G.R. No.
132223 law speaks of family relations, it must be deemed
June 19, 2001
BONIFACIA P. VANCIL, petitioner, vs. HELEN
G. BELMES, respondent.
Civil Law; Guardianship; Respondent, being
the natural mother of the minor, has the
preferential right over that of petitioner to
be his guardian.We agree with the ruling of
the Court of Appeals that respondent, being the
natural mother of the minor, has the preferential
right over that of petitioner to be his guardian.
This ruling finds support in Article 211 of the
Family Code which provides: Art. 211. The father
and the mother shall jointly exercise parental
authority over the persons of their common
children. In case of disagreement, the fathers
decision shall prevail, unless there is a judicial
order to the contrary, x x x.
Same; Same; Petitioner, as the surviving
grandparent, can exercise substitute
parental authority only in case of death,
absence or unsuitability of respondent.
Petitioner, as the surviving grandparent, can
exercise substitute parental authority only in case
of death, absence or unsuitability of respondent.
Considering that respondent is very much alive
and has exercised continuously parental authority
over Vincent, petitioner has to prove, in asserting
her right to be the minors guardian, respondents
unsuitability. Petitioner, however, has not
proffered convincing evidence showing that
respondent is not suited to be the guardian of
Vincent.
Same; Same; Courts should not appoint
persons as guardians who are not within
the jurisdiction of our courts.Significantly,
this Court has held that courts should not appoint
persons as guardians who are not within the
jurisdiction of our courts for they will find it
difficult to protect the wards.
VITUG, J., Concurring Opinion:
Civil Law; Guardianship; Parents are placed
first in rank in matters of parental
authority.There is in law and jurisprudence a
recognition, of the deep ties that bind parent and
child. Parents are thus placed first in rank in
matters of parental authority. Substitute parental
authority may be exercised by the grandparents
only in case the parents have died or are absent
or declared unfit in proper proceedings for that
purpose. Parental authority stands to include the
right and duty to the custody of the child,
excepting only, of course, what might otherwise
be best for the childs welfare.
Same; Same; The childs illegitimacy does
not in any way affect the order of priority in
the exercise of parental authority.When the
to refer, unless the contrary is there indicated or
the context of the law otherwise clearly conveys,
to both legitimate and illegitimate ties. The
childs illegitimacy does not in any way affect the
order of priority in the exercise of parental
authority. Indeed, Article 176 of the Family Code
states that an illegitimate child shall be under the
parental authority of the mother who,
consequentially, should also be entitled to the
custody of the child.
PETITION for review on certiorari of a decision of
the Court of Appeals.
SANDOVAL-GUTIERREZ, J.:
Petition for review on certiorari of the Decision of
the Court of Appeals in CA-G.R. CV No. 45650, "In
the Matter of Guardianship of Minors Valerie
Vancil and Vincent Vancil Bonifacia P. Vancil,
Petitioner-Appellee, vs. Helen G. Belmes,
Oppositor-Appellant," promulgated on July 29,
1997, and its Resolution dated December 18,
1997 denying the motion for reconsideration of
the said Decision.
The facts of the case as summarized by the Court
of Appeals in its Decision are:
"Petitioner, Bonifacia Vancil, is the mother of
Reeder C. Vancil, a Navy serviceman of the
United States of America who died in the said
country on December 22, 1986. During his
lifetime, Reeder had two (2) children named
Valerie and Vincent by his common-law wife,
Helen G. Belmes.
"Sometime in May of 1987, Bonifacia Vancil
commenced before the Regional Trial Court of
Cebu City a guardianship proceedings over
the persons and properties of minors Valerie
and Vincent docketed as Special Proceedings
No. 1618-CEB. At the time, Valerie was only 6
years old while Vincent was a 2-year old child.
It is claimed in the petition that the minors are
residents of Cebu City, Philippines and have
an estate consisting of proceeds from their
fathers death pension benefits with a
probable value of P100,000.00.
"Finding sufficiency in form and in substance,
the case was set for hearing after a 3-
consecutive-weekly publications with the
Sunstar Daily.
"On July 15, 1987, petitioner, Bonifacia Vancil
was appointed legal and judicial guardian over
the persons and estate of Valerie Vancil and
Vincent Vancil Jr.
"On August 13, 1987, the natural mother of
the minors, Helen Belmes, submitted an
opposition to the subject guardianship
proceedings asseverating that she had
 already filed a similar petition for
guardianship under Special Proceedings No.
2819 before the Regional Trial Court of
Pagadian City.
"Thereafter, on June 27, 1988, Helen Belmes
followed her opposition with a motion for the
Removal of Guardian and Appointment of a
New One, asserting that she is the natural
mother in actual custody of and exercising
parental authority over the subject minors at
Maralag, Dumingag, Zamboanga del Sur
where they are permanently residing; that the
petition was filed under an improper venue;
and that at the time the petition was filed
Bonifacia Vancil was a resident of 140
Hurliman Court, Canon City, Colorado, U.S.A.
being a naturalized American citizen.
"On October 12, 1988, after due proceedings,
the trial court rejected and denied Belmes
motion to remove and/or to disqualify
Bonifacia as guardian of Valerie and Vincent Jr.
and instead ordered petitioner Bonifacia
Vancil to enter the office and perform her
duties as such guardian upon the posting of a
bond of P50,000.00. The subsequent attempt
for a reconsideration was likewise dismissed
in an Order dated November 24, 1988."1
On appeal, the Court of Appeals rendered its
assailed Decision reversing the RTC order of
October 12, 1988 and dismissing Special
Proceedings No. 1618-CEB.
The Court of Appeals held:
"Stress should likewise be made that our Civil
Code considers parents, the father, or in the
absence, the mother, as natural guardian of
her minor children. The law on parental
authority under the Civil Code or P.D. 603 and
now the New Family Code, (Article 225 of the
Family Code) ascribe to the same legal
pronouncements. Section 7 of Rule 93 of the
Revised Rules of Court confirms the
designation of the parents as ipso facto
guardian of their minor children without need
of a court appointment and only for good
reason may another person be named.
Ironically, for the petitioner, there is nothing
on record of any reason at all why Helen
Belmes, the biological mother, should be
deprived of her legal rights as natural
guardian of her minor children. To give away
such privilege from Helen would be an
abdication and grave violation of the very
basic fundamental tenets in civil law and the
constitution on family solidarity."2
On March 10, 1998, Bonifacia Vancil filed with this
Court the present petition, raising the following
"legal points":
"1. The Court of Appeals gravely erred in
ruling that the preferential right of a parent to
be appointed guardian over the persons and
estate of the minors is absolute, contrary to
existing jurisprudence.
"2. The Court of Appeals gravely erred in
ruling that Oppositor Helen G. Belmes, the
biological mother, should be appointed the
guardian of the minors despite the undisputed
proof that under her custody, her daughter
minor Valerie Vancil was raped seven times by
Oppositors live-in partner.
"3. The respondent (sic) Court of Appeals
gravely erred when it disqualified petitioner
Bonifacia P. Vancil to be appointed as judicial
guardian over the persons and estate of
subject minors despite the fact that she has
all the qualifications and none of the
disqualifications as judicial guardian, merely
on the basis of her U.S. citizenship which is
clearly not a statutory requirement to become
guardian."
At the outset, let it be stressed that in her
"Manifestation/Motion," dated September 15,
1998, respondent Helen Belmes stated that her
daughter Valerie turned eighteen on September
2, 1998 as shown by her Birth
Certificate.3 Respondent thus prayed that this
case be dismissed with respect to Valerie, she
being no longer a proper subject of guardianship
proceedings. The said "Manifestation/Motion" was
noted by this Court in its Resolution dated
November 11, 1998.
Considering that Valerie is already of major age,
this petition has become moot with respect to
her. Thus, only the first and third "legal points"
raised by petitioner should be resolved.
The basic issue for our resolution is who between
the mother and grandmother of minor Vincent
should be his guardian.
We agree with the ruling of the Court of Appeals
that respondent, being the natural mother of the
minor, has the preferential right over that of
petitioner to be his guardian. This ruling finds
support in Article 211 of the Family Code which
provides:
"Art. 211. The father and the mother shall
jointly exercise parental authority over the
persons of their common children. In case of
disagreement, the fathers decision shall
prevail, unless there is a judicial order to the
contrary. xxx."
Indeed, being the natural mother of minor
Vincent, respondent has the corresponding
natural and legal right to his custody. In Sagala-
Eslao vs. Court of Appeals,4 this Court held:
 "Of considerable importance is the rule long
accepted by the courts that the right of
parents to the custody of their minor children
is one of the natural rights incident to
parenthood, a right supported by law and
sound public policy. The right is an inherent
one, which is not created by the state or
decisions of the courts, but derives from the
nature of the parental relationship."
Petitioner contends that she is more qualified as
guardian of Vincent.
Petitioners claim to be the guardian of said minor
can only be realized by way of substitute parental
authority pursuant to Article 214 of the Family
Code, thus:
"Art. 214. In case of death, absence or
unsuitability of the parents, substitute
parental authority shall be exercised by the
surviving grandparent. xxx."
In Santos, Sr. vs. Court of Appeals,5 this Court
ruled:
"The law vests on the father and mother joint
parental authority over the persons of their
common children. In case of absence or death
of either parent, the parent present shall
continue exercising parental authority. Only in
case of the parents death, absence or
unsuitability may substitute parental authority
be exercised by the surviving grandparent."
Petitioner, as the surviving grandparent, can
exercise substitute parental authority only in case
of death, absence or unsuitability of respondent.
Considering that respondent is very much alive
and has exercised continuously parental authority
over Vincent, petitioner has to prove, in asserting
her right to be the minors guardian, respondents
unsuitability. Petitioner, however, has not
proffered convincing evidence showing that
respondent is not suited to be the guardian of
Vincent. Petitioner merely insists that respondent
is morally unfit as guardian of Valerie considering
that her (respondents) live-in partner raped
Valerie several times. But Valerie, being now of
major age, is no longer a subject of this
guardianship proceeding.
Even assuming that respondent is unfit as
guardian of minor Vincent, still petitioner cannot
qualify as a substitute guardian. It bears stressing
that she is an American citizen and a resident of
Colorado. Obviously, she will not be able to
perform the responsibilities and obligations
required of a guardian. In fact, in her petition, she
admitted the difficulty of discharging the duties of
a guardian by an expatriate, like her. To be sure,
she will merely delegate those duties to someone
else who may not also qualify as a guardian.
