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#129 Romeca Pepito

Heirs of Late Jesus Fran vs. Hon. Bernardo Salas

GR NO. L-53546

Justice Davide Jr.

Case Doctrine:

The annexing of the original will to the petition is not a jurisdictional requirement is clearly evident
in Sec 1 Rule 76 which allows the filing of a petition for probate by persons named therein, regardless
of whether or not he is in possession of the will, or the same is lost or destroyed.


Remedios M. Vda. de Tiosejo died with neither descendants nor ascendants. She left real and
personal properties wherein she bequeathed to her collateral relatives (brothers, sisters, nephews
and nieces) all her properties, and designated Rosario Tan or, upon the latter's death, Jesus Fran, as
executor. Jesus Fran filed a petition for the probate of Remedios' last will and testament. The petition
alleged that Rosario Tan is not physically well. The court appointed petitioner Jesus Fran as special

Private respondents, filed a manifestation alleging that they needed time to study the petition.
However, private respondents did not file any opposition. Instead, they filed a "Withdrawal of
Opposition to the Allowance of Probate (sic) of the Will" wherein they expressly manifested that they
have no objection to the will.

The petition thus became uncontested.

During the initial hearing, petitioner Fran introduced the requisite evidence to establish the
jurisdictional facts. The probate court rendered a decision admitting to probate the will of the
testatrix and appointing petitioner Fran as executor.

Subsequently, a Project of Partition based on the dispositions made in the will and signed by all the
devisees and legatees was submitted, with the exception of Luis Fran, Remedios C. Mejia and
respondent Concepcion M. Espina. Said legatees and devisees submitted certifications wherein they
admit receipt of a copy of the Project of Partition together with the notice of hearing. After the
hearing on the Project of Partition, the court ordered the administrator to deliver to the said parties
their respective shares and decreeing the proceedings closed.

Thereafter, the aforesaid Branch VIII of the Court of First Instance of Cebu was converted to a Juvenile
and Domestic Relations Court. Branch XVII (Davao City) of the Court of First Instance of Cebu,
presided over by herein respondent Judge, was transferred to Cebu City and renumbered as Branch
VIII. (so napalitan yung judge na humahawak ng case then yung private respondents biglang naisipang
kontrahin yung unang decision ng courtoppose to the allowance of the will)

Private respondents filed with the new Branch VIII an Omnibus Motion for Reconsideration of the
probate judgment and asked the court to declare the proceedings still open and admit their
opposition to the allowance of the will.

Notwithstanding petitioners' objections, respondent Judge issued an Order setting for hearing the
said Omnibus Motion for Reconsideration. Petitioners filed a Motion to Dismiss the Omnibus and to
Reconsider the 26 February 1980 Order setting it for hearing on 17 April 1980, but the respondent
Judge denied it for lack of merit

Petitioners filed a Supplemental Petition asking this Court to restrain respondent Judge from
reopening the case.

Respondent Judge issued the impugned order declaring the testamentary dispositions of the will void,
and converting the same into an intestate proceeding.


Whether or not it is necessary that the original copy of the will be presented for the court to acquire
jurisdiction for the allowance of the will.


(a) private respondents are in estoppel to question the will because they filed their Withdrawal Of
Opposition To The Allowance of Will which states that they have no objection to its allowance;

(b) private respondent Maria M. Gandiongco signed the Project of Partition and private respondent
Concepcion M. Espina submitted a certification stating therein that she received the notice of
hearing therefor and has no objection to its approval;

(c) the probate judgment and the order approving the Project of Partition had long become final
and had in fact been executed. Private respondents had long lost their right to appeal.


(a) they were not furnished with a copy of the will;

(b) they were not notified of any resolution or order closing the proceedings;

(c) They were deprived of the opportunity to examine the will as petitioner Jesus Fran did not attach it
to the petition; what was attached was only the English translation of the will.


Respondent Judge committed grave abuse of discretion amounting to lack of jurisdiction when he
granted the Omnibus Motion for Reconsideration and ordered the conversion of the testate
proceedings into one of intestacy.

private respondents filed on the day of the initial hearing of the petition their "Withdrawal of
Opposition To Allowance of Probate (sic) Will" wherein they unequivocally state that they have no
objection to the allowance of the will.

In testate proceedings, a decision logically precedes the project of partition, which is normally an
implementation of the will and is among the last operative acts to terminate the proceedings.

private respondents claim that the trial court never acquired jurisdiction over the petition because
only the English translation of the will and not a copy of the same was attached to the petition;

the Court already ruled that it is not necessary that the original of the will be attached to the
petition. "The original of said document [the will] must be presented or sufficient reasons given to
justify the nonpresentation of said original and the acceptance of the copy or duplicate thereof."

