Case Digests

Special Proceedings
16. Roberts vs Leonidas
ETHEL GRIMM ROBERTS, petitioner, vs.
JUDGE TOMAS R. LEONIDAS, Branch 38, Court of First Instance of Manila; MAXINE TATEGRIMM, EDWARD MILLER GRIMM II and LINDA GRIMM, respondents.
G.R. No. L-55509
April 27, 1984
FACTS
Edward Grimm, an American resident of Manila, died in 1977. He was survived by his second
wife (Maxine), their two children (Pete and Linda), and by his two children by a first marriage
(Juanita and Ethel) which ended by divorce.
Grimm executed two wills in San Francisco, California on January 23, 1959. One will disposed of
his Philippine estate described as conjugal property of himself and his second wife. The second
will disposed of his estate outside the Philippines. The two wills and a codicil were presented for
probate in Utah by Maxine on March 1978. Maxine admitted that she received notice of the
intestate petition filed in Manila by Ethel in January 1978. The Utah Court admitted the two wills
and codicil to probate on April 1978 and was issued upon consideration of the stipulation
between the attorneys for Maxine and Ethel.
Also in April 1978, Maxine and Ethel, with knowledge of the intestate proceeding in Manila,
entered into a compromise agreement in Utah regarding the estate.
As mentioned, in January 1978, an intestate proceeding was instituted by Ethel. On March 1978,
Maxine filed an opposition and motion to dismiss the intestate proceeding on the ground of
pendency of the Utah probate proceedings. She submitted to the court a copy of Grimms will.
However, pursuant to the compromise agreement, Maxine withdrew the opposition and the
motion to dismiss. The court ignored the will found in the record. The estate was partitioned.
In 1980, Maxine filed a petition praying for the probate of the two wills (already probated in
Utah), that the partition approved by the intestate court be set aside and the letters of
administration revoked, that Maxine be appointed executrix and Ethel be ordered to account for
the properties received by them and return the same to Maxine. Maxine alleged that they were
defrauded due to the machinations of Ethel, that the compromise agreement was illegal and the
intestate proceeding was void because Grimm died testate so partition was contrary to the
decedents wills.
Ethel filed a motion to dismiss the petition which was denied by Judge Leonidas for lack of
merit.

ISSUE
whether a petition for allowance of wills and to annul a partition, approved in an intestate
proceeding by Branch 20 of the Manila Court of First Instance, can be entertained by its Branch
38 (after a probate in the Utah district court)
RULING
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.
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 and 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. Panio, 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.
Ethel may file within twenty days from notice of the finality of this judgment an opposition and
answer to the petition unless she considers her motion to dismiss and other pleadings sufficient
for the purpose. Juanita G. Morris, who appeared in the intestate case, should be served with
copies of orders, notices and other papers in the testate case.
WHEREFORE the petition is dismissed.
17. De Arnz vs Galing
JOAQUINA R-INFANTE DE ARANZ, ANTONIO R-INFANTE, CARLOS R. INFANTE, MERCEDES RINFANTE DE LEDNICKY, ALFREDO R-INFANTE, TERESITA R-INFANTE, RAMON R-INFANTE,
FLORENCIA R-INFANTE DE DIAS, MARTIN R-INFANTE, JOSE R-INFANTE LINK and JOAQUIN RINFANTE CAMPBELL, petitioners, vs.
THE HON. NICOLAS GALING, PRESIDING JUDGE, REGIONAL TRIAL COURT, NATIONAL CAPITAL
JUDICIAL REGION, BRANCH NO. 166, PASIG, METRO MANILA AND JOAQUIN R-INFANTE,
respondents.
G.R. No. 77047
May 28, 1988
FACTS
In March 1986, Joaquin R-Infante filed with the RTC of Pasig a petition for probate and
allowance of the last will and testament of Monserrat R-Infante y G-Pola. The petition specified
the names and addresses of the petitioners as lagatees and devisees.
The probate court then issued an order setting the petition for hearing. This order was published
in Nueva Era a newspaper of general circulation once a week for three consecutive weeks. On