Moreover, we observe that respondents
allegation that petitioner has not set foot in the
Philippines since 1987 has not been controverted
by her. Besides, petitioners old age and her
conviction of libel by the Regional Trial Court,
Branch 6, Cebu City in Criminal Case No. CBU-
168846 filed by one Danilo R. Deen, will give her a
second thought of staying here. Indeed, her
coming back to this country just to fulfill the
duties of a guardian to Vincent for only two years
is not certain.
Significantly, this Court has held that courts
should not appoint persons as guardians who are
not within the jurisdiction of our courts for they
will find it difficult to protect the wards.
In Guerrero vs. Teran,7 this Court held:
"Doa Maria Muoz y Gomez was, as above
indicated, removed upon the theory that her
appointment was void because she did not
reside in the Philippine Islands. There is
nothing in the law which requires the courts to
appoint residents only as administrators or
guardians. However, notwithstanding the fact
that there are no statutory requirements upon
this question, the courts, charged with the
responsibilities of protecting the estates of
deceased persons, wards of the estate, etc.,
will find much difficulty in complying with this
duty by appointing administrators and
guardians who are not personally subject to
their jurisdiction. Notwithstanding that there is
no statutory requirement, the courts should
not consent to the appointment of persons as
administrators and guardians who are not
personally subject to the jurisdiction of our
courts here."
WHEREFORE, the appealed Decision is hereby
AFFIRMED, with modification in the sense that
Valerie, who has attained the age of majority, will
no longer be under the guardianship of
respondent Helen Belmes.
Costs against petitioner.
SO ORDERED.
Melo, (Chairman), Panganiban, and Gonzaga-
Reyes, JJ., concur.
Vitug, J., see concurring opinion.
CONCURRING OPINION
VITUG, J.:
I share the opinion very well expressed by
Madame Justice Angelina Sandoval-Gutierrez in
her ponencia.
There is in law and jurisprudence a recognition of
the deep ties that bind parent and child. Parents
are thus placed first in rank in matters of parental
authority. Substitute parental authority may be
exercised by the grandparents only in case the
parents have died or are absent or declared unfit
in proper proceedings for that purpose.1 Parental
authority stands to include the right and duty to
the custody of the child, excepting only, of
course, what might otherwise be best for the
childs welfare.
When the law speaks of family relations, it must
be deemed to refer, unless the contrary is there
indicated or the context of the law otherwise
clearly conveys, to both legitimate and
illegitimate ties. The childs illegitimacy does not
in any way affect the order of priority in the
exercise of parental authority. Indeed, Article 176
of the Family Code states that an illegitimate
child shall be under the parental authority of the
mother who, consequentially, should also be
entitled to the custody of the child.2
Judgment affirmed with modification.
G.R. No. L-57438
January 31, 1984
FELICIANO FRANCISCO, petitioner, vs. HON.
COURT OF APPEALS and PELAGIO
FRANCISCO, respondents.
Guardianship; Trusts; Guardianship is a
sacred trust relation designed to further
wards well-being.A guardianship is a trust
relation of the most sacred character, in which
one person, called a guardian acts for another
called the ward whom the law regards as
incapable of managing his own affairs. A
guardianship is designed to further the wards
well-being, not that of the guardian. It is intended
to preserve the wards property, as well as to
render any assistance that the ward may
personally require. It has been stated that while
custody involves immediate care and control,
guardianship indicates not only those
responsibilities, but those of one in loco parentis
as well.
Same; Factors to consider in the selection of
a suitable guardian.Having in mind that
guardianship proceeding is instituted for the
benefit and welfare of the ward, the selection of a
guardian must, therefore, suit this very purpose.
Thus, in determining the selection of a guardian,
the court may consider the financial situation, the
physical condition, the sound judgment, prudence
and trustworthiness, the morals, character and
conduct, and the present and past history of a
prospective appointee, as well as the probability
of his being able to exercise the powers and
duties of guardian for the full period during which
guardianship will be necessary.
Same; A guardian maybe removed when he
is no longer capable of discharging his trust
or fails to render an accounting or make a
return within 30 days from due date.A
guardian is or becomes incompetent to serve the
trust if he is so disqualified by mental incapacity,
conviction of crime, moral delinquency or
physical disability as to be prevented from
properly discharging the duties of his office. A
guardian, once appointed may be removed in
case he becomes insane or otherwise incapable
of discharging his trust or unsuitable therefore, or
has wasted or mismanaged the estate, or failed
for thirty (30) days after it is due to render an
account or make a return.
Same, Replacement of petitioner as
guardian is proper.We agree with the trial
court and the appellate court that there is need
for petitioner Feliciano Francisco to be retired
from the guardianship over the person and
property of incompetent Estefania San Pedro. The
conclusion reached by the trial court about the
rather advanced age of petitioner at 72 years
old (petitioner is now 76 years old) finding him
unfit to continue the trust cannot be disturbed. As
correctly pointed out by the appellate court, this
finds direct support in the delay of the accounting
and inventory made by petitioner. To sustain
petitioner as guardian would, therefore, be
detrimental to the ward. While age alone is not a
controlling criterion in determining a persons
fitness or qualification to be appointed or be
retained as guardian, it may be a factor for
consideration.
Same; Appeal; Execution; Execution
pending appeal of an order appointing a
new guardian is proper where there are
compelling reasons therefor.With respect to
the issue of execution pending appeal in
appointing respondent Pelagio Francisco as
guardian to succeed petitioner while the latters
appeal was still pending, We hold and rule that
respondent appellate court correctly sustained
the propriety of said execution pending appeal.
Upon urgent and compelling reasons, execution
pending appeal is a matter of sound discretion on
the part of the trial court, and the appellate court
will not interfere, control or inquire into the
exercise of this discretion, unless there has been
an abuse thereof, which We find none herein.
PETITION for certiorari to review the decision and
resolution of the Court of Appeals.
GUERRERO, J.:
This petition for review on certiorari seeks the
annulment of the decision and resolution of the
defunct Court of Appeals, now Intermediate
Appellate Court, dated April 27, 1981 and June
26, 1981, respectively, dismissing the petition for
certiorari filed by petitioner Feliciano Francisco
docketed as CA-G.R. No. 12172 entitled Feliciano
Francisco versus Judge Jesus R. De Vega and
Pelagio Francisco. In the said petition for
certiorari, petitioner Feliciano Francisco
challenged the validity of the Order of the Court
of First Instance of Bulacan, Fifth Judicial District,
Branch II, now Regional Trial Court, granting
execution pending appeal of its decision by
relieving petitioner Feliciano Francisco as
guardian of incompetent Estefania San Pedro and
appointing respondent herein, Pelagio Francisco,
in his stead.
The antecedent facts as recited in the appealed
decision of the Court of Appeals showed that:
Petitioner is the duly appointed guardian of
the incompetent Estefania San Pedro in
Special Proceedings No. 532 of the Court of
First Instance of Bulacan presided over by
respondent Judge. On August 30, 1974
respondent Pelagio Francisco, claiming to be a
first cousin of Estefania San Pedro, together
with two others, said to be nieces of the
incompetent, petitioned the court for the
removal of petitioner and for the appointment
in his stead of respondent Pelagio Francisco.
Among other grounds, the petition was based
on the failure of the guardian to submit an
inventory of the estate of his ward and to
render an accounting.
It would seem that petitioner subsequently
rendered an accounting but failed to submit
an inventory, for which reason the court on
March 20, 1975 gave petitioner ten (10) days
within which to do so, otherwise he would be
removed from guardianship. Petitioner
thereafter submitted an inventory to which
respondent Pelagio Francisco filed an
objection on the ground that petitioner
actually received P14,000.00 for the sale of a
residential land and not P12,000.00 only as
stated in the deed of sale and reported by him
in his inventory. The respondent Judge found
the claim to be true, and, in his order of April
17, 1980 relieved the petitioner as guardian.
On motion of petitioner, however, the
respondent Judge reconsidered his finding,
relying on the deed of sale as the best
evidence of the price paid for the sale of the
land. In his order dated September 12, 1980,
respondent judge acknowledged that his
finding was rather harsh and somewhat
unfair to the said guardian. Nevertheless,
respondent Judge ordered the retirement of
petitioner on the ground of old age. The order
states in part as follows:
. . . considering the rather advanced age
of the present guardian, this Court is
inclined and so decrees, that he should
nevertheless be, as he is hereby, retired to
take effect upon the appointment by this
court and the assumption of office of his
replacement, who shall be taken from the
recommendees of the parties herein. For
this purpose, the present guardian is
hereby given twenty (20) days from
receipt of a copy of this order within which
to submit his proposal for a replacement
for himself and to comment on petitioners
recommendee, and the latter a like period
within which to comment on the present
guardians proposed substitute, after
which the matter will be deemed
submitted for resolution and final action
by the court.
SO ORDERED.
Petitioner filed a motion for reconsideration,
contending that he was only 72 years of age
and still fit to continue with the management
of the estate of his ward as he had done with
zeal for the past twelve years. In an order
dated November 13, 1980 the court denied
his motion. Accordingly, on December 17,
1980, petitioner filed a notice of appeal from
the order issued by the court on November
13, 1980 and paid the appeal bond. On
February 2, 1981 he filed the record on
appeal.
Meanwhile, on January 27, 1981, the court,
on motion of private respondent, required
petitioner to submit within three days his
nomination for guardian of Estefania San
Pedro as required in its order of September
12, 1980. In issuing the order, the court
stated that an indefinite discontinuance in
office would defeat the intent and purpose of
the said order of September 12, 1980
relieving the present guardian.
Petitioners motion for reconsideration was
denied. Hence, this petition, (referring to CA-
G.R. No. SP-1217)
On December 5, 1980, before the appeal was
perfected, Pelagio Francisco filed an Omnibus
Motion with the court a quo with the prayer (1)
to restrain guardian from exercising office; (2)
order guardian to surrender to court all properties
of the ward; and (3) appoint new guardian.
Petitioner, on December 9, 1980 filed his
opposition to the omnibus motion claiming that
the same was premature. The trial court,
however, disregarded the opposition and required
petitioner on January 27, 1981 to submit within
three (3) days his nomination for guardian of
Estefania San Pedro as required in its order of
September 12, 1980, the court holding that an
indefinite continuance in office would defeat the
intent and purpose of the said order of
September 12, 1980, relieving the present
guardian.
Petitioner moved for reconsideration of the said
order, but the trial court overruled the same on
March 4, 1981. Subsequently, on March 11, 1981,
the court a quo appointed respondent Pelagio
Francisco as the new guardian of the person and
property of the incompetent Estefania San Pedro.
