR THE ISSUANCE OF LETTERS

TESTAMENTARY WHILE THE PROBATE PROCEEDINGS WERE STILL PENDING IN ANOTHER COURT; THERE IS NO IDENTITY BETWEEN THE TWO PETITIONS, NOR WAS THE LATTER FILED DURING THE PENDENCY OF THE FORMER. 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. On 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.