the date of the hearing, no oppositor appeared. The hearing was reset to 12 May 1986 and on
which date, the probate court issued an order which designated the Branch Clerk of Court as
commissioner to receive evidence ex-parte of the petitioner. Joaquin was then allowed to
present evidence ex-parte and was appointed executor.
On May 14, 1986, the petitioners filed a motion for reconsideration of the order issued on May
12, 1986 on the ground that as named legatees no notices were sent to them as required by
Section 4 of Rule 76 and they prayed that they be given time to file their opposition. This was
denied.
ISSUE
Whether or not the CA erred in holding that personal notice of probate proceedings to the
known legatees and devisees is not a jurisdictional requirement in the probate of the will.
RULING
The petition is granted.
Sec. 4, Rule 76 of the Rules of Court of reads:
SEC. 4. Heirs, devisees, legatees, and executors to be notified by mail or personally.
The court shall also cause copies of the notice of the time and place fixed for
proving the will to be addressed to the designated or other known heirs, legatees,
and devisees of the testator resident in the Philippines at their places of residence,
and deposited in the post office with the postage thereon prepaid at least twenty
(20) days before the hearing, if such places of residence be known. A copy of the
notice must in like manner be mailed to the person named as executor, if he be not, the
petitioner; also, to any person named as co-executor not petitioning, if their places of
residence be known. Personal service of copies of the notice at least ten (10) days before
the day of hearing shall be equivalent to mailing.
It is clear from the aforecited rule that notice of the time and place of the hearing for the
allowance of a will shall be forwarded to the designated or other known heirs, legatees,
and devisees residing in the Philippines at their places of residence, if such places of
residence be known. There is no question that the residences of herein petitioners legatees
and devisees were known to the probate court. The petition for the allowance of the will itself
indicated the names and addresses of the legatees and devisees of the testator. 7 But despite
such knowledge, the probate court did not cause copies of the notice to be sent to petitioners.
The requirement of the law for the allowance of the will was not satisfied by mere
publication of the notice of hearing for three (3) weeks in a newspaper of general
circulation in the province.
In the case of Joson vs. Nable, the court held that If the true residence of petitioners was not
known, then notice upon them individually was not necessary. Under the provision

abovequoted, individual notice upon heirs, legatees and devisees is necessary only when they
are known or when their places of residence are known. In other instances, such notice is not
necessary and the court may acquire and exercise jurisdiction simply upon the publication of the
notice in a newspaper of general circulation
In Re: Testate Estate of Suntay, the Court held that ... It is a proceedings in rem and for the
validity of such proceedings personal notice or by publication or both to all interested parties
must be made. The interested parties in the case were known to reside in the Philippines.
WHEREFORE, the decision of the Court of Appeals dated 13 January 1987 is hereby ANNULLED
and SET ASIDE. The case is hereby ordered remanded to the Regional Trial Court of Pasig for
further proceedings in accordance with this decision. No costs.
18. Abut vs Abut
IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF CIPRIANO ABUT, deceased.
GENEROSO ABUT, petitioner, GAVINA ABUT, petitioner-appellant, vs.
FELIPE ABUT, PRESENTACION DE RODRIGUEZ and ABSOLUTO ABUT, oppositors-appellees.
G.R. No. L-26743
May 31, 1972
FACT
Generoso Abut is one of the children of the deceased Cipriano Abut by his second marriage. On
August 4, 1965, Generoso filed a petition before the CFI of Misamis, a petition for the allowance
of the will of the said deceased and the issuance of letters testamentary in his favor alleging that
he is the person named as executor in a will allegedly executed by his father. In an order dated
September 1, 1965 the court a quo motu proprio set the petition for hearing and further
directed compliance with Sections 3 and 4 of Rule 76 of the Rules of Court. These procedural
steps admittedly took place. Opposition to the petition was filed by the children of Cipriano
Abut by his first marriage.
During the pendency of the case below but before the court a quo could even start the formal
hearing of the petition, Generoso died on January 10, 1966. This eventuality prompted Gavina
Abut, a sister of Generoso and an heir and devisee under the will of the testator Cipriano Abut,
to ask the court a quo to substitute her in lieu of Generoso and to admit an amended petition
wherein she prayed that the probate of the will be allowed and that letters of administration
with the will annexed be issued in her favor.
The lower court dismissed the petition originally brought by the deceased Generoso, "without
prejudice to the filing of another petition pursuant to the requirements of the Rules of Court".
Said dismissal was based on the theory that the amended petition filed Gavaina, seeking to
substitute her in place of the original petitioner, required a new publication in order to invest
the court with jurisdiction.