On March 13, 1981, petitioner filed with the
defunct Court of Appeals a petition for certiorari
challenging the validity of the order of the trial
court granting the execution pending appeal of its
decision and appointing respondent Pelagio
Francisco as the new guardian despite the fact
that respondent is five (5) years older than
petitioner, docketed as CA-G.R. No. 12172.
The Court of Appeals dismissed the petition on
April 23, 1981, the pertinent portion of its
decision reading as follows:
The Rules of Court authorizes executions
pending appeal upon good reasons to be
stated in a special order. (Rule 39, Sec. 2). In
the case at bar, the retirement of petitioner
was ordered on the ground of old age. When
this ground is considered in relation to the
delay of the petitioner in the making of an
accounting and the submission of an
inventory, the order amounts to a finding that
petitioner, considering his rather advanced
age, was no longer capable of managing the
estate of his ward. (Rule 97, Sec. 2). Given
this finding, it is clear that petitioners
continuance in office would not be in the best
interest of the ward.
It is of course true that the order of removal
is not yet final. Considering the time it
normally takes for appeals to be finally
determined, as well as the purpose of the
order under appeal, which would be frustrated
if it is not immediately executed, we cannot
say that respondent acted with grave and
irreparable damage and that the order of
September 12, 1980 is not yet final, petitioner
has not demonstrated that in ordering
execution pending appeal, the respondent
Judge committed a grave abuse of discretion.
Indeed, the granting of execution pending
appeal lies within the sound discretion of a
court. Appellate courts will not interfere to
modify, control or inquire into the exercise of
this discretion, unless it be shown that there
has been an abuse of that discretion. (2
Moran, Comments on the Rules of Court, 260
[1979]).
WHEREFORE, the petition for certiorari is
DISMISSED, without pronouncement as to
costs.
SO ORDERED.
Petitioner subsequently filed another motion for
reconsideration advancing the following
arguments: that to grant execution pending
appeal would render petitioners appeal moot and
academic; that advanced age was not one of
the grounds raised by private respondent in the
court below; that the court a quo abuse its
discretion in appointing respondent as guardian
despite the fact that private respondent is five (5)
years older than petitioner.
The respondent appellate court, in its resolution
dated June 26, 1981, denied petitioners motion
for reconsideration, the court finding it
unnecessary to repeat the discussion of the
arguments which it had already considered and
only entertained the argument regarding the
competency of the respondent as the new
guardian. On this point, respondent Court ruled:
The order of March 11, 1981 appointing
respondent Francisco as guardian was never
assailed in the petition in this case. As already
stated, this case concerns the validity only of
the orders of January 27, 1981 and March 4,
1981 which required petitioner to recommend
his own replacement, otherwise the court
would appoint a new guardian. It does not
appear that petitioner objected to the
appointment of respondent Francisco on the
ground now invoked, namely, that Francisco is
in fact older than petitioner. Nor does it
appear that petitioner filed a motion for
reconsideration of the order of March 11,
1981, calling attention to the fact that
respondent Francisco is older than petitioner.
In short, the point now raised does not appear
to have been urged in the lower court so that
the latter could have rectified the error, if it
was error at all. For this reason, it is not
proper ground for certiorari before this Court,
much less for a motion for reconsideration.
WHEREFORE, the motion for reconsideration
is DENIED for lack of merit.
SO ORDERED.
In the petition at bar, petitioner contends that (a)
The Honorable Court of Appeals has committed
grave abuse of discretion in holding that the
removal of petitioner as guardian of the ward
Estefania San Pedro on the ground of old age is a
good ground for the execution of the decision
pending appeal; and (b) The Honorable Court of
Appeals committed grave misapprehension and
misinterpretation of facts when it declared that
petitioner did not question the appointment of
private respondent as guardian in his stead on
the ground that the latter is older than the former
by five (5) years.
A guardianship is a trust relation of the most
sacred character, in which one person, called a
guardian acts for another called the ward
whom the law regards as incapable of managing
his own affairs. A guardianship is designed to
further the wards well-being, not that of the
guardian. It is intended to preserve the wards
property, as well as to render any assistance that
the ward may personally require. It has been
stated that while custody involves immediate
care and control, guardianship indicates not only
those responsibilities, but those of one in loco
parentis as well.
Having in mind that guardianship proceeding is
instituted for the benefit and welfare of the ward,
the selection of a guardian must, therefore, suit
this very purpose. Thus, in determining the
selection of a guardian, the court may consider
the financial situation, the physical condition, the
sound judgment, prudence and trustworthiness,
the morals, character and conduct, and the
present and past history of a prospective
appointee, as well as the probability of his being
able to exercise the powers and duties of
guardian for the full period during which
guardianship will be necessary.
A guardian is or becomes incompetent to serve
the trust if he is so disqualified by mental
incapacity, conviction of crime, moral
delinquency or physical disability as to be
prevented from properly discharging the duties of
his office. A guardian, once appointed may be
removed in case he becomes insane or otherwise
incapable of discharging his trust or unsuitable
therefor, or has wasted or mismanaged the
estate, or failed for thirty (30) days after it is due
to render an account or make a return.
We agree with the trial court and the appellate
court that there is need for petitioner Feliciano
Francisco to be retired from the guardianship over
the person and property of incompetent Estefania
San Pedro. The conclusion reached by the trial
court about the rather advanced age of
petitioner at 72 years old (petitioner is now 76
years old) finding him unfit to continue the trust
cannot be disturbed. As correctly pointed out by
the appellate court, this finds direct support in
the delay of the accounting and inventory made
by petitioner. To sustain petitioner as guardian
would, therefore, be detrimental to the ward.
While age alone is not a controlling criterion in
determining a persons fitness or qualification to
be appointed or be retained as guardian, it may
be a factor for consideration.
Considering the difficult and complicated
responsibilities and duties of a guardian, We
sustain the immediate retirement of petitioner
Feliciano Francisco as guardian, affirming thereby
the rulings of both the trial court and the
appellate court.
With respect to the issue of execution pending
appeal in appointing respondent Pelagio Francisco
as guardian to succeed petitioner while the
latters appeal was still pending, We hold and rule
that respondent appellate court correctly
sustained the propriety of said execution pending
appeal. Upon urgent and compelling reasons,
execution pending appeal is a matter of sound
discretion on the part of the trial court, and the
appellate court will not interfere, control or
inquire into the exercise of this discretion, unless
there has been an abuse thereof, which We find
none herein.
Inasmuch as the primary objective for the
institution of guardianship is for the protection of
the ward, there is more than sufficient reason for
the immediate execution of the lower courts
judgment for the replacement of the first
guardian. We agree with the reason given by the
appellate court in sustaining execution pending
appeal that an indefinite continuance in office
would defeat the intent and purpose of the order
of September 12, 1980, relieving the present
guardian (Feliciano Francisco).
As to the issue concerning the appointment of
respondent Pelagio Francisco as the new
guardian, We likewise agree with the respondent
appellate court in denying in its resolution of June
26, 1981 for lack of merit the motion for
reconsideration filed by petitioner questioning the
appointment of private respondent Pelagio
Francisco. We also find no abuse of discretion
committed by the appellate court.
The rule is well-established that appellate courts
may not entertain issues brought before it for the
first time on appeal. (Jose Matienzo vs. Martin
Servidad, 107 SCRA 276; Garcian vs. Court of
Appeals, 102 SCRA 597; Director of Lands vs.
Dano, 96 SCRA 160).
WHEREFORE, IN VIEW OF THE FOREGOING, the
assailed decision and resolution of the respondent
court dated April 27, 1981 and June 26, 1981,
respectively, are hereby AFFIRMED. Costs against
petitioner.
Petition denied.
SO ORDERED.
Makasiar (Chairman), Concepcion, Jr. and De
Castro, JJ., concur.
Aquino, J., I concur in Justice Abad Santos
opinion. The removal of a guardian, like the
removal of an administrator, may be immediately
executory (Borromeo Bros. Estate, Inc vs. CA, 105
Phil. 466).
 Abad Santos, J., I concur and I would have
simply denied the petition for lack of merit
without an extended decision.
Escolin, J., in the result.
Decision and resolution affirmed.
Notes.Conflict of interest is sufficient ground
for the removal of a guardian unsuitable for the
trust, on the logic that antagonistic interest would
render a guardian unsuitable for the trust. (Vda.
de Bengson vs. Philippine National Bank, 3 SCRA
751).
A guardian should not be removed except for the
most cogent reasons (39 C.J.S.); otherwise, the
removal is unwarranted and illegal. (Vda de
Bengson vs. Philippine National Bank, 3 SCRA
751).
G.R. No. 151243 April 30, 2008
LOLITA R. ALAMAYRI, petitioner,
vs.
ROMMEL, ELMER, ERWIN, ROILER and
AMANDA, all surnamed PABALE, respondents.
DECISION
CHICO-NAZARIO, J.:
Before this Court is a Petition for Review on
Certiorari 1 under Rule 45 of the Rules of Court
filed by petitioner Lolita R. Alamayri (Alamayri)
seeking the reversal and setting aside of the
Decision,2 dated 10 April 2001, of the Court of
Appeals in CA-G.R. CV No. 58133; as well as the
Resolution,3 dated 19 December 2001 of the
same court denying reconsideration of its
aforementioned Decision. The Court of Appeals, in
its assailed Decision, upheld the validity of the
Deed of Absolute Sale, dated 20 February 1984,
executed by Nelly S. Nave (Nave) in favor of
siblings Rommel, Elmer, Erwin, Roiler and
Amanda, all surnamed Pabale (the Pabale
siblings) over a piece of land (subject property) in
Calamba, Laguna, covered by Transfer Certificate
of Title (TCT) No. T-3317 (27604); and, thus,
reversed and set aside the Decision, 4 dated 2
December 1997, of the Regional Trial Court (RTC)
of Pasay City, Branch 119 in Civil Case No. 675-
84-C.5 The 2 December 1997 Decision of the RTC
declared null and void the two sales agreements
involving the subject property entered into by
Nave with different parties, namely, Sesinando M.
Fernando (Fernando) and the Pabale siblings; and
ordered the reconveyance of the subject property
to Alamayri, as Naves successor-in-interest.
There is no controversy as to the facts that gave
rise to the present Petition, determined by the
Court of Appeals to be as follows:
This is a Complaint for Specific
Performance with Damages filed by
Sesinando M. Fernando, representing S.M.
Fernando Realty Corporation [Fernando]
on February 6, 1984 before the Regional
Trial Court of Calamba, Laguna presided
over by Judge Salvador P. de Guzman, Jr.,
docketed as Civil Case No. 675-84-C
against Nelly S. Nave [Nave], owner of a
parcel of land located in Calamba, Laguna
covered by TCT No. T-3317 (27604).