The annexing of the original will to the petition is not a jurisdictional requirement is clearly evident in
Section 1, Rule 76 of the Rules of Court which allows the filing of a petition for probate by the person
named therein regardless of whether or not he is in possession of the will, or the same is lost or

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

private respondents had lost their right to file a petition for relief from judgment, it appearing that
their omnibus motion for reconsideration was filed exactly six (6) years, ten (10) months and
twenty-two (22) days after the rendition of the decision, and six (6) years, one (1) month and thirteen
(13) days after the court issued the order approving the Project of Partition, to which they voluntarily
expressed their conformity through their respective certifications, and closing the testate

private respondents' contention that the order approving the Project of Partition and closing the
proceedings is null and void because the Project of Partition did not contain a notice of hearing and
that they were not notified of the hearing thereon. In truth, in her own certification 55 dated 5
September 1973, private respondent Concepcion M. Espina admitted that she "received a copy of the
Project of Partition and the Notice of Hearing in the above-entitled proceeding, and that she has no
objection to the approval of the said Project of Partition."

the instant petition and supplemental petitions are GRANTED.




Antonio Ventenilla died on the 13th of March, 1909, leaving a will which, after due notice,
was duly admitted to probate on the 14th of April, 1909, and the said Doa Alejandra Austria was
appointed administratrix of his estate, by order of the Honorable James C. Jenkins, judge of the Court
of First Instance of the Province of Pangasinan.

On the 30th day of July, 1909, the said administratrix with will annexed, presented a report
of her administration of said estate, petitioned the court, after due notification to all of the parties
interested, to distribute the estate in accordance with the will and the law. So far as the record show
no action was taken upon said petition until the 5th day of October, 1910.

On the 6th day of August, 1910, the said opponents, through their attorney, A. B. Ritchey, presented
the following petition, asking that the will of the said Antonio Ventenilla be annulled on the following
1. That before his death the deceased always intended to distribute his property in equal
shares among his wife and his brothers and their representatives;

2. That the deceased could not read or write Spanish and that therefore on the date of
executing said instrument he did not know what the same contained except through

3. That the said instrument was not translated to the testator, or if so, it was not correctly
translated, and that said deceased never intended to execute it as his last will and testament
in the manner and form of the instrument herein submitted, and that at the time of his
death he thought that the instrument executed clearly ordered the distribution in the
manner aforesaid;

4. That by reason of the fraud and deceit practiced upon the testator and a lack of a good
translation, the herein submitted is null and void;

5. That the tenth paragraph of said instrument is null because of its obscurity and ambiguity
and is in plain contradiction to the proceeding paragraphs, and that the other paragraph
have more force and weight;

It will be noted that the opponents made no effort to question the legality of he will, even though
legal notice had been given until more than fifteen months had expired from the date on which the
lower court duly admitted said will to probate.

Issue: Whether or not the will, after being probated, may be annulled.


Section 625 of the Code of Procedure in Civil Actions provides that: No will shall either the real or
personal estate unless it is proved and allowed in the Court of First Instance or by appeal to the
Supreme Court; and the allowance by the court of a will of real and personal estate shall be
conclusive as to its due execution.

This court has held, under the provision of this section, that "the probate of a will is conclusive as to
its due execution, and as to the testamentary capacity of the testator."

When no appeal is taken from an order probating a will, the heirs can not, in subsequent litigation in
the same proceedings, raise question relating to its due execution.

The opponents not having appealed from the order admitting the will to probate, as they had a right
to do, that order is final and conclusive, unless some fraud sufficient to vitiate the proceedings is
discovered. In the present case, however, the alleged fraud, in view of all the facts contained in the
record, in our opinion, is not sufficiently proved to justify a reopening of the probate of the will in
question, especially in view of the long delay of the parties interested.

The said section 625 was evidently taken from section 2356 of the Statutes of Vermont. In most of the
states of the United States certain number of months is given to the interested parties to appeal from
an order of the court admitting to probate a will.

Under said section 625 and the decisions of the court, it seems that the only time given the parties
who are displeased with the order admitting a will to probate, is the time given for appeals in
ordinary actions. Without deciding whether or not the order admitting a will to probate can be open
for fraud, after the time allowed for an appeal has expired, we hold in the present case simply that
the showing as to fraud is not sufficient to justify a reopening of the proceedings. The judgment of the
lower court is, therefore, hereby affirmed with costs.