ISSUE
whether or not the probate court correctly dismissed the petition simply because the original
petitioner who was the executor named in the will sought to be probated died before the
petition could be heard and/or terminated.
RULING
We find the dismissal of the original petition for probate and the refusal of the probate court to
admit the amended petition without a new publication thereof to be untenable. The jurisdiction
of the court became vested upon the filing of the original petition and upon compliance with
Sections 3 and 4 of Rule 76. 2
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 deceased. The fact that the amended petition
named additional heirs not included in the original petition 3 did not require that notice
of the amended petition be published anew. All that Section 4 of Rule 76 provides is that
those heirs be notified of the hearing for the probate of the will, either by mail or
personally.
In the case of Perez vs. Perez 4 this Court explained:
Thus it appears that such "no notice" argument has no legal foundation. At any rate the
omission, if any, did not affect the jurisdiction of the court; it constituted a mere
procedural error that may or may not be the basis of reversal (Jocson vs. Nable, 48
O.G. 90). Indeed, this Tribunal has ruled that the court acquires jurisdiction over all
persons interested in the estate through the publication of the petition in the
newspapers (In re Estate of Johnson, 39 Phil. 159; Jocson vs. Nable, supra) which in
this case admittedly took place.
Service of notice on individual heirs or legatees or devisees is a matter of procedural
convenience, not jurisdictional requisite. So much so that even if the names of some legatees
or heirs had been omitted from the petition for allowance of the will and therefore were not
advised the decree allowing the will does not ipso facto become void for want of
jurisdiction...
Jurisdiction of the court once acquired continues until the termination of the case, 5 and
remains unaffected by subsequent events. The court below erred in holding that it was
divested of jurisdiction just because the original petitioner died before the petition could be
formally heard. Parties who could have come in and opposed the original petition, as herein
appellees did, could still come in and oppose the amended petition, having already been
notified of the pendency of the proceeding by the publication of the notice thereof.
The admission of the amended petition, of course, does not mean that Gavina Abut's
prayer that she be appointed administratrix with the will annexed is necessarily

meritorious. It simply recognizes that since the lower court has acquired jurisdiction over the
res, such jurisdiction continues until the termination of the case.
WHEREFORE, the order dated July 2, 1966 is set aside and the case is remanded below, with
direction for the lower court to admit the amended petition and thereafter proceed accordingly.
Costs against oppositors-appellees.
19. Gago vs Mamuyac
Estate of Miguel Mamuyac, deceased. FRANCISCO GAGO, petitioner-appellant, vs.
CORNELIO MAMUYAC, AMBROSIO LARIOSA, FELICIANA BAUZON, and CATALINA MAMUYAC,
opponents-appellees.
G.R. No. L-26317
January 29, 1927
FACT
Previously, Francisco Gago filed a petition for the probate of a will of Miguel Mamuyac executed
on July 27, 1918. The oppositors alleged that the said will was already annulled and revoked. It
appeared that on April 16, 1919, the deceased executed another will. The lower court denied the
probate of the first will on the ground of the existence of the second will.
Another petition was filed to seek the probate of the second will. The oppositors alleged that
the second will presented was merely a copy. According to the witnesses, the said will was
allegedly revoked as per the testimony of Jose Tenoy, one of the witnesses who typed the
document. Another witness testified that on December 1920 the original will was actually
cancelled by the testator.
The lower court denied the probate and held that the same has been annulled and revoked.
ISSUE
Whether or not the lower court committed an error in not finding from the evidence that the will
in question had been executed with all the formalities required by the law; that the same had
been revoked and cancelled in 1920 before his death; that the said will was a mere carbon copy
and that the oppositors were not estopped from alleging that fact.
RULING
With reference to the said cancellation, it may be stated that there is positive proof, not denied,
which was accepted by the lower court, that will in question had been cancelled in 1920. The law
does not require any evidence of the revocation or cancellation of a will to be preserved. It
therefore becomes difficult at times to prove the revocation or cancellation of wills. The fact that
such cancellation or revocation has taken place must either remain unproved of be inferred from
evidence showing that after due search the original will cannot be found. Where a will which
cannot be found is shown to have been in the possession of the testator, when last seen,
the presumption is, in the absence of other competent evidence, that the same was

cancelled or destroyed. The same presumption arises where it is shown that the testator had
ready access to the will and it cannot be found after his death. It will not be presumed that such
will has been destroyed by any other person without the knowledge or authority of the testator.
The force of the presumption of cancellation or revocation by the testator, while varying greatly,
being weak or strong according to the circumstances, is never conclusive, but may be overcome
by proof that the will was not destroyed by the testator with intent to revoke it.
In view of the fat that the original will of 1919 could not be found after the death of the
testator Miguel Mamuyac and in view of the positive proof that the same had been
cancelled, we are forced to the conclusion that the conclusions of the lower court are in
accordance with the weight of the evidence. In a proceeding to probate a will the burden
of proofs is upon the proponent clearly to establish not only its execution but its
existence. Having proved its execution by the proponents, the burden is on the contestant
to show that it has been revoked. In a great majority of instances in which wills are destroyed
for the purpose of revoking them there is no witness to the act of cancellation or destruction
and all evidence of its cancellation perishes with the testator. Copies of wills should be
admitted by the courts with great caution. When it is proven, however, by proper
testimony that a will was executed in duplicate and each copy was executed with all the
formalities and requirements of the law, then the duplicate may be admitted in evidence
when it is made to appear that the original has been lost and was not cancelled or
destroyed by the testator. (Borromeo vs. Casquijo, G.R. No. L-26063.)1
After a careful examination of the entire record, we are fully persuaded that the will presented
for probate had been cancelled by the testator in 1920. Therefore the judgment appealed from
is hereby affirmed. And without any finding as to costs, it is so ordered.