[Fernando] alleged that on January 3,
1984, a handwritten "Kasunduan Sa
Pagbibilihan" (Contract to Sell) was
entered into by and between him and
[Nave] involving said parcel of land.
However, [Nave] reneged on their
agreement when the latter refused to
accept the partial down payment he
tendered to her as previously agreed
because she did not want to sell her
property to him anymore. [Fernando]
prayed that after trial on the merits,
[Nave] be ordered to execute the
corresponding Deed of Sale in his favor,
and to pay attorneys fees, litigation
expenses and damages.
[Nave] filed a Motion to Dismiss averring
that she could not be ordered to execute
the corresponding Deed of Sale in favor of
[Fernando] based on the following
grounds: (1) she was not fully apprised of
the nature of the piece of paper
[Fernando] handed to her for her signature
on January 3, 1984. When she was
informed that it was for the sale of her
property in Calamba, Laguna covered by
TCT No. T-3317 (27604), she immediately
returned to [Fernando] the said piece of
paper and at the same time repudiating
the same. Her repudiation was further
bolstered by the fact that when [Fernando]
tendered the partial down payment to her,
she refused to receive the same; and (2)
she already sold the property in good faith
to Rommel, Elmer, Erwin, Roller and
Amanda, all surnamed Pabale [the Pabale
siblings] on February 20, 1984 after the
complaint was filed against her but before
she received a copy thereof. Moreover, she
alleged that [Fernando] has no cause of
action against her as he is suing for and in
behalf of S.M. Fernando Realty Corporation
who is not a party to the alleged Contract
to Sell. Even assuming that said entity is
the real party in interest, still, [Fernando]
cannot sue in representation of the
corporation there being no evidence to
show that he was duly authorized to do so.
Subsequently, [the Pabale siblings] filed a
Motion to Intervene alleging that they are
now the land owners of the subject
property. Thus, the complaint was
amended to include [the Pabale siblings]
as party defendants. In an Order dated
April 24, 1984, the trial court denied
[Naves] Motion to Dismiss prompting her
to file a Manifestation and Motion stating
that she was adopting the allegations in
her Motion to Dismiss in answer to
[Fernandos] amended complaint.
Thereafter, [Nave] filed a Motion to Admit
her Amended Answer with Counterclaim
and Cross-claim praying that her husband,
Atty. Vedasto Gesmundo be impleaded as
her co-defendant, and including as her
defense undue influence and fraud by
reason of the fact that she was made to
appear as widow when in fact she was
very much married at the time of the
transaction in issue. Despite the
opposition of [Fernando] and [the Pabale
siblings], the trial court admitted the
aforesaid Amended Answer with
Counterclaim and Cross-claim.
Still unsatisfied with her defense, [Nave]
and Atty. Vedasto Gesmundo filed a Motion
to Admit Second Amended Answer and
Amended Reply and Cross-claim against
[the Pabale siblings], this time including
the fact of her incapacity to contract for
being mentally deficient based on the
psychological evaluation report conducted
on December 2, 1985 by Dra. Virginia P.
Panlasigui, M. A., a clinical psychologist.
Finding the motion unmeritorious, the
same was denied by the court a quo.
[Nave] filed a motion for reconsideration
thereof asseverating that in Criminal Case
No. 1308-85-C entitled "People vs. Nelly S.
Nave" she raised therein as a defense her
mental deficiency. This being a decisive
factor to determine once and for all
whether the contract entered into by
[Nave] with respect to the subject
property is null and void, the Second
Amended Answer and Amended Reply and
Cross-claim against [the Pabale siblings]
should be admitted.
Before the motion for reconsideration
could be acted upon, the proceedings in
this case was suspended sometime in
1987 in view of the filing of a Petition for
Guardianship of [Nave] with the Regional
Trial Court, Branch 36 of Calamba, Laguna,
docketed as SP No. 146-86-C with Atty.
Vedasto Gesmundo as the petitioner. On
June 22, 1988, a Decision was rendered in
the said guardianship proceedings, the
dispositive portion of which reads:
"Under the circumstances, specially
since Nelly S. Nave who now
resides with the Brosas spouses
has categorically refused to be
examined again at the National
Mental Hospital, the Court is
constrained to accept the Neuro-
Psychiatric Evaluation report dated
April 14, 1986 submitted by Dra.
Nona Jean Alviso-Ramos and the
supporting report dated April 20,
1987 submitted by Dr. Eduardo T.
Maaba, both of the National Mental
Hospital and hereby finds Nelly S.
Nave an incompetent within the
purview of Rule 92 of the Revised
Rules of Court, a person who, by
reason of age, disease, weak mind
and deteriorating mental processes
cannot without outside aid take
care of herself and manage her
properties, becoming thereby an
easy prey for deceit and
exploitation, said condition having
become severe since the year
1980. She and her estate are
hereby placed under guardianship.
Atty. Leonardo C. Paner is hereby
appointed as her regular guardian
without need of bond, until further
orders from this Court. Upon his
taking his oath of office as regular
guardian, Atty. Paner is ordered to
participate actively in the pending
cases of Nelly S. Nave with the end
in view of protecting her interests
from the prejudicial sales of her
real properties, from the
overpayment in the foreclosure
made by Ms. Gilda Mendoza-Ong,
and in recovering her lost jewelries
and monies and other personal
effects.
SO ORDERED."
Both [Fernando] and [the Pabale siblings]
did not appeal therefrom, while the appeal
interposed by spouses Juliano and
Evangelina Brosas was dismissed by this
Court for failure to pay the required
docketing fees within the reglementary
period.
In the meantime, [Nave] died on
December 9, 1992. On September 20,
1993, Atty. Vedasto Gesmundo, [Naves]
sole heir, she being an orphan and
childless, executed an Affidavit of Self-
Adjudication pertaining to his inherited
properties from [Nave].
On account of such development, a
motion for the dismissal of the instant
case and for the issuance of a writ of
execution of the Decision dated June 22,
1988 in SP No. 146-86-C (petition for
guardianship) was filed by Atty. Vedasto
Gesmundo on February 14, 1996 with the
court a quo. [The Pabale siblings] filed
their Opposition to the motion on grounds
that (1) they were not made a party to the
guardianship proceedings and thus cannot
be bound by the Decision therein; and (2)
that the validity of the Deed of Absolute
Sale executed by the late [Nave] in their
favor was never raised in the guardianship
case.
The case was then set for an annual
conference. On January 9, 1997, Atty.
Vedasto Gesmundo filed a motion seeking
the courts permission for his substitution
for the late defendant Nelly in the instant
case. Not long after the parties submitted
their respective pre-trial briefs, a motion
for substitution was filed by Lolita R.
Alamayre (sic) [Alamayri] alleging that
since the subject property was sold to her
by Atty. Vedasto Gesmundo as evidenced
by a Deed of Absolute Sale, she should be
substituted in his stead. In refutation, Atty.
Vedasto Gesmundo filed a Manifestation
stating that what he executed is a Deed of
Donation and not a Deed of Absolute Sale
in favor of [Alamayri] and that the same
was already revoked by him on March 5,
1997. Thus, the motion for substitution
should be denied.
On July 29, 1997, the court a quo issued
an Order declaring that it cannot make a
ruling as to the conflicting claims of
[Alamayri] and Atty. Vedasto Gesmundo.
After the case was heard on the merits,
the trial court rendered its Decision on
December 2, 1997, the dispositive portion
of which reads:
"WHEREFORE, judgment is hereby
rendered as follows:
1. Declaring the handwritten
Contract to Sell dated January 3,
1984 executed by Nelly S. Nave
and Sesinando Fernando null and
void and of no force and effect;
2. Declaring the Deed of Absolute
Sale dated February 20, 1984
executed by Nelly S. Nave in favor
of the [Pabale siblings] similarly
null and void and of no force and
effect;
3. Recognizing Ms. Lolita P.
[Alamayri] as the owner of the
property covered by TCT No.
111249 of the land records of
Calamba, Laguna;
4. Ordering the [Pabale siblings] to
execute a transfer of title over the
property in favor of Ms. Lolita P.
[Alamayri] in the concept of
reconveyance because the sale in
their favor has been declared null
and void;
5. Ordering the [Pabale siblings] to
surrender possession over the
property to Ms. [Alamayri] and to
account for its income from the
time they took over possession to
the time the same is turned over to
Ms. Lolita [Alamayri], and
thereafter pay the said income to
the latter;
6. Ordering [Fernando] and the
[Pabale siblings], jointly and
severally, to pay Ms. [Alamayri]:
a. attorneys fees in the sum
of P30,000.00; and
b. the costs.6
S.M. Fernando Realty Corporation, still
represented by Fernando, filed an appeal with the
Court of Appeals, docketed as CA-G.R. CV No.
58133, solely to question the portion of the 2
December 1997 Decision of the RTC ordering him
and the Pabale siblings to jointly and severally
pay Alamayri the amount of P30,000.00 as
attorneys fees.

The Pabale siblings intervened as appellants in
CA-G.R. CV No. 58133 averring that the RTC erred
in declaring in its 2 December 1997 Decision that
the Deed of Absolute Sale dated 20 February
1984 executed by Nave in their favor was null
and void on the ground that Nave was found
incompetent since the year 1980.
The Court of Appeals, in its Decision, dated 10
April 2001, granted the appeals of S.M. Fernando
Realty Corporation and the Pabale siblings. It
ruled thus:
WHEREFORE, premises considered, the
appeal filed by S. M. Fernando Realty
Corporation, represented by its President,
Sesinando M. Fernando as well as the
appeal interposed by Rommel, Elmer,
Erwin, Roller and Amanda, all surnamed
Pabale, are hereby GRANTED. The Decision
of the Regional Trial Court of Pasay City,
Branch 119 in Civil Case No. 675-84-C is
hereby REVERSED and SET ASIDE and a
new one rendered upholding the VALIDITY
of the Deed of Absolute Sale dated
February 20, 1984.
No pronouncements as to costs.7
Alamayri sought reconsideration of the afore-
quoted Decision of the appellate court, invoking
the Decision,8 dated 22 June 1988, of the RTC in
the guardianship proceedings, docketed as SP.
PROC. No. 146-86-C, which found Nave
incompetent, her condition becoming severe
since 1980; and thus appointed Atty. Leonardo C.
Paner as her guardian. Said Decision already
became final and executory when no one
appealed therefrom. Alamayri argued that since
Nave was already judicially determined to be an
incompetent since 1980, then all contracts she
subsequently entered into should be declared null
and void, including the Deed of Sale, dated 20
February 1984, which she executed over the
subject property in favor of the Pabale siblings.
According to Alamayri, the Pabale siblings should
be bound by the findings of the RTC in its 22 June
1988 Decision in SP. PROC. No. 146-86-C, having
participated in the said guardianship proceedings
through their father Jose Pabale. She pointed out
that the RTC explicitly named in its orders Jose
Pabale as among those present during the
hearings held on 30 October 1987 and 19
November 1987 in SP. PROC. No. 146-86-C.
Alamayri thus filed on 21 November 2001 a
Motion to Schedule Hearing to Mark Exhibits in
Evidence so she could mark and submit as
evidence certain documents to establish that the
Pabale siblings are indeed the children of Jose
Pabale.
Atty. Gesmundo, Naves surviving spouse,
likewise filed his own Motion for Reconsideration
of the 10 April 2001 Decision of the Court of
Appeals in CA-G.R. CV No. 58133, asserting
Naves incompetence since 1980 as found by the
RTC in SP. PROC. No. 146-86-C, and his right to
the subject property as owner upon Naves death
in accordance with the laws of succession. It must
be remembered that Atty. Gesmundo disputed
before the RTC the supposed transfer of his rights
to the subject property to Alamayri, but the court
a quo refrained from ruling thereon.
In a Resolution, dated 19 December 2001, the
Court of Appeals denied for lack of merit the
Motions for Reconsideration of Alamayri and Atty.
Gesmundo.
Hence, Alamayri comes before this Court via the
present Petition for Review on Certiorari under
Rule 45 of the Rules of Court, with the following
assignment of errors:
I
THE COURT OF APPEALS ERRED IN
HOLDING THAT THE FINDING THAT NELLY
S. NAVE WAS INCOMPETENT IN SPECIAL
PROCEEDING NO. 146-86-C ON JUNE 22,
1988 CANNOT RETROACT TO AFFECT THE
VALIDITY OF THE DEED OF SALE SHE
EXECUTED ON FEBRUARY 20, 1984 IN
FAVOR OF RESPONDENTS PABALES.
II
THE COURT OF APPEALS ERRED IN
HOLDING THAT THE DECISION IN SPECIAL
PROCEEDING NO. 146-86-C DATED JUNE
22, 1988 IS NOT BINDING ON
RESPONDENTS PABALES.
III
THE COURT OF APPEALS ERRED IN
DENYING PETITIONERS MOTION TO
SCHEDULE HEARING TO MARK
DOCUMENTARY EXHIBITS IN EVIDENCE TO
ESTABLISH THE IDENTITY OF JOSE PABALE
AS THE FATHER OF RESPONDENTS
PABALES.9
It is Alamayris position that given the final and
executory Decision, dated 22 June 1988, of the
RTC in SP. PROC. No. 146-86-C finding Nave
incompetent since 1980, then the same fact may
no longer be re-litigated in Civil Case No. 675-84-
C, based on the doctrine of res judicata, more
particularly, the rule on conclusiveness of
judgment.
This Court is not persuaded.
Res judicata literally means "a matter adjudged;
a thing judicially acted upon or decided; a thing
or matter settled by judgment." Res judicata lays
the rule that an existing final judgment or decree
rendered on the merits, and without fraud or
collusion, by a court of competent jurisdiction,
upon any matter within its jurisdiction, is
conclusive of the rights of the parties or their
privies, in all other actions or suits in the same or
any other judicial tribunal of concurrent
jurisdiction on the points and matters in issue in
the first suit.10
It is espoused in the Rules of Court, under
paragraphs (b) and (c) of Section 47, Rule 39,
which read:
SEC. 47. Effect of judgments or final
orders. The effect of a judgment or final
order rendered by a court of the
Philippines, having jurisdiction to
pronounce the judgment or final order,
may be as follows:
xxxx
(b) In other cases, the judgment or final
order is, with respect to the matter directly
adjudged or as to any other matter that
could have been raised in relation thereto,
conclusive between the parties and their
successors in interest by title subsequent
to the commencement of the action or
special proceeding, litigating the same
thing and under the same title and in the
same capacity; and
(c) In any other litigation between the
same parties or their successors in
interest, that only is deemed to have been
adjudged in a former judgment or final
order which appears upon its face to have
been so adjudged, or which was actually
and necessarily included therein or
necessary thereto.
The doctrine of res judicata thus lays down two
main rules which may be stated as follows: (1)
The judgment or decree of a court of competent
jurisdiction on the merits concludes the parties
and their privies to the litigation and constitutes a
bar to a new action or suit involving the same
cause of action either before the same or any
other tribunal; and (2) Any right, fact, or matter in
issue directly adjudicated or necessarily involved
in the determination of an action before a
competent court in which a judgment or decree is
rendered on the merits is conclusively settled by
the judgment therein and cannot again be
litigated between the parties and their privies
whether or not the claims or demands, purposes,
or subject matters of the two suits are the same.
These two main rules mark the distinction
between the principles governing the two typical
cases in which a judgment may operate as
evidence.11 In speaking of these cases, the first
general rule above stated, and which corresponds
to the afore-quoted paragraph (b) of Section 47,
Rule 39 of the Rules of Court, is referred to as
"bar by former judgment"; while the second
general rule, which is embodied in paragraph (c)
of the same section and rule, is known as
"conclusiveness of judgment."
The Resolution of this Court in Calalang v.
Register of Deeds provides the following
enlightening discourse on conclusiveness of
judgment:
The doctrine res judicata actually
embraces two different concepts: (1) bar
by former judgment and (b)
conclusiveness of judgment.
The second concept conclusiveness of
judgment states that a fact or question
which was in issue in a former suit and
was there judicially passed upon and
determined by a court of competent
jurisdiction, is conclusively settled by the
judgment therein as far as the parties to
that action and persons in privity with
them are concerned and cannot be again
litigated in any future action between such
parties or their privies, in the same court
or any other court of concurrent
jurisdiction on either the same or different
cause of action, while the judgment
remains unreversed by proper authority. It
has been held that in order that a
judgment in one action can be conclusive
as to a particular matter in another action
between the same parties or their privies,
it is essential that the issue be identical. If
a particular point or question is in issue in
the second action, and the judgment will
depend on the determination of that
particular point or question, a former
judgment between the same parties or
their privies will be final and conclusive in
the second if that same point or question
was in issue and adjudicated in the first
suit (Nabus vs. Court of Appeals, 193 SCRA
732 [1991]). Identity of cause of action is
not required but merely identity of issues.
Justice Feliciano, in Smith Bell & Company
(Phils.), Inc. vs. Court of Appeals (197
SCRA 201, 210 [1991]), reiterated Lopez
vs. Reyes (76 SCRA 179 [1977]) in regard
to the distinction between bar by former
judgment which bars the prosecution of a
second action upon the same claim,
demand, or cause of action, and
conclusiveness of judgment which bars
the relitigation of particular facts or issues
in another litigation between the same
parties on a different claim or cause of
action.
The general rule precluding the
relitigation of material facts or
questions which were in issue and
adjudicated in former action are
commonly applied to all matters
essentially connected with the
subject matter of the litigation.
Thus, it extends to questions
necessarily implied in the final
judgment, although no specific
finding may have been made in
reference thereto and although
such matters were directly referred
to in the pleadings and were not
actually or formally presented.
Under this rule, if the record of the
former trial shows that the
judgment could not have been
rendered without deciding the
particular matter, it will be
considered as having settled that
matter as to all future actions
between the parties and if a
judgment necessarily presupposes
certain premises, they are as
conclusive as the judgment itself.12
Another case, Oropeza Marketing Corporation v.
Allied Banking Corporation, further differentiated
between the two rules of res judicata, as follows:
There is "bar by prior judgment" when,
as between the first case where the
judgment was rendered and the second
case that is sought to be barred, there is
identity of parties, subject matter,
and causes of action. In this instance,
the judgment in the first case constitutes
an absolute bar to the second action.
Otherwise put, the judgment or decree of
the court of competent jurisdiction on the
merits concludes the litigation between
the parties, as well as their privies, and
constitutes a bar to a new action or suit
involving the same cause of action before
the same or other tribunal.
But where there is identity of parties in
the first and second cases, but no
identity of causes of action, the first
judgment is conclusive only as to those
matters actually and directly controverted
and determined and not as to matters
merely involved therein. This is the
concept of res judicata known as
"conclusiveness of judgment." Stated
differently, any right, fact, or matter in
issue directly adjudicated or necessarily
involved in the determination of an action
before a competent court in which
judgment is rendered on the merits is
conclusively settled by the judgment
therein and cannot again be litigated
between the parties and their privies
whether or not the claim, demand,
purpose, or subject matter of the two
actions is the same.13
In sum, conclusiveness of judgment bars the re-
litigation in a second case of a fact or question
already settled in a previous case. The second
case, however, may still proceed provided that it
will no longer touch on the same fact or question
adjudged in the first case. Conclusiveness of
judgment requires only the identity of issues and
parties, but not of causes of action.
Contrary to Alamayris assertion, conclusiveness
of judgment has no application to the instant
Petition since there is no identity of parties and
issues between SP. PROC. No. 146-86-C and Civil
Case No. 675-84-C.

No identity of parties
SP. PROC. No. 146-86-C was a petition filed with
the RTC by Atty. Gesmundo for the appointment
of a guardian over the person and estate of his
late wife Nave alleging her incompetence.
A guardian may be appointed by the RTC over the
person and estate of a minor or an incompetent,
the latter being described as a person "suffering
the penalty of civil interdiction or who are
hospitalized lepers, prodigals, deaf and dumb
who are unable to read and write, those who are
of unsound mind, even though they have lucid
intervals, and persons not being of unsound
mind, but by reason of age, disease, weak mind,
and other similar causes, cannot, without outside
aid, take care of themselves and manage their
property, becoming thereby an easy prey for
deceit and exploitation."14
Rule 93 of the Rules of Court governs the
proceedings for the appointment of a guardian, to
wit:
Rule 93
APPOINTMENT OF GUARDIANS
SECTION 1. Who may petition for
appointment of guardian for resident.
Any relative, friend, or other person on
behalf of a resident minor or incompetent
who has no parent or lawful guardian, or
the minor himself if fourteen years of age
or over, may petition the court having
jurisdiction for the appointment of a
general guardian for the person or estate,
or both, of such minor or incompetent. An
officer of the Federal Administration of the
United States in the Philippines may also
file a petition in favor of a ward thereof,
and the Director of Health, in favor of an
insane person who should be hospitalized,
or in favor of an isolated leper.
SEC. 2. Contents of petition. A petition
for the appointment of a general guardian
must show, so far as known to the
petitioner:
(a) The jurisdictional facts;
(b) The minority or incompetency
rendering the appointment
necessary or convenient;
(c) The names, ages, and
residences of the relatives of the
minor or incompetent, and of the
persons having him in their care;
(d) The probable value and
character of his estate;
(e) The name of the person for
whom letters of guardianship are
prayed.
The petition shall be verified; but no
defect in the petition or verification shall
render void the issuance of letters of
guardianship.
SEC. 3. Court to set time for hearing.
Notice thereof. When a petition for the
appointment of a general guardian is filed,
the court shall fix a time and place for
hearing the same, and shall cause
reasonable notice thereof to be given to
the persons mentioned in the petition
residing in the province, including the
minor if above 14 years of age or the
incompetent himself, and may direct other
general or special notice thereof to be
given.
SEC. 4. Opposition to petition. Any
interested person may, by filing a written
opposition, contest the petition on the
ground of majority of the alleged minor,
competency of the alleged incompetent,
or the unsuitability of the person for whom
letters are prayed, and may pray that the
petition be dismissed, or that letters of
guardianship issue to himself, or to any
suitable person named in the opposition.
SEC. 5. Hearing and order for letters to
issue. At the hearing of the petition the
alleged incompetent must be present if
able to attend, and it must be shown that
the required notice has been given.
Thereupon the court shall hear the
evidence of the parties in support of their
respective allegations, and, if the person
in question is a minor or incompetent it
shall appoint a suitable guardian of his
person or estate, or both, with the powers
and duties hereinafter specified.
xxxx
SEC. 8. Service of judgment. Final orders
or judgments under this rule shall be
served upon the civil registrar of the
municipality or city where the minor or
incompetent person resides or where his
property or part thereof is situated.
A petition for appointment of a guardian is a
special proceeding, without the usual parties, i.e.,
petitioner versus respondent, in an ordinary civil
case. Accordingly, SP. PROC. No. 146-86-C bears
the title: In re: Guardianship of Nelly S. Nave for
Incompetency, Verdasto Gesmundo y Banayo,
petitioner, with no named respondent/s.
Sections 2 and 3 of Rule 93 of the Rules of Court,
though, require that the petition contain the
names, ages, and residences of relatives of the
supposed minor or incompetent and those having
him in their care, so that those residing within the
same province as the minor or incompetent can
be notified of the time and place of the hearing
on the petition.
The objectives of an RTC hearing a petition for
appointment of a guardian under Rule 93 of the
Rules of Court is to determine, first, whether a
person is indeed a minor or an incompetent who
has no capacity to care for himself and/or his
properties; and, second, who is most qualified to
be appointed as his guardian. The rules
reasonably assume that the people who best
could help the trial court settle such issues would
be those who are closest to and most familiar
with the supposed minor or incompetent, namely,
his relatives living within the same province
and/or the persons caring for him.
It is significant to note that the rules do not
necessitate that creditors of the minor or
incompetent be likewise identified and notified.
The reason is simple: because their presence is
not essential to the proceedings for appointment
of a guardian. It is almost a given, and
understandably so, that they will only insist that
the supposed minor or incompetent is actually
capacitated to enter into contracts, so as to
preserve the validity of said contracts and keep
the supposed minor or incompetent obligated to
comply therewith.
Hence, it cannot be presumed that the Pabale
siblings were given notice and actually took part
in SP. PROC. No. 146-86-C. They are not Naves
relatives, nor are they the ones caring for her.
Although the rules allow the RTC to direct the
giving of other general or special notices of the
hearings on the petition for appointment of a
guardian, it was not established that the RTC
actually did so in SP. PROC. No. 146-86-C.
Alamayris allegation that the Pabale siblings
participated in SP. PROC. No. 146-86-C rests on
two Orders, dated 30 October 198715 and 19
November 1987,16 issued by the RTC in SP. PROC.
No. 146-86-C, expressly mentioning the presence
of a Jose Pabale, who was supposedly the father
of the Pabale siblings, during the hearings held on
the same dates. However, the said Orders by
themselves cannot confirm that Jose Pabale was
indeed the father of the Pabale siblings and that
he was authorized by his children to appear in the
said hearings on their behalf.
Alamayri decries that she was not allowed by the
Court of Appeals to submit and mark additional
evidence to prove that Jose Pabale was the father
of the Pabale siblings.
It is true that the Court of Appeals has the power
to try cases and conduct hearings, receive
evidence and perform any and all acts necessary
to resolve factual issues raised in cases falling
within its original and appellate jurisdiction,
including the power to grant and conduct new
trials or further proceedings. In general, however,
the Court of Appeals conducts hearings and
receives evidence prior to the submission of the
case for judgment.17 It must be pointed out that,
in this case, Alamayri filed her Motion to Schedule
Hearing to Mark Exhibits in Evidence on 21
November 2001. She thus sought to submit
additional evidence as to the identity of Jose
Pabale, not only after CA-G.R. CV No. 58133 had
been submitted for judgment, but after the Court
of Appeals had already promulgated its Decision
in said case on 10 April 2001.
The parties must diligently and conscientiously
present all arguments and available evidences in
support of their respective positions to the court
before the case is deemed submitted for
judgment. Only under exceptional circumstances
may the court receive new evidence after having
rendered judgment;18 otherwise, its judgment
may never attain finality since the parties may
continually refute the findings therein with further
evidence. Alamayri failed to provide any
explanation why she did not present her evidence
earlier. Merely invoking that the ends of justice
would have been best served if she was allowed
to present additional evidence is not sufficient to
justify deviation from the general rules of
procedure. Obedience to the requirements of
procedural rules is needed if the parties are to
expect fair results therefrom, and utter disregard
of the rules cannot justly be rationalized by
harking on the policy of liberal construction.19
Procedural rules are tools designed to facilitate
the adjudication of cases. Courts and litigants
alike are thus enjoined to abide strictly by the
rules. And while the Court, in some instances,
allows a relaxation in the application of the rules,
this, we stress, was never intended to forge a
bastion for erring litigants to violate the rules with
impunity. The liberality in the interpretation and
application of the rules applies only to proper
cases and under justifiable causes and
circumstances. While it is true that litigation is
not a game of technicalities, it is equally true that
every case must be prosecuted in accordance
with the prescribed procedure to insure an orderly
and speedy administration of justice.20
Moreover, contrary to Alamayris assertion, the
Court of Appeals did not deny her Motion to
Schedule Hearing to Mark Exhibits in Evidence
merely for being late. In its Resolution, dated 19
December 2001, the Court of Appeals also denied
the said motion on the following grounds:
While it is now alleged, for the first time,
that the [herein respondents Pabale
siblings] participated in the guardianship
proceedings considering that the Jose
Pabale mentioned therein is their late
father, [herein petitioner Alamayri]
submitting herein documentary evidence
to prove their filiation, even though
admitted in evidence at this late stage,
cannot bind [the Pabale siblings] as verily,
notice to their father is not notice to them
there being no allegation to the effect that
he represented them before the Calamba
Court.21
As the appellate court reasoned, even if the
evidence Alamayri wanted to submit do prove
that the Jose Pabale who attended the RTC
hearings on 30 October 1987 and 19 November
1987 in SP. PROC. No. 146-86-C was the father of
the Pabale siblings, they would still not confirm
his authority to represent his children in the said
proceedings. Worth stressing is the fact that Jose
Pabale was not at all a party to the Deed of Sale
dated 20 February 1984 over the subject
property, which was executed by Nave in favor of
the Pabale siblings. Without proper authority, Jose
Pabales presence at the hearings in SP. PROC.
No. 146-86-C should not bind his children to the
outcome of said proceedings or affect their right
to the subject property.
Since it was not established that the Pabale
siblings participated in SP. PROC. No. 146-86-C,
then any finding therein should not bind them in
Civil Case No. 675-84-C.
No identity of issues
Neither is there identity of issues between SP.
PROC. No. 146-86-C and Civil Case No. 675-84-C
that may bar the latter, by conclusiveness of
judgment, from ruling on Naves competency in
1984, when she executed the Deed of Sale over
the subject property in favor the Pabale siblings.
In SP. PROC. No. 146-86-C, the main issue was
whether Nave was incompetent at the time of
filing of the petition with the RTC in 1986, thus,
requiring the appointment of a guardian over her
person and estate.
In the cross-claim of Nave and Atty. Gesmundo
against the Pabale siblings in Civil Case No. 675-
84-C, the issue was whether Nave was an
incompetent when she executed a Deed of Sale
of the subject property in favor of the Pabale
siblings on 20 February 1984, hence, rendering
the said sale void.
While both cases involve a determination of
Naves incompetency, it must be established at
two separate times, one in 1984 and the other in
1986. A finding that she was incompetent in 1986
does not automatically mean that she was so in
1984. In Carillo v. Jaojoco,22 the Court ruled that
despite the fact that the seller was declared
mentally incapacitated by the trial court only nine
days after the execution of the contract of sale, it
does not prove that she was so when she
executed the contract. Hence, the significance of
the two-year gap herein cannot be gainsaid since
Naves mental condition in 1986 may vastly differ
from that of 1984 given the intervening period.
Capacity to act is supposed to attach to a person
who has not previously been declared incapable,
and such capacity is presumed to continue so
long as the contrary be not proved; that is, that at
the moment of his acting he was incapable,
crazy, insane, or out of his mind. 23 The burden of
proving incapacity to enter into contractual
relations rests upon the person who alleges it; if
no sufficient proof to this effect is presented,
capacity will be presumed.24
Nave was examined and diagnosed by doctors to
be mentally incapacitated only in 1986, when the
RTC started hearing SP. PROC. No. 146-86-C; and
she was not judicially declared an incompetent
until 22 June 1988 when a Decision in said case
was rendered by the RTC, resulting in the
appointment of Atty. Leonardo C. Paner as her
guardian. Thus, prior to 1986, Nave is still
presumed to be capacitated and competent to
enter into contracts such as the Deed of Sale over
the subject property, which she executed in favor
of the Pabale siblings on 20 February 1984. The
burden of proving otherwise falls upon Alamayri,
which she dismally failed to do, having relied
entirely on the 22 June 1988 Decision of the RTC
in SP. PROC. No. 146-86-C.
WHEREFORE, premises considered, the instant
Petition for Review is hereby DENIED. The
Decision, dated 10 April 2001, of the Court of
Appeals in CA-G.R. CV No. 58133, is hereby
AFFIRMED in toto. Costs against the petitioner
Lolita R. Alamayri.
SO ORDERED

Alamayri capitalizes on the declaration of the RTC G.R. No. 110427 February 24, 1997
in its Decision dated 22 June 1988 in SP. PROC.
No. 146-86-C on Naves condition "having The Incompetent, CARMEN CAIZA,
become severe since the year 1980."25 But there represented by her legal guardian, AMPARO
is no basis for such a declaration. The EVANGELISTA, petitioner,
medical reports extensively quoted in said vs.
Decision, prepared by: (1) Dr. Nona Jean Alviso- COURT OF APPEALS (SPECIAL FIRST
Ramos, dated 14 April 1986,26 and (2) by Dr. DIVISION), PEDRO ESTRADA and his wife,
Eduardo T. Maaba, dated 20 April 1987, 27 both LEONORA ESTRADA, respondents.
stated that upon their examination, Nave was
suffering from "organic brain syndrome secondary
to cerebral arteriosclerosis with psychotic
episodes," which impaired her judgment. There
was nothing in the said medical reports, however,
which may shed light on when Nave began to
suffer from said mental condition. All they said NARVASA, C.J.:
was that it existed at the time Nave was
On November 20, 1989, being then ninety-four
examined in 1986, and again in 1987. Even the
(94) years of age, Carmen Caiza, a spinster, a
RTC judge was only able to observe Nave, which
retired pharmacist, and former professor of the
made him realize that her mind was very
College of Chemistry and Pharmacy of the
impressionable and capable of being
University of the Philippines, was declared
manipulated, on the occasions when Nave visited
incompetent by judgment 1 of the Regional Trial
the court from 1987 to 1988. Hence, for this
Court of Quezon City, Branch 107, 2 in a
Court, the RTC Decision dated 22 June 1988 in SP.
guardianship proceeding instituted by her niece,
PROC. No. 146-86-C may be conclusive as to
Amparo A. Evangelista. 3 She was so adjudged
Naves incompetency from 1986 onwards, but not
because of her advanced age and physical
as to her incompetency in 1984. And other than
infirmities which included cataracts in both eyes
invoking the 22 June 1988 Decision of the RTC in
and senile dementia. Amparo A. Evangelista was
SP. PROC. No. 146-86-C, Alamayri did not bother
appointed legal guardian of her person and
to establish with her own evidence that Nave was
estate.
mentally incapacitated when she executed the 20
February 1984 Deed of Sale over the subject
property in favor of the Pabale siblings, so as to
render the said deed void. Caiza was the owner of a house and lot at No. 61
Tobias St., Quezon City. On September 17, 1990,
her guardian Amparo Evangelista commenced a
suit in the Metropolitan Trial Court (MetroTC) of
All told, there being no identity of parties and
Quezon City (Branch 35) to eject the spouses
issues between SP. PROC. No. 146-86-C and Civil
Pedro and Leonora Estrada from said premises. 4
Case No. 675-84-C, the 22 June 1988 Decision in
The complaint was later amended to identify the
the former on Naves incompetency by the year
incompetent Caiza as plaintiff, suing through her
1986 should not bar, by conclusiveness of
legal guardian, Amparo Evangelista.
judgment, a finding in the latter case that Nave
still had capacity and was competent when she The amended Complaint 5 pertinently alleged that
executed on 20 February 1984 the Deed of Sale plaintiff Caiza was the absolute owner of the
over the subject property in favor of the Pabale property in question, covered by TCT No. 27147;
siblings. Therefore, the Court of Appeals did not that out of kindness, she had allowed the Estrada
commit any error when it upheld the validity of Spouses, their children, grandchildren and sons-
the 20 February 1984 Deed of Sale. in-law to temporarily reside in her house, rent-
free; that Caiza already had urgent need of the
house on account of her advanced age and failing
health, "so funds could be raised to meet her
expenses for support, maintenance and medical
treatment;" that through her guardian, Caiza
had asked the Estradas verbally and in writing to
vacate the house but they had refused to do so;
and that "by the defendants' act of unlawfully
depriving plaintiff of the possession of the house
in question, they . . (were) enriching themselves
at the expense of the incompetent, because,
while they . . (were) saving money by not paying
any rent for the house, the incompetent . . (was)
losing much money as her house could not be
rented by others." Also alleged was that the
complaint was "filed within one (1) year from the
date of of first letter of demand dated February 3,
1990."
In their Answer with Counterclaim, the
defendants declared that they had been living in
Caiza's house since the 1960's; that in
consideration of their faithful service they had
been considered by Caiza as her own family,
and the latter had in fact executed a holographic
will on September 4, 1988 by which she
"bequeathed" to the Estradas the house and lot in
question.
Judgment was rendered by the MetroTC on April
13, 1992 in Caiza's favor, 6 the Estradas being
ordered to vacate the premises and pay Caiza
P5,000.00 by way of attorney's fees.
But on appeal, 8 the decision was reversed by the
Quezon City Regional Trial Court, Branch 96. 9 By
judgment rendered on October 21, 1992, 10 the
RTC held that the "action by which the issue of
defendants' possession should be resolved is
accion publiciana, the obtaining factual and legal
situation . . demanding adjudication by such
plenary action for recovery of possession
cognizable in the first instance by the Regional
Trial Court."
Caiza sought to have the Court of Appeals
reverse the decision of October 21, 1992, but
failed in that attempt. In a decision 11
promulgated on June 2, 1993, the Appellate Court
12
affirmed the RTC's judgment in toto. It ruled
that (a) the proper remedy for Caiza was indeed
an accion publiciana in the RTC, not an accion
interdictal in the MetroTC, since the "defendants
have not been in the subject premises as mere
tenants or occupants by tolerance, they have
been there as a sort of adopted family of Carmen
Caiza," as evidenced by what purports to be the
holographic will of the plaintiff; and (b) while
"said will, unless and until it has passed probate
by the proper court, could not be the basis of
defendants' claim to the property, . . it is
indicative of intent and desire on the part of
Carmen Caiza that defendants are to remain and
are to continue in their occupancy and
possession, so much so that Caiza's supervening
incompetency can not be said to have vested in
her guardian the right or authority to drive the
defendants out." 13
Through her guardian, Caiza came to this Court
praying for reversal of the Appellate Court's
judgment. She contends in the main that the
latter erred in (a) holding that she should have
pursued an accion publiciana, and not an accion
interdictal; and in (b) giving much weight to "a
xerox copy of an alleged holographic will, which is
irrelevant to this case." 14
In the responsive pleading filed by them on this
Court's requirement, 15 the Estradas insist that
the case against them was really not one of
unlawful detainer; they argue that since
possession of the house had not been obtained
by them by any "contract, express or implied," as
contemplated by Section 1, Rule 70 of the Rules
of Court, their occupancy of the premises could
not be deemed one "terminable upon mere
demand (and hence never became unlawful)
within the context of the law." Neither could the
suit against them be deemed one of forcible
entry, they add, because they had been
occupying the property with the prior consent of
the "real owner," Carmen Caiza, which
"occupancy can even ripen into full ownership
once the holographic will of petitioner Carmen
Caiza is admitted to probate." They conclude, on
those postulates, that it is beyond the power of
Caiza's legal guardian to oust them from the
disputed premises.
Carmen Caiza died on March 19, 1994, 16 and
her heirs the aforementioned guardian,
Amparo Evangelista, and Ramon C. Nevado, her
niece and nephew, respectively were by this
Court's leave, substituted for her. 17
Three issues have to be resolved: (a) whether or
not an ejectment action is the appropriate judicial
remedy for recovery of possession of the property
in dispute; (b) assuming desahucio to be proper,
whether or not Evangelista, as Caiza's legal
guardian had authority to bring said action; and
(c) assuming an affirmative answer to both
questions, whether or not Evangelista may
continue to represent Caiza after the latter's
death.
I Evangelista;
It is axiomatic that what determines the nature of
an action as well as which court has jurisdiction
over it, are the allegations of the complaint and
the character of the relief sought. 18 An inquiry
into the averments of the amended complaint in
the Court of origin is thus in order. 19
The amended Complaint alleges: 20
6. That the plaintiff Carmen Caiza,
is the sole and absolute owner of a
house and lot at No. 61 Scout
Tobias, Quezon City, which property
is now the subject of this
complaint;
xxx xxx xxx
9. That the defendants, their
children, grandchildren and sons-in-
law, were allowed to live
temporarily in the house of plaintiff
Carmen Caiza, for free, out of her
kindness;
10. That the plaintiff, through her
legal guardian, has duly notified
the defendants, for them to vacate
the said house, but the two (2)
letters of demand were ignored and
the defendants refused to vacate
the same. . .
11. That the plaintiff, represented
by her legal guardian, Amparo
Evangelista, made another demand
on the defendants for them to
vacate the premises, before
Barangay Captain Angelina A. Diaz
of Barangay Laging Handa, Quezon
City, but after two (2) conferences,
the result was negative and no
settlement was reached. A
photocopy of the Certification to
File Action dated July 4, 1990,
issued by said Barangay Captain is
attached, marked Annex "D" and
made an integral part hereof;
12. That the plaintiff has given the
defendants more than thirty (30)
days to vacate the house, but they
still refused to vacate the premises,
and they are up to this time
residing in the said place;
13. That this complaint is filed
within one (1) year from the date of
first letter of demand dated
February 3, 1990 (Annex "B") sent
by the plaintiff to the defendants,
by her legal guardian Amparo
14. By the defendants' act of
unlawfully depriving the plaintiff of
the possession of the house in
question, they are enriching
themselves at the expense of the
incompetent plaintiff because,
while they are saving money by not
paying any rent for the house, the
plaintiff is losing much money as
her house could not be rented by
others;
15. That the plaintiff's health is
failing and she needs the house
urgently, so that funds could be
raised to meet her expenses for her
support, maintenance and medical
treatment;
16. That because of defendants'
refusal to vacate the house at No.
61 Scout Tobias, Quezon City, the
plaintiff, through her legal
guardian, was compelled to go to
court for justice, and she has to
spend P10,000.00 as attorney's
fees.
Its prayer 21
is quoted below:
WHEREFORE, in the interest of
justice and the rule of law, plaintiff,
Carmen Caiza, represented by her
legal guardian, Amparo
Evangelista, respectfully prays to
this Honorable Court, to render
judgment in favor of plaintiff and
against the defendants as follows:
1. To order the defendants, their
children, grandchildren, sons-in-law
and other persons claiming under
them, to vacate the house and
premises at No. 6 1 Scout Tobias,
Quezon City, so that its possession
can be restored to the plaintiff
Carmen Caiza; and
2. To pay attorney's fees in the
amount of P10,000.00;
3. To pay the costs of the suit.
In essence, the amended complaint states:
1) that the Estradas were
occupying Caiza's house by
tolerance having been "allowed
to live temporarily . . (therein) for
free, out of . . (Caiza's) kindness;"
2) that Caiza needed the house
"urgently" because her "health . .
(was) failing and she . . (needed)
funds . . to meet her expenses for
her support, maintenance and
medical treatment;"
3) that through her general
guardian, Caiza requested the
Estradas several times, orally and
in writing, to give back possession
of the house;
4) that the Estradas refused and
continue to refuse to give back the
house to Caiza, to her continuing
prejudice; and
5) that the action was filed within
one (1) year from the last demand
to vacate.
Undoubtedly, a cause of action for desahucio has
been adequately set out. It is settled that in an
action for unlawful detainer, it suffices to allege
that the defendant is unlawfully withholding
possession from the plaintiff is deemed sufficient,
22
and a complaint for unlawful detainer is
sufficient if it alleges that the withholding of
possession or the refusal to vacate is unlawful
without necessarily employing the terminology of
the law. 23
The Estradas' first proffered defense derives from
a literal construction of Section 1, Rule 70 of the
Rules of Court which inter alia authorizes the
institution of an unlawful detainer suit when "the
possession of any land or building is unlawfully
withheld after the expiration or termination of the
right to hold possession, by virtue of any
contract, express or implied." They contend that
since they did not acquire possession of the
property in question "by virtue of any contract,
express or implied" they having been, to
repeat, "allowed to live temporarily . . (therein)
for free, out of . . (Caiza's) kindness" in no
sense could there be an "expiration or
termination of . . (their) right to hold possession,
by virtue of any contract, express or implied." Nor
would an action for forcible entry lie against
them, since there is no claim that they had
"deprived (Caiza) of the possession of . . (her
property) by force, intimidation, threat, strategy,
or stealth.
The argument is arrant sophistry. Caiza's act of
allowing the Estradas to occupy her house, rent-
free, did not create a permanent and indefeasible
right of possession in the latter's favor. Common
sense, and the most rudimentary sense of
fairness clearly require that that act of liberality
be implicitly, but no less certainly, accompanied
by the necessary burden on the Estradas of
returning the house to Caiza upon her demand.
More than once has this Court adjudged that a
person who occupies the land of another at the
latter's tolerance or permission without any
contract between them is necessarily bound by
an implied promise that he will vacate upon
demand, failing which a summary action for
ejectment is the proper remedy against him. 24
The situation is not much different from that of a
tenant whose lease expires but who continues in
occupancy by tolerance of the owner, in which
case there is deemed to be an unlawful
deprivation or withholding of possession as of the
date of the demand to vacate. 25 In other words,
one whose stay is merely tolerated becomes a
deforciant illegally occupying the land or property
the moment he is required to leave. 26 Thus, in
Asset Privatization Trust vs. Court of Appeals, 27
where a company, having lawfully obtained
possession of a plant upon its undertaking to buy
the same, refused to return it after failing to fulfill
its promise of payment despite demands, this
Court held that "(a)fter demand and its
repudiation, . . (its) continuing possession . .
became illegal and the complaint for unlawful
detainer filed by the
. . (plant's owner) was its proper remedy.
It may not be amiss to point out in this
connection that where there had been more than
one demand to vacate, the one-year period for
filing the complaint for unlawful detainer must be
reckoned from the date of the last demand, 28 the
reason being that the lessor has the option to
waive his right of action based on previous
demands and let the lessee remain meanwhile in
the premises. 29 Now, the complaint filed by
Caiza's guardian alleges that the same was
"filed within one (1) year from the date of the first
letter of demand dated February 3, 1990."
Although this averment is not in accord with law
because there is in fact a second letter of
demand to vacate, dated February 27, 1990, the
mistake is inconsequential, since the complaint
was actually filed on September 17, 1990, well
within one year from the second (last) written
demand to vacate.
The Estradas' possession of the house stemmed
from the owner's express permission. That
permission was subsequently withdrawn by the
owner, as was her right; and it is immaterial that
the withdrawal was made through her judicial
guardian, the latter being indisputably clothed
with authority to do so. Nor is it of any
consequence that Carmen Caiza had executed a
will bequeathing the disputed property to the
Estradas; that circumstance did not give them the
right to stay in the premises after demand to
vacate on the theory that they might in future
become owners thereof, that right of ownership
being at best inchoate, no transfer of ownership
being possible unless and until the will is duly
probated.
Thus, at the time of the institution of the action of
desahucio, the Estradas had no legal right to the
property, whether as possessors by tolerance or
sufferance, or as owners. They could not claim
the right of possession by sufferance; that had
been legally ended. They could not assert any
right of possession flowing from their ownership
of the house; their status as owners is dependent
on the probate of the holographic will by which
the property had allegedly been bequeathed to
them an event which still has to take place; in
other words, prior to the probate of the will, any
assertion of possession by them would be
premature and inefficacious.
In any case, the only issue that could legitimately
be raised under the circumstances was that
involving the Estradas' possession by tolerance,
i.e., possession de facto, not de jure. It is
therefore incorrect to postulate that the proper
remedy for Caiza is not ejectment but accion
publiciana, a plenary action in the RTC or an
action that is one for recovery of the right to
possession de jure.
II
The Estradas insist that the devise of the house
to them by Caiza clearly denotes her intention
that they remain in possession thereof, and
legally incapacitated her judicial guardian,
Amparo Evangelista, from evicting them
therefrom, since their ouster would be
inconsistent with the ward's will.
A will is essentially ambulatory; at any time prior
to the testator's death, it may be changed or
revoked; 30 and until admitted to probate, it has
no effect whatever and no right can be claimed
thereunder, the law being quite explicit: "No will
shall pass either real or personal property unless
it is proved and allowed in accordance with the
Rules of Court" (ART. 838, id.). 31 An owner's
intention to confer title in the future to persons
possessing property by his tolerance, is not
inconsistent with the former's taking back
possession in the meantime for any reason
deemed sufficient. And that in this case there was
sufficient cause for the owner's resumption of
possession is apparent: she needed to generate
income from the house on account of the physical
infirmities afflicting her, arising from her extreme
age.
Amparo Evangelista was appointed by a
competent court the general guardian of both the
person and the estate of her aunt, Carmen
Caiza. Her Letters of Guardianship 32 dated
December 19, 1989 clearly installed her as the
"guardian over the person and properties of the
incompetent CARMEN CANIZA with full authority
to take possession of the property of said
incompetent in any province or provinces in
which it may be situated and to perform all other
acts necessary for the management of her
properties . . " 33 By that appointment, it became
Evangelista's duty to care for her aunt's person,
to attend to her physical and spiritual needs, to
assure her well-being, with right to custody of her
person in preference to relatives and friends. 34 It
also became her right and duty to get possession
of, and exercise control over, Caiza's property,
both real and personal, it being recognized
principle that the ward has no right to possession
or control of his property during her
incompetency. 35 That right to manage the ward's
estate carries with it the right to take possession
thereof and recover it from anyone who retains it,
36
and bring and defend such actions as may be
needful for this purpose. 37
Actually, in bringing the action of desahucio,
Evangelista was merely discharging the duty to
attend to "the comfortable and suitable
maintenance of the ward" explicitly imposed on
her by Section 4, Rule 96 of the Rules of Court,
viz.:
Sec. 4. Estate to be managed
frugally, and proceeds applied to
maintenance of ward. A guardian
must manage the estate of his
ward frugally and without waste,
and apply the income and profits
thereof, so far as maybe necessary,
to the comfortable and suitable
maintenance of the ward and his
family, if there be any; and if such
 income and profits be insufficient
for that purpose, the guardian may
sell or encumber the real estate,
upon being authorized by order to
do so, and apply to such of the
proceeds as may be necessary to
such maintenance.
Finally, it may be pointed out in relation to the
Estradas's defenses in the ejectment action, that
as the law now stands, even when, in forcible
entry and unlawful detainer cases, the defendant
raises the question of ownership in his pleadings
and the question of possession cannot be
resolved without deciding the issue of ownership,
the Metropolitan Trial Courts, Municipal Trial
Courts, and Municipal Circuit Trial Courts
nevertheless have the undoubted competence to
resolve "the issue of ownership . . only to
determine the issue of possession." 38
III
As already stated, Carmen Caiza passed away
during the pendency of this appeal. The Estradas
thereupon moved to dismiss the petition, arguing
that Caiza's death automatically terminated the
guardianship, Amaparo Evangelista lost all
authority as her judicial guardian, and ceased to
have legal personality to represent her in the
present appeal. The motion is without merit.
While it is indeed well-established rule that the
relationship of guardian and ward is necessarily
terminated by the death of either the guardian or
the ward, 39 the rule affords no advantage to the
Estradas. Amparo Evangelista, as niece of
Carmen Caiza, is one of the latter's only two (2)
surviving heirs, the other being Caiza's nephew,
Ramon C. Nevado. On their motion and by
Resolution of this Court 40 of June 20, 1994, they
were in fact substituted as parties in the appeal
at bar in place of the deceased, in accordance
with Section 17, Rule 3 of the Rules of Court, viz.:
41
Sec. 18. Death of a party. After a
party dies and the claim is not
thereby extinguished, the court
shall order, upon proper notice, the
legal representative of the
deceased to appear and be
substituted for the deceased within
a period of thirty (30) days, or
within such time as may be
granted. If the legal representative
fails to appear within said time, the
court may order the opposing party
to procure the appointment of a
legal representative of the
deceased within a time to be
specified by the court, and the
representative shall immediately
appear for and on behalf of the
interest of the deceased. The court
charges involved in procuring such
appointment, if defrayed by the
opposing party, may be recovered
as costs. The heirs of the deceased
may be allowed to be substituted
for the deceased, without requiring
the appointment of an executor or
administrator and the court may
appoint guardian ad litem for the
minor heirs.
To be sure, an ejectment case survives the death
of a party. Caiza's demise did not extinguish the
desahucio suit instituted by her through her
guardian. 42 That action, not being a purely
personal one, survived her death; her heirs have
taken her place and now represent her interests
in the appeal at bar.
WHEREFORE, the petition is GRANTED. The
Decision of the Court of Appeals promulgated on
June 2, 1993 affirming the Regional Trial
Court's judgment and dismissing petitioner's
petition for certiorari is REVERSED and SET
ASIDE, and the Decision dated April 13, 1992 of
the Metropolitan Trial Court of Quezon City,
Branch 35, in Civil Case No. 3410 is REINSTATED
and AFFIRMED. Costs against private
respondents.
SO ORDERED